House of Lords
Support for Migrant Victims
(10 months ago)
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Baroness Gale
To ask His Majesty’s Government, further to the answer by Lord Sharpe of Epsom on 1 December 2022 (HL Deb col 1869), what progress they have made in evaluating the pilot of the Support for Migrant Victims scheme; and when, if at all, they intend to rescind their reservation on Article 59 of the European Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention).
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, we are carefully considering the findings of the support for migrant victims scheme pilot evaluation to inform any future policy decisions. Once we have considered all the evidence in the round, we will communicate our decision on the Article 59 reservation.
Baroness Gale (Lab)
While I thank the Minister for his reply, it is practically identical to the one that he gave me on 1 December last year. How long does it take to evaluate a pilot scheme? This has been going on now for more than two years. How much longer is it going to take and, when it is accepted, will he report back to the House so that the Government can then consider removing the reservation on Article 59?
Lord Sharpe of Epsom (Con)
I thank the noble Baroness for her praise for my consistency. I do not know when the consideration will be completed but, as soon as it is, I shall of course report back to the House on all the matters that she has raised.
Baroness Hussein-Ece (LD)
For as long as the Government take to come to a view on this, there will be thousands of women—mainly women—living in desperate situations and forced to live with their abusers. The Domestic Abuse Commissioner’s report and the feedback have been very thorough and the recommendations are very clear—and, as the noble Baroness said, this has been going on for some time now. As the commissioner said:
“We urgently need to put safety before immigration status when it comes to domestic abuse victims”.
Do the Government now agree?
Lord Sharpe of Epsom (Con)
My Lords, the first thing that I would say is that the pilot may have concluded but the scheme is still in operation and is continuing to be funded. We are providing a further £1.4 million a year until 2024-25 to continue to support the migrant victims scheme, so the circumstances that the noble Baroness describes are certainly not the case. We have read and, obviously, published the Domestic Abuse Commissioner’s report, and we will respond to that in full very soon.
Lord Kamall (Con)
My Lords, noble Lords will know that sometimes the evaluation of schemes takes a long time and there has to be not only an evaluation but a consultation. Could my noble friend the Minister go into a bit more detail on who has to be consulted and what particular issues there are, and why it is taking so long to be evaluated?
Lord Sharpe of Epsom (Con)
Yes, I can. The experts have given evidence from within the sector, and we have also looked at evidence from police representatives and a variety of others. As I say, I cannot answer the question as to why it has taken so long, but it is good that the evidence is being considered in full and, as I say, I shall follow up with a full report as soon as we have a response to publish.
Baroness Chakrabarti (Lab)
My Lords, which aspect of Article 59 do the Government have a concern about? Noble Lords will remember that this is about migrant women who are victims of violence, but it is not carte blanche to give them all residence; it is very carefully caveated. I remind noble Lords that it is where the competent authority considers that it is necessary in order to get them to co-operate with law enforcement. Can the noble Lord help me a little with what the problem is?
Lord Sharpe of Epsom (Con)
In response to the noble Baroness’s question, it is important to note that we are far from alone in this. As noble Lords will be aware, the majority of countries that have ratified the Istanbul convention have reservations on one or more of the 81 clauses. In the case of Article 59, I think there are 12 other countries that still have reservations. We have made it very clear that our compliance position on Article 59 is under review, pending the support for migrant victims scheme evaluation. Our reservation is without prejudice to the policy conclusions that we reach in the light of this evaluation. I cannot really go further than that at the moment, but I will come back to the noble Baroness and the rest of the House as soon as I possibly can.
Baroness Bryan of Partick (Lab)
Does the Minister accept that in the current hostile environment towards migration, women whose immigration status depends on their husband are under even greater pressure to remain in possibly violent relationships?
Lord Sharpe of Epsom (Con)
I am afraid I do not accept the hostile environment remark. What I should say with regard to the situation the noble Baroness describes, which I think comes down to data sharing and the firewall situation that often gets raised here, is that both the police and immigration enforcement share a commitment to safeguard individuals they encounter. We acknowledge that data sharing between the police and the Home Office can be a contributing factor that can influence the decisions of migrant victims not to report a crime and that perpetrators can sometimes use the victim’s immigration status to exert fear or control, but that will inform the migrant victims protocol which is due to be published at the end of this year.
The Earl of Sandwich (CB)
My Lords, was this not meant to be one of the flagships of the Conservative Government? Tackling violence against women is claimed by a lot of people to be a really important theme of Conservative policy, and I would like to know why the noble Baroness, Lady Gale, is not getting an answer sooner. Could not the Minister at least give us some reasons? He says he does not know the reasons: could he not look into this so that we do not have to have another Question about this next week? The International Agreements Committee was very concerned about this. The case of migrant workers has been made: they are in a very vulnerable position.
Lord Sharpe of Epsom (Con)
My Lords, I say to the noble Earl that we ratified the convention and that was the point behind the reservation: we would have been unable to ratify if we had not laid a reservation against Article 59. I also say that in most respects we go further that, or are at least fully compliant with, all the other aspects of the Istanbul convention. We go further, for example, on issues like FGM and stalking protection orders. So I do not really accept the noble Earl’s premise, I am afraid.
Lord Ponsonby of Shulbrede (Lab)
My Lords, last year the Domestic Abuse Commissioner stated that it is likely that 32,000 victims who have no recourse to public funds will require support each year. As the noble Lord has just said, the Government announced a further £1.4 million to extend support for migrant victims in the coming year. How many people does the Minister think that will support? For his information, I will be seeing the Domestic Abuse Commissioner next Tuesday, so it would be very good to be able to supply her with the answer to my question.
Lord Sharpe of Epsom (Con)
I know that the pilot helped 425 victims and, since the ongoing scheme has been extended, 950 in total—including those 425—have been helped. Those are the main figures that I have at the moment. The “no recourse to public funds” policy is based on the principle that access to state support should reflect a migrant’s strength of connection to the UK. Immigration policy is clear that migrants coming to the UK should be able to provide for themselves financially without relying on benefits from the state. Access to public funds is normally granted only to those who have been given indefinite leave to remain. However, other support is available to migrants who have suffered domestic abuse through destitute domestic violence concessions—three months’ crisis support through which individuals can access safe accommodation and public funds—and through the domestic violence indefinite leave to remain route.
Lord Cormack (Con)
My Lords, Mary Tudor said that, when she died, “Calais” would be engraved on her heart. When the Home Secretary moves to higher realms, will “In due course” be engraved on hers?
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, it is impossible to follow that question, so I will follow the question from the Cross Benches. Does the Minister agree that it is very important that the Home Secretary, Ministers in the other place and officials in his department know the views of Members of the House of Lords? My noble friend Lady Gale raised this six months ago. What representations or pressure has the Minister made to or put on the various Home Secretaries we have had in that period, and their officials, about the views of the House of Lords? After today, will he go back and say, “Baroness Gale has raised this again; she has the support of the House and something should be done about it”?
Lord Sharpe of Epsom (Con)
Noble Lords can rest assured that I will take this back. However, I have heard in many debates in the House in recent weeks calls for more evidence. The fact is that we have evidence and we are considering it carefully. Noble Lords should applaud that.
