House of Lords
Horizon
(1 year, 9 months ago)
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Baroness McIntosh of Pickering
To ask His Majesty’s Government what estimate they have made of the loss of funding to the United Kingdom since 2020 as a result of leaving the Horizon programme; and whether they have fully compensated for that loss.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the Government’s preference remains to associate to Horizon, and we continue to do everything we can to secure this. As of 31 January, the Government’s Horizon Europe guarantee, administered via UKRI, had issued grants worth up to £750 million to 1,548 successful applicants. We announced an additional £484 million of funding in November to support the UK’s R&D sector and bolster talent and investment in R&D infrastructure while we continue to pursue association.
Baroness McIntosh of Pickering (Con)
I thank my noble friend for that very full Answer. Will he join me in congratulating the success that the Horizon programme has brought not just to universities such as Oxford and Cambridge but to universities such as the University of York? Will he give the House an assurance today that the future of the UK science and university research community will be assured, given that there are no obvious international comparators and that countries such as New Zealand are applying to join the Horizon fund?
Lord Parkinson of Whitley Bay (Con)
In her final remarks, my noble friend made an important point: many countries that have not been members of the European Union, unlike us, are able to be associate members of Horizon, and we continue to hope to be so. We in this country benefit from many world-leading universities, including the University of York, which she mentioned. However, there are other countries and partnerships to forge, which is why, in December, the Government announced the new international science partnerships fund, which is designed to collaborate with the best R&I partners around the world—for example, in the already announced partnership with Japan.
Baroness Brinton (LD)
Earlier this month, it was announced that Oxford and Cambridge universities, once given more than £130 million a year in total by European research programmes, now get £1 million annually between them, since the UK left the EU. All of our universities and research bodies are similarly affected. The Minister referred to £484 million of research funding announced in November, but, yesterday, the publication of supply estimates showed that the Government have now withdrawn a massive £1.6 billion of unspent R&D funding, a good portion of which was the UK Horizon replacement. Will the Government reinstate this funding, not just the £484 million, as a matter of urgency?
Lord Parkinson of Whitley Bay (Con)
The noble Baroness’s point does not reflect a change in the Government’s position, which remains that we would like to associate to Horizon as agreed with the European Union in the trade and co-operation agreement—we are disappointed that it has not acted on this. The surrender of the capital budget that she mentioned reflects the fact that, if we were to associate in this financial year, which obviously ends soon, any cash payment would take place next year. But that funding remains available to ensure that people who would qualify for Horizon do not suffer a shortfall.
Lord Blunkett (Lab)
Could we get some qualification from the Minister on that precise issue? Is he saying that, next year, the £1.6 billion that has been clawed back will be made available, in addition to the resources that would otherwise be in place? If he is not, this is sophistry of the worst order.
Lord Parkinson of Whitley Bay (Con)
The Horizon Europe guarantee programme, to which I referred, is demand driven; it is determined by the number of successful applications. It is an interim measure while we pursue association to Horizon, which was agreed in the trade and co-operation agreement with the European Union. If the EU follows through on the promises it made, the support can continue in that way.
Lord Cormack (Con)
My Lords, I thank my noble friend for all he has said, and I wish him every success. But is it not important that we also wish success to the Prime Minister in his negotiations on the Irish protocol, which would transform relations between this country and the EU? Would it not be a very good idea if those who landed us in this mess kept quiet?
Lord Parkinson of Whitley Bay (Con)
Of course I wish my right honourable friend the Prime Minister the best of luck in his discussions with the European Union, but it is wrong to link this issue to the Northern Ireland protocol, as the EU has done. These were separate agreements. The trade and co-operation agreement undertook to allow the UK to participate in Horizon, just as a number of non-EU states do. We hope that the EU will follow through on its promises, notwithstanding discussions on the protocol.
Lord Hannay of Chiswick (CB)
I welcome what the Minister said about the Government’s intention being still to join as an associate of Horizon. Would he agree that, since that is plan A, it is presumably a bit better than plan B? Would he also recognise that, highly desirable though the links with non-EU countries are, they are not affected one way or the other by Horizon and our membership of it?
Lord Parkinson of Whitley Bay (Con)
As I say, we have been pushing the EU to implement our association to EU programmes as agreed—that is plan A. We remain open and committed to collaboration with the EU but are ready to implement a comprehensive and world-leading alternative programme if needed, and that is under consideration.
The Lord Bishop of Leeds
My Lords, I am hearing what has been said about the EU not following through on its commitments, but our own Government have not done so. Look at the Erasmus programme. Promises were made that, in the interim, facilities would be put in place and there would be no deficit, but there clearly has been. Can the Minister tell us when the scientific community and academia will have some certainty, which is what they need?
Lord Parkinson of Whitley Bay (Con)
The right reverend Prelate’s final question is a matter for the EU. We stand ready to follow through on what was agreed in the trade and co-operation agreement and hope that the EU will do so swiftly. Erasmus is another good example of an EU programme that is open to other countries which, unlike us, were not for four decades members of the EU. Regrettably, the EU takes a different view on that. However, our Turing programme replaces it and makes sure that there are opportunities for people studying in the UK to benefit from international collaboration.
Lord Bassam of Brighton (Lab)
My Lords, it is always best to know when you are beat on this. My view—and I am sure the Minister will not agree—is that the original negotiation on this programme was badly handled and we have been left with a poor deal. There have been a number of calls, including from health leaders, for the scheme introduced by government to grant applications with final submission deadlines on or before 31 March to be extended as a backup while we seek the important association that we are all agreed on. Will the Minister ensure that NHS patients can continue to benefit from the Horizon programme’s collaborative research? The last time I raised this issue, I asked the Minister then to confirm whether 31 March is the final cut-off date and whether the Government will bring forward a plan B to ensure that we have the right levels of international co-operation in research available. I did not get an answer then and the House deserves an answer today.
Lord Parkinson of Whitley Bay (Con)
UK researchers and businesses will receive at least as much money as they would have done from Horizon over this spending review period. The Government are delivering their commitment to invest £20 billion a year in R&D by the end of the period; that is a rise of 30% in cash terms over three years, and the largest-ever increase in funding over a spending review period. We continue to pursue our associate membership of Horizon, as agreed with the EU in the trade and co-operation agreement, but it takes two to tango—it is up to the EU to follow through on that agreement as well.
Baroness Randerson (LD)
The shared prosperity fund was billed as a replacement for EU structural funds, much of which was spent on university research partnerships across the UK. However, the shared prosperity fund is distributed by local authorities, which have no mechanism or incentive to give money to university research. What are the Government planning to do to fill the gaping hole that now exists on research funding in the UK?
Lord Parkinson of Whitley Bay (Con)
The noble Baroness underlines the fact that decisions about that spending are now taken in this country rather than in Brussels, which is an advantage, following our departure from the European Union. We are able to invest that throughout the United Kingdom in things which are decided by the elected Government and by elected local authorities, who of course pay heed to our world-leading universities and research base.
Lord Hannan of Kingsclere (Con)
My Lords, of the world’s top 20 universities, four are in the United Kingdom, most of the others are in other anglosphere countries, and none is in the European Union. Instead of approaching this question as supplicants, should we not be raising our eyes to the greater opportunities that lie over more distant horizons?
Lord Parkinson of Whitley Bay (Con)
I agree with my noble friend. We want to continue to collaborate with the European Union. We have four of the world’s top 20 universities in this country—the EU has none in the top 20 but has many institutions with which we would welcome partnership. We are also pursuing other opportunities, such as with Japan, as I mentioned, and there are many countries—the United States, Canada, South Korea, India and many more—where we can and should be seizing opportunities, and the Government are determined to do so.
Physiotherapy: Rehabilitation Services
(1 year, 9 months ago)
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Baroness Wheeler
To ask His Majesty’s Government what assessment they have made of the survey by the Chartered Society of Physiotherapy, published on 1 December 2022, which found that there was a shortage of rehabilitation services, that rehabilitation spaces had not been returned to use for physiotherapy care following the COVID-19 pandemic, and that stroke survivors were being “imprisoned at home with a bed and commode” while waiting for care.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
We welcome the Chartered Society of Physiotherapy survey and the valuable insights it gives us regarding rehabilitation services. Integrated care systems are responsible for commissioning appropriate services for their local populations. Decisions on the use of physical estates are rightly for local organisations. Rehabilitation and physiotherapy are critical to many patients’ care and recovery. For stroke survivors, the NHS aims to deliver personalised, needs-based, goal-oriented rehabilitation to every stroke survivor in their home environment.
Baroness Wheeler (Lab)
My Lords, the CSP survey paints a dismal picture of the state of rehabilitation services: overstretched and underresourced prior to the pandemic and still struggling to re-establish physio rehab services that had their staff, space and facilities diverted to deal with the crisis and with chronic staff shortages. The recent stroke audit showed that only 10% of the UK’s stroke survivors were able to access the recommended amount of rehabilitation they need. What actions are the Government taking to address this unmet demand for the vital services that will help prevent patients deteriorating and becoming more frail and vulnerable?
Lord Markham (Con)
I thank the noble Baroness for bringing this to our attention; again, I believe that the advantage of these Questions is that they shine the spotlight on particular areas. As the survey pointed out, there are a lot of places which, for very understandable reasons, were swapped over to Covid uses during the pandemic and which now need to be brought back into physio use. That was one of the main recommendations from the society, and we will now write to all the NHS chief executives on the back of that. As the House will be aware, I am doing some work anyway to make more space available as part of the capital programme, so this is very much on my list to make sure that we expand that space and provision.
Lord Addington (LD)
My Lords, does the Minister agree that physiotherapists do very little of their work in the actual appointment, and that it is the supervised exercise patterns they give patients afterwards that are probably the most important for all forms of rehabilitative structure? Bearing that in mind, what is the Department of Health doing to make sure that local government has facilities such as swimming pools and gyms that remain open under the financial squeeze?
Lord Markham (Con)
I agree with the noble Lord’s point; our estimate is that over half of all physiotherapy takes place outside the hospital environment. Clearly, all sorts of settings, including swimming pools and gyms, are vital for that. The work we have done with the Energy Bill and the caps has been a vital help to those leisure centres, and, thankfully, we are now starting to see bills come done and so these places are on a better financial footing.
Lord Patel (CB)
My Lords, I was previously a trustee of the Stroke Association and the chair of Chest Heart & Stroke Scotland. Every five minutes, a person suffers a stroke. Their outcome depends on two crucial factors: first, the so-called golden hour during which they should receive treatment—if they do not, their outcome is poor—and, secondly, the rehabilitation they get over the next three to six months, including training on speech, mobility and dealing with daily life. Sending these patients to care homes or their own homes without that kind of support decreases their outcomes considerably. Currently, 10% of these patients end up in nursing homes for ever; if these services are not available, that number rises to 30% to 40%. So, despite the positive response from the Minister, there is a degree of urgency for integrated care boards to address the issue of rehabilitation for stroke patients.
Lord Markham (Con)
Absolutely. That is why, as part of my research, I was pleased to read up on the national integrated community stroke service, which is designed to give personalised stroke rehabilitation in every person’s home. Its work is vital in achieving this. The House has heard me talk many times about the 13,000 beds that are blocked in our hospitals, and a lot of the way to free them is by having rehabilitation and getting people back into their home environment. I absolutely agree on the importance of this issue, and that is why noble Lords will see it as an important part of the workforce plan.
Baroness Manzoor (Con)
My Lords, I welcome the Answer my noble friend the Minister gave, but I will give him a real-life example, and declare my interest in doing so: somebody had two strokes, then had a third while waiting over an hour for an ambulance to arrive, has had no physiotherapy rehabilitation at home, and is still waiting a year on for that. This is a real example of people on the ground. Does the Minister agree that we must connect our policies with very clear outcomes?
Lord Markham (Con)
Totally. I am sorry to hear that case, and I think that we would all agree that that is not the sort of service we would want to see. As I said, we have put increases in staff in place—there have been 3,300 extra staff since 2017—but, clearly, we need to do more. That is why I was very pleased to read that this area is an important part of the workforce plan, which noble Lords will be happy to hear we are now seeing drafts of.
Baroness Pitkeathley (Lab)
My Lords, if stroke survivors are imprisoned at home with a bed and a commode, as my noble friend’s Question suggests, does the Minister agree that their unpaid carers are similarly imprisoned? Is the lack of rehabilitation services part of the reason why the numbers of people giving more than 50 hours a week unpaid care is increasing rapidly, as the latest census figures suggest?
Lord Markham (Con)
As I said, physio is key to rehabilitation, whether for strokes, as we have discussed, or for any one of the number of reasons that people are in hospital and trying to come out. As I mentioned, we have seen increases: there are about 7% more people now in training each year, and that figure increases each year. We now have about 50,000 physios in the public and private sectors who are providing those types of services. Clearly, there are examples where we need to do more, but we are also making progress.
Baroness Finlay of Llandaff (CB)
My Lords, I declare my interest as the president of the Chartered Society of Physiotherapy. Do the Government recognise that almost three-quarters of physiotherapists feel that they cannot do their job properly now, and that, as well as a workforce plan, there needs to be a workplace plan for adequate rehabilitation that goes way beyond cancer and stroke services? All orthopaedic operations, and many other interventions, will not be successful without adequate, immediate physiotherapy in the post-op period, so, by failing to provide physiotherapy, we are stacking up problems for the future with long-term physical dependency and not maximising the benefit of interventions provided early.
Lord Markham (Con)
I start by wishing the noble Baroness a happy birthday. I was pleased to read the three recommendations from the Chartered Society of Physiotherapy: return the rehab space to use; include physios in the long-term workforce plan; and give staff and space to the physio service. As I have said in my earlier responses, we are working on all three: we are working with the NHS trusts to return the rehabilitation space; we are putting physiotherapy in a very important part of the workforce plan; and we are providing the services. So we are making a lot of progress, but I welcome the involvement of the Chartered Society of Physiotherapy in that.
Lord Allan of Hallam (LD)
My Lords, it is pleasing to hear that physiotherapists are included in the proposed and long-awaited workforce strategies; there is clearly a shortage in this area. Can the Minister comment on today’s press reports that, while his department is persuaded that there needs to be a dramatic increase in training places across the medical professions, his friends in the Treasury are declining to support that essential expansion?
Lord Markham (Con)
As we are all aware, the Chancellor was very keen to kick this off in the first place. We have been participating in this by working very closely with the Treasury, and I am heartened by the work we are seeing on it all. There are some early reports, and, while they do not yet know the full picture, I am looking forward to being able to talk to the whole House about it in the not-too-distant future.
GP Appointments
(1 year, 9 months ago)
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Baroness Merron
To ask His Majesty’s Government what assessment they have made of (1) the impact that the logistical difficulties of getting a GP appointment has on patient outcomes, and (2) the extent to which the needs and choice of individual patients are being met in making healthcare appointments.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
We recognise that some people have struggled to access timely care from their general practice. We are taking action to expand general practice times to increase the availability of appointments, upgrade practice telephone systems, and publish data about how practices are performing so that patients can make informed choices when registering and commissioners can help the service to improve. In 2022, nine out 10 patients felt that their needs were met at their last general practice appointment.
Baroness Merron (Lab)
My Lords, the latest GP Patient Survey shows that more than one in four of those needing an appointment actually avoid making one because it is just too difficult. So does the Minister accept that practices such as being made to ring at 8 am, long phone queues, waiting hours for a call back and no online booking, all stack up more serious problems for the patient and the National Health Service? What are the Government doing to tackle these very basic practices, so that people can get to their GP in a way that suits them?
Lord Markham (Con)
Absolutely. One of the things I am very proud to be leading on the NHS side is our whole digital way of addressing access to the health service. This will be fundamental to how people make their hospital appointments and take control of their own health, so it will be the main thing that will help with the 8 am appointments, alongside the increased telephony services and everything else. Just as every walk of life is coming down to being able, at your fingertips, to make appointments and bookings and get your own records, this will also be the case with GP surgeries and I think it will fundamentally change the way that we address our whole health.
Baroness Jolly (LD)
My Lords, part of the problem is where there is no mobile phone signal. People who live or who have homes in Cornwall will identify with that. Does the Minister have any idea what proportion of patients find accessing their GP difficult? What advice has been given to practitioners on resolving the issue? In rural areas such as Cornwall and Northumberland, there are poor bus services, if any. Getting home can mean a really long wait—sometimes half a day if there are only two buses a day. What advice would the Minister give to the GP and to the patient?
Lord Markham (Con)
First, my understanding is that the vast majority of homes in Cornwall have broadband, to which your mobile phone will of course connect. That is where people will be making appointments from. They can use digital to do that. Secondly, we are rapidly increasing the number of doctors’ appointments. We made a pledge to increase the number of appointments by 50 million. To date, we have increased them by 36 million—11% up since 2019. So we are making more appointments available. Do we want to do more? Absolutely. Are we going to publish a primary care plan shortly to show how we will address those additional needs? Yes.
Lord Kakkar (CB)
My Lords, I draw attention to my registered interests. Deprived communities often have the most acute shortages of general practitioners, yet it is among those populations that there is the greatest burden of chronic comorbidity that requires integrated care, with a particular focus on communities where outcomes are the poorest and the healthy life years are the shortest. What do His Majesty’s Government propose to do about addressing the specific issue of GP shortages in deprived communities?
Lord Markham (Con)
As mentioned, we are increasing the number of doctors. We have 2,000 more versus 2019. The House will be pleased to know that that is a key part of the workforce plan for recruiting and retaining more doctors. As to comorbidities and deprived areas, clearly that is the role of the integrated care boards. They are set up very much to understand the needs of their areas and to make sure that they are looked after properly. In a lot of cases that means investing in primary care. We all know that a lot of the reason why we have a lot of people in A&E is that they cannot get GP-type services, so getting upstream of that issue and investing in primary care is the direction in which we need to go.
Lord Sandhurst (Con)
My Lords, it is often forgotten that general practitioners, unlike salaried NHS doctors, are self-employed contractors under contract to provide services. What plans, if any, do the Government have to review the existing GP contract to ensure that new terms are imposed to require better delivery of services by general practitioners?
Lord Markham (Con)
My understanding is that the new GP contract is part of live conversations with the BMA that we are about to get into—I think it is over the summer that those negotiations will start to take place. Within all of that, we will be looking at all those sorts of things in terms of how we want to see the GP service evolve. At the same time, we will be talking openly to the BMA about what it wants for its doctors, so that we get an outcome that works well for both sides.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, has the Minister seen the report produced today by the Auditor-General for Scotland? It is devastating about every aspect of the NHS in Scotland, including access to GPs. How much of this is because of underfunding by the UK Tory Government and how much because of the devastating administration of the Scottish Government?
Lord Markham (Con)
Are you going to dare me?
Sorry, I think a diplomatic response is probably wise at this stage. I note that, under the Barnett formula, per person funding for the NHS is Scotland is higher than it is in England. So there is significant funding in place. How well it is administered north of the border is probably a matter for the Scottish Government.
Lord Bellingham (Con)
My Lords, is it not the case that many European countries charge patients who fail to turn up for appointments without due cause? Is this something we are going to look at in this country?
Lord Markham (Con)
I am clearly aware of that. At the same time, I am very aware that we want to make sure that people are able to see a doctor when they need to and are not deterred from that. So we would have to tread very carefully and it is definitely not in our plans at the moment.
Baroness Bull (CB)
My Lords, given that a dual system of online and in-person GP interaction is inevitably the future and that virtual appointments are clinically appropriate in some circumstances, what are the Government doing to increase public confidence in virtual interactions with their GP? How will they ensure that all triage systems do not disadvantage those groups who are less likely to vocalise their preference or to advocate for the urgency of their own needs?
Lord Markham (Con)
Absolutely. One of the key benefits of the digital approach is the triage system. We all know that a lot of people who call at 8 am for an appointment could probably be well served by a pharmacy, a physio service or nursing. So proper triage through a digital-type system is a big step forward. It will end up with them being able to make an appointment with the pharmacy, physio—or the GP in this case. It will also free up resources so that those people who are not able to access digital services are able to get through at 8 am and speak to a person. So I really believe there is a win-win for both sides and personally I am very excited to take this through the House later in the year and see all the services that will be launched.
Lord Allan of Hallam (LD)
My Lords, following on from the Minister’s previous answer, what steps are the Government taking to develop the profession of care navigator? They are skilled staff who can make sure that people are directed to the right resource, whether a GP, nurse or pharmacist. Some people can use digital, but others need a personal contact for that direction process.
Lord Markham (Con)
Absolutely. I know that a lot of the best trusts that I have seen and visited have that right at their front door. It applies to A&E as well. One of the first comments I made when I joined the department was about expanding pharmacy services. That is brilliant and is part of the increase we are seeing but, if we are not telling people when they should go and under what circumstances, how is this going to help? So, yes, there will be both digital and analogue navigation.
Lord Wigley (PC)
My Lords, the Minister referred to the generous provision of finance to Scotland through the Barnett formula. In that case, does he accept the underfunding of Wales through that formula? This has been recognised by a committee of this House. Does he therefore recognise that the pressures on the health service in Wales faced by the Government in Cardiff are a direct consequence of this underfunding?
Lord Markham (Con)
Again, my understanding is that Wales receives more health funding per person under the Barnett formula than England. I am pretty sure I am right on that—I will confirm if I am wrong, but I am pretty sure I am correct. So both the Welsh and Scottish Governments have more funding than England. Do they get better outcomes? Well, I would rather be living in England, let me put it that way.
Violence Against Women and Girls: Stalking
(1 year, 9 months ago)
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Baroness Brinton
To ask His Majesty’s Government, further to the Written Statement by Lord Sharpe of Epsom on 20 February (HLWS554), whether their package of measures to tackle violence against women and girls includes provisions to address perpetrators of serious and repeated stalking.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the announcements made on Monday do cover stalking. We have added violence against women and girls to the strategic policing requirement, meaning that it is set out as a national threat for forces to respond to. Tackling stalking is included in this. Stalking is already one of the offences specified in multi-agency public protection arrangements. This week we announced that the offence of controlling or coercive behaviour will be added alongside it.
Baroness Brinton (LD)
I thank the Minister for his reply. Despite the drastic increase in stalking cases in recent years, only 1% result in a court conviction, and this does not deter the most serious stalkers. Claire Waxman, the victims’ commissioner for London, has been stalked for 19 years by an obsessive and terrifying stalker who has been in court six times for breaching a lifetime ban on contacting her. He was given a 16-month sentence in November.
The problems are with non-domestic stalking in particular. I appreciate the point the Minister made about stalking being included, but the tenor of the Statement referred to domestic abuse only. Can he clearly confirm that non-domestic stalking is also included in all the provisions of Monday’s Statement?
Lord Sharpe of Epsom (Con)
My Lords, first, I commend the noble Baroness for her extensive work on this over many years. As I said in my original Answer, we do not need to add stalking because it is already there. Section 4A of the Protection from Harassment Act 1997, on stalking involving fear of violence or serious alarm or distress, is already in category 2 of the multi-agency public protection arrangements. This means that those sentenced to at least a year for that crime are already subject to active management.
Lord Morrow (DUP)
My Lords, I think it appropriate to bring to the attention of the House another form of violence that was perpetrated in Northern Ireland yesterday evening when an attempt was made to murder an off-duty serving officer in the county town of Tyrone, Omagh. I am sure the House will join me in wishing that police officer a full and speedy recovery; we all trust that he makes just that. I commend the noble Baroness, Lady Brinton, for raising this issue today. Are the Government doing enough to ensure the safety and protection of women, who are very often in isolation in the evenings, going about their daily duties? Surely it is time for a campaign to be stepped up to stop this awful behaviour, which I want to see the Government take a greater drive against. Hopefully, we will live to see the day when it is totally eliminated.
Lord Sharpe of Epsom (Con)
I join the noble Lord in wishing the officer in Northern Ireland a speedy and full recovery; it is an awful situation. It is clear that the Government’s activity regarding violence against women and girls—VAWG—is extensive. A number of other initiatives have been taken on stalking: for example, the Ask for ANI scheme, which is being piloted in jobcentres and so on. This is a codeword scheme developed by the Home Office during Covid-19 to provide a discreet way for victims of domestic abuse to signal that they need emergency help. Significant funding has been committed to this issue, as noble Lords will be aware, and the Online Safety Bill will also include various measures. Work is both ongoing and dynamic.
Baroness Sugg (Con)
My Lords, my noble friend the Minister referred to putting controlling and coercive behaviour on a par with physical violence, meaning that offenders will be closely monitored. This is a welcome proposal but it will need legislation, and this is a busy time. Can my noble friend give any indication of a timeline for this legislation? Women’s groups and campaigners against violence against women and girls are very keen to know the answer.
Lord Sharpe of Epsom (Con)
My noble friend asks a good question. We will be changing the law to ensure that dangerous offenders with a conviction for controlling or coercive behaviour who are sentenced to 12 months or more are automatically eligible to be managed under MAPPA. It will require primary legislation, but I am afraid that I cannot give an exact timeframe for that—I suppose the usual phrase is, when parliamentary time allows.
Baroness Thornton (Lab)
My Lords, what are the Government doing about the continuing downward spiral in charging, prosecutions and convictions for domestic abuse in England and Wales? Police referrals to the CPS are down again this year and are lower than they were before Covid shut down the justice system.
Lord Sharpe of Epsom (Con)
My Lords, I accept that there is some regional variation in, for example, applications for stalking protection orders. Where those variations exist, the Safeguarding Minister is planning to write to the various chief constables whose forces applied for fewer than might have been expected, in order to encourage them always to consider these. Forces such as the Met and Kent have been making excellent use of the new orders, applications for which have risen by 31% in a year. So, as regards stalking, it is a very good story; it needs still to improve, of course, but it is getting better.
The Lord Bishop of Gloucester
My Lords, according to the Office for National Statistics, only 18% of domestic abuse victims report to the police. Can the Minister say whether the Government are taking a whole-system approach to tackling and preventing abuse—through the health system, education and better housing and welfare provision? A whole-system approach is needed.
Lord Sharpe of Epsom (Con)
Yes, I can. For example, a couple of new initiatives were announced on Monday, one of which concerns the digital aspects of this. As I am sure many noble Lords are aware, we are strengthening the domestic violence disclosure scheme—sometimes known as Clare’s law—which enables the police to disclose information to an individual about their partner’s or ex-partner’s previous abusive or violent offending. So my answer is yes: work on this is being strengthened and, as I said in answer to an earlier question, is very much ongoing.
Lord Paddick (LD)
My Lords, when seven of the eight measures in the Home Secretary’s Statement on tackling violence against women and girls are about domestic violence, what message does that send about the Government’s prioritisation of non-domestic stalking?
Lord Sharpe of Epsom (Con)
My Lords, as I have said already, non-domestic stalking is already covered under MAPPA. I would not say that it is not necessary, but it is already there. To a large extent, and to be more specific, it would not have been needed.
Baroness Jones of Moulsecoomb (GP)
My Lords, the problem with this sort of issue has always been that the police are not very good at accepting the word of women who come forward after repeated incidents of harassment or violence. It is very good that a couple of police forces are doing well, but what about the rest of them? What are the Minister and his department going to do to make sure that all police forces take this seriously?
Lord Sharpe of Epsom (Con)
As I alluded to earlier, the Safeguarding Minister is planning to write to all chief constables whose forces applied for fewer orders than might have been expected. The previous Safeguarding Minister also sent similar letters to chief constables, as has been referenced publicly. Clearly, there is no denying that more needs to be done in certain areas. However, as I have said, the Government are also piloting a number of avenues for people to report such offences, including the Ask for ANI scheme I mentioned earlier. Over 5,000 UK pharmacies—both independents and chains—are now enrolled in that scheme. There are a number of avenues through which victims can report this sort of abuse.
Baroness Berridge (Con)
My Lords, given the low rates of referral mentioned by the noble Baroness, Lady Thornton, is there not a need for additional independent resource—perhaps from the CPS or other independent barristers—for forces in special measures to make sure they are processing the claims and passing them on to the CPS?
Lord Sharpe of Epsom (Con)
My noble friend makes a good point and I will of course reflect her concerns back to the department. However, forces under special measures are obviously subject to significant scrutiny. I cannot say for certain because I have not looked into this, but I would imagine that it forms a key part of the scrutiny under which they operate.
Lord Bach (Lab)
My Lords, will the Minister invite the Safeguarding Minister to send the letter she is sending to chief constables to police and crime commissioners as well?
Lord Sharpe of Epsom (Con)
The noble Lord makes a very good suggestion—yes, I will.
Baroness Butler-Sloss (CB)
My Lords, would it be wise to have some publicity about non-domestic stalking? The Minister says that it comes under harassment, but are the police altogether aware of it—and, indeed, the public who suffer?
Lord Sharpe of Epsom (Con)
I would hope that the police are already aware of it. As regards the public, the noble and learned Baroness makes a sensible point; it probably ought to be better known.
Baroness Ritchie of Downpatrick (Lab)
My Lords, as we approach International Women’s Day in a couple of weeks’ time, can the Minister outline what work is being done with the devolved Administrations and regions to counter the stalking of women and young girls, which is prevalent throughout the UK?
Lord Sharpe of Epsom (Con)
The noble Baroness makes a good point. Of course, this does not respect particular geographical boundaries. It is a devolved matter and, as noble Lords know, operational matters are left to the various police forces, but I will certainly make sure that my colleagues in the devolved departments are aware of the noble Baroness’s concerns.
Retained EU Law (Revocation and Reform) Bill
Thursday 23rd February 2023
(1 year, 9 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 View all Retained EU Law (Revocation and Reform) Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (22 Feb 2023)
Baroness Burt of Solihull
Member's explanatory statement
This amendment excludes the Maternity and Parental Leave etc Regulations 1999 from the sunset in Clause 1. These Regulations confer rights to maternity and parental leave.
Baroness Burt of Solihull (LD)
My Lords, I am disappointed that noble Lords are not staying to hear my words of wisdom. I rise to move Amendment 1 standing in my name and I apologise to the House for not being able to attend the Second Reading of the Bill, but I have specific concerns about its impact in relation to my equalities brief.
It has fallen to me to lead on this group of amendments, which are related to employment and all make the same point relating to the Bill. As we know, it will sunset much of EU retained law by 31 December this year, unless an active decision is taken to retain it. That is legislation thoughtfully discussed and thought through over decades gone in a few short months from now, regardless of the consequences and the effect on people in this country. We know that there are thousands of pieces of legislation that could fall under the axe, but not even the Government know exactly how many. We do not know what consequences will be wrought when the legislation that the Government do not even know about, or have not considered, is suddenly not there anymore. Where there is no legislation, there is a recipe for a free-for-all—a race to the bottom where lack of protections in standards and for the workforce will delight cowboy companies, which will be able to undercut their competitors, ignore safety standards, ignore everything in pursuit of profit and put competitors who retain ethical standards out of business.
I am intrigued to know who the Government think they are going to please with this legislation. It is not the business world—apart from the least ethical members, of course. It is not small businesses; a CIPD poll found that only 6% of small businesses saw employment legislation as a barrier to growth. A group of business and employment lawyers we met on Monday laid out a stark picture of Britain post 2023. They said that one thing the business world fears is uncertainty. How will it trade if it does not know what the playing field will look like? They described trying to untangle the complex interrelationships of EU and UK law as “trying to untangle knotweed”. Perhaps most frighteningly, decades of case law will be overturned, so we will have none of the secondary clarifications that we have relied on for many years. We will be making it up as we go along—unless the Minister has any news that he might like to inform the House of today.
Before I completely steal the thunder of everybody else in this group, I will move on to the amendment standing in my name. MAPLE exemplifies the EU-derived employment protection law which is under threat. It is an acronym for maternity and parental leave. It is EU-inspired legislation and is one of the thousands of laws poised to go on the bonfire unless specifically excluded.
Let us take what might happen to parental leave legislation as an example. Parental leave is different from maternity or paternity leave. It entitles parents, after they have been in a job for a year, to be absent for a set period to care for a child. Employers can only postpone it in narrow circumstances when the operation of a business would be “unduly disrupted”. As currently drafted, Clause 12 or 13 of the Bill could be used to change parental leave substantially, with minimum parliamentary scrutiny. It could change the wording, for example, from “unduly disrupted” to simply “disrupted” or even “caused inconvenience”. Clause 15 could give employers the power to refuse leave altogether and, since subsection (2) would not require the affirmative procedure, there would not be a thing that MPs, elected to represent constituents who will be affected, could do about it.
A real-life case under the maternity provisions is the example of Lucy. Lucy was employed by an international law firm as an anti-money laundering manager. She continually exceeded expectations in her performance reviews and had been promoted on several occasions. Lucy took her full entitlement of 52 weeks of maternity leave. Just before she was due to return to work, she was informed that she had been replaced by her maternity cover and was offered an alternative role which she considered to be a demotion. Her employer told her that if she did not accept the new role, they would have no option but to accept her resignation. Lucy was legally entitled to return to her previous role on the same terms and conditions. Her employers’ preference to retain her maternity cover was not enough to refuse to allow her to return to the job after the maternity leave. Lucy was being discriminated against because she was on maternity leave. By asserting her rights under MAPLE, the Employment Rights Act 1996 and unlawful pregnancy and maternity discrimination contrary to the Equality Act 2010, she was able to secure a substantial compensation package and an agreement that her employer would pay all her legal costs.
What might happen to someone like Lucy if they had been treated like this after the sunset date at the end of this year? We simply do not know. All these suppositions would apply only if the Government decided to modify MAPLE. They could of course just let it fall off the edge with all the other protections that would be lost. This is not what business and employers want, and if the Government think that this Bill will win them any support from the business world, they are very much mistaken. I beg to move.
Baroness Crawley (Lab)
My Lords, I have added my name to the amendment in the name of the noble Lord, Lord Fox, and the noble Baroness, Lady Burt of Solihull, and I support the other important amendments in this group tabled by the noble Lord, Lord Fox, and my noble friend Lord Collins of Highbury.
I have checked with the official statistical offices for Great Britain and Northern Ireland, and there are roughly 900,000 conceptions each year. That is some 900,000 women on the verge of motherhood and not necessarily for the first time. I am aware of course that not all will go to full term, but the sheer scale of demand for a serious, advanced, 21st-century maternity and parental rights provision is referenced in such a figure.
What are the Government saying to this vast community of women and parents? “We will abolish the EU rules that underpin your protection and think of something for you all later”—is that it? We should be improving the maternity provision that we already have, not putting an enormous question mark next to it. While statutory maternity pay, amounting to some 47% of the national living wage, is increasing from April 2023, roughly in line with inflation, it is still falling well below what many can realistically live on. New parents often face debt and have to return to work earlier than planned.
The cost of living survey carried out by Maternity Action last year found that 51% of respondents had either relied on credit cards or borrowed money while on maternity leave just to get through. Several campaigning organisations, including the Young Women’s Trust, Gingerbread, Pregnant Then Screwed, Working Families, the Women’s Budget Group, and of course the TUC, all believe that the Bill poses a significant threat to British women’s rights at work, and I share that belief, as do many in this Committee today.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, the Minister is on record as saying:
“While some of these laws will be preserved, of course, many are outdated, some are unduly burdensome, and others are increasingly unsuited to the UK’s economic circumstances.”—[Official Report, 6/2/23; col. 988.]
Can the Minister tell us exactly which of the employment rights listed on the dashboard fall into the category of “outdated”, “burdensome”, or “unsuited to the UK”? Surely these are not health and safety matters such as paid holidays, rest breaks and safe limits on working time; regulations covering asbestos, construction, working at height, gas safety and the control of hazardous substances; or equality provisions such as equal rights for part-timers, parental and maternity leave, and equal pay for work of equal value.
Kwasi Kwarteng, the then Business Secretary, wrote to me last year, when I was TUC general secretary, to promise that no workers’ rights would be worsened as a result of the Bill. So if they are not deemed “burdensome”, why not exempt them from the Bill altogether? Millions of working people depend on these rights week by week. The CBI and IoD oppose the Bill because it will cause huge uncertainty and damage our reputation. The TUC and unions oppose the Bill because it causes huge uncertainty and anxiety for working people; this has real-world effects. Certainly, it would be sensible at least to remove the sunset date of 31 December 2023, which denies proper parliamentary scrutiny and accountability.
I have one other point: the RPC gave the Government’s impact assessment for the Bill a red rating—not fit for purpose. The strikes Bill impact assessment was also judged not fit for purpose and the Minister undertook to look at it again and to address its red-rated inadequacies. Will the Minister make that commitment for this Bill too? In particular, the impact assessment for this Bill suggested that there would be no negative impact on trade and investment, but no specific consideration was given to the EU–UK Trade and Cooperation Agreement level playing field clauses and the sanctions that breaches would attract, or indeed commitments that are enshrined in the Northern Ireland protocol. Can we see not the legal advice, which we understand that the Minister will not share, but the commentary, the analysis, and the assessment of that?
Baroness Thornton (Lab)
My Lords, I apologise for not having been involved in the Second Reading debate on this but I think it is worth noting that in the last couple of days the EHRC has issued a briefing note about its concerns about the Bill, particularly these amendments. I am here partly to read into the record some of the concerns that our Equality and Human Rights Commission has about the things that are contained in the Bill, including:
“The Bill covers legislation on limits on working time, the right to paid holiday, rights for temporary and agency workers, and parental leave. These are important legal protections for all UK workers which have specific impacts for people with certain protected characteristics under the Equality Act, such as sex and pregnancy and maternity”,
as my noble friends have already outlined. The EHRC also says:
“Any negative impacts on people sharing protected characteristics must be identified and mitigated by Government”
and that it is
“concerned at the potential impact of the Bill on workers with the protected characteristics of sex and pregnancy and maternity. This is because the workers’ rights at risk, such as maternity and equal pay, and parental leave, disproportionately affect women”,
as the Minister will be aware. It continues:
“There may also be negative economic impacts if the ability of women to participate in the labour market is eroded.”
The EHRC goes on to talk about the “legal uncertainty” that this will create within our labour market and our equalities field. So my question to the Minister is: how are the Government going to mitigate these risks?
Lord Hamilton of Epsom (Con)
My Lords, what we seem to be ignoring in all these amendments is that it is essential in this legislation that we do have a sunset clause, because if we did not, we would not know how many bits of legislation we are talking about. Ministers have been asking departments to produce all their EU retained law and absolutely nothing happened until minds were focused by the fact that the sunset clauses were put into this legislation. I am going to oppose every conceivable amendment saying “This bit of EU retained law should be retained” for the simple reason that the sunset clauses are absolutely critical.
What we must do is decide how we deal with all the EU retained law. It must be sifted, because some of it is completely irrelevant to British statute. I mean, we talk about movement of reindeer between—
Lord Collins of Highbury (Lab)
Is the noble Lord suggesting that employment rights are irrelevant, not important and not a consideration?
Lord Hamilton of Epsom (Con)
I am not arguing that at all. I am saying that much of this legislation is going to be retained and some of it will be discarded. What we have to do is decide which legislation falls into which category. That is the critical element of all this. We cannot say that we should start retaining this bit, that bit or the other, because that is not relevant.
Baroness Thornton (Lab)
The noble Lord is being distinctly unsuccessful in convincing his own Government that that is indeed an important thing to do.
Lord Hamilton of Epsom (Con)
I am saying that we have to decide how we handle the whole bulk of EU retained law. If the noble Baroness had been here for Second Reading, she would have known that I actually raised this issue. We have to sift this legislation and decide what is going to be debated in primary legislation and what is going to be subjected to secondary legislation and so forth. You cannot generalise about all the legislation coming into one category or another—it will not. Some of it will be retained, some of it will be amended and some of it will be abolished altogether. There has to be some sifting system that makes the decisions on that. Therefore, we should not be pleading for individual bits of EU legislation to be retained; we should be saying that we need a system that divides it up and sensibly deals with it in one way or another.
That is why I am not going to vote for any of the amendments that go against the sunset clause, because I think the sunset clause is critical. We would not know how many bits of legislation we were dealing with if we did not have a sunset clause.
Baroness Andrews (Lab)
My Lords, I have some sympathy with the noble Lord’s position, because, as he made clear at Second Reading—which we were delighted and a bit surprised by—he takes issue with the Bill. The noble Lord talks about there being a system and us being involved. However, first, Parliament is not involved in this; that is almost universally agreed around the Chamber. Secondly, the process is being conducted by a handful of civil servants, across Whitehall, who are working frantically against the clock to make serious judgments on issues of which they often have little experience themselves. They are doing it on behalf of the devolved Governments as well. The sunset clause is a ludicrous timetable against which to make extremely sensitive judgments.
The whole process is untransparent, to say the least. For example, take the dashboard which the Government keep saying will tell us everything we need to know. It does not even cover all the SIs which are now coming into scope. It does not explain which bits of law are SIs, which are the remainder, or which are other forms of retained law. It is virtually useless for anybody trying to make a judgment on whether the issues they are concerned about will be inside or outside the scope of this.
My noble friend made the point that all we need to reduce uncertainty in the first place is some set of criteria whereby certain SIs may be retained and others may not. For example, one red line could be whether an SI impacts on our trade relationships or our international obligations. We could see that and be able to judge if we had a set of criteria, but we have none of that. It is making life totally dreadful for people who are trying to make decisions inside government. Defra has 1,700 individual SIs. The common frameworks, which we will discuss later, will be dealing with about 500 SIs which translate across the whole of the internal market, and the dislodging of one may well impact 50 others.
We are trying to make sense of a process in which there is no sense. Could the Minister give us some idea of the timetable against which Whitehall is working? When will we know when those basic judgments have been made about what can be retained and what is going to be put in the “disposable” bucket? If we had a timetable which gave us some reassurance about that, or a timetable about when, for example, an SI which needed to be put in the place of something that was going to be removed would come forward, that would help. Noble Lords should bear in mind that this House takes six to eight weeks to process SIs. If you work backwards from Christmas and the sunset clause, we will need to start laying SIs in May or June to get them through in order to replace the laws we will lose. That is a measure of the chaos that is being created by the Bill. This House needs to take its processes seriously and slowly, so that we can introduce some reassurance to all those bodies outside—such as the CBI and the trade union movement—which are relying on us to create some clarity around this.
Lord Berkeley (Lab)
My Lords, I support my noble friend’s comments about the timetable. I have heard from people in the Department for Transport that, if they had to comply with these requirements and the sunset date, they would have to stop all other work in the department for the rest of the year. That would include the long-awaited transport Bill—which not many noble Lords are awaiting with glee.
There is another issue, which I think it is good to raise now: the question of the Health and Safety at Work etc. Act 1974. My understanding is that we signed up to the European equivalent, CSM RA, which basically provides the opportunity for checking whether whatever project or design is proposed is safe. It is based on the ALARP principle, which we have had here for many years. Our Office of Rail and Road has been trying for a long time to interpret how to link the ALARP principle, which is ours, with the European one in a way that enables people who have to go through this process to feel satisfied that whatever they are doing is as safe as is reasonably practicable. This is just one of many examples in the railway sector. It would be nice to have a list, as my noble friend has said. There is much more to say on this, but on a system such as the railways, which is very safety conscious, it is important that we get this safety issue right.
Lord Howard of Rising (Con)
Would the Minister agree that, as the United Kingdom has one of the best employment records in the entire world, which was never dependent upon the EU, these amendments are utterly pointless and could probably do more harm than good?
Lord Whitty (Lab)
My Lords, further to that point, even this discussion on the first amendment that we are faced with requires the Minister to withdraw some of the assertions he has made, and which his noble friend has just made again. The very fact that we are debating maternity rights which were brought in because of the European Union means that his statement that British workers do not depend on the European Union for their employment rights is made absurd. It is correct that successive British Governments have decided that they will go along with the European rights, but it was because of the European Union that we have those rights. Therefore, we need a specific exclusion from the fact that, by 31 December this year, these regulations, and many other workers’ rights regulations and related regulations, will fall automatically, without any parliamentary decision.
I would like the Minister to withdraw his assertion about European rights. He forgets his history. Why does he think that Mrs Thatcher fell out with Jacques Delors? Why does he think that John Major refused to sign the Social Chapter? Until the Labour Government came in, British workers’ rights were less than those of workers in Europe. This is an absurd assertion, as has been made clear by the debate on this very first amendment.
I have one more general point. I tried to table an early amendment which would give Parliament an alternative way of dealing with this, where we would have a Joint Committee to look in a reasoned way at the priority, the status and the need for action to change European laws. There is an amendment from the noble Lord, Lord Carlile, to do a similar thing, but we are not debating that today.
However, there must be a better way than leaving a whole tranche of European-derived law to an unknown process, ministerial decree—when they come in with their own version of the law—or simply leaving it until 31 December when the law will then disappear. This Parliament, this House, must assert a better way of dealing with this. That is clear from this amendment and from the complete absurdity of how we are dealing with the subject matter in this Bill.
Lord Hacking (Lab)
My Lords, my noble friend has done that in his Amendment 40, which is the sensible way forward.
Baroness Meacher (CB)
I make a very short but rather strong point. I speak as a former member of the Delegated Powers and Regulatory Reform Committee, who has had the privilege of reading counsel’s note on this Bill to the committee. I have been on that committee for years and have never seen a counsel’s opinion on a Bill as devastating as this counsel’s opinion on this Bill. I wanted to add my name to Clause 1 stand part, but unfortunately there are already four names on it. We are attempting to have a debate on this Bill when the counsel made clear that you cannot even call this a skeletal Bill because it is not that there is a little bit of information and too much is left for delegated powers; there is no information in this Bill—nothing—about what Ministers want to do across a massive swathe of policies.
Your Lordships’ wonderful House is attempting to have this debate based on zero information. Counsel is recommending to the committee that Clause 1 should not stand part of the Bill, nor should Clauses 10, 12, 13 or 15. In other words, the Government need to take the Bill back and realise that you cannot delegate all power across a whole swathe of policy without giving Parliament any powers in the matter at all. As we know, the government policy until this point was to transfer powers from the EU to the UK Parliament. The Government’s own memorandum made clear that the aim of the Bill is to ensure that the UK Parliament is the sole arbiter of UK law. I am sorry, but the Bill does not do that; it takes all power away from the UK Parliament.
I interject because it is important that we decide how to deal with the Bill. Either we go to the Clause 1 stand part debate, relate that to these other clauses and try to get the Government to withdraw the Bill early, or we spend weeks debating this bit and that bit with no knowledge upon which to have those debates. With that, I wish your Lordships well.
Baroness Crawley (Lab)
My Lords, on the issue of timing, bearing in mind what the noble Lord, Lord Hamilton of Epsom, and my noble friend Lady Andrews said, I and I am sure other noble Lords are increasingly hearing that we are not talking about 31 December as the sunset; we are talking about October. If December as the cut-off date for civil servants to find all this law is bad enough, October is disastrous. We may be replacing EU law with our own versions, but I am told by a senior civil servant that the fail rate for SIs is 10%. Therefore, the replacements will not be perfect and many will have to be looked at again once they have been published.
My noble friend Lady Andrews is right that the dashboard is a mess. Again, from talking to people close to the dashboard, they were not sure when asked whether they were talking about one directive or one directive plus the four SIs that come from it for each devolved authority. Really and truly, we must think very carefully about signing up to this sunset.
Lord Hacking (Lab)
My Lords, this is to correct myself. I referred to my noble friend’s Amendment 40 in error; it is my noble friend Lord Whitty’s Amendment 44A which is the right way round.
Lord Frost (Con)
My Lords, I fear we are in for quite a repetitive afternoon as we work through proposals to exclude one law after another from this Bill.
I want to make a couple of broader points. First, we must remember what the Bill does. It defines a corpus of law inherited from the European Union and says that it needs to be reviewed by the end of the year. As a result of that review, laws will be dropped, retained or restated. There is an attempt being made to suggest that the only option is the first one—that all these laws that are an important part of our regulatory framework will somehow disappear and that people should be very frightened about that prospect. That is obviously not going to happen. This is a fiction.
Lord Frost (Con)
We know because the way that companies and employment rights are regulated cannot be changed overnight. I have no doubt that when the Minister comes the Dispatch Box he will make it perfectly clear that our intention is to maintain high standards in this area, and that is the approach that will be taken through this process. That is what is necessary.
Secondly, as many people know, before I came into this House I was a diplomat and a civil servant, and did other things. Under a Labour Government I ran the campaign against the working time directive, out of the Foreign Office. The then Labour Government did not like the working time directive and mounted what the then head of the TUC said was the most effective campaign against a piece of employment legislation ever. The Labour Government did it again on the agency workers directive.
Therefore, forgive me if I take with a pinch of salt the suggestion that the laws that we are debating, and each suggestion for an exclusion, are somehow a perfect emanation of the wonderful European law-making process. They are not, and the behaviour of the party opposite in the past on some of these specific pieces of legislation demonstrates that. The correct way forward is for the Government to review these laws en bloc in accordance with the provisions set out in the Bill and to come to a reasonable and appropriate assessment of them, not to give any of them quasi-constitutional status by excluding them from this review process. I am sure that is what the Minister will say, and we look forward to it.
Lord Carlile of Berriew (CB)
When the noble Lord made his transfer from diplomacy to contentious politics, did he expect that he would be coming to this House and suggesting that the practices that he had followed throughout his very distinguished career in the public services would involve excluding Parliament from a vast swathe of legislation when, as my noble friend Lady Meacher and the noble Lord, Lord Whitty, made clear a few moments ago, there are ways of doing this which do not exclude Parliament?
Lord Frost (Con)
Well, I had sat down. Nevertheless, of course, most of the time that I was a diplomat and civil servant, this Parliament was excluded on most of those provisions. Once the working time directive or agency work directive or whatever had been agreed at EU level, this Parliament was excluded. What we are doing is now giving the Government—and Parliament, let us not forget, through secondary legislation—the power to take a view on these things, and that is quite right.
Baroness Andrews (Lab)
My Lords, it is quite extraordinary that the noble Lord says that Parliament has been given power. We have been given no power. He has been in this House long enough to know that we are excluded from changing or even challenging secondary legislation. We have no purchase on this Bill, other than by the process we are going through now.
Lord Davies of Brixton (Lab)
My Lords, I was unable to be present at the Second Reading of this Bill because I was at the fourth day of the Committee stage of the Financial Services and Markets Bill. There is an interaction between that Bill and this Bill, which we can discuss in more detail when we get to the Government’s Amendment 45. But, in the context of this debate and the suggestion made by the noble Lord, Lord Hamilton of Epsom, that the sunset clause is essential, he should read the justification for the Government’s Amendment 45. It says:
“This new clause contains new exceptions to the clause 1 sunset”.
So even the Government do not believe that the sunset clause is essential; there are groups or parts of European legislation without the sunset clause and so, if special rules can be made for financial services, why does he think that we cannot have special rules for other areas of legislation?
Lord Hamilton of Epsom (Con)
I am very grateful to the noble Lord for letting me in. Does he not accept, though, that, when this Bill was printed with the sunset clauses in it, that was the only point at which all this legislation started to appear? They had done nothing up until that time to actually dig it out.
Lord Fox (LD)
My Lords, it seems the debate has started quite strongly already, as I think we expected. I am indebted to the noble Baroness, Lady Meacher, for her intervention, which I think puts in context quite a lot of what we will hear today. This group of amendments is part of a series, as the noble Baroness will have seen, that highlight how this is not a tidying-up exercise, as it was characterised by Rees-Mogg, and is not about reindeer-related legislation. It is about a fundamental set of changes that could affect almost everybody, potentially seriously detrimentally.
Each of these groups sets out different areas of concern; that is the point of what we are doing here today. Together, they indicate the breadth and the importance of the legislation that is being cast into doubt by this Bill. It is all very well the noble Lord, Lord Frost, saying, “Trust us”—we do not, and we will not until all these laws are ruled in, because until they are ruled in, they may very well be ruled out or amended. That is our purpose here today: to use specific examples to explain that this is real, and affects real people and real lives. That is what we are here to do.
I rise to move Amendment 23, which is in my name, and to support Amendment 1, which is also in my name and the names of my noble friend Lady Burt and the noble Baroness, Lady Crawley. I also support Amendment 40, in the name of the noble Lord, Lord Collins. This set of amendments concerns employee rights; Amendments 1 and 23 deliberately focus on one of the suite of employee rights that could be swept away by the effects of the Bill. These rights could be lost as a result of the deliberate actions of the Government, bent on winding back the national clock, or they could happen as a result of accidental changes that are not picked up—legislative commission, or legislative omission. In either case, Parliament is all but bypassed in the process.
Amendment 1, as we have heard set out thoroughly by almost all the people speaking today, on parental leave, is really vital to the lives of so many people, and an important enabler to working families. It is so vital that we do not think it should be risked in the potential pitfalls that this legislation sets out. That is why we propose to exempt it from the sunset, to make sure that UK working families get the opportunities they so need with their children at the start of life.
Turning to Amendment 23, which I know no one has yet spoken about, that looks at a different but equally important employee right: the Transfer of Undertakings (Protection of Employment) Regulations 2006, known as TUPE. I am sure that noble Lords are more than familiar with this; I certainly am from my business life, and I am sure that many noble Lords are from their different experiences. To be clear, it means that when one business buys another business, there is a reasonable certainty as to which workers transfer to the new business, so that the purchaser knows what employees they are getting and what they will cost, and workers know that they cannot just be dismissed because of the transfer. This is about fairness and peace of mind, and ensuring that employees caught in an outsourcing, for example, are not driven out of work as costs are slashed.
We saw with P&O Ferries that this law has serious limitations, but it is better than nothing and we need it to endure through this process. This is also business-friendly, because it allows businesses planning that are acquisitions to know what they will be buying. Similarly, businesses that are pitching for outsourced work now, to be carried out next year, need to know what rules they will have when that work starts. So this amendment gives both workers and businesses certainty.
On Wednesday 1 February, in answer to a question regarding employee rights from the noble Lord, Lord Woodley, the Minister, the noble Lord, Lord Callanan, said that
“our workers’ rights, of which we are very proud, do not and did not depend on our membership of the EU … let me repeat: UK standards did not depend on EU law”.—[Official Report, 1/2/23; cols. 658-59.]
That spirit has been reflected by speakers opposite, but, as evidenced by these two specific regulations—real regulations that exist now—the Minister was not correct. It is very clear that, as the Minister indicated, there are UK-derived laws, but these work in tandem with, and are interwoven with, laws that were imported into the UK from the EU. These work together to deliver the suite of workers’ rights that we have today.
Parental leave and TUPE are not the only important worker protections that are in danger; they are illustrative of a whole raft of legislation that is up for grabs. For example, I would emphasise the right of NHS workers, who have worked through the pandemic, to be able to carry over annual leave that they have been unable to take; maximum hours, not just for office workers but for safety-critical workers such as airline workers, deep-sea fishermen and HGV drivers; and the obligation on employers to make an assessment of health and safety risks to their workers and to keep such risk assessments up to date—I think the noble Lord, Lord Berkeley, referred to that. In the second group of amendments, we will also reflect on part-time work and agency workers, which is another important area.
There are a number of other laws that are set out by the noble Lord, Lord Collins, in Amendment 40. However, I am aware that this is not an exhaustive list, so can the Minister confirm that the Government now know all the laws that will be in scope of Clause 1? How many concern, first, employment rights and, secondly, workplace health and safety? We would be very pleased to know the numbers there.
As the noble Baroness, Lady Crawley, set out, many of these laws impact women more than they do men. The Bill’s equality impact assessment confirms that the Government’s commitment to upholding high standards in equalities does not expressly acknowledge the potential disparate impact of revoking these regulations. As we know, unless the Government positively act to save a regulation, it will be abolished at the end of 2023—although the Government can decide to extend that into 2026; that is a voluntary act.
In his answer to the noble Lord, Lord Woodley, earlier this month, the Minister also said:
“Regarding the regulations the noble Lord mentions, as with all retained EU law we will look at that and see whether it is appropriate for the UK economy, and if necessary we will modernise, update or replace it”.—[Official Report, 1/2/23; col. 658.]
Well, these are amendments about specifics. Will the Government be retaining these specific laws as they are or do they find it necessary to modernise, update or replace them? We would like specific answers on these specific laws.
I fear there is a further complication, which I would like to probe in this amendment—and here I thank the Employment Lawyers Association for some very detailed help. There is a third factor, and that is case law. On the face of it, the least disruptive course that the Government could choose is to take current law and assimilate it directly into UK law—essentially making no fundamental changes but perhaps tweaking some of the language. Surprisingly, that does not finish the uncertainty. That is because the Bill does not just turn off regulations; it turns off EU law that the European Union (Withdrawal) Act 2018 kept in British law. Examples of the law that would be turned off are wide-ranging. The Bill also turns off the direct effect of many parts of EU law that the courts use to interpret regulations in domestic law, and this is what I wish to interrogate.
The turning off of this type of EU law is amplified by the Bill abolishing the principle of the supremacy of EU law in Clause 4, together with the general principles of EU law in Clause 5. The new Bill sets a new default that removes three principles from British law at the end of 2023. The Bill will erase the interpretive principles and settled decisions that courts have relied on to give settled and predictable meaning to hundreds of employment law rights and obligations that are derived from EU law. To be clear, the three principles are these: the direct effect, supremacy of EU law and the general principles of EU law.
Abolishing the direct effect removes rights such as a facet of equal pay law which is being used by tens of thousands of women to claim equality with better-paid men. This is because equal pay rights in the Equality Act 2010 do not go as far as the current case law, as since 1976 the Act has been supplemented by EU law. Abolishing the direct effect sets a default to abolish rights such as the right to normal pay during holiday—enjoyed by millions of workers—or the ability to carry over holiday, and with it holiday pay, from one year to another when sick. It sets a default to remove from UK law the legal reasoning that has helped extend anti-discrimination law and other protections to atypical and gig workers.
Abolishing the principle of supremacy, together with abolishing the general principles of law and the removal of the direct effect, means that the settled meaning of not only EU regulations but primary Acts of the UK Parliament, such as the Equality Act 2010, will not be the same after 2023. The Bill affects primary Acts of Parliament as they may be interpreted in the future. An employment dispute centred on the meaning of a legal right in December 2023 may have a completely different outcome from one that arises in January 2024. In other words, all the existing case law can fall away and new case law has to be built up from scratch. That will create huge legal uncertainty and a bulge of cases in the country’s courts.
These regulations, and ones like them, are used every day by workers and employers in courts and tribunals. Lawyers are asked to advise on them and use the certainty of past decisions to be able to give answers to clients that allow them to conduct their business and resolve their disputes in a settled, stable and well-understood framework of law. This reduces disputes and litigation. The settled and predictable meaning of a considerable body of employment law will be wiped away, creating unpredictability. It will be up to the courts to decide whether case law carries over or whether it changes. Legal uncertainty will undermine any plan that the Government might have for growth, as neither employers nor employees will have any clarity on the meaning of large parts of employment law that affect investment and the cost of labour. I ask the Minister to give us a very detailed response to this because it is one of the most important elements and has so far not been debated very much by the general public.
As I have said, these amendments are the first in a series that illustrate how everyday lives will be affected. They also bring into stark relief the risks inherent in this Bill of disturbing settled understandings of the law, turning legal certainty, clarity and predictability on their heads. Will the Minister please give the Committee a detailed response to this amendment, particularly setting out the view of government lawyers on the implications of removing direct effect, the supremacy of EU law and the general principles of EU law?
I repeat my question. Will the Government be retaining the specific laws set out in these amendments—parental leave and TUPE—or do they believe that there is a necessity, in the Minister’s words, to modernise, update or replace?
Baroness O'Grady of Upper Holloway (Lab)
Does the noble Lord agree that it took trade unions years, representing cases, to win a definition of normal pay that included, when workers were normally working and were required to work overtime, that overtime? That money matters to thousands of workers, but if this Bill passes, all that case law, and all those years of hard work to win workers justice, will be swept away and we will have to start from scratch, as the noble Lord said. I hope he agrees that that would have a catastrophic impact on working families who are already struggling to manage.
Lord Fox (LD)
I thank the noble Baroness for her intervention. To be brutally honest, it was her I was thinking of when I made that reference, because I know how hard she worked on that issue in her former life. Of course I agree, and that is why we bring it up. This is not about reindeer farming; this is about people’s lives.
Lord Wilson of Dinton (CB)
I support the wise and well-expressed advice and views of my noble friend Lady Meacher. I was not going to speak but I am deeply disturbed by this legislation.
I said at Second Reading that I thought that this was bad government. I repeat that. Of course the noble Lord, Lord Hamilton, is right: we need to know what EU-derived laws the Government propose to keep, amend or abolish. But this is not the way to do it. The Government should do the work first. This is lazy government and it is very improper.
It is 50 years since I first sat in the Box as a Private Secretary to a noble Lord, and I have been here for many Bills and attended many sessions in this House. I have never heard this kind of debate or seen this kind of Bill. It is shameful that the Government have not done the work. The right thing to do is for the Government to withdraw the Bill, go away and do the work, and decide what they want to keep, what they want to amend and what they want to abolish, and then tell Parliament so that it can debate and scrutinise what the Government want to do—and it can be a proper process with consultation. That will take longer, but the Government are taking on a very big job with huge complexity and scale. What you do not do is take sweeping powers which largely ignore Parliament, with the Government simply saying what they want the law to be.
I find great irony in the argument of the noble Lord, Lord Frost, that we never were consulted before. The Government, having complained about the EU being tyrannical and dictating our laws, want to substitute the Government having the same tyranny themselves. I do not think that works. Brexit was based on the return of sovereignty to Parliament. Do the Government still believe that? If so, will they act on it in relation to this Bill?
Lord Lisvane (CB)
My Lords, I support every word just spoken by the noble Lord, Lord Wilson of Dinton, and earlier by the noble Baroness, Lady Meacher.
On the generality of the issues raised by this group of amendments, I say very gently to the noble Lord, Lord Frost, that he might like to consider whether his intervention earlier damaged the Government’s case rather more than assisting it. I have been involved, in one way or another, with the processes of this institution now for more than half a century. I have to say that his description of delegated legislation, and the implications of Parliament handing it, is not one I recognise.
Lord Hendy (Lab)
My Lords, this Bill is objectionable both in form and in content. As to form, I cannot possibly improve on the speech of the noble Baroness, Lady Meacher. Like her, I have been a member of the Delegated Powers and Regulatory Reform Committee, and I absolutely support and uphold the principles that it has enunciated, in particular in relation to this Bill.
There is one point that I could add to that, which is that we have had discussions this morning about how long it would take to draft, introduce and debate statutory instruments to replace those EU-derived laws which are sought to be removed. Let me just point out that the sunset clause means that, if the Minister decides not to introduce a statutory instrument to preserve those rights, they will disappear without any debate whatever. They will just simply evaporate.
As to content, my concern is with workers’ rights. I have to declare that I have spent most of the past 45 years of practice at the Bar dealing with workers’ rights. I want to make a few very short points. First, all the labour law rights, workers’ rights, employment rights—call them what you will—that we are concerned with in the United Kingdom are UK law. Whatever their derivation, whatever their provenance, it is UK law that we are talking about. Let me remind the House that many of the laws that we have, not derived necessarily from the EU, also fulfil other international legal obligations deriving from the International Labour Organization or from the European Social Charter and the European Convention on Human Rights, which are both instruments of the Council of Europe and have nothing whatever to do with the EU.
For example, our unfair dismissal law satisfies ILO and European Social Charter obligations. The protection in Section 146 of the Trade Union Labour Relations (Consolidation) Act 1992, the protection for trade union activists against discrimination for trade union activity, has been moulded by both the ILO jurisprudence and a particular decision of the European Court of Human Rights interpreting Article 11 of the European convention—I refer to Wilson and Palmer v the United Kingdom. Likewise the protection of our right to strike fulfils clear obligations under ILO convention 87, Article 6.4 of the European Social Charter and Article 8 of the International Covenant on Economic, Social and Cultural Rights. All these are treaties and particular provisions which have been specifically ratified by the United Kingdom.