Lord Kerr of Kinlochard (CB)
There is a degree of urgency in this that the Minister is not acknowledging. We do not ratify Article 59 because it is still the Government’s policy that, other than those who benefit from the little pilot scheme, local authorities are not allowed to permit migrant women who are subject to domestic abuse to access shelters. This disgrace is going on and we should stop it as soon as possible.
Lord Sharpe of Epsom (Con)
My Lords, I have just outlined some of the other options available to the migrant women the noble Lord describes. They are far from without support. As I have alluded to, there is also a migrant victims protocol detailing other aspects of the work being done that will be published towards the end of this year.
Community Health Services: Waiting Lists
(10 months ago)
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Baroness Merron
To ask His Majesty’s Government what recent assessment they have made of current levels of waiting lists and times for community health services for (1) children and young people, and (2) adults.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
We regularly monitor community health services’ waiting lists and recognise the variability between the number of people waiting and the time on waiting lists across services in local areas. We are committed to reducing waiting lists; that is why the NHS Long Term Workforce Plan sets commitments to grow the community workforce, with increases in training places for district nurses and allied health professionals and a renewed focus on retaining our existing staff.
Baroness Merron (Lab)
My Lords, long waits have a more severe effect on children because delays in assessment and treatment have a knock-on effect on their communication skills, social and educational development and mental well-being. With over 37% of children and young people on waiting lists for community health services for more than 18 weeks, compared to under 16% of adults, when will the Government address this ever-widening gap and what steps are they taking to prevent a disproportionate impact on vulnerable families both now and in the long term?
Lord Markham (Con)
The noble Baroness is correct about the urgency for young people; I have personal experience of this as well. We are taking steps by piloting nine early language and support services for all children focused on exactly what the noble Baroness mentioned. There is £70 million behind that pilot, with the intention being that we learn lessons from that and roll it out quickly.
Baroness Manzoor (Con)
My Lords, my noble friend will know that a number of surveys have identified that over half a million adults are waiting for adult care assessments. The normal waiting time is 28 days, but for some it is, sadly, significantly longer, which has a disproportionate effect on some of the most vulnerable. What action are the Government taking to reduce it?
Lord Markham (Con)
We are starting to see a blue- print which is beginning to work. The highest waiting list for adults is related to musculoskeletal issues. Since we put an improvement framework in place, 91% of people are now being seen within 12 weeks—a big improvement. We are moving to self-referral also, and digital therapeutics beyond that. There is a road map in place that we need to apply across other areas.
Lord Allan of Hallam (LD)
My Lords, within the published data for wait times in community health services, we see that some people face very long waits for home oxygen assessments, including some waiting for over a year. Given that home oxygen is key for many with respiratory conditions staying out of hospital, will the Minister prioritise looking into why we are seeing these delays, and ensure those who need home oxygen do not face unnecessary waits?
Lord Markham (Con)
As noble Lords probably know, we published this data for the first time in March, so it is only now we are getting the data that we can truly work on it. It sets out 35 different areas where we understand those waiting lists for the first time, so we know which ones to prioritise—home oxygen being clearly one of those.
Baroness Finlay of Llandaff (CB)
My Lords, with a staff absence rate of 5.6% overall for NHS community staff, which is equivalent to 75,000 staff, what are the Government doing to address this high level of sickness, including mental health sickness? Without the staff, the services cannot be provided. Can the Minister also explain what is being done to target those who have particular training in looking after children, given that in some areas the waiting lists for children are incredibly high, particularly for mental health services for children in the community?
Lord Markham (Con)
The noble Baroness is correct: absenteeism is often an example, in the same way as poor retention is, of problems in the wider workplace and the pressures that people have to face now. That is why the long-term workforce plan, which I think was welcomed by all noble Lords, looks to tackle every aspect: recruiting more staff so the pressures on individuals are reduced; making sure we have training and retention plans in place; and the necessary skills training in each area, including that of young people.
The Lord Bishop of Southwell and Nottingham
My Lords, in a recent survey of the Association of Directors of Adult Social Services, over 90% agreed that unpaid carers are now coming forward with an increased level of need, with directors ranking burnout as the number one reason for the increasing carer breakdown over the past year. Unpaid carers are clearly bearing the brunt of shortages in health and social care support, so can the Minister say what the Government can do to help more with unpaid carers?
Lord Markham (Con)
We all agree that unpaid carers are the backbone and hidden army behind a lot of what we see. We have made some good moves in that direction. We have the set-up for leave, so that they can have time away and a reduction in stress. We are setting up payment for them, albeit we all accept that there is such a hidden army we need to do more.
Baroness Ritchie of Downpatrick (Lab)
My Lords, recent research has found that almost three in five disabled children seeking physical and talking therapies are waiting more than 12 months for appointments, which is totally unacceptable? How do the Government plan to address such a large backlog and improve opportunities for disabled children? Perhaps the Minister can elucidate on that particular area.
Lord Markham (Con)
Unfortunately, as we know, we have a backlog in quite a few areas, often as a consequence of the pandemic and the period when we could not see as many people as we would have liked to. I wish I could say there was a quick solution; we all recognise the long-term solution is the long-term workforce plan, where we need to address the vacancies and have more staff to increase the output and supply. We are putting in a record investment of £2.4 billion behind this, but I freely admit it is not an overnight solution.
Baroness Browning (Con)
My Lords, I draw attention to my interest in the register and my association with the Alzheimer’s Society. My noble friend will know that, when asked, most people will say that when they die, they would like to die at home in their own bed. There is one group of people for whom there seems to be no structured plan to make that possible, and that is for people with dementia and Alzheimer’s. They are cared for at home until the end of their life, but the end of their life very often ends up in a hospital ward—the most inappropriate place for somebody with dementia, unless there is a genuine medical need to be there. Could my noble friend look to see if we can put together a structured plan that would be of help to families in planning the end of life of close relatives? I particularly do not mean something that follows the way the Liverpool care pathway was put together.
Lord Markham (Con)
I thank my noble friend. This was actually a conversation of a big task force summit that we had just last week. We commented that a lot of people have pregnancy plans, for instance, which might say that they want to have birth planned at home; a lot of people will have “Do not resuscitate” plans; what we do not have enough of are frailty plans, which say, “I don’t want to go into hospital. I’d rather be cared for at home. I know it might mean that I don’t live for quite as long, but that’s my preference”. I think there is a whole debate that we need to have to start to move towards that, and to make sure we have that support in the community to do it as well.
Lord Brooke of Alverthorpe (Lab)
My Lords, is the Minister aware of the spare capacity of therapists in the private sector, some of them specialising in the mental health of children? As we have such long waiting lists for children and mental health, why is that not being used?
Lord Markham (Con)
The noble Lord is correct, and my understanding is that we are looking to use the independent sector more and more. I will check and verify this, as it was from the briefing probably about three or four months ago, but my belief is that about 51% of the physiotherapy that we use is from the private sector. I absolutely agree with the noble Lord that we need to use the independent sector more and more in these situations—something pioneered by the noble Lord, Lord Reid, over there.
Lord Patel (CB)
My Lords, every day, about seven children will develop cancer; eight out of 10 will survive more than five years with modern care, but these children who survive require long-term community care, both for their families and themselves. Would the Minister agree that the integrated care pathways developed by integrated care systems should improve community care for cancer-surviving children?
Lord Markham (Con)
Yes; our whole direction of travel, as noble Lords are aware, is putting more and more power in the hands of the local integrated care boards. Going into the detail of it, the whole workforce plan moves a lot of the emphasis away from treatment in hospitals into care in the community—primary and prevention. This is a direction of travel that I think we all agree on, which is why we are putting more resources behind it, albeit that these things take time.
Cement Industry: Carbon Dioxide
(10 months ago)
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Lord Lucas
To ask His Majesty’s Government what proposals they have to support lower volumes of carbon dioxide production, as well as increased carbon capture and storage, in the cement industry.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, the Government are committed to working with the cement sector to explore decarbonisation options and are pursuing several strategic funding and policy initiatives. This includes developing options for access to CCUS. In March this year, as part of the CCUS cluster sequencing process, the Government published the Track-1 project negotiation list, which included the Hanson Padeswood cement works project. That was one of five projects to proceed to negotiations for support through the relevant business model.
Lord Lucas (Con)
I thank my noble friend for that encouraging Answer. As cement accounts for about 8% of our carbon dioxide output, this is a crucial area for us to pay attention to. May I draw my noble friend’s attention to the importance of standards in this area? So many specify which materials should be used, rather than what performance should be achieved. If the Government could help the transformation of that, there would be much more ability to use bath furnace slag and more modern additives such as graphene.
Lord Callanan (Con)
The figures I have are slightly different; my figures say that the sector accounts for 1.5% of the UK’s total greenhouse gas emissions. The sector has made strong progress in reducing its emissions. Of course, we stand by to help it further. It is a particularly difficult sector to decarbonise, given that 70% of its emissions are process-related.
Lord Teverson (LD)
My Lords, I have to admit that I agree with the Minister; I think the figure is 1.5%. We have an important cement industry in this country on which many other sectors are dependent. However, five out of 10 plants are not in one of the industrial areas in which we are going to have a concentration of carbon capture and storage—there are five others outside those areas. In the past, the Government have suggested that there would be a lifeline for enabling carbon capture and storage for those other five. Where are we on that? Are the Government still positive about aiding the whole sector to decarbonise?
Lord Callanan (Con)
I thank the Liberal Democrats for agreeing with something I have said, for a change; that is a welcome departure from normal practice. I agree with the noble Lord, and as I said, this is a difficult sector to decarbonise. We are working with it and having regular meetings. There are 10 cement plants in the UK, only one of which is situated in an existing cluster. Of course, we are considering expressions of interest from additional clusters at the moment. I would not want to predict that process. Whatever happens, CCUS will clearly be a key technology for many cement plants. We have funded a number of feasibility projects with existing suppliers and will continue to work with them.
Lord Berkeley (Lab)
My Lords, what are the Government doing to encourage alternative building methods that do not need cement, or need much smaller volumes of cement? That would help with the carbon issue quite dramatically.
Lord Callanan (Con)
The noble Lord makes a good point. We are exploring the role that demand-side policies could play in creating demand for low-carbon cement, or indeed less demand for cement. We recently concluded a consultation which sought feedback on proposals for low-carbon standards, and we will continue to pursue that.
Lord Ravensdale (CB)
My Lords, as well as CO2 being produced as a by-product of the chemical reaction in cement production, the other main source of emissions is the high heat required: around 1,400 degrees centigrade or more. What work are the Government doing to support a road map for the development of electric kilns?
Lord Callanan (Con)
That is one of technologies we are looking at. We also gave £3.2 million to the Mineral Products Association to develop a low-carbon fuel mix for cement. It held a trial at Hanson’s Ribblesdale plant and Tarmac’s Tunstead plant using a mix of 100% net-zero fuels, including hydrogen.
Lord Lennie (Lab)
My Lords, I too agree with the Minister that the concrete industry accounts for approximately 1.5% of emissions in this country. Globally, the figure rises to 8%, as the noble Lord, Lord Lucas, said. Last year, a report from the Low Carbon Concrete Group suggested that the UK concrete industry could become a carbon sink by the 2040s. Welcome though this prediction is, we must recognise that this is a global problem. What steps are the Government taking to encourage other countries to set out and achieve similarly ambitious goals?
Lord Callanan (Con)
Both the Liberal Democrats and Labour agreeing with me is destroying my credibility on this side of the House. I agree with the noble Lord; we are seeking to work with other countries as well. One of the issues in the sector, as we look to reform the ETS, is carbon leakage. We must make sure we do all we can to avoid it.
Lord Wallace of Saltaire (LD)
My Lords, if we are to reduce the use of cement, the move from demolishing buildings and rebuilding them—particularly in the commercial sector—to adaptation is an important part of that. As I walk down Victoria Street every morning, I see buildings being demolished and buildings replacing others which are only 40 years old. That is clearly crazy, and adaptation is a way for us to build a more sustainable economy. What are the Government doing to improve incentives and regulations to make the adaptation of established buildings, rather than their replacement, a priority?
Lord Callanan (Con)
The noble Lord makes a good point. We should, of course, always look at adaptation. As for his particular example, I can think of one building on Victoria Street, occupied by my department, which definitely should be demolished as soon as possible—
Lord Callanan (Con)
There is too much agreement in the House today with the Liberal Democrats. Setting aside personal views, his overall point is right: of course we should look at adaptation and reuse if possible.
Baroness Jones of Moulsecoomb (GP)
What are the Government doing about adaptation—not just looking at it; are they doing anything?
Lord Callanan (Con)
This is one of a number of different policies that we need to look at. Does the noble Baroness mean adaptation to climate change, or does she mean adaptation of existing buildings? Of course we are looking at both.
Small and Medium-sized Housebuilders
(10 months ago)
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Baroness Thornhill
To ask His Majesty’s Government, further to the letter to the Prime Minister from housebuilding firms on 6 July, what steps they are taking to strengthen the viability of small and medium-sized housebuilders.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
SMEs are an indispensable part of our housebuilding sector, and we are committed to strengthening their viability. We are providing financial support through our £1.5 billion levelling-up home building fund, which will help SMEs build around 42,000 homes. Through the £1 billion ENABLE Build guarantee scheme and the Levelling-up and Regeneration Bill changes to the planning system, we will further support SMEs in making the planning process easier to navigate, faster and more predictable.
Baroness Thornhill (LD)
I thank the Minister for her genuinely helpful Answer. With planning permissions at an all-time low and taking longer, the Home Builders Federation says that SME builders are going out of business now, while 145,000 desperately needed homes are on hold due to, to quote its letter to the Prime Minister, the Government’s “anti-development policies”. Does the Minister agree that this is largely a result of policy conflicts and mixed messages from the Government, as reported even today in the Times? It might be helpful to SMEs if they knew what the Government were doing about the 48 local authorities that have paused or withdrawn their local plans and the 74 that are affected by Natural England’s nutrient neutrality building moratorium. SMEs in these areas need urgent action; they cannot just pack up and go elsewhere.