When a lawyer is consulted by a worker or employer on the subject of employment rights because some problem, dispute or issue has arisen, the lawyer does not look to see what the provenance of the law is; the lawyer looks at what UK law has to say about the problem. Let me give the Committee a hypothetical example—I am sure I have done many of these cases in the past. A worker falls off scaffolding at height and is injured. They want to sue. They sue on the basis, of course, of clear, homespun English common law—the failure to provide a safe place of work and a safe system of work, part of UK common law since Wilsons and Clyde Coal v English in 1938—but they also rely on the Management of Health and Safety at Work Regulations and the Work at Height Regulations which originated from EU directives in what was known as “the six pack” in 1992.
Let me give the Committee one other example from my own experience. Six years ago, I represented the National Union of Mineworkers over the closure of the last deep mine pit in the United Kingdom at Kellingley. The dispute was over the compensation payable to the redundant miners. Of course, they were entitled to their redundancy pay and, indeed, an agreed enhancement. Their redundancy pay derived clearly from UK law. There is no EU input into redundancy payment, which has been part of our law since the Redundancy Payments Act 1965. However, they also claimed because they said—and were ultimately proved right—that there had been inadequate consultation with the union over the closure of that pit and the laying off of all those men. That derives from Section 188 of the Employment Rights Act, the provenance for which is EU law. Is the Minister going to tell us that that protection and that requirement for consultation before collective redundancy—the noble Lord, Lord Fox, referred to P&O Ferries, and that was the law that P&O accepted that it had broken in that case—is going to be repealed? Or perhaps it is simply to be a subject on which the Minister will not introduce any protective statutory instrument or further legislation but will simply sit on his hands and it will disappear on 31 December this year.
We are debating Amendment 1 at the moment, but Amendments 2, 17, 21, 23—which the noble Lord, Lord Fox, referred to—and 25, and Amendment 40 in the name of my noble friend Lord Collins, set out a raft of employment laws which those who tabled those amendments seek to protect. They are just a few of the employment laws which have a provenance from the EU. It might be recalled that, at Second Reading, I identified a whole raft of health and safety laws which fall into that category. There are others which have not so far been identified, one of which is, of course, the Section 188 to which I referred to a moment ago.
Those seeking to preserve specific rights, as the amendments this morning are seeking to do, are faced with a dilemma of trying to identify what rights need protection when faced with a blanket sunset clause which will remove the whole lot unless protection is given. As my noble friend Lady O’Grady and the noble Lord, Lord Wilson of Dinton, have intimated, it should be incumbent on the Government to identify what is proposed to be repealed and what the justification for it might be. I call on the Minister to do that in his speech and tell us what the Government are going to get rid of. The fact is that those who voted for Brexit, for good reasons, no doubt, surely did not vote for the removal of all these rights in the workplace or the uncertainty about whether those rights would subsist after 31 December 2023.
There is one final matter before I sit down, which is a point alluded to by my noble friend Lady O’Grady. The trade and co-operation agreement that was ratified by the United Kingdom in 2021 includes two articles, Article 387 and Article 399, which require the United Kingdom to preserve certain rights guaranteed by international treaties which it has ratified and to implement them. There is an enforcement mechanism if the United Kingdom does not do those things. I tell the Committee that the European Parliament and the European TUC are already urging the European Commission to initiate that enforcement mechanism by reason of this very Bill that we are discussing today. It does not add to the reputation of the United Kingdom that we should already be breaching a treaty that we ratified only two years ago.
The Lord Bishop of Leeds
My Lords, the reason these amendments and this debate are important is that one always explores the general by probing the specific to see if it holds water. I wonder if, in that respect, it might be helpful for the Minister and the Committee if he defined in his response parliamentary sovereignty as against executive sovereignty. If we understood that more clearly, we would understand the status and the rationale behind what is proposed in this Bill, which I personally see as unnecessary.
Lord Collins of Highbury (Lab)
My Lords, this has been a very important and fascinating debate. I open by echoing the remarks of the right reverend Prelate the Bishop of Leeds. This is Committee stage and we are probing what the Government intend. How do we better understand what they intend? The reason we have put these amendments down, particularly Amendment 40, is that we will not fully understand their intentions unless we understand their belief on the specifics. If we are to believe the noble Lord, Lord Frost, this is simply a technical exercise—one that the Government will decide with very little input from Parliament.
I have said this in other debates on other Bills: we had two excellent Select Committee reports from this House, with cross-party support, that made it clear that this is not the way to do things. They also made clear the dangers of the Executive having full power over secondary legislation, and why secondary legislation was so different. We cannot amend or change it; we either accept or reject it. If we reject it, what are the consequences? We lose the very rights we are trying to defend. So this is not even an opportunity to say that we do not like what the Government are doing. I agree with the noble Lord, Lord Hamilton, that there should be a better way. I accept that my probing amendments would not necessarily improve the Bill as constructed; it is extremely difficult to see how one can improve this Bill because it is so undemocratic, so wrong and takes powers away from Parliament rather than giving them to it.
I know this has been a lengthy debate, but to pick up the point made by the noble Lords, Lord Hamilton and Lord Fox, it is important that this Parliament talks about what these regulations mean to people. It is very easy to talk about laws and SIs and regulations, especially when some of the language can be very technical. It is very difficult to persuade people why this debate is so important. That is why I come back to the right reverend Prelate’s point: we have to test the specifics.
On many occasions in this Chamber, I have supported my noble friend Lord Woodley in raising what is a really good specific point concerning TUPE. We often talk about TUPE as if everyone understands what it means: the transfer of undertakings and the protection of employment. Many years ago, I am afraid to confess, I was a trade union official too. Many people here who were in local government in the 1980s will have seen the push for contracting out and the insecurity that meant: cutting wages and cutting services. These regulations do not necessarily offer complete protection but they create greater certainty, particularly when services are moved from one employer to another within, for example, local government. Real people have been protected by that regulation.
I hope that, if the Minister cannot tell today’s Committee what the impact will be, he can tell us how many people he thinks have been protected by TUPE over the last 12 months, or the last five years? He cannot dismiss this and say it is a technical exercise and that some of these regulations require modernisation and reform. What requires that TUPE be reformed? What additional protections will there be? We are talking about additional protections because, as my noble friend Lady O’Grady said, we have had commitments from this Government that there will be no reduction in workers’ rights. So, let us focus on TUPE. What will they do, in terms of this review, to enhance those regulations? Will they enhance them? Where do they need modernisation? Where does the language need to be changed? Will the Minister please answer because, as we proceed through this Bill, it is those specifics, as the right reverend Prelate said, that people outside this Parliament need better to understand.
As my noble friend Lord Hendy said, however people voted in the 2016 referendum is irrelevant to this debate. This is about rights that people have earned, fought for, gained and want protected. We have yet to hear from Ministers about this process, which will mean that we will not know which laws they intend to retain or allow to expire. That is a considerable amount of uncertainty: we do not know, with this sunset clause, what laws will simply disappear without any reference to Parliament and the people. That is a scandal. I have listed every regulation, in terms of what we understand are the current employment laws—
Lord Pearson of Rannoch (Non-Afl)
I am grateful to the noble Lord for giving way. Does he agree that all EU law was put into law without the consent of the British people and Parliament? That is the EU system, is it not: proposed in secret by the Commission, voted on in secret by COREPER and eventually passed through the Council of Ministers? When have the British people ever agreed to a single EU law that we are now, rightly, getting rid of?
Lord Collins of Highbury (Lab)
The noble Lord may want to re-open the debate on the referendum and EU membership, but I do not. I want to focus on people’s rights now; that is the important point. That is why I appeal, across the House, to people who may have supported Brexit and people who did not. I think the House can unite on this sort of issue. As we have heard, this is not the way to do it; there is a better way to review retained EU law and a better way to create certainty and understanding on the part of the public.
That is why these amendments are so critical, in that they ask for specifics. I am pretty certain that, sadly, the Minister will give us the same mantra that we heard in the other place: “Trust us, this is a process; we have a time constraint.” Why they have put this time constraint in place, God only knows. But the Minister will not give us an idea about the specifics, and that is really important.
As my noble friend Lady Crawley, the noble Lord, Lord Fox, and others have mentioned, this is not just about regulations; this is about case law as well. That is vital. I cannot beat the illustration of my noble friend Lady O’Grady. All Governments of all colours have had to be persuaded to give these rights. It has not been an easy journey for workers, particularly women workers, and that is the other thing about this. Hard-won rights, particularly on equal pay and equal rights at work, are under threat here. That is something that the public need to hear very firmly.
I conclude with a simple request of the noble Lord, Lord Callanan. He has assured us that UK employment rights do not depend on EU law, and we have heard the arguments in this debate. Can he confirm which of the regulations that I have listed in Amendment 40 are not covered by Clause 1? Can he give us that guarantee? I suspect that he will not; he will make some excuse. But this will not go away; this debate will continue because the public out there need to know whether they can trust this Government. I suspect that they will answer no; what they want is Parliament to decide.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, I thank everybody who has contributed. I suppose we had to have the debate in principle at some stage, and we have had it on Clause 1. I will attempt to provide some reassurance to noble Lords. I suspect that those who think that somehow the Government have malign intentions will not be convinced, but let me try my arguments anyway.
As my noble friend Lord Frost made clear, this is of course an enabling Bill. The measures in it, including the sunset, will provide for UK and devolved Ministers to make decisions to review, amend or repeal retained EU law as they see fit. I agree with my noble friend Lord Frost’s point. I understand that the Opposition will want to portray all EU law as perfect and ideally suited for the UK’s circumstances, but most of my time in the European Parliament was spent during the period of the last Labour Government. There were numerous occasions when UK Ministers, and civil servant at the behest of UK Ministers, came to give me examples of where the regulations were not suited to the UK and not in the UK’s interests. Many times, as a Conservative, I agreed with them, and we did our best to change or amend them. Often, we were not successful. This legislation gives us the opportunity—
Lord Callanan (Con)
I will let the noble Lord come back in a moment, but let me make a little progress—I might answer some of his points, you never know.
Let us not pretend that it is all perfect. I accept that the Opposition have a principled difference with us on how we go about this process, but at least let us have the debate and, I hope, make some progress. The sunset is not intended to restrict decision-making; rather, it will accelerate the review of retained EU law across all sectors, as my noble friend Lord Hamilton made clear. The Bill will allow for additional flexibility and discretion to make decisions in the best interests of this country.
I start with Amendment 1, in the name of the noble Lord, Lord Fox. I take this opportunity, as I have done many times in this Chamber before, to reassure him and the noble Baroness, Lady Burt, and the Committee, that the repeal of maternity rights is not and never has been the UK Government’s policy. As I have said many times before, our higher standards in this area were never dependent on our membership of the European Union. Indeed, the UK provides stronger protection for workers than is required by EU law. I have made this point many times, and the opposition parties do not seem to want to accept it.
Lord Callanan (Con)
I am going to make this point and then I will allow the noble Lord to intervene.
Our high standards were never dependent on our membership of the European Union. We provide stronger protection for workers than is required by EU law, both under previous Governments and under this Government. Let me give the Committee some examples. We have one of the highest minimum wages in Europe. On 1 April this year, the Government will increase the national living wage by 9.7% to £10.42—higher than most other European countries. UK workers are entitled to 5.6 weeks of annual leave, compared with the EU requirement of four weeks. We provide a year of maternity leave, with the option to convert to shared parental leave to enable parents to share care, whereas EU maternity leave is just 14 weeks. The right to request flexible working for all employees was introduced in the UK in the early 2000s; the EU agreed rules only recently and will offer the right to parents and carers only. The UK introduced two weeks of paid paternity leave in 2003; the EU has legislated for this only recently. Let there be no doubt about the commitment of this Government to enhancing and providing for workers’ rights.
Lord Fox (LD)
I am afraid I can wait no longer. I am somewhat surprised that I still do not really understand what the Minister is saying. We did not put on the dashboard the regulations and laws set out so ably by the noble Lord, Lord Collins, and by my noble friend and others; the Government put them on the dashboard. If the Minister is saying that these do not affect British employment regulations, how can that be true? It is simply not true. What the Minister is saying is wrong. They are on the dashboard and they will sunset if nothing is done. They affect day-to-day employee rights, and therefore the Bill potentially affects those employee rights because these regulations are on the Government’s dashboard.
Lord Callanan (Con)
They are on the dashboard if they are retained EU law. I noticed that, in all the statements and speeches from Members opposite, the words “if” and “could” were doing an awful lot of heavy lifting. I accept that there is no trust from the Opposition in the intentions of the Government and that they want to make their political attacks. The reason I outlined UK employment rights and standards was to demonstrate the commitment of this Government to those rights. The point that the noble Lord, Lord Fox, made earlier is essentially correct: while we have some very high standards, of which we are proud and will maintain, there is a complicated mishmash of laws in this area between some elements of EU and domestic law.
Lord Callanan (Con)
If the noble Lord will sit down, I will come to him in a second. I will make this point and then I will give way.
UK rights were provided in the complicated mishmash of UK law, with higher standards often based on minimum standards and provisions that were in EU law originally. That is why they have been included on the dashboard. We will conduct a review of all these regulations—which this legislation provides for—and we will do so in the context of the high standards that the UK already has.
Lord Kerr of Kinlochard (CB)
I think I understand the noble Lord’s argument, and that he is therefore going to end by saying that he accepts Amendments 1, 23 and 40. If our standards are so high, there can be no question of the Government reducing our standards or amending or sunsetting the legislation spelled out in Amendments 1, 23 and 40. If the Minister is not prepared to accept these amendments, will he explain why, if they are in the Government’s view good, they have to be in doubt until the end of the year and then possibly dead?
Lord Callanan (Con)
As the noble Lord knows very well, that is not what I am saying. The reason that I am not saying that goes back to two points made earlier in the debate. First, there is a complicated mishmash of rights and responsibilities across these particular laws, but we will maintain our high standards. Secondly, it goes back to the argument the noble Lord, Lord Fox, made about interpretive effects. If the interpretive effects are being abolished to bring them in line with the rest of UK common law and to reduce some that have the status of primary legislation to secondary legislation, we need to review the whole panoply of employment law as a whole—which we will do, but we will do it in the context of the high standards that we have and will maintain. That is the point I am making
Lord Hope of Craighead (CB)
I am very grateful to the noble Lord for giving way. It is a question of the sunset and whether one can achieve what the Minister is suggesting in time. A lot of the worries we have are that the Government are trying to move too fast. We are trying to create a new rulebook for ourselves. I quite understand the desire for that, and I quite see the value of a timetable, because, if you do not have a timetable, things will drift into the far future, which is not desirable in view of the objective the Government have. However, they are trying to move too fast. The more we debate these issues, the more complicated they become, and the more people have to be consulted. That is the basic problem. I hope very much that, when we come to look at the sunset, the Minister will take account of these things and be a little more relaxed about the date for the sunset, otherwise we will be moving far too fast and destroying so many rights because of mistakes and misadventures.
Lord Callanan (Con)
The noble and learned Lord knows I have tremendous respect for him and there is a great deal of sense in what he says. If we are getting into a discussion about the sunset, it is my view and the Government’s view that we can do all of this, given the current sunset. Work is under way across Whitehall in the new business department on employment law and in Defra on environmental regulations to do exactly that.
Lord Callanan (Con)
I will give way in a second; let me answer the previous point before the noble Baroness makes another. I think it is perfectly possible and work is under way in the business department and in Defra, which have many of these retained EU laws, to do precisely that. As Committee proceeds, I hope to be able—maybe I will not be able, but I will do my best—to convince the Committee that we will be able to do this in time, with the given sunset. I give way to the noble Baroness.
Baroness Young of Old Scone (Lab)
Would the noble Lord perhaps admit that the only way in which the timetable can be met is by not undertaking the sort of consultation we have come to expect, and indeed enjoyed, during the passage of all this legislation over many years, which has resulted in it being EU retained legislation? My personal sphere of knowledge is the work in Defra. I am desperately worried that many of the things emerging from Defra that are purportedly a replacement for EU law are not being portrayed as that when they come out, and they are not being consulted on in any way whatever. I do not believe that the EU retained law workload can be done by Defra in time without it being a fait accompli by Ministers that is not consulted on and does not go through a process in this House that allows us to have any influence on it. So I would like the Minister to assure us that there will be a full process of consultation that can be contained by the deadline.
Lord Callanan (Con)
“Yes” is the answer to the noble Baroness’s question. All new regulations will be subject to a period of consultation. I have to say, with great respect, I would have a little more sympathy for the noble Baroness’s argument had any of these regulations been introduced into UK law in the first place with a period of consultation—but, of course, we all know they were not. Many of the people complaining now that these regulations are so valuable never said anything at the time about the process by which they were introduced. But I accept that is a difference of principle between us.
As I said, our high standards do not and never have depended on EU law. Ministers will have the power to preserve such retained EU law from the sunset where appropriate. Building on some of the earlier points made by the noble Baroness, Lady Humphreys, this includes Ministers in the devolved Governments. As such, it is the Government’s contention—I suspect it is one that will not draw much sympathy from the Opposition—that there is simply no need for any carve-outs for individual departments, specific policy areas or sectors, particularly when I have been able to reassure the Committee on the principles of maternity rights and employment law as a whole.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, one reason we have such concerns about the timetable is that, as we have heard in exchanges today, there is no agreement on the evidence base we are working to. Part of solving that would be going back to the drawing board on the impact assessment, which, as we heard, was red rated and deemed not fit for purpose. Could the Minister explain at what point we will be looking again at that impact assessment and dealing with the criticisms of the one that received the red rating? What impact could that have on the timetable? If we could agree more and have dialogue on the evidence base, perhaps we might be able to make more progress.
Lord Callanan (Con)
I totally understand the point the noble Baroness is making. I have looked at this—indeed, I was the Minster responsible until very recently for the Regulatory Policy Committee, which does some fantastic work. But of course it is very difficult to produce an impact assessment for what is essentially an enabling framework Bill. I think what would be more relevant to the noble Baroness, and what she would be more interested in seeing, are the detailed impact assessments that will be produced on the particular regulations. If regulations are just carried on and essentially replaced, there will be no need to bring an impact assessment because there is no change. However, if change is proposed, of course the relevant departments will produce impact assessments for those particular regulations. I am sure the noble Baroness will have great enjoyment in reading those.
Lord Davies of Brixton (Lab)
My Lords, perhaps the Minister will take on board that, when he says there is no need for carve-outs, his own Amendment 45 creates a carve-out for financial services. We can have a substantial debate on that issue when we get to that amendment, but the idea that you do not have carve-outs is clearly wrong; the Government’s own amendment creates one.
Lord Callanan (Con)
We will get to that debate on those technical amendments later.
Lord Callanan (Con)
I think it was the noble Lord, Lord Davies, who talked about the Financial Services and Markets Bill, which repealed a number of EU regulations and produced regulations that were more suitable for the UK.
Moving to the specific amendments we are debating, Amendment 23 relates to the transfer of undertakings regulations. It is up to Ministers and the devolved Governments to decide what to do on specific pieces of policy. This Bill, as a framework Bill, creates the tools for departments. Plans will be approved by a Minister of the Crown, or the devolved authority where appropriate, and will be shared when that work has been done, given that it is an iterative process that is still ongoing. As part of the retained EU law programme of work, as I said earlier in response to the noble Lord, Lord Fox, the Government are conducting a comprehensive review of all retained EU employment law in the context of the very high standards the UK already has to ensure that our regulations are specifically tailored to the needs of the UK economy, are workable in UK common law and help to create the conditions for growth and investment. That review includes the transfer of undertaking protection of employment regulations.
Lord Collins of Highbury (Lab)
Can I ask a simple question on TUPE? My fear is that we are not getting straight answers. Does the noble Lord think that it sets a good standard to protect workers in difficult circumstances? If he does, where does it need to be improved? If he is unable to answer those two questions, what are we to conclude?
Lord Callanan (Con)
I have already given the noble Lord examples of where UK worker standards and employment regulations are superior to the base standards of the EU. I cannot give him a specific answer to his question, as he well understands, because that work is ongoing, but it is ongoing in the context of the high standards that we already have. If any changes are proposed to that regulation—it may be that the change of interpretive effect will require some ongoing changes to the regulation; I do not know because that work is currently ongoing—the regulation will be presented to this House, when the noble Lord will no doubt want to comment on it.
Lord Lucas (Con)
In the context of some of the arguments advanced by my noble friend, has he considered extending the principle embodied in Clause 15(5), which says that, in particular subject areas, changes cannot increase the regulatory burden? This would address some of the points made in the amendments by giving an overall protection that workers’ rights will not be reduced by the changes made as a result of the Bill. It might give some comfort to those of us who support the Bill and do not doubt the Government’s intentions to see them embedded in law, in just the same way as they propose in Clause 15(5).
More generally, I am disappointed that my noble friend does not address the issue of the role of Parliament. To my mind, it is a great demonstration of the need for the House of Lords that this Bill has arrived in our House in this shape, and if we let it go out of this House in the same shape, we will demonstrate why we ought to be replaced.
Lord Callanan (Con)
I totally understand the point my noble friend makes; I am a passionate believer in the rights of this House and have happily stated on many occasions within government that in many cases we do a much better job of scrutinising legislation than the other House. It sometimes makes life a little uncomfortable for Ministers such as me defending this, but when I talk to some of my colleagues in the Commons, I realise how relatively little time is given to some legislation compared to this House.
I also understand my noble friend’s first point. I reiterate that it is certainly not the Government’s intention to reduce workers’ rights. The House will get tired of hearing me repeat it, but we have higher standards than most of the rest of Europe and we have every intention of maintaining that.
Baroness Andrews (Lab)
My Lords, before the Minister sits down, I should like to ask him one question. He has addressed the issue of the sunset clause in different ways; we have different opinions about that. Why were the Welsh and Scottish Ministers not given the same power to amend the sunset clause? They were not consulted about the Bill and have no powers in this respect.
Lord Callanan (Con)
They certainly have the power to examine, repeal or change EU law within their specific areas of competence.
Baroness Andrews (Lab)
The reason I raise this is because we are talking about the capacity of the Civil Service to do the things the Government are requiring of it. That challenge is infinitely greater for the devolved Administrations. One issue raised by the Bill is the impact the Bill has, deliberately or accidentally, not on the devolution settlement but on the capacity of Wales and Scotland to influence the way in which decisions about whether to retain, remove or amend instruments will be made. It is an extremely important point, and it deserves a serious response.
Lord Callanan (Con)
I thought I had given the noble Baroness a serious response. Within the area of devolved competence, the devolved Administrations have the same rights as the UK Government to amend, repeal or replace retained EU law.
Lord Fox (LD)
My Lords, I am assuming the Minister has now sat down. He touched on the interpretive effects that I raised in the set of amendments, but I do not think the answer was as full as we need. I think there will be other opportunities for the Minister to come back, and I will certainly press them. In the end, my assumption is that it will be up to the courts to decide which cases are in and which are out; it will be up to the courts and the lawyers who are pressing the courts to reinterpret or allow interpretations to continue. We need to know from the Government what is their assessment of the effect of that on this body of law and others across the spectrum we are discussing.
All Governments have to make choices, and the day-to-day push and pull of government can throw up many difficult dilemmas and severely stretch the national bandwidth for decision-making, but with this Bill, the Government are giving themselves 4,000 more choices they did not need to make. In opting to make these choices alone, without debate, discussion or consensus, each of these choices is bound to become a battleground, and each will be down to a Secretary of State—decisions that will call down attention from every corner of civil, legal, commercial and social society. So good luck with that, Minister.
The first amendment in the group illustrates some of the places where these battles will be fought across the country. No matter how close to their chest the Government play this, the arguments will not go away; indeed, the more secrecy and circumspection, the more suspicion will rise. The right reverend Prelate spoke about using the specifics to test the general, and this was an opportunity for the Minister to be more specific so that we could judge the general better. I do not think he has yet achieved that; however, we have six groups in very much in the same vein, so perhaps the Minister can work on his performance. In the meantime, I beg leave to withdraw Amendment 1.
Member's explanatory statement
This amendment excludes the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 from the sunset in Clause 1. These Regulations give part-time workers the right not to be treated less favourably than a comparable full-time worker and fixed-term workers the right to be treated no less favourably than a comparable permanent employee.
Lord Fox (LD)
I move Amendment 2 in my name and those of my noble friend Lord Clement-Jones, the noble Earl, Lord Clancarty, and the noble Baroness, Lady Bennett of Manor Castle.
We talked about some important employment law specifics in the first group, and we have some more in this one. The TUC, unions and employment lawyers have told us that they are particularly concerned about vulnerable workers, who would be hard hit by the potential removal of protections that the Bill can deliver, because a number of important rights originated in EU legislation—I come back to the point of contention between us and the Minister. That is why we have chosen to highlight the importance of the protection of part-time and fixed-term workers in this amendment.
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 gave part-time workers the right not to be treated less favourably than a comparable full-time worker with regard to the terms of their contract. Part-time employees should benefit from the same terms and conditions as full-time employees unless the employer can justify that different treatment.
Likewise, the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 established protection for fixed-term workers, giving them the right to be treated no less favourably than a comparable permanent employee, unless, again, the employer can justify a different treatment. The employee can insist that the fixed-term contract be converted into a permanent one in certain circumstances, and they are entitled to be informed of certain permanent vacancies.
Any or all of these rights could be lost under the Bill, with women being particularly likely to be impacted. Some 8.2 million part-time workers in the UK fall into the most at-risk category. Some 72% of part-time UK workers are women, whereas only 40% of full-time UK workers are women. Some 750,000 workers are on fixed-term contracts, of which 56% are women. They would face an uncertain future without protection from the EU-derived Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The provisions of the Bill could see part-time and fixed-term workers treated differently from their peers in areas such as pay, holiday entitlement, pensions, and training and career development.
Not covered by this amendment, but equally vulnerable, are agency workers, of whom there are nearly 750,000 in the UK. Of these, nearly one-third work part-time, with 28,000 on fixed-term contracts, so they also have protection from part-time and fixed-term contract regulations derived from the EU. They also have the Agency Workers Regulations 2010, which could be lost at the end of this year. These provide agency workers with a right to the same basic working and employment conditions as direct employees.
As was said at Second Reading, the outlook is particularly bleak for creative workers in particular. The Government seem to have a poor understanding of what is meant by the creative sector and what the impact would be. In the impact assessment for the Bill, the definition on the dashboard states that 177,000 businesses and 658,000 jobs will be impacted. However, the DCMS definition of “creative industries” accounts for 300,000 businesses and 2.2 million jobs. Which is the correct figure? If the Government cannot work this out, how can we trust them on any aspect of the Bill or how the legislation will affect these people? Where is the audit of exactly which body of employment law is retained EU law and subject to the Bill? The noble Lord, Lord Callanan, seems to think that the figure is zero. If so, what are these regulations doing on the dashboard?
As Creative UK says, the creative industries are characterised by small and
“micro businesses and freelancers undertaking project-based work”.
Although proposed changes to workers’ rights will affect all sectors, the make-up of the creative industries means that the impact of any change on the protection of part-time and fixed-term workers is particularly important for freelance workers in the creative industries.
Of course, it is not just these regulations that are at risk as a result of the Bill: all the precedents and EU case law and principles, such as effectiveness and proportionality, by which these rights have been interpreted, will be swept away, as I outlined in the first group. The Employment Lawyers Association says:
“Abolishing the principle of supremacy, together with abolishing the general principles of EU law and the removal of direct effect means that the settled meaning not only of EU Regulations but also any primary Acts of Parliament (such as, for instance, the Equality Act 2010) will not be the same after 2023.”
I do not apologise for repeating that, because it is extremely important and apposite to our discussions. This will create a legal vacuum and huge uncertainty, not just for employees but for employers. Thousands of SMEs, many without dedicated HR resource, will potentially have to grapple with new laws or new interpretations of existing regulations. Given the sweeping away of European precedent, already overburdened tribunals will be asked to rule afresh on any regulation that is retained, at great expense to employees and employers alike. This is a waste of money and time and a huge opportunity cost. No wonder employers are overwhelmingly in support of keeping the existing regulations and the supporting case law as they are.
The Earl of Clancarty (CB)
My Lords, my name is on Amendment 2, and I support the noble Lord, Lord Fox.
The reaction in Committee to what the noble Lord, Lord Frost, said earlier about the options available shows the degree of trust in any particular legislation being retained. We feel forced into making specific representations on legislation because that trust does not exist, so there will be more testing by specifics.
The creative industries owe the noble Lord, Lord Clement-Jones, in particular, a debt of gratitude for identifying at Second Reading particular legislation which affects, among others, artists and other creative workers, including intellectual property rights. Worryingly, what is being discussed today, including Amendment 2, is just a sample of the relevant legislation, as the noble Lord, Lord Fox, said, and there will be much more that business campaign groups and other concerned parties and individuals have yet to identify as relevant to their own activities. Surely that is dangerous.
These days, the Government prefer not to talk about the EU, but when they do so it is usually in disparaging terms—although I for one live in hope that that will change. However, there is a sense in which we should forget Europe in terms of this legislation, and I say that as a remainer who would like at the very least for us to rejoin the single market as soon as possible, not least because the extent to which free movement across Europe is essential to the arts and creative industries has become abundantly clear. However, this is in practice UK legislation, and in very practical terms the statutory instruments which Amendment 2 refers to affect British workers. That this is domestic legislation is no better exemplified than by the fact that the two SIs which Amendment 2 would retain make express reference to our own workplace: to staff working in the House of Lords and the House of Commons.
To take the House of Lords as an example, as of February 2023, of the 670 employees on contract, currently, 20% are part-time and 11% are on fixed-term contracts, meaning that 31%—almost a third—of staff in the Lords are on contracts other than full time. Frankly, it is outrageous that the Government are considering removing, or risk removing, important protections for the parliamentary staff who work alongside us, let alone removing such protections for anyone else. More generally, however, removal of this legislation will affect many creative workers, as the noble Lord, Lord Fox, said. Some 32% of the creative industries workforce is self-employed, which is double the national average, although the House of Lords appears to be more closely in line with the creative industries as far as fixed-contract and part-time work is concerned.
The creative industries took a big hit with Covid and we remain grateful for the help the Government provided for freelancers, although many still slipped through the net. However, despite that and the current energy crisis, in my view, the longer term will see the further expansion of the gig economy and the creative freelance workforce. In part this is due to the inherent demands these growing industries make—that is an essential point—but for the creative workforce and indeed industry more widely, it is due increasingly to our diversity of preferred modes of working. Some of this social change can be laid at the door of the creative industries.
This is a reality which needs to be both acknowledged and supported, in which case no one should be penalised for choosing one manner of working over another or having to do so through the demands the work makes. All work and workers should be treated equally fairly, without the quantity of work done or the impermanence of a position affecting notions of quality or anything else. It needs to be added that the take-home pay of many creative workers and others working in the gig economy does not, as we know, necessarily reflect the success of those industries overall.
The overall point here is that this legislation is progress from which we should not be retreating but instead building upon, which is why it should be retained. However, if the Government really support the creative industries, they will have no hesitation in excluding this legislation from the sunset. Better still, they should scrap the Bill.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, everybody in this House understands the real and clear evidence out there that women are much more likely to be in low-paid jobs, employed in part-time work and on insecure contracts, whether that is fixed-term, agency or zero hours. Therefore, we know that we have to pay special regard to the Bill’s impact on women and equality. The equality impact assessment for the Bill warns, precisely on this point, that
“the EU law concepts that will be removed by the Bill underpin substantive rights in equality law. While GB equalities legislation is extensive, there is a possibility that the removal of the principle of supremacy of EU law and the sunset of EU-derived legislation may lead to a lowering of protection against discrimination”.