Baroness Scott of Bybrook (Con)
I have explained how we are supporting them financially, but we are aware that the planning system, for example, is not as user-friendly as it should be to SME builders. That is why we are making changes in the LUR Bill, but we are also trying to ensure that the planning system is now better funded, so any time now we will see an increase in planning fees, for example, by 35% for major applications and 25% for other applications. All this investment should make sure that SMEs find the system simpler and easier to use, and that therefore they can access it and build more houses for us.
Lord Swire (Con)
My Lords, the letter to the Prime Minister refers not to an anti-development policy but to an anti-development environment. I submit that the anti-development environment is in part caused by the fact that people are fed up with the large-volume housebuilders building identikit housing estates up and down the country, and that the people more likely to reflect the desires and wishes of local communities are the smaller, SME housebuilders.
The problem is also in design. We have had the Royal Fine Art Commission, which gave way to the Commission for Architecture and the Built Environment, which in turn has given way to the Design Council, but none of these bodies has really had teeth. What more can we do to ensure that there is greater control over the sort of properties we are building in the country, to give more training to local planning officers and to increase not only their quantity but their quality?
Baroness Scott of Bybrook (Con)
I think we need both types. We need the large developers building large numbers of houses; we also need to support our SMEs across this country. My noble friend is absolutely right. That is why we see quite a lot in the LUR Bill about beautiful homes for people in this country. Therefore, local authorities will in future have to produce design codes for their areas.
Lord Aberdare (CB)
My Lords, one way of helping small and medium-sized housebuilders would be finally to end the pernicious practice of retentions. Many small construction firms, often with very low profit margins, are crippled by having up to 5% of the funds owed to them withheld, and sometimes never paid at all. Roofing firms alone are currently owned £300 million. This prevents them investing in growth through skills or technology, and may even force them into insolvency. There were over 4,000 construction insolvencies in the year to March 2023. What specific progress are the Government making to deliver their long-standing goal of ending retentions by 2025, and specifically in removing retentions from all public contracts?
Baroness Scott of Bybrook (Con)
The noble Lord brings up a really important issue. I understand that other government departments apart from DLUHC are meeting the sector and working on this issue. We will deliver for the sector as soon as we possibly can.
Baroness Hayman of Ullock (Lab)
My Lords, securing planning permission is the major barrier to growth, according to 93% of SME builders. The Minister has mentioned the Levelling-up and Regeneration Bill a couple of times. In order to make a real difference quickly and promote the use of SMEs in local authority tenders, will she accept our Amendment 244, which asks local authorities to consider SMEs when granting planning permissions?
Baroness Scott of Bybrook (Con)
I can tell the noble Baroness that I will look at her amendment.
Lord Young of Cookham (Con)
My Lords, further to my noble friend Lord Swire’s excellent question, the number of sites with planning consent for fewer than 100 dwellings has fallen by 38% over the past five years. These are the sites most used by small and medium-sized builders. Is there not a case for the planning system to promote much more effectively the use of smaller sites, not just to help smaller builders but to strengthen and diversify the construction industry and accelerate the delivery of new homes?
Baroness Scott of Bybrook (Con)
My noble friend is right. That is why the NPPF includes policies to support SMEs; for example, it sets out that local planning authorities should identify land to accommodate at least 10% of their housing requirements on sites no larger than one hectare. That might seem large, but we also make it clear in the framework that local planning authorities should work with developers to look at subdivisions in those areas where we could help speed up the delivery of homes, particularly by SMEs delivering those homes.
Lord Stunell (LD)
My Lords, the brickmaker Forterra has shut its Howley Park brickmaking plant because of a 31% decline in demand for bricks in the past 12 months. That coincides with news that, in this last financial year, the Minister’s department has sent back to the Treasury £225 million unspent on affordable housing. Is it not time that there was some connection inside the department to make sure that the available money is spent on affordable housing, possibly affordable social housing as a countercyclical measure at a time when the private sector is under such pressure?
Baroness Scott of Bybrook (Con)
I do not know whether the noble Lord is aware, but we have been through quite a lot of economic volatility, which has obviously led to developers’ slowdown. Therefore, the amount of money mentioned in the Guardian article that I believe the noble Lord is referring to, about money going back to the Treasury, is not quite correct. It is actually being put into projects of more than one year, so it will be forward spent. As the economy strengthens, as it is doing now in the housing sector, that money will be available to build affordable and other housing.
Lord Londesborough (CB)
My Lords, the steep decline in SME builders is deeply disturbing. Their market share has dropped from 40% to 10% in the past 35 years. How does increasing the market dominance of a small number of big players square with the Government’s often-mentioned mission to drive economic growth through innovation and competition?
Baroness Scott of Bybrook (Con)
As I said in answer to a previous question, we need both. We need everybody, including small builders, local authorities and larger builders, to make sure that we build the houses that this country urgently needs. I am aware that the SME sector is currently struggling with challenges, particularly with the macroeconomic climate. We will continue to prioritise supporting the industry and local areas and delivering the safe, high-quality homes that this country needs.
Baroness Bennett of Manor Castle (GP)
My Lords, the House often discusses problems of labour and skills shortages. Yesterday the All-Party Parliamentary Group on Apprenticeships, of which I declare that I am an officer, put out a report, one focus of which was the difficulties that small and medium enterprises, including builders, are encountering in being able to take on apprenticeships and see them through. What are the Government doing to deal with that pressing issue?
Baroness Scott of Bybrook (Con)
My Lords, it is a pressing issue. The interesting thing is that we recognise that the SMEs play a crucial role in promoting skills in the construction industry and are responsible for many of the training programmes, particularly for new entrants into the sector. We are supporting construction skills through the Construction Industry Training Board, which last year spent nearly £150 million on training grants and apprenticeships across the sector. It is important that we continue to support them, because we need these skills in the sector and we need to grow it.
Bank of England: Interest Rate Policy
(10 months ago)
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Lord Forsyth of Drumlean
To ask His Majesty’s Treasury what assessment they have made of the impact of the Bank of England’s interest rate policy.
Lord Forsyth of Drumlean (Con)
My Lords, I declare my interest, as in the register, as chairman of a bank.
The Parliamentary Secretary, HM Treasury (Baroness Penn) (Con)
My Lords, we constantly monitor the UK economy’s performance and outlook, and we acknowledge the pain that rising interest rates are causing for many households. However, setting interest rates is the responsibility of the independent Monetary Policy Committee of the Bank of England. The Government do not comment on the conduct or effectiveness of monetary policy. We will continue to support the MPC as it takes action and focuses on making the tough decisions necessary to tackle inflation.
Lord Forsyth of Drumlean (Con)
My Lords, I fully understand the need to respect the independence of the Bank of England, but that it is not the same as denying it being subject to proper accountability. The Bank of England was responsible for a huge increase in the money supply through quantitative easing—which resulted in part in the inflation that we are now experiencing—despite warnings from Andy Haldane, its chief economist at that time, that that would result in inflation. Andy Haldane is now suggesting that there may be an overreaction and overcorrection in putting interest rates up to the extent that they are being. This will cause misery to millions of people. The Bank of England should surely be accountable for this.
Baroness Penn (Con)
My Lords, I agree with my noble friend that the Bank of England should be and, indeed, is accountable for the decisions that it makes, but it is not for government to comment on the conduct or effectiveness of monetary policy. He is right that high levels of inflation and, therefore, high interest rates, are causing pain. That is why the Government are taking action to support people at this difficult time, including the mortgage charter, agreed by my right honourable friend the Chancellor, that covers around 90% of the market and gives people options when they are facing higher mortgage rates to make sure that their payments continue to be affordable.
Baroness Kramer (LD)
My Lords, I have great sympathy with the Question from the noble Lord, Lord Forsyth. I would like to hear from the Minister that there will be no attempt to compromise the independence of the Bank of England, but that that does not mean that improvements cannot be made; for example, to counter what many of us think is an underlying flaw of groupthink and lack of diversity that leads the Bank to decisions that could be made more optimal with a different set of parameters.
Does the Minister also recognise that the Government themselves could influence inflation far more effectively if they focused on doing so? For example—to name just three actions—they could have dealt with the staff shortages that have so driven inflation; they could have done a great deal more, much earlier, to deal with price gouging by many of our major supermarkets; and they could have kept in place the energy price support scheme, which helped SMEs hold down their prices. Will the Government then take responsibility for their share in not taking those steps to stem inflation?
Baroness Penn (Con)
On the noble Baroness’s first point, my initial Answer set out that the Government continue to be committed to the independence of the Bank of England. She is right that government policy can also affect inflation. The OBR said that the energy price guarantee brought inflation down by around two points. Our labour market supply measures, including expanding access to childcare, were the biggest supply side impact in a Budget that the OBR has ever measured. If we were to provide direct subsidies to mortgages, as the Liberal Democrats propose, that would have an inflationary effect, meaning that interest rates would be higher for longer.
Baroness Meacher (CB)
My Lords, if the Government feel unable to comment on Bank of England policy, to whom is the Bank of England accountable?
Baroness Penn (Con)
The Bank of England is accountable to both the Government and Parliament. The noble Baroness referred to a report being done by the Economic Affairs Committee in this House. I am sure we will pay close attention to the outcomes of that.
Lord Howell of Guildford (Con)
Has it occurred to my noble friend’s Treasury colleagues that the stream of increases in Bank of England interest rates is both deflationary, obviously, and inflationary, in that every 1% increase in the interest rate adds between £15 billion and £20 billion to government debt servicing? Also, since the Government have up to £30 billion or £50 billion per increase in the RPI level, any impact of these interest rate increases on RPI further increases government spending. We really are looking at a double-edged sword. Other, more direct measures are obviously needed to reduce RPI, the pressure for pay demands and all sorts of other inflationary effects.
Baroness Penn (Con)
While I will not be tempted by my noble friend to comment on the conduct of monetary policy, I agree that, in the context of high inflation, fiscal responsibility and keeping government borrowing under control are absolutely essential. That is why the Government are committed to that.
Baroness Chapman of Darlington (Lab)
My Lords, what is it about the Government’s handling of the economy that means that, with near 0% growth, inflation is still high, despite the Prime Minister promising to halve it, and higher for longer in the UK than in many similar economies? How does the Minister think that 1 million households facing a £500 a month increase to their mortgage payments by the end of 2026 will cope? How concerned should we be at the Government’s voluntary agreement with the banks, which means that over 1 million households will miss out on the support that Labour’s mandatory scheme would have brought?
Baroness Penn (Con)
My Lords, growth is better this year than predicted and expected by some. The UK is not alone in facing high inflation. Core inflation in the UK is lower than in more than half of Europe, but we face particular underlying factors that interact with the global challenges causing inflation. The energy shock has been felt more keenly in the UK because of our historical dependence on gas, and we have labour market tightness, due in part to a rise in activity during the pandemic. That is why we are focused on measures to tackle these problems. I talked about the energy price guarantee, which brought down inflation by around two points, and our measures to address childcare. I say to the noble Baroness, reflecting the point from my noble friend, that fiscal responsibility and government borrowing have a part to play in this. That is why Labour’s plans to spend £28 billion a year of additional borrowing would be inflationary and make the problem worse.
Lord Desai (CB)
My Lords, would the Minister not agree that, although independence of the Bank of England is all right, what we need is competence? The Bank of England was more competent when it was not independent than it is now when it is.
Baroness Penn (Con)
Much as noble Lords continue to ask me to comment on the conduct of monetary policy by the Bank of England, as I said, the Government do not comment on the conduct or effectiveness of monetary policy. We continue to support the MPC as it takes action, and we focus on making the tough decisions necessary to tackle inflation.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, does the Minister not realise that this mortgage rate misery comes on top of the huge increase in the cost of energy and the continued increase in food prices and other costs? How do the multi-millionaires who run this Government find out how ordinary people are affected?
Baroness Penn (Con)
The noble Lord does not reflect on the action that has been taken by this Government that has supported those who struggle most to meet the rising cost of living, with more than £90 billion of support last year and this year focused on those who need it the most, including the energy price guarantee, direct support with energy bills and cost of living payments worth hundreds of pounds to millions of families across the country.
Lord Rooker (Lab)
Is the Minister aware that the Select Committee has received abundant evidence that central bankers talk too much?
Baroness Penn (Con)
I am not aware of all the evidence that the Select Committee that the noble Lord refers to has received, but I am sure that once the Select Committee produces its report the Government will read it with interest.
Lord Kamall (Con)
My Lords, many people recognise that we have an independent Bank of England, but we also have a Bank of England that is supposed to meet a target of 2% inflation. Given that the Bank has continuously failed to meet that target—I understand also that government can contribute to this—one would expect the Bank either to comment on government policy which it saw as inflationary or, at the same time, to be accountable for not holding to its target. Given what the Minister says about tempting her or otherwise to talk about the Bank of England and its policy, it is important that people understand that when the Bank fails to meet its target it has to be held accountable to someone, and many noble Lords have not seen that accountability.
Baroness Penn (Con)
My Lords, when the steps were taken to make the Bank of England independent, measures were also put in place to ensure that it is accountable to the Government and to Parliament for its decisions.
Baroness Bennett of Manor Castle (GP)
My Lords, the Minister has referred to the drivers of inflation, but she did not mention greedflation—the fact that, as the OECD figures which came out this week show, British company profits were boosted by almost one-quarter between the end of 2019 and early 2023, faster than nearly any other state’s. In the last Question, we referred to the fact that we have a huge lack of competition across our economy. Four, five or six big companies dominate all the sectors, often cross-owned by hedge funds. Are the Government going to do something about greedflation?
Baroness Penn (Con)
While the Government do not recognise the picture that the noble Baroness has painted, we are looking carefully at the data and ensuring that competition is working properly. That is why my right honourable friend the Chancellor met the major regulators last week or the week before, I believe, and agreed a plan of action in each of those areas to ensure that consumers are getting a fair deal.
Lord Londesborough (CB)
My Lords, on the subject of talking too much, as the noble Lord, Lord Rooker, has just raised, how helpful was it when the Prime Minister at the beginning of this year set a personal pledge to halve inflation from 10% to 5% when the Bank of England was forecasting 3.9% and holding a target of 2%? What does that do for the credibility and independence of the central bank?