So the risk is very clear, and I have to say that I have not been reassured so far by the Minister’s attempted reassurance on issues such as maternity rights. Many of us fought for those rights—we know exactly what came from EU-derived law and what came from case law, and the way they are entangled with UK law—and there is a risk of pulling the rug from beneath them. My concern is that, even if the intent is not to worsen women’s rights, there appears to be a lack of understanding and expertise that will ensure that they do not just slip off the agenda when the sunset clause kicks in. So I would like to hear precisely how this concern about the disproportionate impact on women of the enabling Bill will be addressed. We have heard that we cannot have a proper impact assessment because it is an enabling Bill—which in itself causes great concern. I would like to hear what measures can be taken to ensure that women do not, yet again, end up losing out.
Baroness Altmann (Con)
My Lords, across my whole career, I have worked with other women and admired the work of trade unions trying to help the employment protections for women in general, mothers with young children or women with other caring responsibilities, by helping them to keep working and to build their economic and financial resilience. This includes parental leave, the protection of pensions in TUPE and the other areas we discussed in the first group, but it also includes the worker protections for part-time workers, which have resulted in improved working conditions and protections for men, disabled workers and minority groups, not just for women. For those reasons, I wholly support Amendment 2.
Quite frankly, the fact that the regulations and laws which are the subject of the Bill derive from the EU seems to be a red herring. As my noble friend the Minister said, this is an enabling Bill, which will allow Ministers to retain, amend or revoke our laws and public safeguards. That these protections originated from the EU is just not the point: in reality, as my noble friend said, we have higher standards, so, had they not been introduced by the EU, the implication must be that we would have introduced them ourselves. In reality, my noble friend is saying that the fact that they were introduced as a result of EU measures, and were not objected to when they were introduced, is because Parliament itself would have chosen to have them. So we should not be here debating the fact that, because they originated in the EU, we have to tear them up or to assume that they are somehow bad. Vast swathes of long-standing and hard-won protections are under threat—
Lord Pearson of Rannoch (Non-Afl)
My Lords, does the noble Baroness agree that they are bad to the extent that they never went through the House of Commons, the House of Lords or any of our democratic procedures? This legislation was imposed on us by Brussels and there was nothing we could do about it, so why are we fussed about removing it?
Baroness Altmann (Con)
I am afraid I absolutely do not agree with the noble Lord on that point. The fact that they came from the EU was because that was the way the law worked at that stage. They were fed into by our own elected representatives there, and the principles being introduced were supported by our Parliament. It is a red herring that they came originally from the EU. Are we saying that we, as a civilised country, would not have had these protections anyway? The idea that this word “regulations” is a negative in some way—and, if it is associated with the EU, it is an even worse negative—is not the point; “regulations” is another word for “protection” or “safeguards”, and we must not forget that.
These hard-won protections are under threat, and our constitutional principles are being undermined—as are, potentially, the rule of law and parliamentary democracy itself. When or if our laws need to be changed, surely that must be approved and debated in Parliament, and not just handed to the Minister of the day, who may have no expertise in the area and who may be under the influence of a lobby group. Giving Parliament no proper say or role in changing the law exposes millions of citizens to harms that our normal constitutional safeguards are there to protect us from.
I fear speaking this way from these Benches and I hope that my noble friend will understand that this is not a direct criticism of this Administration or of this Government. It is a comment and a deeply expressed concern about the potential harms that could result from this legislation and the way in which it is being introduced. The Government may not intend this, but we may have another Prime Minister and a whole new range of Ministers soon. Given recent experience, it is not about whether or not we trust the current Government; it is about the way in which our country operates.
Lord Collins of Highbury (Lab)
My Lords, I shall be relatively brief. These two regulations were covered in my Amendment 40, so it could be argued that I have already addressed them.
I want to focus on the points raised by the noble Lord, Lord Fox, and particularly by my noble friend Lady O’Grady about the impact of these regulations on women. I know that my noble friend was part of this because we were working together on the same campaign, when my noble friend Lady Prosser launched the campaign for part-time and temporary workers’ rights within the Transport and General Workers’ Union going out. We took it to Europe to try to persuade MEPs to support us. It would be good to hear whether the Minister responded positively to the campaign to protect part-time and temporary workers when he was an MEP.
These rights have had the most effect on women. Women often choose to work part time for all kinds of reasons, but there is no reason they should have less pay and poorer conditions as a consequence. I had the same conversations with the noble Baroness, Lady Neville-Rolfe, when she was part of Tesco. Tesco is one of the biggest employers of part-time workers and many women were thus able to support their families.
It comes back to the fundamental issue raised by the noble Baroness, Lady Altmann. Here we have a situation where we risk these regulations simply falling off the shelf because of an arbitrary date for a sunset clause. These are fundamental rights which have changed the lives of women and their families. If they fall off, we will have no say in it. If the Minister changes them and we do not like the changes, all we can do in this Parliament is to say no—which means we do not have the rights at all again. That cannot be right. I hope the Minister can reassure us again on the specifics.
Lord Callanan (Con)
I thank all those who have contributed. I listened with interest to my noble friend Lady Altmann but I am afraid that her points were incorrect. I will not repeat the points that I made on the first group about how UK standards are superior. Those standards were introduced in UK law by Governments of both persuasions and approved by the UK Parliament. I am tired of repeating this point, but they did not, and do not, depend on EU law. My noble friend obviously was not listening to the points that I made on the first group.
Let me respond to the noble Lord, Lord Fox, on Amendment 2. I apologise if I am repeating the same points as I made on the first group. We are essentially covering the same ground as Members opposite seek to probe me on specific regulations. As I said on the first group, it is the Government’s position that there is no need for specific exemptions or exceptions to the sunset clause.
There are something like 4,700 identified pieces of law—I hope that we are not going to go through this debate for all 4,700 of them, although maybe it would suit the Opposition to do just that. The Bill provides the tools to remove or reform retained EU law in secondary legislation, but—and this point is crucial—it also enables the Government to preserve and restate retained EU law. This allows for the preservation of the status quo and no change at all to the policy operation where it has been reviewed and deemed fit for purpose for our benefit here in the UK.
As part of this process, and as the Bill allows, the Government are reviewing all retained EU employment law to ensure that our regulations, including the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, meet the needs of the UK economy. We are doing so on the back of the fact that we already have much superior standards to most other countries in the European Union, and far in excess of what EU law legislates for. I appreciate that there is a principled difference between us on this, but I will keep repeating that point as many times as noble Lords ask me for exemptions.
Let me pick up the point made by the noble Earl, Lord Clancarty. I agree with him that the creative industries have made a substantial and sustained contribution to economic growth and job creation across the UK, growing, on average, at nearly twice the rate of the wider economy. The Government are completely committed to supporting these vital industries.
Let me repeat again that it is up to departments and the devolved Administrations as to what they wish to do with specific pieces of policy. With that, I hope that noble Lords will be content to withdraw or not to press their amendments.
Baroness Altmann (Con)
My Lords, I am struggling to understand my noble friend’s comments. If UK law is already stronger than retained EU law, why do we need to get rid of the retained EU law? What is the problem with retaining it on the statute book and going with our stronger protections?
Lord Callanan (Con)
I am sorry that my noble friend does not seem able to understand this, but the Bill provides the tools to remove or retain EU law. It also enables the Government—I repeat this point again—to preserve and restate retained EU law. If my noble friend had listened to our debate on the first group, she would know that I made the point to the noble Lord, Lord Fox, that there is some retained EU law in this area, and a lot of UK domestic legislation that builds on and intertwines with it. There is also the interpretative effects, which were originally aligned. Therefore, while maintaining the high standards that this Parliament has legislated for, and possibly extending those standards in some areas, it is incumbent on us, in order to tidy up the statute book, to make sure that all our laws work for the best interests of this country.
Lord Callanan (Con)
Let me make the point to my noble friend before I give way to her again. Many of these regulations will indeed be preserved, retained or replaced. If it is the case that the Government come forward with such proposals, those regulations will be consulted on, and debated in the other place and debated here. My noble friend will have the opportunity to comment on them then.
Baroness Altmann (Con)
I thank my noble friend. I am still not quite sure what we can say to women, who currently have hard-won protections in the labour market, about where their future rights and protections will end up. We do not have a list of all the things that are going to be changed; the Government themselves have already said they do not necessarily know all the wider ramifications of this. If those protections are, in the view of a Minister, in need of change, and presumably being weakened, Parliament will have the opportunity to look at them. However, as the noble Lord opposite said, if they do not like them, they lose the whole lot.
Lord Callanan (Con)
My noble friend asks what she can say to women. She can tell them that they have one of the highest minimum wages in Europe as a result of the policies of this Government, that they are entitled to 5.6 weeks of annual leave compared with an EU requirement of four weeks, and that they are entitled to a year of maternity leave in the UK whereas the EU minimum is only 14 weeks—that is what she can say to women workers.
Lord Fox (LD)
My Lords, I believe I owe the Committee an apology. In withdrawing my previous amendment I said there were 4,000 unnecessary decisions facing the Government. I am afraid I was wrong. I have listened to the Minister and I understand now that it is 4,700 unnecessary decisions, on which the Government will be using important legislative and administrative bandwidth. I believe there are better things to be doing than this process, and perhaps in one of his other comments the Minister can explain why all this time is being wasted if, as he says, nothing will change—and that is our point.
When it comes to the question of interpretative effects, it is strike two. The noble Baroness, Lady O’Grady, and indeed the Minister himself, set out this intermingling of UK-derived, EU-derived and case law, and the fact that if we start pulling one piece of string there is a very great chance of it unravelling. The Minister has acknowledged there are interpretative effects, but we need a more detailed assessment of how the Government expect those to pan out as the courts get their teeth into the post-2023 situation. When I ask this in the next group, it might be better if the Minister undertakes to write a very detailed letter—possibly assisted by the department’s lawyers—that explains the legal view on how this is going to work. That is perhaps a way of avoiding me asking the question another few times.
At the end of the previous group, there was a very interesting intervention from the Minister’s own Benches on Clause 15(5), and how changes to the wording of that clause could begin to draw the sting of some of the arguments that we have heard so far and will hear later. The Minister might take to heart the advice that came from his own Benches.
We heard in the debate about the disproportionate effect that the stifling of this legislation could have on women, minorities, the creative industries and a wide group of people. That is why it was important to have this amendment in a separate group. However, given the nature of the debate, I beg leave to withdraw Amendment 2.
UK Food Shortages
(1 year, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I refer you to my entry in the register.
“The UK has a highly resilient food supply chain, as demonstrated throughout the Covid-19 response, and is well equipped to deal with situations with the potential to cause disruption.
We have seen Asda, Morrisons, Aldi and Tesco apply item limits to a small number of fruits and vegetables in response to issues with supply from Spain and north Africa. These have been predominantly caused by seasonal weather hampering production and harvest during December and January. The nature of horticulture and the effect of short-term events such as weather on production can create volatility; any growing forecast is subject to short-term alterations, and Ireland and Europe are facing similar supply issues.
Industry has the capability, levers and expertise to respond to disruption and, where necessary, my department will further support and enable that. UK food security remains resilient, and we continue to expect industry to be able to mitigate supply problems through alternative sourcing options.
In 2021, we imported over £1.5 billion-worth of fruits and vegetables from Spain and £340 million-worth from Morocco. We consistently import over 30,000 tonnes of fresh tomatoes every month of the year. Through the winter months, the majority of imports are from Morocco and Spain, but in the summer months the UK mainly imports from the Netherlands. Our home production accounted for around 17% of tomatoes in 2021.
We are working closely with industry bodies across the horticulture sectors to better understand the impacts, and we will be meeting with retailers today to understand their plans to mitigate current pressures. My colleague Mark Spencer, the Minister for Food, Farming and Fisheries, will be convening a round table of retailers to explore with them their contractual models, their plans for a return to normal supplies, and contingencies for dealing with these supply chain problems.
We know that farmers and growers around the world are facing significant pressures from the invasion of Ukraine and a historic outbreak of avian influenza in Europe. We also recognise the impact of rising food prices as a result of global shocks, including the spike in oil and gas prices, exacerbated by the conflict in Ukraine. That is why this Government have taken steps to offer support with energy costs, cut tariffs to reduce feed costs, improve avian influenza compensation schemes, and have taken a range of measures on fertilisers. Indeed, UK growers were able to access the energy bill relief scheme.
Defra also continues to keep the market under review through the UK Agriculture Market Monitoring Group and other engagement forums.”
Lord Krebs (CB)
My Lords, I thank the Minister for that very helpful summary of the situation. I would like to ask him a few questions. There are photographs in the newspapers today of full shelves in Spain, France, Germany and the Netherlands; if the problem is bad weather causing a crisis in production in Spain and Morocco, how come these other countries, including other northern European countries, apparently have access to plenty of salad and fruit? That is question one—why are we different? I know the Republic of Ireland is also having problems, but why are we different from many other European countries?
My second question is more forward-looking. The Minister talked about meetings with the industry and what can be done to support them, and I have two points about that. First, the horticulture sector is very energy intensive in this country. Does the discussion that the Minister referred to include the possibility of crucial support for energy costs in the horticulture sector? Secondly, this raises the broader issue of the resilience of our own food system. Does the Minister think that this affects the conclusions of the Agriculture Act 2020 that we should be paying farmers public money for public goods, excluding food production, like farming butterflies and hedgerows, which I am all in favour of? Does it change the perspective we have on trying to increase food production in this country?
I should have declared an interest of mine that is in the register.
Lord Benyon (Con)
I thank the noble Lord for his questions. There will also be photographs of full shelves in supermarkets in the UK. We have a multiplicity of different companies retailing food in this country, and they all have their own supply chains. If there are also photographs of full shelves in Spain and Morocco, it may be because the supply chains for those companies favour local produce in the way that we hope retailers in this country will always favour homegrown produce where they can get it and where it can be provided for.
I am not entirely sure of the noble Lord’s point, but there is a serious effort being made to understand how each retailer is managing their contractual models and whether government can and should be involved in that. We do not have a command and control economy here; we do not mandate how supply chains work. Where there is market failure, government can step in. That is why we have created a Groceries Code Adjudicator and why we can have very serious conversations with retailers if we think that they are disadvantaging homegrown producers.
On energy costs, the horticultural sector, particularly the glasshouse sector, is able to access our energy support scheme. There will be ongoing discussions about that in the future. As the weather improves and we get into spring and summer, production from UK sources and those closer to home not so dependent on areas like Morocco and Spain which have suffered these one-off—or, we hope, rare—climatic conditions will alleviate these problems.
Baroness Hayman of Ullock (Lab)
My Lords, this situation is not exactly an exception. Before Christmas, there were empty supermarket shelves and real public concern, and the head of the NFU, Minette Batters, ended up calling out the Government’s inactivity and lack of responsibility. The Secretary of State is saying that the UK has a highly resilient food supply chain, but just this morning the former head of Sainsbury’s said that the Government’s lack of energy and support for domestic producers means that we did rather bring this problem on ourselves. Does the Minister agree with Justin King’s assessment? With supermarket shelves apparently fully stocked across Europe, is he really standing by his assertion that others are facing similar supply issues and that the current shortages in UK shops are predominantly caused by seasonal weather in the Mediterranean?
Lord Benyon (Con)
I do not quite know what Justin King is suggesting. Is he saying that the Government should tell him as a retailer how to construct his supply chain models? No. I think the Government’s job is to step in where there is market failure, support homegrown producers and ease the burdens of what one hopes are one-off events, such as the impact of the war in Ukraine on gas and electricity prices. It is the Government’s job to resolve those sorts of issues. Where we can create diversity of supply for importation through trade agreements, we should.
I would pick the noble Baroness up on one point: this is not just affecting the United Kingdom. There are similar problems in Ireland, including in Tesco Ireland, Lidl and SuperValu, which say they are experiencing availability issues with certain fruits and vegetables. Other than Ireland, there are cases in Belgium, where there are some minor issues relating to tomatoes—there are no empty shelves as yet, but prices have increased. In Finland, there is some short-term reduction in supply because of the same issues relating to Spain.
I repeat: UK growers are able to access the energy bill relief scheme. A planned reduction of government support for energy costs in the UK’s industrial horticultural sector will challenge domestic production for some of the items in question, with a likelihood that domestic yields will fall. I could, if I had time, give a great long list of how we are supporting our agricultural sector and intervening where Governments can. If noble Lords are suggesting that we should have a command and control economy that mandates supply chains, I would be interested to have a debate on that here in the House.
Baroness Thornhill (LD)
My Lords, I apologise to the noble Baroness. I have no sight in my right eye, and she was in my blind spot.
These global disruptions to food supply chains would have much less impact if we grew more of own produce in this country, especially if we adopted new technologies. What are the Government doing to support small growers to expand and innovate? I have a question, for my clarification. While the Government want public procurement of food to prioritise good-quality homegrown produce, the current move to creating a monopoly called the Buying Better Food agreement appears to threaten these small growers and therefore works counter to the Government’s own policy. Would the Minister please explain this seeming contradiction?
Lord Benyon (Con)
I absolutely agree with the noble Baroness that we must encourage more homegrown food supply. That is at the heart of our agriculture policy, our food strategy and all our policies supporting, encouraging and incentivising producers. The noble Baroness is also right that technology is our friend here. I have no doubt that in 10 years’ time there will be a very different profile of supply chains. Many of the current ones have been disrupted by such activities as vertical farming, which is already producing an increasing amount of leafy greens and certain fruits for our marketplace. There is really good work happening in that field.
In response to the noble Baroness’s question, and one that I did not respond to from the noble Lord, Lord Krebs, right at the front of the Agriculture Act, it says that:
“In framing any financial assistance scheme, the Secretary of State must have regard to the need to encourage the production of food by producers in England and its production by them in an environmentally sustainable way.”
I entirely take the noble Lord’s point that to do this we must be mindful of natural capital and the very important value of such ecosystems as soils in producing food. It is at the heart of government policy to support the production of food and to iron out these occasional issues through a domestic food production scheme. However, we must be mindful that, while this country produces 61% of the food that we need, we can grow 74% of it, and we must increase that through sensible policies.
Baroness Rock (Con)
My Lords, I declare my farming interests as set out in the register and that I was chair of the Tenancy Working Group. Recommendation 11 of the Rock Review is that
“Defra should define food security as a public good alongside other environmental objectives such as clean air, clean water, lower carbon emissions, and improving biodiversity.”
With this in mind, British farmers, including tenant farmers, play a vital role in delivering the Government’s food strategy. Can my noble friend confirm that helping farmers to increase productivity will increase the level of food security in the UK?
Lord Benyon (Con)
It certainly will, and I pay tribute to the work of my noble friend. I entirely agree with what she says in that report in terms of food security. I also agree with what Minette Batters said at the NFU conference:
“Food security is not the same as self-sufficiency – we will always rely on imports to some degree, and it is sensible to ensure diversity of supply. But food security also means ensuring our food is safe to eat, that it can be distributed efficiently, and that it remains affordable.”
Those are the three key pillars of responsibility of any meaningful Government, and to achieve that we absolutely must have a diversity of producers as well—some will be owner-occupiers, some will be tenants, some will be in different forms of tenure and in share and partner farming arrangements, particularly in the horticultural sector—to ensure that we are producing food that is eaten as near to where it is produced as possible.
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
For the avoidance of doubt, I remind the House that when there is an Urgent Question repeat it is normal for the Opposition Bench to speak first. I also remind us of the convention, before we move to the Statement, that the first 20 minutes are for the Front Benches and then it is open.
Football Governance White Paper
(1 year, 9 months ago)
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The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, with the leave of the House, I shall now repeat a Statement made earlier today in another place by my right honourable friend Stuart Andrew.
“Mr Deputy Speaker, can I start by offering my deepest condolences to John Motson’s family. John had an incredible impact over his 50 years working at the BBC and his legacy as a legendary commentator will not be forgotten.
Now, Mr Deputy Speaker, with your permission, I would like to make a Statement on the Government’s reform of football governance. As I am sure many people across the House will agree, in this country, football is more than just a sport. It is part of our history, our heritage and our national way of life, bringing communities across the country together, week in and week out.
We invented the beautiful game, and the Premier League and EFL are true global success stories. It is exported and watched in 188 countries across the world, streaming into 880 million homes. But despite this global success, in recent years, it has become clear that there are systemic issues at the heart of our national game. Since the Premier League was created in 1992, there have been 64 instances of clubs collapsing into administration. Some of these are historic clubs that we have lost for ever, taking with them chunks of our history and heritage, and leaving huge holes in their communities.
Just look at Bury FC. Over its proud 134-year history, Bury managed to survive two world wars, countless economic cycles and 26 different Prime Ministers. But it was driven to the wall by financial mismanagement, damaging the local economy and leaving behind a devastated fan base, who are still coming to terms with the loss of their beloved club. It is not just Bury. The same is true of Macclesfield Town, another century-old club, and Rushden & Diamonds. Countless others, like Derby County, have been driven to the brink, after stretching far beyond their means.
Despite the global success of English football, the game’s finances are in a perilous state. The combined net debt of clubs in the Premier League and Championship is now around £6 billion. Championship clubs spend an unsustainable 125% of their revenue on player wages alone and some clubs face annual losses greater than their turnover. Many, if not most, club owners are good custodians of their clubs, but all too often we hear of flagrant financial misconduct, unsustainable risk-taking and poor governance driving clubs to the brink. Owners are not just gambling with fans’ beloved clubs. They are threatening the stability of the entire football pyramid.
Aside from the financial roulette being risked on clubs’ futures, this is also about the way fans have been treated. Over the last two decades, too many lifelong supporters have been let down, ignored or shut out by their own clubs. Whether it is in the decision to move their stadium to a different part of the country, as happened with Wimbledon FC, or to change kit or badges without fan approval, such as when Cardiff’s owners tried to change the traditional kit of the Bluebirds from blue to red, or, as we saw with the European Super League, when a small group of club owners planned to create a closed-shop breakaway league that goes against the very spirit of the game, without any engagement with their fans.
Football would be absolutely nothing without those fans, yet too often their voices have not been heard. But we have heard them. That is exactly why I made sure that one of my first meetings as Minister for Sport was with fan groups. I heard first-hand how poor ownership and governance can leave clubs at the mercy of careless owners. In our manifesto, we committed to a root-and-branch review of football, with fans at the very heart of that review. That review, excellently chaired by my honourable friend the Member for Chatham and Aylesford—that is Tracey Crouch MP—highlighted a number of key issues that urgently needed resolving in football. Today, we are acting on its recommendations, with the most radical overhaul of football governance since the rules were first invented in a London pub back in 1863.
With this White Paper, we will do five key things. First, we will bring in a new independent regulator to make sure clubs are financially resilient. The regulator will operate a licensing system for all clubs in the top five tiers of English football. Those clubs will have to show they have sound financial business models and good corporate governance before being allowed to compete. The regulator will also be tasked with ensuring the stability of the wider football pyramid.
Secondly, we will strengthen the owners’ and directors’ test to protect clubs and their fans from careless owners. There will be greater tests on suitability and on the sources of funds.
Thirdly, we will give fans a greater say in the running of their clubs. This will include stopping owners changing vital club heritage—such as names, badges and home shirt colours—without consulting the fans first. Likewise, clubs will have to seek regulator approval for any sale or relocation of their stadium, and fan engagement will be a crucial part of that process.
Fourthly, we will give the regulator the power to block clubs from joining widely condemned closed-shop breakaway leagues, like the European Super League.
Finally, we will give the regulator backstop powers over financial redistribution. Supporting the pyramid is crucial and His Majesty’s Government have already committed £300 million of funding to support grass-roots multi-sport facilities in England by 2025.
When the financial health of the football pyramid is at risk, and football cannot sort this issue out, the regulator will have the power to intervene and protect the game. In short, we are protecting the long-term success of our national game and restoring fans’ position at the heart of how football is run.
I want to reassure Members that this is not about changing the fundamentals of the game or imposing unnecessary and burdensome restrictions on clubs. In fact, we would not naturally find ourselves in this space of having to regulate an industry that has enjoyed huge success without government intervention over many years. Despite the scale of the problems and the huge harm they could cause, however, and despite repeated calls for reform, the industry has failed to act. We have been forced to step in to protect our national game. This is about taking limited, proportionate action to maintain the Premier League’s position as the strongest league in the world. It is also about safeguarding clubs across the country—from the biggest to those in single-club towns where football sits at the very heart of the community.
This Government have proven time and again that we are on the side of fans. We committed to this review in our manifesto. We stepped in during Covid to make sure English football was one of the first leagues back across Europe. We got fans back into stadia more quickly than almost any other country, and we took action under competition law to support broadcasting revenues during one of the most difficult periods sport has ever faced. This secured £100 million of funding for the game. We stepped in once again to block the European super league—a competition that no fans wanted. When fans have needed us, we have been in their corner, and now we are putting them right back at the heart of football. I commend this Statement to the House.”
Lord Bassam of Brighton (Lab)
My Lords, I join with the Minister in paying tribute to the legacy of John Motson—Motty—who has sadly passed. It would be remiss of me if I did not mention that he was not necessarily a fan of my own club, Brighton and Hove Albion, but his father was a season-ticket holder, and he is remembered at the Amex with great affection because he commentated on the first Premiership goal we scored back in 2017-18 season. What a fine goal it was too, from Pascal Gross. We shall all miss John Motson, a man of fair but trenchant views who fairly commented on the game.
It is nice on this occasion to be able to say to the noble Lord opposite that for once he is playing the role of an attacking centre forward rather than a defending centre back. While this process has been beset by delays, we have to congratulate the Government and the noble Lord’s department on finally delivering this important and vital White Paper.
The need to reform the beautiful game has been clear for many years. Indeed, the Labour Party has been committed to giving fans a stronger voice for more than a decade. We are glad that the Government have finally caught up and that, following numerous delays, we are finally seeing some of the detail from the process promised way back in 2019.
The English game and English football are the envy of the world. Our most famous clubs have a staggering reach across all four corners of the globe. However, our love for the game is about more than action on the pitch. For many, as the noble Lord said, football is a way of life, not merely a way to pass a chilly Tuesday evening or a sunny Saturday afternoon.
As I have said on many occasions, football clubs are at the heart of communities up and down and across the country. We have seen many become important social and community hubs, with players undertaking important charitable work and visiting local hospitals, coaches running holiday programmes at schools and in parks, and fans’ groups starting or supporting food banks and other initiatives to support local people. No doubt noble Lords will all recall the role that some players’ generosity played in great spirit during the Covid epidemic. This is solidarity in action; clubs do much in support of that work and we commend them for what they do.
When a club is passed into the wrong hands or, worse, fails completely, there are significant implications. The Statement cited a number of examples—Bury, Macclesfield, Derby, Rushden & Diamonds, Wimbledon and Cardiff—but many more face difficulties, including Southend United. The repercussions of bad ownership reach far beyond the heartbreak felt by supporters, valid as that is. The collapse of a club can send shock waves across entire communities, changing an identity that has often existed for well over a century. There are practical considerations too. A club going into administration means a direct, and often significant, hit to local suppliers’ bank balances. This is why we welcome the proposals in today’s White Paper and why I once again congratulate Tracey Crouch on her excellent work on the fan-led review.
Labour has no hesitation in immediately supporting the recommendations of the Crouch review. We are glad that the Government also accepted them, in principle at least. However, given the urgency of the issues, we do not see why it has taken the department so long to get to this stage. We were promised swift, comprehensive legislation to prevent any more clubs falling into difficulties. Instead, we have this White Paper and yet more consultation. I am all in favour of consultation, but we have had a good year or so of it so far. Do we need yet longer? When does the Minister expect to be able to bring a Bill forward? Will it be in the next King’s Speech or can we expect it somewhat sooner than that?
We especially support the creation of a fully independent regulator of English football, although we will need to see the detail—and soon. The regulator must have the powers and, if necessary, the teeth it needs to make the game more sustainable. Powers to block English clubs joining breakaway competitions, such as the European super league, are welcome, but this cannot be the full story. Issues such as financial redistribution remain subject to negotiation between the Premier League and the English Football League, and we have not yet seen meaningful progress on those talks. One other question occurred to me, which is: how does the regulator aim to operate in regulating the women’s game, because those leagues are becoming increasingly significant? Does the Minister believe there will be a breakthrough in the foreseeable future in looking at redistribution? We hope a deal can be done, but if the two bodies cannot agree, what role will the regulator play and have in facilitating, or even imposing, a new, more equitable system?
We are told that the owners and directors test will be strengthened, but yet again we need to see the detail. The sale of Newcastle raised a lot of questions at the time, not least whether the Saudi owners would use the club as a means of sportswashing. Within months, a third shirt was released with a striking and stronger-than-passing resemblance to the Saudi Arabia national kit. If the Government had implemented their proposals sooner, some of this could have been prevented, and with Man U on the market there is no doubt that some of these issues will arise again.
To conclude, we welcome this important, if not largely symbolic, step, but, instead of more conversations about reform, what the national game really needs is the clear, concerted action that was set out in the Crouch report. I hope that the Minister can convince us today that that is going to be forthcoming sooner rather than later.
Lord Addington (LD)
My Lords, looking through the review and the response, it is good, but it is not everything we hoped for. It is okay. To make it better would mean taking on a much more comprehensive attitude. The nub of this issue is redistribution. That is what everybody is talking about. We have a regulator that will step in if the other people cannot sort it out. That may not be strong enough. It almost certainly will not be, because people do not like giving up money. You can always find a use for money, justifying paying it to shareholders and players, you name it—but this is something where we will step in if we have to, and we almost certainly will.
The problems of professional sport are writ large behind this—let us face it, the problems around the redistribution of grounds and dodgy owners predate the Premier League. Before it was brought in, various organisations raised those problems with me. It is not a new problem; there is simply more money around now and a way of dealing with it more easily, if we intervene.
If we are intervening, what do we expect of these professional clubs? The state has intervened to make sure that they are sustainable, so will we at least impose best-practice models for other things that they do? Will we say to a Premier League club, or to one in the EFL, that they have a duty to support the grass-roots game? That does not seem to be included. If we have intervened to make their lives easier and to allow them to continue to function, we should be doing something to say that they have a responsibility. That is a fairly reasonable thing to do if we use the power of the state to make their positions sustainable. For example, clubs talk about themselves as community hubs; let us make sure these hubs actually do something.
There are many more comments in the White Paper about things such as the contracts for youth development. In the brief conversations I have had with some of these organisations, they say that they do lots of stuff because they run lots of youth teams. They might run lots of youth teams, but it is to spot talent, and then they dump the others when they do not make it. Think about the psychological damage potentially done there. How could that be done correctly?
When it comes to the game as a whole, these children grow up. How are we encouraging them to carry on playing and being involved in sport beyond this? We will miss a huge opportunity if we merely concentrate on people watching the game and do not say that, first and foremost, it is about playing. Those people in a position of privilege should be taking on some of that responsibility.
Other sports have had their problems—rugby league historically, and rugby union right now—with professional structures, games and money and so on. Will the Government consider this as a model for professional sport generally and the messages coming through? That is something we should be hearing about.
For far too long we have sat back and said that although we have a very old structure—in many of these sports the oldest—it is coping fairly well and most of the time runs without us, so just let them get on with it. Football has proven that we cannot realistically do that. The Government have taken the first step to involving themselves more fully. I hope they have a more coherent plan that goes a little wider than just football—big and important as it is.
Lord Parkinson of Whitley Bay (Con)
My Lords, both Front-Bench spokesmen have underlined the importance of football in our national life, going beyond just the many people who enjoy and play football matches. Its role in our national psyche is well underlined this week by the announcement of the play “Dear England”, by James Graham, coming to the National Theatre this summer and inspired by Gareth Southgate’s letter; I look forward to it and to seeing Joseph Fiennes play him.
I am grateful to noble Lords for their words of welcome for the White Paper and the action that the Government are taking. I think that makes this a “friendly” in football parlance—
Lord Parkinson of Whitley Bay (Con)
Pre-season—normal service will be resumed soon.
On the point about speed, these are technical areas and my right honourable friend the Sports Minister has made clear how hard he has worked and the extensive engagement he has had with fans and others to make sure that we get it right. We make no apology for that, but we want to see these proposals put into action swiftly. That is why the consultation we are proposing will be a swift and short one of four weeks, so that we can bring forward the measures that are needed. Where that requires legislation, that will be set out in the usual way for parliamentary business, but we want to see action taken. As noble Lords have heard me say before, there are many things that do not need to wait for legislation and that clubs can be doing, particularly on financial redistribution. I hope that the publication of the White Paper today further underlines for them the seriousness with which the Government and fans want these issues to be taken.
The noble Lord, Lord Bassam, asked whether women’s clubs will be regulated. Although the regulator will be designed to regulate the top five tiers of the English men’s professional game, in many places there is clear read-across and overlap with the women’s game, particularly in leagues where teams operate under the same legal entity as their male counterparts. Some women’s teams will be subject to indirect regulation in areas such as the owners’ and directors’ test and financial regulation. We are giving further consideration to such areas of overlap and how they could be managed. He will also know that the review of women’s football which the Government commissioned, and which is due to conclude later this year, will, I am sure, take that into account as well.
The noble Lord, Lord Addington, talked about using the power of the state here, and it is an important point to make. The regulator will have targeted powers of last resort to intervene in relation to financial distribution if a football-led solution is not brought forward. A mutual agreement remains the preferred solution to resolving the issues of insufficient and destabilising financial flows. The regulator will take an advocacy-first approach to regulation but will be given the powers to mandate and intervene swiftly and boldly when that is needed. Checks and balances will be embedded in the design of the regulator and its system to ensure that it exercises its functions in a fair and appropriate way. For instance, it will be subject to legal processes to govern how it uses its powers, including requirements to consult and to meet set thresholds for intervention. As the Statement said, we are looking to act in a proportionate manner here.
Finally, the noble Lord mentioned Newcastle United in relation to the owners’ and directors’ test. Although I cannot comment on specific instances, it gives me the opportunity to wish Newcastle good luck for Sunday. I would be remiss if I did not do so, particularly with family back at home on Tyneside. I wish them the best for the match on Sunday.
Lord Polak (Con)
My Lords, to a football fanatic such as me, John Motson was an icon, and I send my condolences to his family.
Usually the Government are moved to regulate when an industry is failing in a significant way. The football industry in the UK is not failing in a significant way—unless like me you are an avid Liverpool fan, though I remind noble Lords that it is only half-time and we have done it before. Sometimes, heavy-handed and intrusive regulation can have an unsettling effect. The Premier League is the best in the world and the Championship is the best second-tier league in the world, so can my noble friend the Minister assure me that the regulator will do nothing to impact the football that is loved both here and around the world, or to impact the success of the Premier League, which is so important to supporting the wider football ecosystem?
Lord Parkinson of Whitley Bay (Con)
I am afraid I cannot agree entirely with my noble friend. The examples cited in the repeated Statement are just a handful of examples which point to the failures we have seen and the great disappointment it causes to fans right across the country when their clubs are put in peril, or in some instances cease to exist. My noble friend is right, though, that we want to act proportionately. We are very proud to have such world-leading teams and leagues in this country, but we want to ensure that fans’ voices are heard loudly and clearly throughout the football pyramid. That is what the independent regulator and the other proposals in today’s White Paper aim to address.
Lord Faulkner of Worcester (Lab)
My Lords, I declare a historic interest as the vice-chairman of the Football Task Force more than 20 years ago. The Minister will know, though he obviously was not active in politics at that time, that many of the recommendations in Tracey Crouch’s report were ones the Football Task Force put forward, particularly in its final report when the recommendations were largely overthrown by the Premier League’s opposition.
I hope the noble Lord, Lord Polak, is not actually leaving the Chamber—oh, he is. His defence of the Football League, which was refuted by the Minister, is ill-advised. To say that there is nothing wrong with football and it is all fine because the Premier League is a huge commercial success hides all the problems the Minister referred to in the Statement, and which are also in the White Paper and the report by Tracey Crouch. The game is not healthy below the Premier League. Huge numbers of clubs in the English Football League are heavily in debt. Many pay wages that are in excess of their income. The need for redistribution in the game is without question.
One thing about the Statement and White Paper I think regrettable is that the regulator, whose appointment I strongly support, is not being given a front-and-centre role carrying out the redistribution. I do not believe for one minute that the Premier League will voluntarily give up the income it has on the scale required, and nor does the English Football League. It has given up its negotiations with the Premier League, saying that the parachute payments should be abolished and there should be a significant payment, particularly from television income, which should go down through the pyramid. Can the role of the regulator in financial redistribution be looked at again and, with any luck, be included in the regulation when it comes forward?
Lord Parkinson of Whitley Bay (Con)
I pay tribute to the noble Lord’s work in this area. I know he worked closely with and has been a strong voice in this Chamber on behalf of Tracey Crouch and others who worked on the fan-led review of the proposals. A football-led resolution to the issue of financial redistribution is the Government’s preference. We urge football swiftly to come to an agreement on that. I agree with the noble Lord: we have been clear that action is needed. Clubs have had plenty of opportunity to take action and in many areas have not done so, which is why we are taking these steps today. Ideally, the regulator would not need to intervene in this space. The process will be designed to empower and encourage football to find a solution first. If it fails to deliver a solution, the regulator will deliver one. The steps we are bringing forward will set that out.
Baroness Evans of Bowes Park (Con)
My noble friend will know that clubs such as Norwich City—I declare an interest as a season ticket holder, some might say “long-suffering” but many of us would not—are at the heart of their local communities and, crucially, inspire young boys and girls to experience all the benefits sports can bring. Can my noble friend confirm that, as a result of this review and the further investment I believe has been announced, funding will flow down and increase provision at local level of 3G pitches and other facilities, in order to ensure that young people can enjoy the benefits of football and to increase the talent pool we want to see in the game?
Lord Parkinson of Whitley Bay (Con)
I am particularly glad to hear from my noble friend because her husband asked the final question of my right honourable friend the Sports Minister when the Statement was made in another place—asking his question in the final minutes like one of those dramatic goals in extra time. Her question, in earlier time here, underlines the importance of financial redistribution and the life-changing opportunities it provides for young boys and girls who wish to play the game. Alongside that, as I said in the Statement, the Government are providing £300 million to make sure there are multisport playing facilities around the country, including in Norfolk, to inspire young people.
Lord Snape (Lab)
Does the Minister accept that it is important not to over-emphasise the role supporters can play in the running of football clubs in the EFL? I speak from bitter experience, having twice been a director of my hometown football club, Stockport County. In 2010, a group of us inherited a club that had been almost bankrupted by the well-meaning efforts of the supporters’ trust. The supporters’ trust system has not been particularly successful in English football. I confess to the Minister and your Lordships that, having become chairman of Stockport County, I led the club to its least successful period in its 130-year history. Stockport County is currently owned by a Stockport-based millionaire and is sixth in the English second division, having been led out of the national league by Mr Mark Stott, the current chairman. I speak still as a season-ticket holder at Stockport County. I would much prefer, and I suspect other supporters would agree, a club such as Stockport County to be run by an enthusiastic millionaire rather than an inefficient amateur like myself.
Lord Parkinson of Whitley Bay (Con)
The Government do not want a one-size-fits-all approach to fan engagement. That would be wrong, not least because the five leagues cover 116 clubs of many different shapes and sizes. Our proposals allow the regulator to implement a minimum standard of fan engagement and protection, particularly regarding club heritage, that would ensure that clubs have a framework in place regularly to meet representative groups of fans to discuss key strategic matters at the club and areas of interest to them. The noble Lord is right: there is a difference between the day-to-day financial management and the long-term preservation of the identity of clubs, but with the flexible approach we are taking, we are ensuring the regulator is able to facilitate that.
Lord Hannan of Kingsclere (Con)
My Lords, the three Front Benches were unanimous on the excellence of our football. The noble Lord, Lord Bassam of Brighton, used the phrase “envy of the world”—a phrase that is often used loosely, but on this occasion may be exactly accurate. That excellence came about because of self-regulating bodies that existed for no purpose beyond the pleasure of their own members, who did not ask for state permission and who have built what we all seem to agree is this world-leading, excellent system. So to what problem is this a solution? Of course we can all identify some imperfections—perfection is not for this life—but is my noble friend really confident that state-appointed regulators will be more interested in the welfare of clubs than the people who own them, who presumably have some interest in the success of their investment? We are not some Comecon country or insecure South American junta where sport is a matter of national prestige that cries out for national regulation. Should we not hold ourselves to a higher standard?
Lord Parkinson of Whitley Bay (Con)
I am enough of a Conservative to agree with my noble friend that it is much better when solutions are found not by the state but when people take matters of good custodianship into their own hands; but I am enough of a Tory to be sad at the demise of much-loved historic institutions such as the 64 clubs which have gone into administration since the Premier League was created in 1992, much mourned by fans and communities in the towns and cities where they long played. That is why we are taking the step to create a regulator: to ensure that fans’ voices are heard and that these historic clubs endure.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, we will have a short adjournment while we find the Minister and her file. We will return in a few minutes.
Retained EU Law (Revocation and Reform) Bill
Thursday 23rd February 2023
(1 year, 9 months ago)
Lords ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 View all Retained EU Law (Revocation and Reform) Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 89-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (22 Feb 2023)
Baroness Brinton
Member's explanatory statement
This amendment excludes the European Qualifications (Health and Social Care Professions) (Amendment etc.) (EU Exit) Regulations 2019 from the sunset in Clause 1.
Baroness Brinton (LD)
I apologise to the Committee for not being able to speak at Second Reading because of another commitment. I attended part of that debate and have read Hansard’s record of it. In this group, I particularly thank the General Medical Council and Food Standards Scotland, as well as many other organisations, for their excellent and helpful briefings.
It is worth noting that, in The Benefits of Brexit, published in January 2022 by this Government, they set out their principles for regulation, including:
“Recognising what works. We will thoroughly analyse our interventions based on the outcomes they produce in the real world and where regulation does not achieve its objectives or does so at unacceptable cost, we will ensure it is revised or removed.”
Like many other Peers, I echo concerns that the Bill contains severe risks to our democracy and laws and even to the role of Parliament. Once again, we have seen that the Bill gives widespread executive powers, and that has an impact for the amendments in this group. Department by department, the number of regulations continues to increase, as the debate at the end of the last group demonstrated, and I suspect it will increase again.
The three amendments in this group relate to health, but each covers completely different areas affected by the REUL Bill. This is because they are on the dashboard; it is all about what is and is not included on the dashboard, and, frankly, it appears to be universally confusing, including to government departments, which is worrying. So, if my questions to the Minister for all three are broadly similar, I suspect that that will be reflected by other noble Lords during the passage of the Bill. I hope that she will forgive me.
Amendment 3 looks at the European qualifications for health and social care professions, as amended by further regulations made in 2020. These govern the way that the UK recognises qualifications obtained in the EEA. As the General Medical Council—GMC—said, this is done in two distinct ways: via amendments that were made to our legislation and by four substantive provisions. The legislation route included a pathway to registration, known as the “relevant European qualification pathway”, which is a streamlined way for doctors with European qualifications to get registrations with us.
We on these Benches laid this probing amendment because of concerns about the scope. Before I come to that, I will make a brief comment on why it is vital that the Government get this right. Today’s Times front page says:
“NHS wants to double medical school places”.
This is because of the current shortfall in doctors—I note the past Government here as well. But training our own doctors does not happen overnight and, when there are shortages, we rely on doctors from overseas, including from the EEA. Getting that speedy recognition of equivalent qualifications right is absolutely vital. Only last month, the Government had to introduce changes to the pathway and process for the recognition of overseas dentists to be registered, as the General Dental Council was held back by the previous UK legislation, meaning that it took months and months to process an initial application. This is all at a time when there is a severe shortage of homegrown UK dentists.
In response to recent shortages, not least the number of EU doctors leaving the UK after Brexit, but also because our own trained doctors are leaving faster than their successors can be trained, this is particularly pertinent at the moment. In 2021, the Government increased medical school places by 1,500 to 9,000 a year and have boasted about it at the Dispatch Box ever since. However, last month the Government told universities to stop training so many doctors. We have a problem. If we do not have access to foreign doctors coming from overseas and the Government are seriously proposing to reduce the number of doctors under training, how will we manage to get ourselves out of the current NHS crisis?
That is the background. Returning to the legislation, the GMC says in its briefing that it is very worried that
“the Government may consider the standstill amendments which operate the REQ pathway as being in scope of the REUL Bill and seek to remove this pathway from the Medical Act at the end of the year.”
It goes on to say at point 9 in its briefing,
“We have exchanged with the Department of Health and Social Care (DHSC) to establish whether the standstill amendments fall within the scope of the REUL Bill and, if so, what this could mean for us and our pathway to registration for holders of EEA qualifications.”
It continues at point 10:
“DHSC have been unable to confirm the position but have intimated that the standstill amendments do fall in scope of the Bill and that an ongoing government review of these regulations will determine whether the Secretary of State grants an extension to the 2023 sunset deadline… This means that, without an explicit government extension granted, the amendments and the pathway would be removed at the end of this year—the Government think this would happen automatically.”
I come back: given the current pressures on the NHS, ending the arrangements for holders of EEA qualifications to register could lead to very severe outcomes for our NHS. I just remind your Lordships that the GMC received over 2,800 applications for registrations from doctors holding EEA or Swiss primary medical qualifications last year.
I think it is understood that the REUL Bill should have no effect on the amendments made to the Medical Act and other regulations but there are four provisions in the standstill regulations which have their own substantive effect as opposed to amending other provisions. Our understanding is that this Bill therefore presents a risk in relation to these provisions because they would be revoked at the end of 2023 unless action was taken to extend that deadline to preserve the effects of the provision.
My questions for the Minister are as follows. First, is what I have said correct that the standstill amendments are in scope, or not? If even the DHSC cannot work it out, there is a major problem.
Lord Hope of Craighead (CB)
My Lords, I wish to raise a point about Amendment 4. It relates to the interaction of this Bill with common frameworks. I believe—though I am open to correction—that EU regulation 1169/2011 is the foundation of a series of statutory instruments made by the United Kingdom Government, the Welsh Assembly and the Scottish Parliament, which all relate to what is called food labelling and compositional standards. That is one of the frameworks on the list of 32 which the Common Frameworks Scrutiny Committee has been scrutinising. My first question is: am I right that this regulation is part of this particular framework? If it is, it raises another question of great importance. What do the Government propose to do about legislation which is part of and built into a common framework?
The word “common” is used in the expression because these frameworks are common to the four Administrations that make up the United Kingdom. This is a method of creating an internal market which is a little more relaxed than that created by the internal market Act. The point is that all four Administrations consult each other about changes that may be needed and about the composition of the frameworks themselves.
I hope that the Minister will be able to say that the Government’s intention is simply to replace the regulation and the SIs that follow behind it so that they become part of assimilated law and lose their connection with EU law. I do not think that replacement would create problems, provided it is accurate. There is concern about Clause 15(3), which talks about alternative provision. If the proposal is to make alternative provision to any legislation which forms part of a common framework, to any extent or for whatever reason, it raises a question as to how it is to be done, while respecting the way in which the framework scheme operates. The essential part of the framework system is consultation between all four parties with a view to seeing whether there is a divergence, and, if there is, whether it can be accommodated by agreement between the parties? Where there is no divergence, one need do nothing about it—but it is all a matter of consultation.
I suppose my question is this: is it proposed to make any alternative provision in relation to this particular framework? If not, or if, as I said before, it is just a matter of replacing it, then I can see very little problem there. Any attempt to reform or make alternative provision raises a question of timing, which goes back to a point raised earlier today about whether the sunset is capable of being met. It is not just a matter of identifying the instruments and deciding what might be done about them; you have to have time to consult the devolved Administrations and secure their agreement. If there is disagreement, there needs to be time to go through a process for the resolution of disputes, which is built into the frameworks. It is a carefully designed system.
If the Government are proposing to maintain the common frameworks—I understood from the noble Lord, Lord Callanan, quite some time ago that that is their intention, which I very much welcome—then it raises questions as to how exactly that process will be handled. I support the noble Baroness, Lady Brinton, on the points that she made, but this is a very specific issue. We will come back to the handling of common frameworks in later groups, but I raise it now because it is very much in point in relation to this specific regulation, which we will examine and see how this is going to be dealt with.
Lord Fox (LD)
My Lords, my noble friend Lady Brinton has done a fantastic job of explaining why these three amendments have been put forward. I was going to apologise to the noble Lord, Lord Davies of Brixton, for stealing his clothes, but I feel less guilty now—he was here just now but has popped out.
I welcome the Minister to her seat; I do not know what she has done to deserve this slot, but I see that the Lord Privy Seal is here to make sure that she turned up. I think that she was here earlier when the noble Lord, Lord Davies, brought up Amendment 45, which would explicitly exempt the financial services industry from the effects of the sunset. I would have thought that, at a time when the health service is under the stress that it is and is stretching every sinew to try to deal with the situation that it finds itself in, this would be a sector to qualify for exemption. I suggest to the Minister that she might like to go back to colleagues and accept an amendment to Amendment 45, which will no doubt come from somewhere, that exempts health service regulations from the sunset arrangement. As we have pointed out, it seems that the precedent has been set by the Government, so let us look at worthy causes for exemption. If the health service is not top of that list, I would like to know what is. That is my modest suggestion to help the Government out on that particular issue. It does not make sense to call into question the qualifications of the doctors we actually have when we are trying to get so many more. Perhaps that is a solution.
My noble friend, in speaking to Amendment 4, mentioned REACH and the UK version of chemicals regulation. I probably should not point it out, but the issue of the non-portability of data was brought up repeatedly by many of us on the Floor of your Lordships’ House and so it should not have come as a surprise. The fact that it is now costing substantially more to do what we were doing anyway also should not be a surprise. It is a lesson that perhaps has not been learned but could be learned.
Amendment 4 relates to EU-derived laws that ensure the safety and standards of food in the UK. Removing them would pose a serious threat to consumers and undermine protections that prevent loss of life, as my noble friend so clearly illustrated. That is why we have put this particular regulation in this group of amendments and suggested it should be exempted from the sunset.
On PPE, I think the performance of PPE speaks for itself.
Lord Kerr of Kinlochard (CB)
I too welcome the Minister to her role. I knew her first as a very distinguished civil servant in the Ministry of Agriculture, Fisheries and Food, so know that she will understand far better than I do what I am now going to touch on.
It seems to me that this Bill has flown under the radar so far, as far as public opinion is concerned. It came through the other place with very little public attention. I do not think many people realise how much of the statute book that is directly relevant to them is in play and will stay in play until some Minister has decided whether it is to be amended, replaced or die. When the public get to know that this is the case, I think they are going to react rather badly. I wonder about the politics of this, late in a Parliament, but that is not my business.
The issue arises first very clearly in relation to Amendment 4, and later in relation Amendment 20. Food safety is a real concern, right across public opinion. The idea that food labelling and safety rules could be in play will have considerable resonance, in a negative sense, across the country. When people were talking in an overexcited way about how we might have a free trade agreement with the United States, I was struck by the issues that really had public resonance, which were those concerning chlorinated chicken and the hormones in beef. As a member of the International Agreements Committee, I am struck that what is of most interest to the public in free trade agreements are food imports and whether their standards will be equivalent to ours.
I learn from the Consumers’ Association that 90% of our food law is retained EU law. Unless the Government accept amendments such as Amendments 4 and 20, in play will be a raft of legislation which is important to people. They take it seriously; they want to know what is in the food they are going to give the kids. It would be in the Government’s interest to look seriously at these amendments and at the sunset clause, which just does not work, as the noble and learned Lord, Lord Hope, said earlier.
Particularly in relation to food safety, people think, “salus populi suprema lex”—I try that on the Minister because she is a great classical scholar—that is what they believe. Therefore, what the rest of us are doing now, along with singularly few on the Government Benches—
the boy stood on the burning deck,
Whence all but he had fled—
will have considerable resonance out there.
Lord Whitty (Lab)
My Lords, I want to follow the noble Lord, Lord Kerr, in intervening on this issue because this is the first consumer protection part of the Bill. I was once a consumer champion—I hope I continue to be so privately—and this amendment and many in the next group relate to food safety. The noble Lord is absolutely right: this is one of the most acutely difficult areas of consumer protection, and labelling in particular has caused a certain amount of controversy. But there is settled law here, and the bulk of it originates from Europe.
There are other areas of consumer law where UK law is better than EU law, but here, our scientists, our food industry and the Europeans have come up with an agreement which goes right across Europe. We have to remember that processed food and fresh food is a very well-traded commodity, probably the biggest trading commodity within the European continent, and we need some commonality. The threat of this being changed is surely a real difficulty for the food industry—although the Minister can answer that—and certainly for consumers. It is difficult enough to follow the labelling and consumer information currently required; if we have different labelling and requirements for things originating in France and in the UK—or for those originating in the Republic of Ireland and in Northern Ireland—we will have huge difficulties.
But there is something more behind this. When the Government presented the European Union (Withdrawal) Act 2018, I think we all accepted that whether we liked Brexit or not, we would have to have a process whereby government looked at whether some of these laws continued. The real difficulty with this legislation is that it does not provide for a steady look at what the highest priority is for government to intervene on over the next few years, in order to see in a broader context whether we ought to change it. There is the threat that every single regulation and law mentioned in these amendments and in subsequent groups will end on 31 December this year without any replacement, whether with consideration or not.
We are on Clause 1, which deals with the sunset. The noble Lord, Lord Kerr, has referred to the relatively sparsely populated Government Benches. I ask Ministers if during their lunch break they have taken note of the points made by the noble Baroness, Lady Altmann, and the noble Lord, Lord Lucas. If they are taken on board, that would reduce the anxiety here and in civil society about this approach. If the sunset clause disappears, and with it the threat of regulations entirely disappearing at the end of this year, we would give the Government credit for being able to make a proper assessment of whether those rules are needed.
Regarding the suggestion of the noble Lord, Lord Lucas, if we had an amendment to Clause 15 which, broadly speaking, said “no regression”, the level of anxiety would again be greatly relieved, at least in relation to some of the regulations we are talking about.
So I hope the Minister took the opportunity of the 50-minute adjournment to think about what his colleagues were saying, and that he will come back to us, either now or subsequently, with an assurance that there will not be the death of all these regulations as of 31 December, and that regression will not occur in relation to any of them, particularly those dealing with food labelling information and the protection of consumers whenever they go to the supermarket.
Baroness Chapman of Darlington (Lab)
My Lords, I support all the amendments in this group. The noble Lords, Lord Fox and Lord Clement-Jones, and the noble Baroness, Lady Brinton, in the way she introduced them, have done a very good job of bringing these important issues to our attention. I want to make a couple of points that have not yet been made about this process. We have had a lot of discussion on process, as we do on Bills that are all about enabling rather than substance. That is inevitably what our debates end up focusing on; we use these issues as a prism to look through. It helps us to realise just how dreadful an approach the Government are choosing to adopt.
As we all said at Second Reading, I do not think anybody objects to the Government looking at retained EU law and asking Parliament to make changes to it. That is what Governments are there to do: to improve the law of the land. We respect this Government’s right to do that. We might not like it, but that is what they are there to do. However, we feel that to do it in this way is just wrong in principle, and the usefulness of these three amendments is that they make that point very well.
When I was looking at Amendment 3, I noticed that in February last year the Government presented an SI dealing with health professional qualifications. They said that it was needed because the measures concerned had been dealt with in a hurry as we left the EU. At that point, in that SI, the word “pharmacist” had been used instead of “dentist”. That is quite an error. I raise this for a couple of reasons. The first, obviously, is to demonstrate that the Government can and do change regulations arising from our exit from the EU as a matter of course. It is a perfectly normal thing for both Houses to do. I myself, and I am sure everybody else in the Chamber today, have had the great honour, privilege and delight of taking part in many SI debates. It is what we do. Even when things are not done in a crazy rush, trying to get hundreds or thousands of these done by Christmas, significant errors are made and things are put into the law of this country that were never intended to be there and should not be there. I also raise this because I wanted to highlight that however brilliant our civil servants are—as I think they are—and however diligent and hard-working they definitely are, errors are made by civil servants too. I am not someone who has described our Civil Service as “broken”, “lazy” or “bloated”, but government Ministers have, very recently; yet they are asking civil servants to undertake this Herculean process. There is a tension there.
Amendment 4 and the issue of food labelling is important; I am not surprised that that is what the majority of the contributions on this group have focused on. There are multiple examples of deaths occurring as a consequence of food labelling not being right. I am very supportive of an examination of our food labelling laws. I am very happy that this could be done by the UK Government—ideally in consultation, at the very least, with the devolved Administrations.
Lord Hope of Craighead (CB)
Before the noble Baroness sits down, I wonder whether she accepts my point about the common framework relating to food labelling and standards, because it does raise a different dimension. In that case, the UK Ministers do not have a free hand if the framework system is to survive. Every change has to be discussed, and preferably agreed, with the devolved Administrations. If there is disagreement, then that has to go through a resolution process, which may ultimately end up with the UK Minister. But it is quite a complicated process, which is designed to make sure that there can be some divergence, but an agreed divergence, across the Administrations, which is in the interests of everybody. So I wonder whether she accepts my point that this is another dimension which really has to be explored, and of course has a bearing on the sunset point.
Baroness Chapman of Darlington (Lab)
I very much accept that. It might be that we want to discuss later in the Bill whether or not any of the issues that devolved Administrations have a view on, or have responsibility for, ought to be dealt with in a different way, because the devolved Administrations, as of today, are deeply concerned about the way that the Government are proceeding. So I very much agree with the noble Lord’s point.
Baroness Meacher (CB)
My Lords, may I just respond to the noble Baroness, Lady Chapman? She said that we just need to know whether the Government want to retain the protections in terms of health, PPE and food labelling, or whether they want to change it or reform it and so on, and that that is all we need to know. It is unbelievable to me that we are having that sort of discussion in this House, rather than requiring it to be very clearly specified in the Bill in relation to these incredibly important issues, and indeed the thousands of other important issues, exactly what the Government’s policies are in terms of retaining, reforming—and, if so, what reform—and the rest of it.
This takes me back to the comments from much earlier made by my noble friend Lord Wilson, when he said that this is lazy government and an unacceptable failure to prepare the policy for this Bill before bringing it. It has already gone through the House of Commons like a flash without any proper discussion. As he would say, there is a reason that we have democracy and the UK Parliament; it is in order for the British people to be consulted, to understand and to be able to anticipate and know what their Government are doing and why. So we are having these debates—as I said earlier, I do not want to repeat myself—but it just takes me back to asking what on earth we are doing, rather than saying, “Government, O Government, please take this Bill back; do the homework, prepare your policies in relation to this Bill and then set out your policies in the Bill; and let us see whether Parliament will pass it.”
Baroness Chapman of Darlington (Lab)
What an extraordinarily old-fashioned way of looking at how to run a country. The idea that the Government Minister would be required to stand here, in front of your Lordships, and explain what the Government intend to do—I have never heard of such a thing.
I think that the noble Lord, Lord Wilson, was absolutely right to say that this is lazy government. It is lazy, but the reason that the Minister is about to stand up and give some sort of platitudes or vague assurances is because the Government do not know what they want to do. We saw this with the Schools Bill and with the Northern Ireland Protocol Bill. I am sure we have seen it with many other Bills which I have not been quite so closely involved with, but this is a pattern—a pattern which I think the public have got ever so slightly wise to. I would sincerely advise the Minister, whom I hold in utmost respect, not to try to fob this Committee off with some kind of vague assurance. We do want specifics, and we do want to know what the Government are planning to do.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, it is actually a great pleasure to join this debate on this important Bill. There are four of us on the Front Bench to listen to concerns expressed today—weighty Front-Benchers. I very much believe in the rights of this House and our work to review legislation, which I have done with many noble Lords over the last 10 years.
I will not repeat everything that my noble friend Lord Callanan has said. But I would say that the sunset was introduced to incentivise departments to think boldly and constructively about their regulations and to remove unnecessary regulatory burdens. We should not forget this, while, of course, maintaining necessary protections. That includes food safety, as the noble Lord, Lord Kerr of Kinlochard, explained so clearly. The noble Lord, Lord Whitty, rightly pointed out that food moves across frontiers, which need to be taken into account, of course, in any review.
Of course, all protections will not disappear. That is not what we are debating. As the noble Baroness said, the Government are here to improve the law of the land and we need to avoid error.
Lord Fox (LD)
I thank the Minister for giving way. She said that not all protections will fall away. Can she tell us which protections will fall away?
Baroness Neville-Rolfe (Con)
I said we would be maintaining the necessary protections. I was debating. People were saying that all protections would disappear; I wanted to make it clear that that was not the case. I am going to talk in a minute about the two or three areas raised by the noble Lord, Lord Fox.
The sunset clause, as we have said already, is not intended to restrict or influence decision-making. It will be for Ministers and devolved Governments to decide what action to take in their specific policy areas.
Even those of us who were remainers and who participated in discussions in the making of European regulations over many years were very frustrated by the bureaucracy and duplication of some regulations, and some of the compromises that we had to make were unwelcome. That was true for Governments over a long period; it was not only a matter of this Government’ concerns.
It is only right, in my view, that retained EU law is reviewed equally across all sectors of the economy and then, if necessary, reformed or preserved. To respond to one of the points made about carve-outs, we do not want to leave any area unreviewed. That includes financial services, but they are being reviewed in the context of another Bill that is going through the House at this time.
We think it is right to review all the areas, including health—
Baroness Chapman of Darlington (Lab)
I am just curious. What decision process resulted in financial services being dealt with in a different way from everything else? It would help us if we could understand that.
Baroness Neville-Rolfe (Con)
As I said, we are determined to have a review and to make the changes that we can, and the two Bills are going through concurrently. A decision was taken—I think rightly—to take advantage of that process.
Baroness Chapman of Darlington (Lab)
We are trying to understand why that is. What is different about financial services and food safety to warrant them being dealt with in such different ways?
Baroness Neville-Rolfe (Con)
I think our overriding concern is to make sure that all the areas are reviewed and that is behind this whole process, including the sunset. Let me move on, if I may, and make a bit of progress.
Baroness Ludford (LD)
I hope the Minister will forgive me but before she moves on, I want to add to the question from the noble Baroness, Lady Chapman. The Financial Services and Markets Bill is not only primary legislation but there has been consultation, proper scrutiny and so on, and listed in the schedule to the Bill are all the measures that are being removed. That is essentially what is being asked for by critics of this Bill. Please will the Minister tell us what the Government are doing with individual measures—the 4,000 or whatever?
Baroness Neville-Rolfe (Con)
We have a process for those measures. Obviously, there is a lot of retained EU law. We are going through it very carefully. Departments are doing that and are working out what should be preserved, what should be amended and where there is duplication. As I said, there is a case for change, and I think that has been accepted on the other Benches. In some cases, there is parallel legislation, such as the Environment Bill, which has brought in new powers.
If I might turn to Amendment 3 in the name of the noble Baroness, Lady Brinton, I think she will be glad to hear that the European qualifications she refers to in the amendment do not, in fact, fall in scope of Clause 1. Therefore, this amendment is not necessary and, indeed, would have no effect. This is because the regulations concerned were made under domestic powers to come into force after the transition period and therefore do not fall within the definition of EU-derived subordinate legislation in scope of the sunset. The sunset captures only regulations made or operated immediately before the transition period for the purpose of implementing an EU obligation.
Turning to Amendment 4, I am sorry to hear about the noble Baroness’s coeliac condition. I remember developing special lines for coeliacs in my time at Tesco, which has been referenced earlier in the debate. We are in the process of reviewing retained EU law. The Government’s aim is to ensure that food law is fit for purpose and that the UK regulatory framework is appropriate for and tailored to the needs of UK consumers and businesses. A specific exemption for these regulations is not appropriate. The Government are in the process of analysing and assessing retained EU law to determine what should be preserved and what should be repealed or amended. That work will determine how we use the powers in the Bill. The UK has world-leading standards of food safety and quality, backed by a rigorous legislative framework. I know because I did the first Bill of this kind, the Food Safety Act 1990. It is only right that we should re-evaluate REUL to ensure that it continues to meet our needs.