Baroness Penn (Con)
My Lords, the Government have always been clear that we want to halve inflation by the end of this year on the path to delivering the 2% target to which the noble Lord referred. The primary driver for that is action by the MPC, which the Government support, but it is also important that the Government make sure that fiscal policy acts in support of monetary policy and that we take action in the short term to bring down inflation; for example, through the energy price guarantee. It is important too that we take action on some of the longer-term drivers of inflation; for example, through improving energy security and supply and tackling things, such as labour supply, which are part of the drivers of where we are today.
Built Environment Committee
The Senior Deputy Speaker
Electricity Capacity (Amendment) Regulations 2023
The Earl of Courtown
That the draft Regulations laid before the House on 12 June be approved. Considered in Grand Committee on 5 July.
Healthcare (International Arrangements) (EU Exit) Regulations 2023
(10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Markham
That the draft Regulations laid before the House on 5 June be approved. Considered in Grand Committee on 5 July.
Online Safety Bill
Wednesday 12th July 2023
(10 months ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-III(b) Amendments for Report (Supplementary to the Third Marshalled List) - (12 Jul 2023)
19:12 - Division on Amendment 180 - Ayes: 211 / Noes: 171 - Amendment 180 agreed.
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the amendments in this group consider regulatory accountability and the roles of Ofcom, the Government and Parliament in overseeing the new framework. The proposals include altering the powers of the Secretary of State to direct Ofcom, issue guidance to Ofcom and set strategic priorities. Ofcom’s operational independence is key to the success of this framework, but the regime must ensure that there is an appropriate level of accountability to government. Parliament will also have important functions, in particular scrutinising and approving the codes of practice which set out how platforms can comply with their duties and providing oversight of the Government’s powers.
I heard the strength of feeling expressed in Committee that the Bill’s existing provisions did not get this balance quite right and have tabled amendments to address this. Amendments 129, 134 to 138, 142, 143, 146 and 147 make three important changes to the power for the Secretary of State to direct Ofcom to modify a draft code of practice. First, these amendments replace the public policy wording in Clause 39(1)(a) with a more defined list of reasons for which the Secretary of State can make a direction. This list comprises: national security, public safety, public health and the UK’s international obligations. This is similar to the list set out in a Written Ministerial Statement made last July but omits “economic policy” and “burden to business”.
This closely aligns the reasons in the Bill with the existing power in Section 5 of the Communications Act 2003. The power is limited to those areas genuinely beyond Ofcom’s remit as a regulator and where the Secretary of State might have access to information or expertise that the regulator does not. Secondly, the amendments clarify that the power will be used only for exceptional reasons. As noble Lords know, this has always been our intent and the changes we are tabling today put this beyond doubt. Thirdly, the amendments increase the transparency regarding the use of the power by requiring the Secretary of State to publish details of a direction at the time the power is used. This will ensure that Parliament has advance sight of modifications to a code and I hope will address concerns that several directions could be made on a single code before Parliament became aware.
This group also considers Amendments 131 to 133, which create an 18-month statutory deadline for Ofcom to submit draft codes of practice to the Secretary of State to be laid in Parliament relating to illegal content, safety duties protecting children and other cross-cutting duties. These amendments sit alongside Amendment 230, which we debated on Monday and which introduced the same deadline for Ofcom’s guidance on Part 5 of the regime.
I am particularly grateful to my noble friend Lady Stowell of Beeston, with whom I have had the opportunity to discuss these amendments in some detail as they follow up points that she and the members of her committee gave particular attention to. I beg to move.
Baroness Stowell of Beeston (Con)
My Lords, I will speak to the amendments in this group in my name: Amendments 139, 140, 144 and 145. I thank the noble Lords, Lord Stevenson and Lord Clement-Jones, and the noble Viscount, Lord Colville, for signing those amendments and for their continued support on this group. I am also grateful to my noble friend the Minister and his team for engaging with me on the issue of Secretary of State powers. He has devoted a lot of time and energy to this, which is reflected in the wide- ranging group of amendments tabled by him.
Before I go any further, it is worth emphasising that the underlying concern here is making sure that we have confidence, through this new regulation regime, that the Bill strikes the right balance of power between government, Parliament, the regulator and big tech firms. The committee that I chair—the Communications and Digital Select Committee of your Lordships’ House—has most focused on that in our consideration of the Bill. I should say also that the amendments I have brought forward in my name very much have the support of the committee as well.
These amendments relate to Clause 39, which is where the main issue lies in the context of Secretary of State powers, and we have three broad concerns. First, as it stood, the Bill handed the Secretary of State unprecedented powers to direct the regulator on pretty much anything. Secondly, these powers allowed the Government to conduct an infinite form of ping-pong with the regulator, enabling the Government to prevail in a dispute. Thirdly, this ping-pong could take place in private with no possibility of parliamentary oversight or being able to intervene, as would be appropriate in the event of a breakdown in the relationship between executive and regulator.
This matters because the Online Safety Bill creates a novel form for regulating the internet and what we can or cannot see online, in particular political speech, and it applies to the future. It is one thing for the current Government, who I support, to say that they would never use the powers in this way. That is great but, as we know, current Governments cannot speak for whoever is in power in the generations to come, so it is important that we get this right.
As my noble friend said, he has brought forward amendments to Clause 39 that help to address this. I support him in and commend him for that. The original laundry list of powers to direct Ofcom has been shortened and now follows the precedent set out in the Communications Act 2003. The government amendments also say that the Secretary of State must now publish their directions to Ofcom, which will improve transparency, and once the code is agreed Ofcom will publish changes so that Parliament can see what changes have been made and why. These are all very welcome and, as I say, they go a long way to addressing some of our concerns, but two critical issues remain.
First, the Government retain an opt-out, which means that they do not have to publish their directions if the Secretary of State believes that doing so would risk
“national security or public safety”,
or international relations. However, those points are now the precise grounds on which the Secretary of State may issue a direction and, if history is any guide, there is a real risk that we will never hear about the directions because the Government have decided that they are a security issue.
My Amendments 139 and 140 would require the Secretary of State to at least notify Parliament of the fact that a direction has been issued and what broad topic it relates to. That would not require any details to be published, so it does not compromise security, but it does give assurance that infinite, secretive ping-pong is not happening behind the scenes. My noble friend spoke so quickly at the beginning that I was not quite sure whether he signalled anything, but I hope that he may be able to respond enthusiastically to Amendments 139 and 140.
Secondly, the Government still have powers for infinite ping-pong. I appreciate that the Government have reservations about capping the number of exchanges between the Secretary of State and Ofcom, but they must also recognise the concern that they appear to be preparing the ground for any future Government to reject infinitely the regulator’s proposals and therefore prevail in a dispute about a politically contentious topic. My Amendments 144 and 145 would clarify that the Government will have a legally binding expectation that they will use no more than the bare minimum number of directions to achieve the intent set out in their first direction.