I was asked about intention. The Government remain committed to promoting robust food standards nationally and internationally to protect consumer interests, facilitate international trade and ensure that consumers can have confidence in the food they buy.
Baroness McIntosh of Pickering (Con)
I have followed this debate, although I have not yet spoken in it. I would just like to clarify something. Is my understanding correct that Defra, or indeed any other department, could apply to have its own date for sunset clauses? If that is the case, what is the mechanism that would be used in terms of legislation? Also, when the Minister refers to food standards, what is the role of the Food Standards Agency in England and Food Standards Scotland to maintain them, not just for food in this country but to ensure that imported foods meet those standards under the revised legislation?
Baroness Neville-Rolfe (Con)
I will try to answer my noble friend’s question. Defra has a programme looking at all this. It needs to decide what to preserve and what might need to be amended. I think the Bill has some scope for extension from 2023 into 2026. Perhaps I could now move on to Amendment 17 in the name of the noble Lord, Lord Clement-Jones.
Lord Hope of Craighead (CB)
Before the Minister moves to Amendment 17, Amendment 4 raises the issue of common frameworks. I can well understand the Government’s wish to have a fresh look at standards overall, but it is a massive task, and if the Government are adhering to the structure of the common frameworks, that cannot be done without consultation with the devolved Administrations. Are we dealing with common frameworks in the area that Amendment 4 is concerned with and, if so, how do the Government propose to handle it? Are they proposing to adhere to the mechanisms in the common frameworks? If so, can the Government assure us that they can achieve what is necessary before the sunset date?
Baroness Neville-Rolfe (Con)
I was going to respond at the end on common frameworks, partly to say what our hope is, and partly to say that this may well come up under future amendments on the Bill in the next few days. I wanted to be reassuring. Obviously, our ambition is that government departments and devolved government counterparts work together to agree their approaches to individual pieces of REUL. The delegated powers in Bill could then be used to preserve, extend, amend or repeal REUL as required via statutory instrument. Of course, as has been said, the devolved Administrations also have statutory instruments that they need to look at.
Baroness Chapman of Darlington (Lab)
It is interesting to look at the expertise of the people who will be making these decisions. In the case that I referred to earlier, the coroner made some specific recommendations about food labelling and obligations to report anaphylaxis. Will things such as that be taken into account by civil servants when they are looking at what to recommend to Ministers in terms of revocation or rewriting?
Baroness Neville-Rolfe (Con)
Clearly, when civil servants are reviewing the body of law, they will look at individual points that have been raised, not least those that have been raised by this House. That is part of the process of review that takes place. I was seeking to explain that I do not think that REUL reform poses a threat to the common frameworks programme. Carving out retained EU law and the scope of common frameworks from the sunset would effectively remove a key driver of the very regulatory divergence that common frameworks are designed to manage, and which I think are improving matters. The devolved Governments would be able to make active decisions regarding their REUL and decide which REUL to preserve and assimilate or let sunset within their respective areas of competence. We will come back to this issue, no doubt, because I think there are some amendments in a later group. I am very happy to discuss these points further with the noble and learned Lord.
Baroness Chapman of Darlington (Lab)
Before the noble Baroness sits down, I am sorry to keep popping up and down, but it is Committee and that is sort of what this is about anyway. I may have intervened at slightly the wrong point. She was trying to respond to a point about common frameworks, and my question was not really about that. She said in response that there would be an ability for this House to contribute to review and to bring to the Minister’s attention some of the important things we have discovered—from recommendations by a coroner in this case, but there will be many other points that are important too. I do not understand; I do not see how the Bill as proposed really does enable that to happen. She says it does, and I wonder whether she could explain a little bit more fully what she meant by that.
Baroness Neville-Rolfe (Con)
What I meant is that, when Bills are going through and noble Lords raise points, it is my experience, having done many Bills both as a civil servant and as a Minister, that these points are picked up and considered. Specific points were made, and I can certainly give an assurance that those points will be passed on to the departmental teams looking at the matters on food safety.
Lord Fox (LD)
My Lords, coming in on that point—I thank the noble Baroness, Lady Chapman, for starting the process—and bearing in mind that the number of regulations and laws we are discussing today with respect to Clause 1 is a very small percentage of the 4,700 that the Government have on their list, how does the Minister suggest we raise some of the others that we have not put before your Lordships’ House as amendments? I am happy to come up with some more amendments if that is the best way of doing it. If it is not the best way, perhaps a forum—we could call it “Parliament”—could discuss it.
Baroness Neville-Rolfe (Con)
Let me reflect further with the lead Minister on this matter and come back. The point that I was making is that the suggestion that nobody is listened to is not right. We are listening and we are concerned to make sure that necessary protections are extended. That is the intention.
Lord Hannay of Chiswick (CB)
I just say to the noble Baroness on the issue of common frameworks and the devolved Administrations that your Lordships’ European Affairs Committee, in the form of our chair and two other members, went to Cardiff and Edinburgh to take evidence on a completely different matter. Both in Cardiff and in Edinburgh, we were told there was absolute dismay at the way they were not being told what was going on with REUL, and that there seemed to be an unwillingness to recognise that some of legislation had actually been devolved. They were just being told, “Well, it will have gone”. This is quite serious stuff, frankly. I am not expecting the Minister to answer this question now, but will she please say that intensified discussions will go on with the devolved Administrations about the implications of the Bill for them? Otherwise, there is a lot of trouble ahead—and these were not people from opposing parties; they were people from the Minister’s own party as well.
Baroness Neville-Rolfe (Con)
I find it difficult to answer that. My understanding is that there has been extensive dialogue with officials across all these portfolios, as noble Lords would expect: that is how government runs. In my areas of responsibility, which do not include food these days, there is extensive dialogue between departments, and that is very helpful. That has been the process here and will continue to be the process.
Baroness Crawley (Lab)
If there has been extensive dialogue between officials, and presumably organisations that advise the Government, such as Food Standards Scotland, why are they lobbying us about the defects of the Bill?
Baroness Neville-Rolfe (Con)
I have had correspondence with these bodies. Certainly, in my other work I deal with the Food Standards Agency. It is very helpful and it links with government. If I may, I think I will now move on.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, I have a really practical question. Many people around the Committee have expressed the view that Parliament should have proper scrutiny and accountability, but, even on the Government’s own terms, I genuinely do not understand at what point people in the real world get to hear whether the deadline for the sunset has been extended. When it comes to food labels or workers’ rights, I know that the Minister personally understands that manufacturing companies, for example, cannot just turn things around overnight; they have to know what they are doing. This has a real impact in the real world, so how much notice will we be given, if the Government press ahead on these terms, on whether there is going to be an extension of the sunset clause?
Baroness Neville-Rolfe (Con)
There is a process in place. The Minister explained earlier how it is working and that we will be giving more information, as we should. I was trying to reassure the Committee that, in advance of that, discussions are going on at official level, which I am sure will reassure people. There will be a process. Anything significant that needs to change will need to be the subject of a statutory instrument, which will come before the House in the normal way.
I am now going to move on to Amendment 17.
Lord Kerr of Kinlochard (CB)
One of the more entertaining bits of the Minister’s elegant reply was the opening bit, in which she gave us a new rationale for the sunset clause: it was necessary in order to get obscurantist, idle civil servants to actually go through the statute book and decide which bits should go. Is this habit going to catch on? The next time we have a defence review, shall we start with a sunset clause that would remove frigates? I think the noble Lord, Lord West, would be particularly good in that discussion.
The Lord Privy Seal (Lord True) (Con)
My Lords, I remind the noble Lord, who I listen to with great respect, that it is not the custom in this House to address remarks personally as “you” to an individual Minister who is trying to answer. You may certainly make charges—you have made many—against His Majesty’s Government but please let us not personalise our dialogue.
Lord Kerr of Kinlochard (CB)
The rebuke is absolutely correct, and I withdraw my remarks. When I said “you” I meant the Government vicariously, but I may have elided from first referring to the Minister personally into talking about the Government. The Leader is quite right to stamp me down.
I hope that the Government will be able to tell us soon the answer to the question the noble Baroness, Lady O’Grady, has asked. The uncertainty across the country is what will do the most damage.
Baroness Neville-Rolfe (Con)
That is why we have published the dashboard and why we will improve it. It is why we want to get this Bill through, so that the SI process can start in good time for the end of the year. I should say that I know that government departments have been working on this process for a long time. When I was a Minister in the Brexit days, the process of considering what might be done for the future was already under consideration. A lot of thought has been given to this and we need to get on. I would encourage noble Lords to support that.
On Amendment 17, there is no need for a specific exception for regulations on PPE. On intent, we of course remain committed to protecting consumers from unsafe PPE and will continue to ensure that only safe and effective PPE products are being placed on the market now and in the future. Ministers will be using available legislative powers, including those within this Bill, to take the necessary steps ahead of the sunset date to ensure that we meet this commitment.
We have dwelt on this for a long time. I hope noble Lords will feel able to withdraw and not to press their amendments and move on to the next group.
Baroness Brinton (LD)
My Lords, I thank all noble Lords who have contributed to the debate and engaged directly with the Minister. It has been very helpful, not just to these three amendments but to the wider understanding of the Bill. I thank them for it.
I want to pick up the point about the common framework, because it reinforces the point around trying to do complex issues at speed—worse than that, complex issues that not just Parliament but even civil servants are not yet aware of. If more regulations are going to be put on to the dashboard, as the Minister responding to the last group before lunch said, we presumably expect more to emerge. One of the worries is the point at which the dashboard will freeze. Is it on 15 December or 30 December? What happens at that point to scrutiny?
My noble friend Lord Fox asked, only half in jest, whether we will have to go through every single regulation on the dashboard and lay amendments in order to get things discussed. We are doing that now at the end of February. If another 1,000 regulations are added in the middle of the summer, how on earth can we respond through the normal channels of Parliament and through scrutiny? I am really grateful to the Minister who, with her usual professionalism and concern, has tried to respond, but the core message that we have been getting all day in Committee is that there is no time to do this work before the sunset without really poor and unintended consequences.
I come back briefly to the issue of common frameworks. Fairly late on, during the passage of the Health and Care Bill—the noble Baroness, Lady Meacher, may have been one of the signatories to the amendment I am thinking of—we laid an amendment that was supported throughout the House. We were told that, because of time, agreement had been premade with the three devolved nations and therefore we could not have the amendment because it affected the common framework. That is absolutely not democracy. My real concern is that time is galloping by and more and more regulations are emerging.
I want to respond to each of the points that the Minister made. On doctors, I hope that she will read the GMC briefing, particularly the comments I cited about the Department of Health and Social Care being unclear. Although she may be clear, civil servants in that department are not. As long as that is the case, it needs to be clarified.
On food labelling, I am grateful for the reference the Minister made to making sure that Defra picks up its side of this. However, the reason it is mentioned is because there is a fairly large health impact. On our reading of it, there are issues. I do not think she quite answered my specific question on whether the sunset is there for part of it or all of it, or whether all of it is all right.
The same is true for PPE. The specific question I asked was because of the complexity around whether the sunset can override the regulation that has been put in place. I got a different answer to the question, but this is at the core of misunderstandings and is why I made a point about impact assessments and costings when I spoke on each of these issues. Food Standards Scotland, the GMC and the BMA in all their briefings said that they did not find what the Government intend to do at all clear. For the GMC, that is very serious. It is a big regulatory body, and the people it regulates hold people’s lives in their hands; it is important that it understands.
It is not fair to expect the Minister to answer in too much detail on the specific regulations, but the general points have been made time and again. From the health perspective, I completely agree with my noble friend Lord Fox, at the very least because of the condition that our health service finds itself in at the moment. It is really important, and I beg the Minister to consider relaxing the sunset on all health issues, given everything else that the department and the NHS are living with at the moment. In the meantime, I beg leave to withdraw the amendment.
Lord Clement-Jones
Member's explanatory statement
This amendment excludes the Toys (Safety) Regulations 2011 from the sunset in Clause 1. The Regulations control the safety of toys in the UK and include provision for warning labels.
Lord Clement-Jones (LD)
My Lords, I am greatly encouraged by the fact that the Minister believes that these debates on individual regulations are helpful—at least, that is what I heard her to say. This group, like the previous one, concerns a regulation that affects a large number of important product safety laws in the UK that have been fundamental to many consumers.
Amendment 5 deals with product safety laws in the toy industry. The industry has operated for many decades and has ensured, as the British Toy & Hobby Association says, that businesses bring safe toys and games to the market and protect British children who play with them. The BTHA itself has reviewed the retained EU law dashboard, and says that there are at least 40 pieces of law that affect the UK toy industry and relate to product safety. These include the Toys (Safety) Regulations 2011, which are the subject of Amendment 5.
This legislation sets out requirements for businesses to bring safe toys to the market, including things like restrictions on hazardous chemicals and requiring information in the form of markings and warnings to help consumers determine the age suitability of toys or for traceability purposes. I particularly note the age warning for toys for children under three years, which is designed to protect our most vulnerable consumers from hazards such as small parts that could cause choking.
The BTHA told noble Lords that toy safety is the number one priority for its members, and the existing toy safety laws relied upon in the UK today have been developed with the input and scrutiny of the UK toy industry and its toy safety expertise. There is absolutely no clamour for deregulation. In the UK, businesses rely on British standards to show compliance with the toy safety regulations. If the regulations are sunsetted, the current standards would become redundant in the UK, which could risk dangerous toys entering the UK market, undermining legitimate businesses and bringing potential harm to consumers.
There is scope for improvement in safety standards. Under current product safety legislation, online marketplaces are not accountable for the safety of products sold by third parties, which enables non-compliant and unsafe toys to be sold in the UK. In October 2021, the BTHA reported that nearly half of the toys it randomly purchased on online marketplaces could choke, strangle, burn, poison or electrocute children. It said that 224 of the 255 toys it inspected did not comply with British laws. A particular case study that it brought attention to involves magnets: Rebecca McCarthy, who was just 22 months old, was left critically injured after swallowing 14 magnets that were above the legal limit. The magnets had managed to burst through and rupture three parts of Rebecca’s intestines and had to be removed during surgery. Rebecca was lucky to be alive.
A recent report by the National Audit Office found that product safety regulation has not kept pace with trends in online commerce. It noted that online marketplaces were used by about nine in 10 adults, but they were
“not responsible for the safety of goods sold by third parties.”
Is deregulation in this space really being contemplated, or will we let online marketplaces injure our children?
On other forms of product safety, the General Product Safety Regulations 2005, which are the subject of Amendment 16, are also at risk of being sunsetted this year. Sunsetting these regulations will give rise to serious risks for consumers. In this respect, the Bill seems to conflict with the Government’s own policy. In January 2018, the Government established the Office for Product Safety and Standards, and, since then, it has consulted on the UK’s product safety framework. As with toys, this includes, for example, the opportunity to address online marketplaces’ lack of obligations to place only safe products on the market, in a similar way to how obligations apply to traditional retailers.
Which? has regularly found unsafe products offered for sale online, including Christmas tree lights that were a fire and safety hazard and baby carriers that posed a suffocation risk. Noble Lords and the Minister will no doubt have seen headlines about scammers exploiting the energy bill crisis with dangerous electrical goods. Today, Which? published an investigation into unsafe electrical heaters being sold on online marketplaces. Its findings demonstrate that the regulations need to be strengthened, not weakened, to make sure that online marketplaces are abiding by the law. But Clause 15 could prevent the OPSS from improving product safety regulations—particularly by extending the rules to cover online marketplaces—because the clause requires that any replacement regulations do not increase the net burdens on business. Similarly, with consumer protection regulations, there is a real risk that the Bill cuts across what the Government intend to do through the forthcoming digital markets, competition and consumer Bill.
Lord Krebs (CB)
My Lords, it has been a long day of debate and I will invite noble Lords to pause and think about tea—maybe the tea in the Peers’ Dining Room—and about one particular ingredient in their tea: milk. You may have milk in your drink or in the form of butter; you may even have a cream tea with clotted cream on your scone. Whichever of those you have, you make the assumption that the milk and the products derived from the milk are safe—and you are right to make that assumption. But it has not always been like that. Turning the clock back 90 years to the 1930s, an estimated 2,500 people a year in this country died of bovine tuberculosis, mostly contracted from drinking unpasteurised milk. Yet the Parliament of the time concluded that that risk did not justify introducing mandatory pasteurisation. It was not until 1949 that Dr Edith Summerskill, Parliamentary Secretary at the Ministry of Food, finally introduced the pasteurisation Bill. She said that pasteurisation had been prevented by “ignorance, prejudice and selfishness”.
Amendments 30, 39 and 146 are jointly in my name and that of the noble Lord, Lord Rooker, whom I thank. They are designed to prevent ignorance, prejudice and selfishness inadvertently or deliberately making our food less safe and of lower standard than we are used to. There is ignorance, because we do not know the precise number, nature and impact of the rules that are potentially being removed at the end of this year. There is prejudice, because, as the noble Lord, Lord Clement-Jones, said, the plan to sunset is driven by ideology and not logic. There is selfishness, because ideology is trumping the protection of the public. As my noble friend Lord Kerr of Kinlochard said earlier, the reason our food is so safe today is a raft of legislation, 90% of which is derived from the EU. Without proper scrutiny and consideration, these protections could be lost.
Interestingly, the noble Lord, Lord Benyon, in a separate debate on food shortages earlier today, listed food safety as one of the three priorities for the Government. In light of that, I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:
“In the FSA, we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health”.
She also said that the FSA was facing “substantial headwinds” and “real challenges over resources” to scrutinise properly the more than 150 pieces of relevant legislation. According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.
I declare my interests as in the register. As one of the leading retailers said to me yesterday, as soon as protections are lost, the criminals are keen to fill the gap. The noble Lord, Lord Rooker, who was also at one stage chair of the Food Standards Agency, will know as well as I do that the food industry is not totally clean. There are crooks around. This is starkly illustrated by what happened at Dover as a consequence of the lack of post-Brexit border controls. Last October, a 24-hour crackdown on imports from the EU at Dover revealed that 21 out of 22 lorries coming from eastern Europe contained a truly disgusting mixture of rotting raw meat kept at room temperature, mixed with products such as crisps, cheese and cake. This food was destined not for places where you or I shop but for cheap, independent outlets and markets where the most disadvantaged people in this country get their food.
My amendments take three approaches. Amendment 30 refers to the Trade and Co-operation Agreement. Amendment 39 carves out 14 regulations from the sunset clause. I also support Amendment 4, which we have already debated, and Amendments 20 and 38, which are similar or overlapping carve-out amendments. Amendment 146 in my name refers to the Food Safety Act 1990.
I will start with Amendment 30, which simply requires the Government to commit to abide by the Trade and Co-operation Agreement they signed with the European Union a little over two years ago. Surely that is not a big ask. I am sure that many noble Lords know the Trade and Co-operation Agreement off by heart. For those who may like a reminder, I will explain it very briefly. Chapter 3 of the TCA is entitled “Sanitary and Phytosanitary Measures”, usually known as SPS for short. The term “sanitary and phytosanitary” may deserve explanation. Despite its name, it is not to do with the provision of bathroom appliances. The WTO puts it like this:
“How do you ensure that your country’s consumers are being supplied with food that is safe to eat —‘safe’ by the standards you consider appropriate? And at the same time, how can you ensure that strict health and safety regulations are not being used as an excuse for protecting domestic producers? …The Agreement on the Application of Sanitary and Phytosanitary Measures sets out the basic rules for food safety and animal and plant health standards”.
The TCA that we signed with the European Union sets out seven objectives, which include protecting human, animal and plant life or health, enhancing co-operation between the parties in the fight against antimicrobial resistance et cetera, and enhanced co-operation with the relevant international organisations to develop international standards.
This simple amendment asks the Government to continue to adhere to that agreement, whatever it does with sunsetting in the Bill. I very much hope that the noble Baroness will confirm that the Government do intend to adhere to the Trade and Co-operation Agreement. If they do not, I will consider the counterfactual, which would in effect be saying, “I know we signed up in December 2020, but we’ve now changed our minds”. If the Minister cannot confirm that we will abide by the Trade and Co-operation Agreement, what does she think that the food industry, UK consumers and our EU neighbours will see as their response?
I turn to Amendment 39. It lists a series of EU-derived regulations that provide vital protections for food safety and consumer information. We have already discussed some of these, so I shall keep it very short. My list covers food additives, contaminants, health claims and nutritional information. The list is by no means comprehensive—as I have already said, there are more than 150 EU-derived regulations—but it makes the point. As we have heard in earlier debates, these are all things that consumers simply take for granted when they buy food. They would be shocked to hear that the Government might even consider ditching the protections provided by these regulations.
Amendment 146 takes a different approach. It aims to ensure that any changes to food law as a result of this Bill do not alter the protections provided by the Food Safety Act 1990. The Minister explained that she was involved in that Act, so she will be very well aware of what I am talking about. To summarise it, the Act covers all businesses involved in selling food; buying with a view to sell, as intermediates; supplying food; consigning or delivering it; and in preparing, presenting, labelling, storing, transporting, importing or exporting food. It makes it an offence for anyone to sell or process food for sale which is harmful to health.
Lord Rooker (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Krebs. I agree with every point he has made; I want to be complementary, not repetitive.
Amendment 38 gives a short list of main points; at the time I tabled it, I was probably too busy to go through all the reference numbers. I am therefore pleased to support Amendments 30 and 39, which I have signed.
Unlike many of the amendments to the Bill that we have already discussed and will discuss, this group concerns products—products that we create in the UK, import into the UK and export from the UK. I can say with some confidence that, if we deviate from what has been put into UK retained EU law over which the UK has total control, we can forget my third point as we will not be exporting in the future. It is as simple as that.
I have no interests to declare, but I had two years at MAFF from 1997 and four years at the Food Standards Agency—well after the noble Lord, Lord Krebs. As I said at Second Reading, I am a member of the Delegated Powers and Regulatory Reform Committee.
It is not easy to keep up with all the paperwork on this, but I looked at the European Commission notice to stakeholders on the withdrawal of the United Kingdom from EU food law. The version I looked at was from 13 March 2020; I could not find a later one. That was of course just after—about a month—the UK became a third country. We are out; it is a simple as that. We have continued since then with our version of retained EU law. The subject areas are enormous—there are dozens of them, some of which we have touched on today: food labelling and information; identification marks; ingredients; composition; contaminants; residue limits; food contact materials, such as packaging, which is absolutely crucial; food production rules; food of animal origin, as opposed to of non-animal origin, for which there are quite separate rules; and irradiated food. More than a dozen other aspects are covered.
I will not go into detail because, to be honest, I am assuming that the Ministers have come with good will. I do not make any allegations against them today, but I shall want to know what they say about this before we look to what we do on Report. The Bill will be slightly different at the end of Report to what it is today.
UK deviation from our current UK-controlled law has to be out of the question if we are to maintain the competency and safety of food, and the multinational manufacture of food, because there is a lot of food still manufactured partly in this country, partly in Europe and partly back into this country. It has still got to be done. The export of food to the EU and non-EU nations is a very complex process. It is our largest manufacturing sector, so why would we be so stupid as to damage it? It needs constant checking, scrutiny and proportionate regulation and, as the noble Lord, Lord Krebs, touched upon, we need to keep organised crime out of the loop.
Our record in recent years has been good, but it was not always so. We gave the world BSE, and therefore the new variant CJD. Some 220 people died worldwide; 178 of those were in the UK and 28 in France. The last case in cattle was in 2021, and before that, in 2018. I remember I was at MAFF when we inherited this. The scientists told us the tail of BSE would be very, very long, and we have got a case here in 2021. New variant CJD is a terrible condition, and all patients die. The post-mortem instruments cannot be used again because they cannot be sterilised. That is what we were dealing with, and it is what we are still checking on today, to make sure the food is safe. It is crucial that the TSE regulation 999/2001 continues to operate because these are the BSE checks. Our meat exports were banned for more than a decade. Billions of pounds were lost in trade. I remember the day the ban was lifted because I had the privilege of helping to serve Northern Ireland beef to traders in Brussels—Northern Ireland got in quicker than the others and got the beef over there and cooked for traders.
Food safety is not a given.
“In the UK, five people every minute are made sick from eating contaminated food. There are more than 2.4 million foodborne disease related cases per year of which 15,500 receive hospital treatment and an estimated 160 deaths”,
which is equivalent to three a week. That is a quote from page 7 of Food You Can Trust: FSA Strategy 2022-2027, published last year. Last year was the first year that the Food Standards Agency and Food Standards Scotland published a large annual review of food standards across the UK, which was really a bonus. The reference documents, which are well worth reading, are HC229 or SG/2022/34, called Our Food 2021. Time permits only a couple of mentions of the key findings from both food standard agencies:
“The evidence set out in this report suggests that overall food safety standards have largely been maintained during 2021. However, this is a cautious conclusion. The pandemic disrupted regular inspections, sampling and audits across the food system … both organisations recognise there are significant risks ahead. The report highlights two particular areas of concern. Firstly there has been a fall in the level of local authority inspections”
of the more than half a million food businesses. Furthermore,
“progress is being constrained by resource and the availability of qualified professionals”
such as environmental health practitioners. In the Times on Monday, Jenni Russell mentioned that
“Local authorities had cut their sampling for food … by more than half”.
The second concern from the joint FSA-FSS report is
“in relation to the import of food from the EU. To enhance levels of assurance on higher-risk EU food like meat, dairy and eggs, and food and feed that has come to the UK via the EU, it is essential that improved controls are put in place to the timescale that the UK Government has set out (end 2023).”
We are not checking anything; we were supposed to be checking it to the end of last year, and the Government moved the deadline. We took the view, “Well, the EU has got really good systems; we don’t need to check what comes from them, so we can save money at the ports.” How arrogant can you be? It is a pity the noble Lord, Lord Frost, is not here, because this is the kind of thing I level at people that did the sort of job he did.
The report continues:
“The longer the UK operates without assurance from the exporting country that products meet the UK’s high food and feed safety standards, the less confident we”—
the two food standards agencies—
“can be that we can effectively identify … safety incidents.”
These two concerns need answers from Ministers about cutting the regulations.
I have two final points on this important report. Somewhere there is an amendment, although I cannot remember where, calling for this joint report, which is voluntary, to be put on a statutory basis. Regarding the impact of our EU exit on policy-making, the report said that because of the retained EU law policy
“in Great Britain, there have … been few immediate regulatory changes affecting food standards.”
Here is the key sentence:
“The focus across all four nations has been on maintaining continuity and providing clarity for businesses and consumers on processes and expectations.”
Clarity for businesses and consumers is what we need to maintain; if we do not, we are sunk.
It is reassuring that so far, the two bodies have seen
“no evidence of significant exploitation by criminals.”
But in 2021:
“There were 100 successful ‘disruptions’ of criminal activity within the food chain reported by the UK’s two food crime units”,
one covering the Food Standards Agency, and the other covering Food Standards Scotland. One hundred successful disruptions of criminal activity.
The status quo is not perfect, and any change has to be controlled and not be a surprise, but given the cuts to those that protect the system, we are vulnerable. The status quo is a bit of a worry. According to the document The UK’s Enforcement Gap, produced by Unchecked UK for the decade 2009-19, meat hygiene inspectors were cut by 53%, local authority food standards staff were cut by 60%, inspection of eggs was cut by 23%, UK food laboratories were cut from 17 to 9, and local authority food sampling was cut by 59%. We have an enforcement gap recognised by the National Audit Office, which in June 2019 said that local authorities were failing to meet their legal responsibilities to ensure that food business operators complied with the law.
Compared to the 1980s and the early 1990s, we have a large and sustained increase in confidence in food; there is no question about that. There were real problems in the 1980s and 1990s, and I experienced them: I was completely unprepared to be sent to MAFF in 1997. There was a serious problem regarding how to restore confidence in food, and gradually, over the years, through the Food Standards Agency—there is a separate one for Scotland, which it is quite entitled to have—there has been a big increase in confidence in food. Ministers have kept their sticky fingers away from the food safety levers of power, but according to this they are about to put them all over these regulations. That is clearly the implication.
So, we have had a big increase in confidence in food, and it is our biggest manufacturing industry. Why put that at risk by not accepting these amendments to remove food-related regulations from the Bill? It is simple, really. That is quite easy for Ministers to say. The Minister who is going to reply is probably more experienced than most. Having been a senior official in MAFF in the 1990s, she is fully aware of what I have said about BSE and the difficulties—oh, the noble Baroness is shaking her head; another Minister will reply. Well, the noble Baroness, Lady Neville-Rolfe, who replied to the previous group, is fully experienced in the situation with BSE. One half of MAFF was arguing with the other half. One half was protecting consumers; the other was pushing for producers. That was the dilemma, which is why today we have independent bodies such as the Food Standards Agency to deal with those two groups across the UK. It does not make sense for the Government to give the impression—because they have not said anything—that they are going to tear up and remove some of these protections or cut corners in the interests of production.
Baroness Young of Old Scone (Lab)
My Lords, it is a great privilege to follow my noble friend Lord Rooker. I really commend his sentiment of, “If it ain’t broke, don’t fix it”, although I probably disagree with the methodology he would use. The amendment in my name excludes the legislation governing pesticides from the sunset in Clause 1. These regulations are vital, as are the food standards regulations. They provide protection for biodiversity and human health, and they help to support the UK’s food safety and agricultural sustainability processes.
I say at the outset that I do not actually believe that a series of exemptions from the sunset clause fixes the Bill. It is a bonkers process to take an as yet unsized task and set an arbitrary, hard deadline before you know what the size of it is. That was the sort of thing I remember being taught in day one of management school never to do, but we seem to be at that point. The reality of the Bill is that it needs much more radical surgery, and pesticides are one of the examples I want to give of the sort of radical surgery it really needs.
I have tabled this amendment for three reasons. The first is to illustrate how important pesticides are. This is an area where protections are vital, and the Bill jeopardises those. Again, the pesticide issue is just one example of many that other noble Lords have given of the recklessness of the Bill, with its commitment, in my view, to feeding the out-of-control European Research Group, swivel-eyed end of the Conservative Party, irrespective of the impact on the public and environmental safety and to the exclusion of all other drivers. Secondly, pesticides are only one example out of the 1,781 pieces of legislation that Defra has to review before December. Thirdly, I want to touch briefly on how fundamentally rotten the Bill is, with its power grab in favour of the Executive and against Parliament and the interests of the people of this country.
Let me dwell briefly on the pesticides issue. Over the 10-year period from 2000, big strides were made, often significantly led by the UK in Europe, which brought into European law a suite of pesticides legislation that protected human health and biodiversity from harmful exposures to pesticides and ensured that horticultural and agricultural practices reduced their impact on people, animals and biodiversity.
They were vital protections. In the area of pesticides, virtually all our law is European law. The Bill would put all this at risk of being deliberately watered down or accidentally binned. The EU legislation was crafted with significant input from experts, including UK experts, and after wide consultation with organisations representing human and animal health and safety interests and environmental interests. We were in there. Following committee examinations in the European Parliament and parliamentary processes involving MEPs, the legislation was approved by the Council of Ministers, on which we had Ministers. Therefore, we cannot really say that these regulations have been produced by a process that we did not have much control over, because that sounds like scrutiny and political involvement to me. Defra has 1,781 of these to review before December, so in all likelihood that level of scrutiny, consultation and expert advice, to that depth, will be pretty impossible before then, bearing in mind the volume of these regulations.
Going back to the importance of pesticides, they are not called biocides for nothing. The clue is in the title. They are designed to kill life. They can be used safely only with specific safeguards. When I wrote this, I said that this risks Ministers tampering, without let or hindrance, but the “sticky fingers” analogy, from the noble Lord, Lord Rooker, is probably a good one. Secondary legislation is not enough to say that Ministers have got let or hindrance because we all know about the inadequacy of the statutory instrument process.