The Government might think that adding this to the Bill is superfluous, but it is necessary in order to give Parliament and the public confidence about the balance of power in this regime. If Parliament felt that the Secretary of State was acting inappropriately, we would have sufficient grounds to intervene. As I said, the Government acknowledged in our discussions the policy substance of these concerns, and as we heard from my noble friend the Minister in introducing this group, there is an understanding on this. For his part, there is perhaps a belief that what they have done goes far enough. I urge him to reconsider Amendments 144 and 145, and I hope that, when he responds to the debate on this group, he can say something about not only Amendments 139 and 140 but the other two amendments that will give me some grounds for comfort.
Lord Moylan (Con)
My Lords, I realise that I am something of a fish out of water in this House, as I was in Committee, on the Bill, which is fundamentally flawed in a number of respects, including its approach to governance, which we are discussing today. Having said that, I am generally sympathetic to the amendments proposed by my noble friend Lady Stowell of Beeston. If we are to have a flawed approach, her amendments would improve it somewhat.
However, my approach is rather different and is based on the fairly simple but important principle that we live in a free democracy. If we are to introduce a new legislative measure such as this Bill, which has far- reaching powers of censorship taking us back 70 or 80 years in terms of the freedom of expression we have been able to develop since the 1950s and 1960s— to the days of Lady Chatterley’s Lover and the Lord Chamberlain, in equivalent terms, as far as the internet and the online world are concerned—then decisions of such a far-reaching character affecting our lives should be taken by somebody who is democratically accountable.
My approach is utterly different from that which my noble friend on the Front Bench has proposed. He has proposed amendments which limit yet further the Secretary of State’s power to give directions to Ofcom, but the Secretary of State is the only party in that relationship who has a democratic accountability. We are transferring huge powers to a completely unaccountable regulator, and today my noble friend proposes transferring, in effect, even more powers to that unaccountable regulator.
To go back to a point that was discussed in Committee and earlier on Report, if Ofcom takes certain decisions which make it impossible for Wikipedia to operate its current model, such that it has to close down at least its minority language websites—my noble friend said that the Government have no say over that and no idea what Ofcom will do—to whom do members of the public protest? To whom do they offer their objections? There is no point writing to the Secretary of State because, as my noble friend told us, they will not have had any say in the matter and we in this House will have forsworn the opportunity, which I modestly proposed, to take those powers here. There is no point writing to their MP, because all their MP can do is badger the Secretary of State. It is a completely unaccountable structure that is completely indefensible in a modern democratic society. So I object to the amendments proposed by my noble friend, particularly Amendments 136 and 137.
Viscount Colville of Culross (CB)
My Lords, the codes of practice are among the most important documents that Ofcom will produce as a result of the Bill—in effect, deciding what content we, the users of the internet, will see. The Government’s right to modify these drafts affects us all, so it is absolutely essential that the codes are trusted.
I, too, welcome the Government’s Amendments 134 to 138, which are a huge improvement on the Clause 39 that was presented in Committee. I am especially grateful that the Government have not proceeded with including economic conditions as a reason for the Secretary of State to modify draft codes, which the noble Baroness, Lady Harding, pointed out in Committee would be very damaging. But I would like the Minister to go further, which is why I put my name to Amendments 139, 140, 144 and 145.
Amendment 139 is so important at the moment. My fear is about the opt-out from publishing these directions from the Secretary of State for Ofcom to modify the draft codes, which will then allow them to be made behind closed doors between the Government and the regulator. This should not be allowed to happen. It would happen at a time when trust in the Government is low and there is a feeling that so many decisions affecting us all are taken without our knowledge. Surely it is right that there should be as much transparency as possible in exposing the pressure that the Minister is placing on the regulator. I hope that, if this amendment is adopted, it will allow Parliament to impose the bright light of transparency on the entire process, which is in danger of becoming opaque.
I am sure that no one wants a repeat of what happened under Section 94 of the Telecommunications Act 1984, which gave the Secretary of State power to give directions of a “general character” to anyone, in the “interests of national security” or international relations, as long as they did not disclose important information to Parliament. The Minister’s power to operate in total secrecy, without any accountability to Parliament, was seen by many as wrong and undemocratic. It was subsequently repealed. Amendments 139 and 140 will prevent the creation of a similar problem.
Likewise, I support Amendment 144, which builds on the previous amendments, as another brake on the control of the Secretary of State over this important area of regulations. Noble Lords in this House know how much the Government dislike legislative ping-pong—which we will see later this evening, I suspect. I ask the Minister to transfer this dislike to limiting ping-pong between the Government and the regulator over the drafting of codes of practice. It would also prevent the Secretary of State or civil servants expanding their control of the draft codes of practice from initial parameters to slightly wider sets of parameters each time that they are returned to the Minister for consideration. It will force the civil servants and the Secretary of State to make a judgment on the limitation of content and ensure that they stick to it. As it is, the Secretary of State has two bites of the cherry. They are involved in the original shaping of the draft codes of practice and then they can respond to Ofcom’s formulation. I hope the Minister would agree that it is sensible to stop this process from carrying on indefinitely. I want the users of the digital world to have full faith that the control of online content they see is above board —and not the result of secretive government overreach.
Baroness Harding of Winscombe (Con)
My Lords, not for the first time I find myself in quite a different place from my noble friend Lord Moylan. Before I go through some detailed comments on the amendments, I want to reflect that at the root of our disagreement is a fundamental view about how serious online safety is. The logical corollary of my noble friend’s argument is that all decisions should be taken by Secretaries of State and scrutinised in Parliament. We do not do that in other technical areas of health and safety in the physical world and we should not do that in the digital world, which is why I take such a different view—
Baroness Harding of Winscombe (Con)
Perhaps the noble Lord will allow me to make my point. I really welcome the government amendments in this group. I thank my noble friend the Minister for bringing them forward and for listening hard to the debates that we had at Second Reading and in Committee. I am very pleased to see the removal of economic policy and the burdens to business as one of the reasons that a Secretary of State could issue directions. I firmly believe that we should not be putting Secretaries of State in the position of having to trade off safety for economic growth. The reality is that big tech has found it impossible to make those trade-offs too. People who work in these companies are human beings. They are looking for growth in their businesses. Secretaries of State are rightly looking for economic growth in our countries. We should not be putting people in the position of trying to make that trade-off. The right answer is to defer to our independent regulator to protect safety. I thank my noble friend and the Government very much for tabling these amendments.
I also support my noble friend Lady Stowell, as a member of the Communications and Digital Committee that she chairs so ably. She has brought forward a characteristically thoughtful and detailed set of amendments in an attempt to look around the corners of these powers. I urge my noble friend the Minister to see whether he can find a way in the specific issues of infinite and secretive ping-pong. Taking the secretive, my noble friend Lady Stowell has found a very clever way of making sure that it is not possible for future Governments to obscure completely any direction that they are giving, while at the same time not putting at risk any national secrets. It is a very thoughtful and precise amendment. I very much hope that my noble friend the Minister can support it.
On the infinite nature of ping-pong, which I feel is quite ironic today—I am not sure anyone in this House welcomes the concept of infinite ping-pong right now, whatever our views on business later today—friends of mine in the business world ask me what is different about working in government versus working in the business world; I have worked in both big and small businesses. Mostly it is not different: people come to work wanting to do a good job and to further the objectives of the organisation that they are part of, but one of the biggest differences in government is that doing nothing and continuing to kick the can down the road is a much more viable option in the body politic than it is in the business world. Rarely is that for the good.