Additionally, the review process that is under way is a regressive one. Even if it were to find that there is a need for improvement, it cannot do that due to the requirement in the Bill to avoid increasing the regulatory burden. Whatever emerges from the review is almost certain to be limper than what existed before. Apart from workload issues, in terms of the review to meet the deadline, Ministers have not shown themselves to be terrifically trustworthy on pesticides when left to their own devices. Last year, the use of neonicotinoids was approved when all the member states of Europe had banned them—we had gone along with that ban many years ago—in a move which was against the advice of the new pesticides regulator, the Health and Safety Executive. At a time when we are all concerned about the reduction in pollinators that we rely on to secure our food and our biodiversity, Defra approves a biocide that kills bees in droves and has been banned since 2007 due to the impact on human health. Your Lordships can see why I am a little doubtful on trust.
This is also the Defra that in 2018 promised an action plan on pesticides. Five years to 2023 does not sound like a lot of action to me. We are still waiting for that action plan. There has been no plan for increasing the capacity here within the UK to replace that loss of expert EU bodies and the depth of their expert advice. The UK Expert Committee on Pesticides, based here, is purely advisory. Ministers make the final decision. That does not fill me with confidence that this review process will be well handled against huge workloads and a hard deadline. And if your Lordships think that Defra is up against it, try Northern Ireland, which has to go through the same process, with the same volume of legislation, with no Assembly in place, no Ministers in place, and no means of passing any of the secondary legislation. On the basis of the Northern Ireland discussions, this looks set to continue for weeks, if not months, to come. Northern Ireland also has the added attraction of standing with a leg on each of two circus horses, the UK and the EU, that are increasingly diverging in standards and policy.
It is highly likely that the changes to the pesticides and other regimes could break the law. There has already been reference to the EU-UK Trade and Cooperation Agreement, which we signed and which commits:
“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period”.
Diminishing the standards in pesticide protection in any way would break that agreement, in my view, but of course I have forgotten that this Government appear not to care too much about agreements with the EU.
Many noble Lords have said that businesses are not happy about the review process. Businesses constantly tell us—when I was chief executive of the Environment Agency, they told me at breakfast, lunch and dinner—that what they need from a regulator and from regulation is certainty, long lead times and consultation. This review process provides none of these.
I am sure that the Minister—I do love trying to get into the Minister’s head; it is the sort of thing that you do of a weekend—will say that he understands that Defra is already well-advanced with all these reviews. I understand that Defra has buckets; there is one big bucket for legislation that is going to be dumped as of December 2023. There is one small one, probably justifiably small, for regulations that will pass through unamended—if I can say this; I think that in terms of Defra this is a totally valid analogy—like shit off a shovel. But there is another big bucket, which is the bucket where the regulations for review sit. That is still a big bucket, despite many Defra regulations being shed. So the plea I would make to the Minister is that I think that this process—rather than the Bill, which I think is fatally flawed—would be hugely helped if Defra would show us its buckets. Show us your buckets. What is in each, and what is the process for the remaining reviews on those buckets where review is required? It might reassure us; it might not. But it will at least allow parliamentary discussion, public discussion, business discussion and expert discussion on whether the process is going well and how big a mountain we have to climb.
I make no apologies for banging on about pesticide safety, but it is only one example of the risks of this Bill. One down, only another 4,000 to go. I am not going to go into lyrical raptures denouncing the basic unconstitutional nature of the Bill, handing powers to Ministers to act without real let or hindrance, not just this year but until 2026 with the capacity to extend the sunset, and also for ever for that legion of direct EU law which will now be regarded as secondary legislation and therefore be amendable without any real ability of Parliament to make a difference.
I am not a remoaner; I am not against proper review of EU retained and direct law, but I just do not think that this Bill is the proper way to do it. I can see that the noble Lord, Lord Callanan, is smiling—I am definitely not a remoaner. As a very minimum, the Government should remove the sunset. If it was intended to spur on government departments and civil servants to bring out their EU legislation, it has had that effect. It is entirely risky to commit to an end date for a complex process of review, complicated by issues of devolution, particularly in Northern Ireland. The commitment to review all of the legislation at the same time to a very tight deadline breaks every management and good governance rule. The Government should be bringing lists of what legislation is in what bucket, for consultation by Parliament and to allow Parliament to debate these before any revocation or revision is then processed through a proper parliamentary process.
Clause 15, the regulatory burden clause, should be removed, to allow legitimate review to come forward with proper improvement, if necessary, that would allow debate here on whether that is undue regulatory burden. You could either say that that is an amended law or say, “Let’s go back to the drawing board and start again”. I do not mind particularly, but it means that we need to do something more radical than simply having exemptions from the sunset clause.
Baroness McIntosh of Pickering (Con)
My Lords, I thank the noble Lord, Lord Clement-Jones, for introducing this group of amendments. I particularly associate myself with the amendments in the name of the noble Lord, Lord Krebs, supported by the noble Lord, Lord Rooker, for the simple reason that having confidence in our food is essential to the food and farming sector.
I spent five years in the other place chairing the Environment, Food and Rural Affairs Committee and perhaps one of the most difficult inquiries we had was that into the horsemeat scenario. As the noble Lord, Lord Rooker, said in speaking to the amendments before us, Amendments 30, 39 and 146 in particular, it could so easily have been not just a fraud and a scare but another food scandal. Humans could have been infected. I suppose it was a blessing that it was just one type of meat being passed off for a much more expensive type of meat.
I pay tribute to the work the Government did at that time in setting up the independent inquiry led by Professor Chris Elliott and its work to review Britain’s food system. Amendment 30 goes to the heart of the matter. I am not entirely convinced that the food checks we agreed to in the TCA are in place. We were told they are going to be introduced and I have discussed this with the Food Standards Agency; they are meant to be introduced completely this year.
Also this year, we are introducing unitary government in North Yorkshire so are merging the two key departments that look at this—environmental health and another department, the name of which will come back to me. I think the noble Lord, Lord Rooker, was right about the few local authorities that are actually conducting tests into the safety of our food, and whether the food is what it says on the label and is not a fraud.
Amendment 39, while it perhaps does not cover every single scenario as the noble Lord, Lord Krebs, said, goes some way to expressing why it is vital that the European regulations provide the food safety and hygiene to which we have signed up.
In summing up this debate, I hope my noble friend puts our minds at rest as to what that procedure is going to be and gives us an assurance that the noble Lords, Lord Rooker and Lord Krebs, have sought in this small group of amendments that those tests, which have stood the test of time, will continue to be place.
One of the recommendations—I do not know if it was implemented—from the report that looked into the horsemeat fraud in 2013 was that major retailers, and I think my noble friend did work for Tesco for a time, should conduct their own tests on a mandatory basis, not just the voluntary basis as it apparently is at the moment. I hope my noble friend updates us on the Government’s thinking in that regard.
My preference would be that phytosanitary checks take place at our borders. That is what we signed up to, and the food industry hopes that the Government can show that imported food meets the same tests and is as safe to eat as domestic food produced under our very high standards. In addition to them, regular checks should obviously be conducted. I do not know whether my noble friend has an update in response to the figures given by the noble Lord, Lord Rooker, on how many local authorities are actually doing checks that we require of them at this time. Is my noble friend convinced that they have the manpower and funding resources to ensure that this remains a priority? With those few remarks I lend my support to, in particular, Amendments 30, 39 and 146.
Lord Hacking (Lab)
My Lords, I sat through the entirety of the Second Reading debate—I missed only one speaker—and I have sat through today’s Committee, just missing, alas, about five minutes at the beginning of the session after lunch. I have been in receipt, as I am sure most noble Lords have been, of very strong criticism from those outside the House. For example, I had a briefing from Prospect which is central to the matters of this Bill because it covers inspectors from the Health and Safety Executive. It describes this Bill as “reckless, unworkable and undemocratic”. Without reading the reports, there has been severe criticism from the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee.
This has sorrowed me. I am sorry for the Government and am particularly sorry for the two Ministers who have been to the Dispatch Box. Indeed, if there is a third Minister to go to the Dispatch Box—she nods her head—I am sure that I will have sympathy for her. Look at the number of interruptions that the noble Lord, Lord Callanan, received when he was at the Dispatch Box, and it was the same for the noble Baroness, Lady Neville-Rolfe. Look at the blasts that came from the noble Baroness, Lady Meacher, and the noble Lord, Lord Wilson. The Ministers are safe from that at the moment because those noble Lords are no longer in their places, but there are further days in Committee, and I am sure they will come back and that the same blasts will be sent again to our Ministers.
I am sorry for the Government because they have just made a very simple mistake. They have sought to deal with European law the wrong way round. The right way round, as will be advocated later by my noble friend Lord Whitty, is to retain it. This is what happened in the European Union (Withdrawal) Act: it retained all EU law so that, when provisions of certain EU laws need adjustment, then adjust them, change them, scrap them; do what you like with them. That is the right way round. I have already expressed my reasons for being sympathetic to the three Ministers who are sitting on the Government Front Bench.
The sensible thing, having produced a Bill that is simply the wrong way round, is for the Government to withdraw it in a dignified way. I am sure all your Lordships would welcome that and would not seek to affront the Government in their modesty when withdrawing the Bill. It has happened before in my experience. In 1995, the then Conservative Government produced an arbitration Bill, which happened to be in my area of expertise. It was shown to members of the arbitral community, who told the Government that they had got it all wrong and that it was an atrocious Bill. The Government politely withdrew it. Then, under the noble and learned Lord, Lord Saville, a new Bill was brought—not disposing of the Bill, just starting again. The noble and learned Lord produced a report and a draft Bill that was perfect, and the Arbitration Act 1996 has been in operation ever since, to the great benefit of the arbitral community, which is now a very big community.
That is the simple thing to do. If the Government simply and politely withdraw the Bill, we will politely applaud them.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Lord, Lord Hacking, and I entirely agree with his conclusion, even if I might have expressed it in slightly stronger terms. I rise to make the first Green group contribution to Committee. I will speak particularly to Amendment 38 in the names of the noble Lords, Lord Rooker and Lord Krebs, to which I have attached my name, although all the amendments in this group are closely related to food and farming, so to a large extent I will cover all of them. I apologise to the noble Lord, Lord Fox, and others who signed Amendment 2: I also signed it, but unfortunately other business in the House forced me into the other Chamber.
It is interesting to draw parallels between the first two groups, which covered employment law and employment rights, and this group. When we were talking about employment rights, the noble Baroness, Lady O’Grady, along with many others, focused on their having been achieved over decades as a result of public campaigning and effort. We often talk about democracy as meaning things that happen here in this Chamber, and in elections and votes, but democracy at its heart is people campaigning. That is how we have delivered many employment rights and food protection rights, including in respect of pesticides, as the noble Baroness, Lady Young of Old Scone, clearly described. Those protections were not arrived at by people sitting in a chamber; they have come through huge outside campaigns.
Like the noble Lord, Lord Hacking, I have listened to nearly all the debate thus far. We heard, particularly in the early stages, the Minister say, “Trust the intentions of this Government”. I have to contrast that with what we have just heard from the noble Baroness, Lady Neville-Rolfe, who talked about departments thinking boldly and unnecessary regulatory burdens being removed. If that is the message being sent to departments, that would seem to indicate the Government’s intentions. Those intentions have been mentioned by all sides of your Lordships’ House, notably, and with horror, by Cross-Benchers. They cannot be accused of playing party politics and thinking about elections; they are simply horrified by the undemocratic—a word that has been used many times—and reckless, as the noble Baroness, Lady Young, said, approach of this Bill.
The reason I chose to sign Amendment 38, when I could have signed any amendment in this group covering toy, cosmetic and food safety, is the issue of farm antibiotic use, which nobody has focused on yet. There is an interesting parallel to be drawn between antibiotic use and, as many people have referred to, the fact that financial controls have explicitly been excluded from the Bill because “This is all being dealt with elsewhere until we start going forward.” We are now coming towards the end of a crucial—and, I will acknowledge, the Government’s world-leading—antibiotics strategy, which is now going to be reviewed. So, why not exclude antibiotics, if nothing else? If we are looking to exclude the financial sector, why not exclude antibiotics, given that a review process is built into the system that is going to look at antibiotics?
Lord Hannay of Chiswick (CB)
My Lords, I want to pick up on the amendments of the noble Lord, Lord Rooker, and, particularly, my noble friend Lord Krebs, which I support.
The debate so far seems to have illustrated two points which have perhaps not come out fully in Committee so far. One is how much better it would have been had the Government taken a sectoral approach and legislated sector by sector. This is shown by the reference made recently in the debate to the Financial Services Bill going through this House now. That Bill replaces a large amount of European legislation, and it is going through without any problem at all because the Government have taken a careful, considered approach, have consulted all the interests concerned and have come forward with proposals which, broadly, are going to get the approval of both Houses. That sectoral approach would, frankly, work infinitely better than the across-the-board approach being applied now, and to which these amendments seek to make exceptions.
The second area on which our debate on these amendments has thrown a lot of light, and on which the government contributions so far to these debates have not thrown much light, is the potential implications for the trade and co-operation agreement with the European Union. These are extremely far-reaching, as has been made clear by various noble Lords, including my noble friend Lord Krebs. If we diverge substantially from the legislation that we and the European Union had when we signed the trade and co-operation agreement, there will be trouble. There will be negative implications for our trade with the European Union. Trade in the food and agricultural areas which a lot of these amendments are talking about has been one in which Britain’s exports have been rising steadily for 45 years, since we joined the European Union. They could be hampered.
They have already been hampered by the Government’s refusal to sign an SPS agreement with the European Union, which we could do perfectly easily and which would remove quite a lot of the problems and suffering under the Northern Ireland protocol. An SPS agreement would remove the additional bureaucracy and the problems that there have been with our exports, but that would be before there is any divergence at all, because we still have the same legislation as they have on the other side of the channel. However, because we are not prepared to test things either coming in or going out, or to have an agreement which says that we do not need to, our trade has already been damaged quite a bit. That is nothing compared to what will happen if the Government decide to diverge sharply from the legislation that we currently have and are seeking to abolish.
When the Minister replies to the debate, it would be good if she could say what consideration the Government have given to and what impact assessments they have made on the potential for damage to our trade under the trade and co-operation agreement if the European Union should consider that we are diverging to an extent which invalidates what we signed in 2020.
Lord Inglewood (Non-Afl)
My Lords, when I came into this debate, I did not anticipate saying anything, but I wear two hats—one as a farmer and one as a lawyer. I will not put my lawyer’s hat on. I would like to comment on the remarks, which were entirely to the point, of the noble Lords, Lord Rooker and Lord Hannay.
I have been actively involved, in one way or another, in agricultural businesses since the 1970s. I remember the damage, which the noble Lord, Lord Rooker, described, to my livestock business—as an aside, it was subsequently destroyed in the hecatomb of foot and mouth. It goes to the bottom line of farmers’ businesses. As is well known, farmers are under the financial cosh because of all the changes being brought about on environmental payments and support systems, which are really hitting their incomes.
We are told by the Government that one of the desirable consequences of Brexit will be that British agriculture will be able to find markets elsewhere around the globe. In order to do that, there are two essentials. First, the other parties to these transactions must have long-term confidence in the quality and character of the product coming from this country. Secondly, they need to be sure that whatever rules are in place will remain, because these businesses depend on long-term supply agreements. The uncertainty hanging over the agricultural industry as a result of—if I may put it this way—clever-clever intellectual games by politicians and lawyers will damage their business. That is very unfair, not only for its own sake but because it will have a particular effect on those whose businesses are already being damaged by current government policies.
Lord Fox (LD)
My Lords, this has been a very long debate and I think there have been a lot of excellent speeches across the Committee. I was struck by the noble Lord, Lord Hacking, displaying his underlying humanity in expressing concern for the welfare of the Government Front Bench. I was also worried about which of them will receive the Defra buckets; I am hopeful that they will not receive the shovel of the noble Baroness, Lady Young, at the same time.
I shall speak to Amendment 25, which is in my name, and more generally on the issue of safety in the workplace, which is a subject we have yet to discuss today. The noble Lord, Lord Inglewood, talked about harm to business; this is about harm to people at work. My background for more than 30 years was in manufacturing industries, where the potential for harm to employees is very high and the role of employers and regulation in their supply chain is a very important part of making sure that nobody who goes to work comes home damaged that evening, because nobody should be harmed by the work they do.
Amendment 25 deals with asbestos and its safe handling. It would exclude the Control of Asbestos Regulations 2012 from the sunset clause. The regulations create the framework for the management of asbestos. These regulations form the framework for the management of asbestos, with provision ranging from building owners to those removing it or analysing samples which may contain asbestos fibres. Asbestos is a very serious issue in this country. Asbestos is the single greatest cause of work-related deaths in the UK. Asbestos-related diseases currently kill around 5,000 people a year in Great Britain. This is a really important regulation.
First, we should note that the British Occupational Hygiene Society, a leading scientific body in this field and the chartered society for worker health protection, has welcomed the findings of a review by the Health and Safety Executive of the current Control of Asbestos Regulations. The Health and Safety Executive’s review findings highlighted that the regulations were broadly effective and should be retained. In essence, they seem to do the job, although it of course suggested refinements to improve them. However, those bodies have raised the alarm—I am sure your Lordships will not be surprised—that these regulations get thrown into the mix by the Bill. What will happen at the end of this year? Will they be retained, modified or revoked? We need to understand the future of this really important piece of legislation.
Of course, other major regulations protecting health in the workplace are also in danger of falling off the statute book. In 2021-22, 123 workers were killed in work-related accidents, many others received life-changing accidents and many thousands died from work-related ill-health. Lots more needs to be done to ensure that working people, their families and their friends do not suffer the pain and bereavement that workplace accidents can cause.
Can the Government explain why they are proposing that these laws should be put in doubt? That is what this Bill does, in the same way that it does to all the other 4,700 regulations: it puts them into play. For any of these to be moved back, forgotten or revoked will push the country back decades; that is what the automatic expiry of these laws could create.
I am taking the Minister’s advice to make sure that we put on record the laws we are concerned about. I was not going to mention them, but I need to make sure that everybody knows we care about them because, as we know, this is the only forum we may get to talk about them. I shall talk about the so-called “six pack” of laws that forms the core of the country’s workplace safety regime—it was mentioned en passant by the noble Lord, Lord Hendy, when he spoke to the first group. For reference, the “six pack” are: the Management of Health and Safety at Work Regulations, the Manual Handling Operations Regulations, the display screen equipment regulations, the Workplace (Health, Safety, and Welfare) Regulations, the Provision and Use of Work Equipment Regulations and the Personal Protective Equipment at Work Regulations. All of them form the centrepiece of how businesses are regulated on safety.
The best businesses operate above the law; that is how you improve safety. From my own experience of working within these businesses, I know that safety awareness goes beyond these regulations. But this is a minimum standard: it is, almost literally, a safety net, and it has to be retained. There are no grounds for calling into question these laws going forward. As the British Occupational Hygiene Society chief executive, Kevin Bampton, puts it:
“Asbestos, noise, radiation, gas safety and indeed the whole mechanism for management of health in the workplace are listed as retained EU law to be repealed, restated or amended. Most of these standards have been pioneered in the UK. The UK fought the European Commission over decades to retain its unique and effective approach to Health and Safety Management and the REUL Bill is likely to throw this all away”.
That is why I proposed this amendment and why I want to bring workers’ safety to the fore.
Baroness Chapman of Darlington (Lab)
My Lords, I am starting to wish we had degrouped this debate, because there were so many issues that, really, it was two or three debates rolled into one. It would maybe have been a good idea to spend a bit more time on some of the things that were raised. I say that even though we will probably spend the best part of two hours on this group—but I still think that we have skirted over some of the things that we might have wanted to delve into had this been a more sensible process.
We looked at toy safety. I remind noble Lords of where we started this group: the noble Lord, Lord Clement-Jones, spoke to a really good amendment from the noble Lord, Lord Fox, raising some important issues. I was a child in the 1970s, when nothing ever came with a plug attached or anything like that. Now, I do not have to worry about my children: they can have whatever toys they want and put them in their mouths or ears or whatever they want to do, and no one needs to worry too much.
As the noble Lord, Lord Rooker, said with regard to food, the improvement applies across the board, and successive Governments can be quite proud of it. A Tory Government do not come in and say, “We’re going to delete everything that was passed by our predecessor Labour Government because of where it came from”, but that is exactly what we are doing here. We are placing in question sensible measures that I have not heard anybody disagree with—I do not think the Ministers disagree with any of this—so I do not understand quite why we have to leave this question mark over these things.
The General Product Safety Regulations, which we have talked about, are really important. These are things that most consumers just take for granted, and so they should. That is where we would like to keep the situation, but concern is now being raised. Consumer organisations such as Which? and others are starting to say, “Hold on a minute, there’s a potential problem here.” Ministers will say, “This is just scaremongering—it’s causing anxiety where there’s no need for it”, but the Government are declining to take the steps needed to remove that anxiety in a very straightforward way, which they could do if they are right about that and should they wish to do so. I still very much encourage them to take that route.
The issues raised about the level playing field are incredibly important. We are expecting the poor generalist lawyers who draft these SIs to be experts not just in product safety, food manufacturing or asbestos, which are really important issues, but in international trade. They have to understand the TCA, the agreements that we have with Australia, the CPTPP, and how it will all work together if we diverge. We could end up diverging without realising that we have done so, until a court somewhere else decides to ask us about it. This just has disaster written all over it, and for what, if the Government are saying that they do not really want to change anything?
The Food Standards Scotland letter that I think everyone has had is really revealing. It makes some very good points, but the sentence that jumps out is where it says that Food Standards Scotland was invited to give evidence on this Bill that we are looking at. The Scottish Parliament is not looking at the Bill—we are—but Food Standards Scotland was invited to give evidence in the Scottish Parliament about it. When do food standards people get to come here and tell us what they think? We are the people debating the Bill. Where is the engagement and the opportunity for organisations to come in and allow us to benefit?
The noble Baroness, Lady Young, said that what people really want from these types of regulations is certainty, long lead times and consultation, but they have not had any of that from this process. The Minister is meant to be business-friendly and to understand what businesses want. I do not know what has happened to him here, because I have done Bills with him before when he was much more in tune with what business is saying. I am not seeing any of that today, which is a real shame.
Rather than go through all the amendments one by one and say what I think—I support all of them; they have all been very thoughtfully put together and spoken to—maybe we could make life very easy for the Minister. Perhaps she could answer on just one issue: asbestos. That is probably the least controversial thing that I could have picked. Will the Government revoke, retain or amend the regulations around asbestos?
Baroness Bloomfield of Hinton Waldrist (Con)
I will come to that.
I thank noble Lords for their amendments relating to product, food, environmental and consumer protections and safety. While we all commend the sentiment, the Government believe that it is simply not necessary or appropriate to introduce individual carve-outs for specific regulations or policies in the Bill.
I turn first to Amendment 5 in the name of the noble Lord, Lord Fox, which was so ably introduced by the noble Lord, Lord Clement-Jones. I reassure them that the Government remain committed to protecting consumers from unsafe products being placed on the market now and in the future—and this of course includes toys. Our current product safety framework is largely a mix of retained EU law, domestic law and industry standards; as a result, it can be complex and difficult to understand. While the Bill is unlikely to give us the powers needed to implement a new framework, we hope that the powers in it will make it possible to amend or to remove outdated EU-derived regulations and to give us the ability to make some changes to reduce burdens for business.
The Government are finalising for publication a consultation into product safety this year. We will use available legislative powers, including those in the Bill, to take the necessary steps ahead of the sunset date to ensure that we uphold this commitment to consumer protection. This will take account of modern-day hazards and risks, the challenges posed by new supply chains, such as the growth of online marketplaces, new technology and supporting innovation, and net-zero ambitions.
I turn to Amendment 25 tabled by the noble Lord, Lord Fox, relating to the control of asbestos regulations—
Lord Harris of Haringey (Lab)
I am sorry to interrupt the Minister just as she is getting into her flow, but she seems to be moving on to the next amendment. Before doing so, can she tell us whether that consultation, which presumably would allow adequate time for all the relevant bodies to feed into it before the sunset time arises, will actually give us a clear list of what is in, what is out and what is being changed? Will it be there? If so, why can we not have it now?
Baroness Bloomfield of Hinton Waldrist (Con)
I am told by my noble friend, Lord Callanan, that it will include all the appropriate information necessary for a full consultation. I cannot commit to saying whether it will have the full list of all the regulations; it depends on what stage it is at. We will launch it soon, and that will inform noble Lords more about the intention of the Government on product safety.
Amendment 25 tabled by the noble Lord, Lord Fox—
Baroness Crawley (Lab)
I am grateful to the Minister for giving way. I understand, from trading standards, that the government product safety review was due last spring and then expected at the end of 2022, but it has not been published. Do we have a date for it to be published yet?
Baroness Bloomfield of Hinton Waldrist (Con)
I am afraid that I will have to write to the noble Baroness on that; we do not have an answer at this stage. The consultation is a new initiative and will be launched soon.
Amendment 25 tabled by the noble Lord, Lord Fox, relates to the control of asbestos regulations. The noble Lord has provided a good example of an area where we regained the ability to regulate autonomously upon leaving the EU. Both the post-implementation review 2022 and the Work and Pensions Select Committee evidence suggest that further clarity around the categorisation of asbestos works, particularly regarding non-notifiable licenced work, would be beneficial, and the Health and Safety Executive has committed to considering how this could be developed further. HSE will undertake research and engage with stakeholders to consider an evidence base for the introduction of mandatory accreditation for asbestos surveyors. If this is taken forward, it will be as a result of a change to the CAR. Indeed—
Lord Fox (LD)
How does the Bill make that happen, when Clause 15 does not allow an increase in regulatory burden? The Bill does not facilitate what was just stated at the Dispatch Box: it cannot happen as a result of the Bill; indeed, the Bill stops it from happening.
Baroness Bloomfield of Hinton Waldrist (Con)
I did not suggest that it was happening as a result of the Bill; it is happening anyway, and that will inform our decisions on further regulations.
Baroness Chapman of Darlington (Lab)
Minister, this is all news to us. Where will the detail be found on this? Why is a Minister suddenly popping up and saying these things now? The Bill specifically prevents the kind of work she is talking about, because it relates to retained EU law, and retained EU law will be dealt with this way.
We cannot have anything in the Bill which could be interpreted as an additional burden. A burden, as defined by the Bill, includes,
“a sanction (criminal or otherwise) which affects the carrying on of any lawful activity”.
Baroness Bloomfield of Hinton Waldrist (Con)
I do not believe it is a big reveal. It just underscores the sort of work that the Government are undertaking in parallel to inform better their decisions about whether to repeal or revoke EU law. The noble Baroness talks about undue burden. We are talking about the totality of burden on a particular sector. This may well reduce burdens by making more relevant legislation to control asbestos.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, surely the point is that these crucial protections on asbestos could in principle fall off the statute book. They could be lost at the end of this year, whether by accident or design. I want to be clear: this is critical. According to the HSE, asbestos is the single biggest cause of work-related deaths in the UK. Asbestos-related diseases kill 4,500 people every year in England, Scotland and Wales. There are hundreds of buildings where asbestos is still present. As the TUC survey and no doubt many others have shown, this is a critical issue for working people. Frankly, whether or not there is a consultation going on in some other area is neither here nor there. We want to know what will happen to those EU-derived protections now. We want to hear it.
Baroness Bloomfield of Hinton Waldrist (Con)
There is no question of going back on the protections that the existing EU law provides. As you have heard me say, the Health and Safety Executive believes that we can develop this further, and this review is intending to provide more information. I would have thought that would have been of some comfort to noble Lords. I shall continue and try to make progress.
The Health and Safety Executive will undertake research and engage with stakeholders to consider an evidence-based introduction of mandatory accreditation for asbestos surveyors. Indeed, the Health and Safety Executive will use the introduction of this Bill as an opportunity to ensure that our regulatory framework in relation to asbestos continues to operate effectively. This will include considering the current categorisation of asbestos removal work.
Baroness Chapman of Darlington (Lab)
I am sorry, but the Minister just said that the Health and Safety Executive is going to use the introduction of this Bill to conduct a review. This Bill specifically prevents the Health and Safety Executive from what some of us would conclude is improving safety at work, because it talks about not increasing the regulatory burden. How that is defined or interpreted is critical. There is an attempt to define it in the Bill, but it is inadequate. We need some kind of schedule or some explanation from the Government, specifically about asbestos—because this is what we are talking about now—so that we understand what we are being asked to agree to.
Baroness Bloomfield of Hinton Waldrist (Con)
I understand the point the noble Baroness is making. We are not talking about increasing the totality of the regulatory burden. We are talking about making it fitter for UK purposes, which is what the Health and Safety Executive is seeking to undertake.
Lord Kerr of Kinlochard (CB)
I am very interested in what the Minister is saying. This asbestos review sounds like good news. However, given what she has said, there seems now to be an overwhelming case for a government amendment similar to Amendment 45, which takes financial services business out. If the asbestos issue is being explored with a view to improving the existing regulation, it cannot be done under this Bill because this Bill does not allow for improvements—well, it depends how you read Amendment 45 and how you read the Bill. For the asbestos review, which is good news in my view, surely it needs to be exempted from the provisions of this Bill by adding an amendment like Amendment 45.
Baroness Bloomfield of Hinton Waldrist (Con)
We just do not believe that that is the case.
Baroness Bennett of Manor Castle (GP)
I just want to make what I think is an important point here. The Government are talking about the totality of regulations and saying that it does not stop the asbestos regulations becoming stronger. If the total has to be less, what are we going to lose in the protections so that we do not have a higher total? An addition has to mean a subtraction.
Baroness Chapman of Darlington (Lab)
Before the Minister responds—I may be taking advantage here—the Health and Safety Executive is an agency that is able to impose sanctions. However, under this Bill, under whose auspices the Health and Safety Executive will be conducting its review, as the Minister describes it, it will not be able to impose or suggest anything that could be a financial cost, an administrative “inconvenience”, an obstacle to trade and innovation or a sanction. The Minister is chuntering from a sedentary position about totality but the Bill does not say anything about totality. That is their interpretation; it may well not be a court’s interpretation. We need some more information from the Government on this issue.
Baroness Bloomfield of Hinton Waldrist (Con)
I am afraid that the Government’s position is that we simply do not accept that interpretation of the totality. Of the 4,000 pieces of retained EU law, we will be repealing a number of things. We are talking about not increasing the totality of the regulatory burden because some of that will be falling away and may just simply not be appropriate, not just on asbestos but on many other fronts as well.
Lord Fox (LD)
My Lords, I think that we have just introduced a whole other confusion. Clause 15 talks about not increasing the regulatory burden. Is the Minister now proposing that it is the total across all 4,700, which is what she just said? She has an opportunity to correct that and explain what not increasing the regulatory burden really means.
Baroness Bloomfield of Hinton Waldrist (Con)
I think the best thing I can do is commit to giving the noble Lord a definition of “regulatory burden” in writing in due course.
Baroness Young of Old Scone (Lab)
When the Minister writes, can she also give us an indication of how that definition has already been shared with government departments, which are busy reviewing their legislation? They are presumably using some sort of metric—do we weigh the buckets by the pound? Is it the impact on business or is it the public good that is delivered? The Treasury has argued for years about the methodology for judging the benefit—or otherwise—of legislation. I would be interested to know what sort of guidance has been given to government departments.
Baroness Bloomfield of Hinton Waldrist (Con)
We will give as much further clarification as we can.
Lord Krebs (CB)
I am sorry to interrupt the Minister yet again but I was pleased to hear that she has agreed to write to the noble Lord, Lord Fox, to clarify this question, which was asked by the noble Baroness, Lady Chapman of Darlington. Can the Minister include in that letter a couple of worked examples to fix this in our minds? When it is all very abstract—increase a bit here, subtract a bit there—what is the common currency? How do you combine the four or five different criteria for burden into a single unit? I am a scientist so I like to be able to measure things. If she could just give us a couple of worked examples in her letter, that would be great.
Lord Harris of Haringey (Lab)
My Lords, while the Minister is considering her response to that, may I say that the noble Lord, Lord Krebs, has just made an extremely important point? It strikes me that, when you are defining regulatory burden, you need to decide whether the regulatory burden on, for example, one very small group of businesses ranks the same as something that affects every workplace in the country. The calculation becomes vital if the Government are now saying, as seems to be the case, that the regulatory burden has to be looked at in the totality of all these regulations.
Baroness Bloomfield of Hinton Waldrist (Con)
I can commit to reflecting on what other information we can give in respect of the regulatory burden.
To make further progress—no, maybe not.
Baroness Bennett of Manor Castle (GP)
Sorry, I have one very short point. One of the examples that has often been given as irrelevant is the export of Sicilian lemons—they seem to come up quite often. Surely something that is irrelevant should not be counted as any kind of change; it should just be put aside?
Baroness Bloomfield of Hinton Waldrist (Con)
I take the noble Baroness’s point.
I turn now to Amendment 16, tabled by the noble Lord, Lord Clement-Jones. The General Product Safety Regulations 2005 specify a general safety requirement that products placed on the market or supplied by producers and distributors must be safe. As with the previous amendment, I can reassure noble Lords that the Government are committed to protecting consumers from unsafe products, and we will take the necessary steps ahead of the sunset date to ensure that we uphold this commitment.
Turning to Amendment 18, this sentiment also extends to this amendment, protecting consumers from unsafe cosmetic products. We will continue to ensure that cosmetics placed on the market now, and in the future, meet the requirements of the regulations which safeguard public health and enable a fully competitive market.
Amendment 19 would exempt the Consumer Protection from Unfair Trading Regulations 2008, known as the CPRs, from the sunset. The UK has always had high standards of consumer protection and will continue to. This Bill will not change the Government’s commitment to uphold these high standards. The Department of Business and Trade will confirm the plans for consumer protection shortly and will be introducing the Digital Markets, Competition and Consumer Bill as soon as parliamentary time allows.
I turn now to Amendment 20 and the General Food Regulations 2004. In reviewing retained EU law, the Government’s aim is to ensure that food law is fit for purpose and that the UK regulatory framework is appropriate and tailored to the needs of UK consumers and business. The General Food Regulations 2004 prohibit the placing of unsafe food on the market and giving misleading information to consumers, and places obligations on food businesses to ensure the traceability of foods. This Bill will not alter our commitment to maintaining our world-leading food safety and standards.
Regarding Amendment 22, tabled by the noble Baroness, Lady Young, I can reassure the noble Baroness and other noble Lords that my noble friend Lord Benyon will be answering the debate that relates to environment matters on Tuesday, and will perhaps then be able to provide further insights into the interaction of the various Bills mentioned by the noble Baroness. Let me assure her that the United Kingdom upholds strict food safety, health and environmental standards. Our first priority regarding pesticides is to ensure that they will not harm people or pose unacceptable risks to the environment.
His Majesty’s Government has an excellent record on the environment, enshrined in law in our landmark Environment Act. Any decision on preserving, repealing or amending retained EU law will not come at the expense of these high standards, and we are working to publish an updated UK national action plan for the sustainable use of pesticides.
The overall ban on the use of neonicotinoid pesticides remains in place. We continue to work with a wide range of organisations and partners to ensure the best possible outcome for people and our environment. Any decision on preserving, repealing or amending REUL will not come at the expense of these high standards, and additionally we are working to publish the updated UK national action plan for the sustainable use of pesticides in the first half of this year.
Amendment 30, tabled by the noble Lord, Lord Krebs, seeks to exempt REUL relating to food safety, plant and animal health, which is in the scope of a specified section of the TCA from the sunset. Let me remind the Committee that the UK is a world leader in environmental protection, animal welfare and food safety. His Majesty’s Government have an excellent record on the environment; the Food Safety Act is in primary legislation and is therefore exempt from the sunset legislation. Defra is in the process of analysing its retained EU law, and determining what should be preserved, repealed or amended. Let me assure noble Lords that any decision on REUL reform will not come at the expense of our high standards.
The Government are also committed to upholding our international environmental and food obligations, including those under the trade and co-operation agreement with the EU, and I hope that provides the noble Lord, Lord Krebs, with some reassurance.
Baroness Chapman of Darlington (Lab)
In that case, could the Minister confirm that BSE monitoring will be retained as it is?
Baroness Bloomfield of Hinton Waldrist (Con)
That is a question for Defra; I cannot confirm or deny any particular regulations that will be looked at. As the noble Baroness will understand, these things are a matter for Defra.
Lord Rooker (Lab)
Defra is the producer’s department; who is looking after the consumers? That was part of the problem: Defra will look after the producers and will be lobbied by the producers; where is the role for the consumers? Section 1 of the Food Standards Act 1999 says that the Food Standards Agency’s role is to put consumers’ interests above all else in relation to the consumption of food. So what is the role of the FSA? I declare an interest—because I do not trust Ministers—that I have had no discussions with the FSA about this Bill; everything I have used is public, open-source information. I want to know what the FSA’s role is, because Defra is for the producers; who is going to look after the consumers?
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Lord, as a prior chairman of the FSA, will know that the FSA is a part of Defra and represents food standards.
Lord Rooker (Lab)
I beg your pardon. If the Minister is not aware, the FSA is a non-ministerial department, which answers to Parliament through the Department of Health, not through Defra. That is the whole point: to keep the producer away from the consumer’s interests.
Baroness Bloomfield of Hinton Waldrist (Con)
My apologies to the whole Committee for making that obvious mistake. There has been a write-round to all departments on this Bill. The repeal of EU law is being considered by each department in the write-round, and our commitment to not reducing consumer protection remains in place.
Lord Harris of Haringey (Lab)
I feel sorry for the Minister, because I do not doubt her personal commitment to maintaining these high standards. The problem is that the Bill does not give us that assurance and nothing that the Government have published, other than those high, fine words, gives us that assurance. That is why my noble friend Lady Young asked for the three buckets to be published, because that would then enable us to see that the Minister’s words are being reflected in action. It would make her life easier, and that of all her colleagues on the Front Bench, if they simply made it clear what was expected to be retained. The only reason we are in this mess is because the Government have decided to do all this the wrong way round, instead of simply working through regulations as they came up which may or may not need changing.
Baroness Bloomfield of Hinton Waldrist (Con)
I thank the noble Lord for his intervention. Of course it would make all our lives easier, and they will be published in due course. I am not going to go further than that.
Lord Fox (LD)
This is new information. I have yet to hear from the Dispatch Box that this list will be published. I am delighted, but it would be very helpful if the noble Baroness could tell us when the list will be published.
Baroness Bloomfield of Hinton Waldrist (Con)
As the noble Lord will appreciate, it will be published when the work is complete. The work is ongoing within all departments—the noble Baroness looks shocked.
Baroness Brinton (LD)
I come back to the question I asked in the previous group: at what point does the dashboard—this list—get frozen? What happens if it is frozen in the middle of December? This is just impossible. If there is going to be a list and work published, as things emerge and more regulations are added to the list—which I completely understand; I think we would rather see them added to it—we need to understand how it fits in with the impact assessments and with consultation.
Baroness Bloomfield of Hinton Waldrist (Con)
In terms of the dashboard, the vast majority of the work is already done, but there will be bits that will be added or found, most of which will be from old legislation. Most of the relevant work has already been done, but it is still subject to review.
Baroness Young of Old Scone (Lab)
It is good to hear that the dashboard is nearly finished; it has been interesting watching it emerge. Your Lordships will be glad to hear that I have read every single environmental provision in the original documentation that is on that list.
I wonder if the Minister could tell us about what happens when the buckets are published—not the list but the buckets we are sorting into. I do not know if your Lordships have ever watched that telly programme, “Snog Marry Avoid?”—that shows how intellectual I am on a Friday night—but I kind of typify the buckets like that. The “avoid” one is for the ones that we are going to get rid of because nobody really wants them; the “marry” one is for the ones that we all think are wonderful and we are going to just give a straight run through; and the “snog” one is for the ones that we have to spend a bit of time on to find out whether they are really up to it or not. The quicker we can get the buckets published, the better. Will the buckets come out early enough for this Parliament to play a proper role in coming to some conclusions and helping the Government decide whether they have everything in the right bucket? There might be a little desirable treasure tucked away at the bottom of one of the wrong buckets that we all cherish.
Lord Fox (LD)
I am sorry to keep labouring this point, but the Minister keeps introducing new information. In referring to the dashboard, the Minister implied that the dashboard is the list. Nowhere in this legislation is the dashboard referred to. What is the legal status of the dashboard with respect to the sunset?
Baroness Bloomfield of Hinton Waldrist (Con)
The dashboard has all the retained EU law which is subject to the provisions of the Bill; it is a working document.
Baroness Randerson (LD)
I cannot resist, I am afraid, intervening on this. I was in a Common Frameworks Scrutiny Committee meeting this week when it was indicated that the dashboard was just a tool and, as far as I understood it, did not have a legal status. While I am on my feet, can I ask where and in which bucket the legislation passed by the devolved Administrations is—which are, I believe, at a very much earlier stage in identifying the numbers for the dashboard?
Baroness Bloomfield of Hinton Waldrist (Con)
I know that this is of concern to a number of Members in the Committee, but officials from the UK Government are working very closely with those from the devolved Governments in order to identify the REULs that cross over devolved competences. I know that there is a general concern within the devolved Governments that they simply do not have the manpower to look at all these EU laws themselves, so we are helping them in that process. That is an ongoing job of work being done from official to official.
Lord Whitty (Lab)
My Lords, the Minister has rather changed the rules on this. If the dashboard is almost complete and there is an intention to put something next to every thing on the dashboard—perhaps not using my noble friend Lady Young’s terminology but a slightly more bureaucratic one—we need to have that list before we move to any further stage of the Bill, otherwise we do not know what we are talking about. The noble Baroness has explained in relation to asbestos, rightly and thankfully, that those regulations will not be sunsetted. What happens to the other 4,700 regulations? We do not know. We need that list before we take any definitive decisions on the Bill. I hope that government Ministers and the business managers will go away and recognise that, and that we will not move until we know a lot more about where we are going.
Baroness Bloomfield of Hinton Waldrist (Con)
The dashboard is ongoing work. It does not put things into buckets, but just includes all the EU laws that are subject to review. That will be published but it will certainly not have the buckets that I think the noble Baroness, Lady Young, is asking for.
Lord Fox (LD)
There is an outstanding point here. How is the dashboard connected to the Bill? There is no legal connection between the two, so how will the Government connect them? Currently, there is nothing that joins the dashboard to this law.
Baroness Bloomfield of Hinton Waldrist (Con)
I do not accept the noble Lord’s point. The dashboard is just a list of retained EU law that will be subject to the provisions of the Bill but will not be part of the Bill.
Baroness Brinton (LD)
I apologise to the Committee for continuing this point, but the Government have said repeatedly that they do not want to increase the regulatory burden. We have had the debate about what that means, but if we are not going to increase it and the dashboard is part of the tally of what that burden is, how does it get connected back in?
Baroness Bloomfield of Hinton Waldrist (Con)
The dashboard does not have any legal status. It is simply a list of the job of work that all the departments will have to do, reviewing each bit of retained EU law to work out which bucket it will fall into. These are legitimate conversations to have in Committee, so we can go on debating this. I know that your Lordships feel sorry for me up here, but I have two Ministers behind me and the Leader of the House. If there is something that I cannot answer directly—
Lord Collins of Highbury (Lab)
When we started discussion in Committee this afternoon, the issue was it will either be retained or amended or it will simply drop off, and the drop-off bit is in the Bill. That is the connection and that is why this is so important.
We have just heard that the Minister will write to us about asbestos, because there will be a review and it might increase the regulatory burden. She says that it will not increase it because it will be considered as part of a totality, so then we have all the regulations that will be part of it. I know that I have been here only for 10 years, but I have never experienced anything like this. We have a major piece of legislation, we are trying to probe things in Committee to find out what it means, and we are simply not getting answers.
Baroness Bloomfield of Hinton Waldrist (Con)
I have a qualification about the dashboard. The retained EU law dashboard showcases which departments, policy areas and sectors of the economy are most saturated by retained EU law. It will be updated quarterly to document the Government’s progress in amending, repealing or replacing retained EU law that is not right for the UK. It is right that the public are able view where retained EU law sits on the statute book and therefore hold the Government to account. I think that answers—
Baroness Bloomfield of Hinton Waldrist (Con)
It will be a published document.
Baroness Chapman of Darlington (Lab)
I am trying to get this clear in my head. We are not saying buckets, and I am trying not to say “snog, marry, avoid”, but will the dashboard say the status of each measure—retain, revoke—next to it? If that is the case, it will be quite simple for the Minister to answer my question about whether BSE monitoring work has been done, bearing in mind that we are at the end of February.
Baroness Bloomfield of Hinton Waldrist (Con)
The dashboard will be updated with status as each EU law is reviewed.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I have just one simple point to make. Unless we are clear whether the Bill says that the overall regulatory burden must not increase, or specific legislation—
Baroness Bloomfield of Hinton Waldrist (Con)
I have already offered to write on that point.
Baroness O'Grady of Upper Holloway (Lab)
Yes, but a big follow-on from that is that that is where the impact assessment becomes critical. We have been told that we will have individual impact assessments, but that will not help us if we are trying to look at the whole picture. So we do need absolute clarity on that in order to action, in my view, a proper impact assessment for the whole shebang.
Baroness Bloomfield of Hinton Waldrist (Con)
There will be an impact assessment on all new regulations. I will be writing with further detail on impact assessments.
Baroness Young of Old Scone (Lab)
We also seek clarification on something the noble Lord, Lord Callanan, said at Second Reading: that there will be impact reviews, as the Minister has said, of new legislation, which is what we would expect under the normal statutory instrument procedure. But what is not clear is whether there is any impact review of stuff being put in the “avoid” bucket. If stuff is going to be left to go out the door on 31 December, is there going to be any proposition showing our loss or gain on those? If not, why not?
Baroness Bloomfield of Hinton Waldrist (Con)
Not in terms of regulatory review, but those decisions will be taken within departments, and they will be sunsetted.
Lord Fox (LD)
My Lords, it seems that we will know at about one minute to midnight on 31 December, because it will not have been retained or amended; it will simply be revoked.
Baroness Bloomfield of Hinton Waldrist (Con)
With respect, it will be updated.
Lord Harris of Haringey (Lab)
My Lords, the Minister should stop sitting down in the hope that somebody else is going to stand up. She said she envisaged that the dashboard—I think this was a prompt from her noble friend Lord Callanan—would be published on a quarterly basis. We are running towards 31 December this year, so are we talking about publication of the dashboard on 31 March, 30 June, 30 September and then the moment on 31 December when we will know exactly what is in and what is out? Is that what is envisaged?
Baroness Bloomfield of Hinton Waldrist (Con)
I am afraid that I cannot commit to a specific timetable. Perhaps I could include that in my letter. We need to make progress, so I am going to continue.
Turning to Amendment 21, which is concerned with the Control of Substances Hazardous to Health Regulations 2002, the Health and Safety Executive will seek opportunities to reduce business burdens and promote growth, while safeguarding the UK’s high health and safety standards. As I have said a number of times, we are committed to ensuring health and safety legislation continues to be fit for purpose and that our regulatory frameworks operate effectively following the sunset.
I hope I have been able to provide some reassurance to noble Lords. The Bill does indeed provide the tools to allow much-needed reform of retained EU law, but it does not change the Government’s commitment to uphold the highest standards across all the sectors raised in these amendments. There is no need to remove these specific regulations from the scope of Clause 1.
Finally, I reiterate that we are committed to high standards and equally committed to compliance with the trade and co-operation agreement. I kindly ask the noble Lord, Lord Fox, to withdraw his amendment.
Lord Clement-Jones (LD)
Well, my Lords, I am not going to prolong the agony, because it has been pretty agonising and extremely painful. I agree with the noble Lord, Lord Harris: the Minister has been put in the trenches with an extremely rusty musket, if I may say so, and we have not had many satisfactory answers. But this is entirely down to the Government, who have set so many hares running. How many amendments do we have to put down to get assurances from the Minister, however fragile they may be? How many agencies do we have to mention? We have heard mention of so many today that have reviews going, are not being properly consulted or will not have time to deal with whatever is in the bucket. This is a kind of lucky dip—perhaps that is the next thing. If it is not in the bucket, or we have not identified it in the bucket, maybe on 31 December it will be as if it never existed.
The level of uncertainty is extraordinary. With only 10 and a half months to go, the Government seem to be relying on this stately progress of identifying what these regulations are, never mind working out whether or not they should exist. Then, of course, we need clarification, because the Bill certainly is not clear, about the meaning of Clause 15. This is what the food industry, the toy industry and all the product manufacturers are worried about. They want enhancement —I mentioned online safety—of our regulation, which seems to be denied them.
The Minister mentioned a number of reviews going on, but it is like these reviews are happening with somebody with a gun to their head. It seems quite extraordinary that that is the way we are going. Speakers right across the Committee have made some superbly expert speeches today. We have talked about the dangers of divergence from Europe, issues of public trust, problems with business certainty and a lack of lead times in order to adjust to the new regulations.
At the end of this debate, one feels like throwing one’s hands in the hair and saying, “My goodness me. How did the Government get into this situation?” It is totally untenable and they really should scrap the Bill at the earliest opportunity and carry on with some of these reviews without this pressure, which seems to be relentless, where civil servants are scrambling around and devoting a lot of time fruitlessly trying to identify what on earth is retained EU law.
No doubt we will keep returning to this. This is just the tip of the iceberg and I feel very tempted to table another 4,650 amendments. In the meantime, I beg leave to withdraw my amendment.
Baroness Brinton
Member's explanatory statement
This amendment excludes the Artist’s Resale Right Regulations 2006 and 2011 from the sunset in Clause 1. The Regulations protect the royalty rights of artists and their heirs.
Baroness Brinton (LD)
I will move Amendment 6 and speak to Amendments 13 to 15 on behalf of the noble Lord, Lord Clement-Jones. Just to say, both he and I support Amendment 145 in this group from the noble Earl, Lord Lindsay.
We are moving now to the area of intellectual property, where there is a very large potential change of intellectual property rights as a result of the Bill. One of the biggest threats comes from the precedents established by the ECJ being sunsetted at the end of this year. This will create great uncertainty and be an incentive for litigation for the creative and tech industries. This is further aggravated by the fact that there is no simple way to source or identify these judgments, which makes the task of understanding their implications especially difficult.
Currently, EU decisions reached prior to 1 January 2021 are binding on the UK courts, the Court of Appeal and Supreme Court aside. Under the Bill, EU cases will no longer act as binding precedent on all UK courts. While a UK court could still consider EU cases for their persuasive value, the courts will be under a duty to interpret EU cases in accordance with primary UK legislation or, if this is not possible, to disregard them. There is also an opaque duty on the courts to consider the extent to which the retained EU case law restricts the proper development of domestic law. How the courts will interpret this duty is extremely difficult to predict.
The copyright landscape in the UK has been heavily shaped by EU cases, which in many cases have significantly expanded the scope and availability of copyright protection. The most notable recent example is the CJEU decision in Cofemel v G-Star Raw (C-683/17), which redefined the types of works which are subject to copyright protection.
The decision in Cofemel expanded protection to any identifiable work that is the author’s own intellectual creation. This definition has potentially expanded the availability of copyright protection to a plethora of new areas, from programming languages to fabrics and from facial make-up to literary characters. Given that Cofemel arguably contradicts the closed list of the CDPA, the Bill may make it mandatory for the court to disregard it. Businesses that have relied on copyright’s existence in non-traditional works may find their current copyright protection lost.
The recent case of Shazam Productions Ltd v Only Fools the Dining Experience Ltd & Others, 2022, EWHC 1379, also highlights the risk of such a departure. The case concerned whether the characters from the popular sitcom “Only Fools and Horses” could be protected under copyright. The court relied heavily on the definition of “works” in Cofemel to find that literary characters could be protected by working backwards from the EU definition of a “work” to find that characters could fall within the definition of literary works under the CDPA. It is not clear that the court would reach the same decision after the Bill is enacted.
This causes huge uncertainty. What is the Government’s plan in this respect? Will they explicitly retain these precedents? Businesses that depend on intellectual property needs stability and certainty. Is the potential turmoil in IP rights part of the Government’s plan for growth? The IP regulations and case law on the dashboard, which could be sunsetted, encompass a range from databases, computer programs and performing rights to protection for medicines. There are 70 identified pieces of legislation that could be impacted—I promise I will not read them all out tonight. There are 25 related to copyright, 10 to trademarks, 13 to designs, eight to enforcement of IP rights and 14 to patents. A major risk to the creative sector would be from changes affecting copyright. As Creative UK says, intellectual property is the bedrock of the creative industry and the mechanism by which ideas are monetised to make businesses and careers in the industry viable.
Specific copyright-related implications include uncertainty related to database rights, which are the subject of an amendment today. There is considerable uncertainty around the status of the Copyright and Rights in Databases Regulations 1997, which underpin the sui generis database right. On the basis that those regulations fall within the definition of EU-derived subordinate legislation, without any ministerial intervention the legislation will be revoked in so far as it relates to database rights.
At particular risk are artists’ resale rights. ARR entitles artists and their heirs to a small royalty when their work is resold by an art market professional. It ensures that up-and-coming artists, whose early work is often sold for very low prices, benefit as the works increase in value. This is because the law was implemented from EU directive 2001/84/EC. The UK transposed the right via two statutory instruments. The first, in 2006, introduced ARR for living artists, and the second, in 2011, extended the right to the heirs and estates of artists who have died. Visual artists are some of the lowest earning creatives, earning between £5,000 and £10,000 a year. Since ARR was introduced in 2006, DACS has paid more than £100 million to artists and their estates. With the third-largest art market in the world, the UK remains a global powerhouse, demonstrating that ARR and the art market can coexist. Losing ARR would not only strip UK artists of a vital personal and economic right but would jeopardise the UK’s position as a world leader in IP and the creative industries.
ARR is being adopted throughout the world, with countries such as Canada and South Africa looking to introduce legislation. The UK’s trade negotiations have been important in securing reciprocal ARR in Australia, and indeed in encouraging New Zealand to introduce the law. ARR features in UK trade agreements negotiated after Brexit with third countries and therefore it may be that a commitment to ARR falls within the UK’s international obligations that are considered when retaining EU-derived law.
The Earl of Clancarty (CB)
My Lords, I shall speak briefly to Amendment 6 in the name of the noble Lord, Lord Clement-Jones, to which I have added my name. The noble Baroness, Lady Brinton, has said much of what I was going to say about ARR. I support all the other important amendments in this group, but I want to draw attention in particular to the importance of the artist’s resale right and how important it is for UK artists. I am grateful for the briefing from the Design and Artists Copyright Society, the rights management organisation for visual artists in the UK.
The visual arts play an important role in shaping the perception of the UK, and in our soft power. The artist’s resale right is applied when a work is resold through a gallery or auction house, and it is an invaluable source of income for visual artists, as the noble Baroness, Lady Brinton, pointed out. It is the equivalent of royalties for musicians and authors when their work is replayed or reproduced. Earlier, the Minister, the noble Baroness, Lady Neville-Rolfe, talked about duplication, but, crucially, the operation of this right depends on the regulations referred to in this amendment. It does not depend on the EU or other legislation—it depends on these SIs. So, there is particular concern here with these regulations.
I am put in mind of what the noble Lord, Lord Kerr, said earlier about uncertainty. People have talked about what will happen before the deadline on 31 December. I am very concerned about what we will wake up to on 1 January 2024, when businesses and organisations that depend on particular regulations to operate exactly what they do will find that those regulations have disappeared and that they simply cannot work. That is something the Government need to think hard about.
The resale right supports emerging artists as well as established artists. As DACS points out and as the noble Baroness, Lady Brinton, said, the average artist earns between £5,000 and £10,000 a year for their work in this area—a very small amount—and 81% of artists receiving such royalties use their income to pay for living expenses, including studio rent and materials. So these royalties can give a much-needed boost to those artists, which will in turn help to boost the creative economy.
This source of revenue becomes particularly significant, considering the rising costs of materials and increased rents for studio spaces, for estates that support an artist’s legacy by providing revenues to be used for managing the estate and for conservation, all of which contribute ultimately to the UK’s cultural heritage. The amount of royalties paid to artists is less than 1% of UK post-war and contemporary and modem sales, and as research has pointed out, there is no evidence that these royalties act as a deterrent to the UK art market. ARR is recognised by more than 80 countries worldwide and the principle is enshrined within the Berne convention.
ARR has been included in our own trade agreements, as the noble Baroness, Lady Brinton, said, as well as in the withdrawal agreement with the EU, so the removal of this legislation would be inconsistent with the promises we have already made internationally with others. It is vital for the arts and our cultural heritage that this right is protected, and it should be excluded from the sunset clause.
Baroness Crawley (Lab)
My Lords, I shall speak to Amendment 145 in the name of the noble Earl, Lord Lindsay. This amendment, to which my name has been added, has the backing of the Safeguarding Our Standards consumer protection campaign and continues the theme of other exclusion or carve-out amendments in this group, in that it would ensure that the Bill will not apply to any regulations relevant to the Government’s forthcoming digital markets, competition and consumer Bill. Many believe that this DMCC Bill represents the most significant reform of UK competition and consumer protection law in years.
The noble Earl, Lord Lindsay, who cannot be here today, and I work closely together with the Chartered Trading Standards Institute, of which he is president and I am a former president. We thank both CTSI and Which? for their support and advice on this amendment. In the Autumn Statement, the Government committed to bringing forward the DMCC Bill in this Session of Parliament, and it would be good to know from the Minister when that Bill will be published—it is supposed to be imminent. It will provide important reforms to competition and consumer protection law, including providing the Competition and Markets Authority with significant new powers to promote and tackle anti-competition practices and, indeed, updating retained EU law, such as the Consumer Protection from Unfair Trading Regulations 2008, with measures to combat fake reviews and subscription traps. It is likely that businesses around the country will be reviewing their current approach to sales and marketing, given the expected new powers the CMA will impose as far as fines are concerned in relation to consumer law breaches through that Bill.
However, there is a very serious risk that the REUL Bill in front of us today will cut across what the Government are trying to achieve through the digital markets, competition and consumer Bill. That is why we believe that regulations that are in scope of the digital markets, competition and consumer Bill should be excluded from the retained EU law Bill. There is already a precedent for this, as the Financial Services and Markets Bill currently going through Parliament, which has already been talked about today, is excluded from the scope of the retained EU law Bill to avoid the risk of the two different pieces of legislation contradicting one another. We have not yet had a proper answer as to why this precedent is still there. The organisation Which? is, however, on record as arguing that the relevant clauses and schedule in the FSM Bill need to be improved to ensure that decisions about any remaining financial services retained EU law are accompanied by effective consultation as well as parliamentary and stakeholder scrutiny.
I urge the Minister to look carefully at this amendment in light of the need for robust competition and consumer law going forward in a very difficult economic time for many people and businesses.
Lord Callanan (Con)
My Lords, this debate has demonstrated what we already knew: there is retained EU law across all sectors of the economy, some of which is out of date and unfit for purpose. The Government have taken a sensible approach by requiring that this retained EU law is reviewed and updated equally and in the same timeframe. This makes sure that no specific policy areas get left behind. We have had essentially the same debate on all groups—with Opposition Members highlighting certain areas and saying, “This is very important”, and of course we agree with them, then asking for specific carve-outs, which is impossible until we have done the work reviewing it.
We reject Amendment 6. We think it is unnecessary and ask that it be withdrawn. The amendment would see legislation on artists’ resale rights excluded from the sunset provision. However, the UK Government have already committed to ensure that the necessary legislation to uphold the UK’s international obligations after the sunset date will remain in place. This can also be accommodated using the broader powers contained in the Bill. Again, we contend that there is no need for any carve-outs for specific policy areas.
Similarly, I disagree with the noble Lord’s additional Amendments 13 to 15, which would put various copyright computer programs and database regulations outside the scope of the sunset. The Government believe that an effective and efficient intellectual property system—
Baroness Brinton (LD)
I apologise, I was not quite clear about something the Minister said. He made reference to the issues relating to the creative industries being covered by broader powers. Could he help the Committee by explaining what those broader powers are?
Lord Callanan (Con)
There are a number of broader powers in different pieces of legislation. I can get the noble Baroness confirmation in writing, but clearly if it is retained EU law it is also subject to the powers in this Bill.
As I was saying, an effective and efficient intellectual property system is fundamental to the Government’s economic ambition. In common with the rest of the Committee, we continue to support a strong and effective IP system that delivers for all those who rely on it. As part of that, assessing retained EU law on intellectual property as a consequence of this Bill will only help to ensure that this remains the same.
Ministers across government are already working closely with their devolved Government counterparts on their retained EU law plans, taking decisions on whether to preserve, reform or revoke legislation, and developing delivery plans to ensure that all necessary action is taken well before the sunset date. Once this process is complete, the Government will update the House on their intentions for the areas where they will focus on reform.
Finally, I turn to Amendment 145, tabled by the noble Earl, Lord Lindsay. A digital markets, competition and consumer Act is not expected to exist when this Bill receives Royal Assent. As such, it is not possible for this Bill to reference that Act if it does not exist. The powers in the Bill will be used as necessary to ensure that all reforms proposed by a forthcoming digital markets Act will operate as intended. I hope that has provided noble Lords with reassurance and that the noble Lord will feel able to withdraw his amendment and the others will not be moved.
Baroness Wheatcroft (CB)
Forgive me for interrupting at this late stage, but could the Minister tell the Committee how much time he thinks will be necessary to update the House on what is happening to the 4,700—and growing—pieces of legislation?
Lord Callanan (Con)
If the noble Baroness has been listening to the debate so far, she can reference the dashboard with the 4,700 pieces that are listed. As has been said in previous debates—we have been through this at great length now—the dashboard will be updated as the Government’s intentions, once this review has been carried out, become clear.
Baroness Wheatcroft (CB)
The Minister said that, once decisions had been taken, he would update the House on the outcome for the 4,700 pieces of legislation. It was that I was querying.
The Earl of Clancarty (CB)
The Minister mentioned that a decision had been made to continue artists’ resale rights. Where was that original decision made and will it continue in the same form that it is now?
Lord Callanan (Con)
The Government have signalled our general intention and the importance of the IP protection regime, which of course involves artist resale rights. We have stated our intention for that regime to continue, and we will of course update the House as soon as we have more information.
Baroness Brinton (LD)
My Lords, I thank the Minister for his reply. Like other noble Lords, I thank all three Ministers for responding to a Committee that is clearly concerned about what is going on in the Bill. The hour is late, so I will be brief.
The noble Earl, Lord Clancarty, was right to be concerned about the consequences for artists after 1 January next year. I was particularly concerned about the definition of “broader powers”, and I recognise that other noble Lords have made comments or asked questions about what is happening first. The real message from this is that it is a great shame that we are rushing a group of amendments on the creative industries, which are vital to the growth of UK plc. None of the Bill seems to deal with law that is out of date, and that needs to be looked at.
The message for the day from all these groups is that the Government really should consider pausing the Bill. On every amendment we have debated today, there has been concern about the order of information coming out, so that Parliament, stakeholders or consumers can be aware of what is going on. It feels like this is all happening back to front. So I hope that the Government will take that seriously.
Lord Callanan (Con)
I will issue a clarification: it is actually 3,700 pieces of retained EU law, not 4,700, as I inadvertently said.
Baroness Brinton (LD)
I am grateful for that clarification, but it exactly makes the point that every noble Lord made this afternoon.
Baroness Crawley (Lab)
My Lords, I am disappointed in the noble Lord’s response. I cannot see why the Financial Services and Markets Bill can be excluded from the scope of the Bill but not the forthcoming digital markets, competition and consumers Bill. I do not think that the case has been made, but I will not move my amendment when asked.
Baroness Brinton (LD)
To conclude, I feel that a rather large number of amendments from today will return in some form on Report, with possibly thousands more, as my noble friend Lord Fox outlined—
Baroness Brinton (LD)
Even if it is 1,000 fewer, a large number will return. On that basis, I withdraw Amendment 6.