One of the things you learn in business is that doing nothing is often the very worst thing you can do. My worry about the infinite nature of the ping-pong is that it refers to a technical business world that moves unbelievably fast. What we do not need is to enshrine a system that enables government essentially to avoid doing anything. That is a particularly business and pragmatic reason to support my noble friend’s amendment. I stress that it is a very mild amendment. My noble friend Lady Stowell has been very careful and precise not to put unreasonable burdens on a future Secretary of State. In “Yes Minister”-speak, the bare minimum could be quite a lot. I urge my noble friend the Minister to look positively on what are extremely constructive amendments, delivered in a very thoughtful way.
Lord Allan of Hallam (LD)
My Lords, I want to congratulate the noble Baroness, Lady Stowell, on her amendments and to raise some concerns, in particular about Amendment 138. I do this as somebody who has had the perhaps unique experience of being leaned on by Governments around the world who sought to give us, as a platform, directions about how to handle content. The risk is real: when there is a huge public outcry and you are an elected politician, you must be seen to be doing something, and the thing that you have been doing to date is to go directly to the platforms and seek to lean on them to make the change that you want.
In future, as the noble Baroness, Lady Stowell, has pointed out quite a few times, we are moving the accountability from the platforms to our independent regulator, Ofcom—and I agree with the noble Baroness, Lady Harding, that that is the right model, as it is an independent regulator. In these amendments we are considering a mechanism whereby that political outrage can still find an outlet, and that outlet will be a direction from the Secretary of State to the regulator asking it to change the guidance that it would otherwise have issued. It is really important that we dig into that and make sure that it does not prevent legitimate political activity but, at the same time, does not replicate the problem that we have had—the lack of transparency about decision-making inside companies, which has been resolved and addressed through leaks and whistleblowers. We do not want to be in a position in which understanding what has been happening in that decision-making process, now inside government, depends on leaks and whistleblowers. Having these directions published seems critical, and I worry a lot about Amendment 138 and how it will potentially mean that the directions are not published.
I have a couple of specific questions around that process to which I hope the Minister can respond. I understand how this will work: Ofcom will send its draft code of practice to the department and, inside the department, if the Secretary of State believes that there is an issue related to national security or there is another more limited set of conditions, they will be able to issue a direction. The direction may or may not have reasons with it; if the Secretary of State trusts Ofcom, they might give their reasons, but if the Secretary of State does not trust Ofcom with the information, they will give it the bare direction with no reasons. Clause 39 gives the Secretary of State the power to either give or withhold reasons, for reasons of national security. Ofcom will then come up with an amended version of the code of practice, reflecting the direction that it has been given.
The bit that I am really interested in is what happens from a Freedom of Information Act point of view. I hope that the Minister can clarify whether it would be possible for an individual exercising their Freedom of Information Act powers to seek the original draft code of practice as it went to the department. The final code of practice will be public, because it will come to us. It may be that we are in a situation in which you can see the original—Ofcom’s draft—and the final draft as it came to Parliament, and the only bit you cannot see under Amendment 138 is the actual direction itself, if the Secretary of State chooses to withhold it. That is quite critical, because we can anticipate that in these circumstances there will be Freedom of Information Act requests and a significant public interest in understanding any direction that was given that affected the speech of people in the United Kingdom. I would expect the ICO, unless there was some compelling reason, to want that original draft from Ofcom to be made public. That is one question around the interaction of the Freedom of Information Act and the process that we are setting out here, assuming that the Secretary of State has withheld their direction.
The other question is whether the Minister can enlighten us as to the circumstances in which he thinks the Secretary of State would be happy to publish the direction. We have said that this is now related only to very narrow national security interests and we have given them that get-out, so I am curious as to whether there are any examples of the kind of direction, in legislating for a power for the Secretary of State, that would meet the narrow criteria of being those exceptional circumstances, yet not be so sensitive—to use the double negative—that the Secretary of State would want to withhold it. If there were some examples of that, it might help assure us that the withholding of publication will be exceptional rather than routine.
My fear is that Section 138 says you can withhold in some circumstances. Actually, if we read it all together and say that, by definition, the direction comes from the fact that there is a national security concern, we end up with a situation in which the lack of publication has to be on national security grounds. Those two mirror each other, and therefore the norm may be that directions are never published. The Minister might allay our concerns if he could, at least in general terms, describe the kind of directions that would meet the gateway criteria for being permissible and yet not be so sensitive that the Secretary of State would not be comfortable with them being published.
Baroness Fox of Buckley (Non-Afl)
My Lords, a lot of positive and interesting things have been said that I am sympathetic to, but this group of amendments raises concerns about a democratic deficit: if too much of the Bill is either delegated to the Secretary of State or open to interference in relation to the Secretary of State and Ofcom, who decides what those priorities are? I will ask for a couple of points of clarification.
I am glad to see that the term “public policy” has been replaced, because what did that mean? Everything. But I am not convinced that saying that the Secretary of State can decide not just on national security but on public safety and public health is reassuring in the present circumstances. The noble Lord, Lord Allan, has just pointed out what it feels like to be leaned on. We had a very recent example internationally of Governments leaning on big tech companies in relation to Covid policies, lockdowns and so on, and removing material that was seen to contradict official public health advice—often public health advice that turned out not to be accurate at all. There should at least have been a lot more debate about what were political responses to a terrible virus. Noble Lords will know that censorship became a matter of course during that time, and Governments interfering in or leaning on big tech directly was problematic. I am not reassured that the Government hold to themselves the ability to lean on Ofcom around those issues.
It is also worth remembering that the Secretary of State already has a huge amount of power to designate, as we have discussed previously. They can designate what constitute priority illegal offences and priority content harmful to children, and that can all change beyond what we have discussed here. We have already seen that there is a constant expansion of what those harms can be, and having those decisions removed using only secondary legislation, unaccountable to Parliament or to public scrutiny, really worries me. It is likely to give a green light to every identity group and special interest NGO to demand that the list of priority harms and so on should be dealt with. That is likely to make the job of the Secretary of State to respond to “something must be done” moral panics all the more difficult. If that is going to happen, we should have parliamentary scrutiny of it; it cannot just be allowed to happen elsewhere.
It is ironic that the Secretary of State is more democratic, because they are elected, than an unelected regulator. I just feel that there is a danger in so much smoke and mirrors. When the Minister very kindly agreed to see the noble Lord, Lord Moylan, and me, I asked in a rather exasperated way why Ofcom could not make freedom of expression a priority, with codes of practice so that it would have to check on freedom of speech. The Minister said, “It’s not up to me to tell Ofcom what to do”, and I thought, “The whole Bill is telling Ofcom what to do”. That did not seem to make any sense.
I had another exchange with the present Secretary of State—again, noble Lords will not be surprised to hear that it was not a sophisticated intervention on my part—in which I said, “Why can’t the Government force the big tech companies to put freedom of expression in their terms and conditions or terms of service?” The Minister said, “They are private companies; we’re not interfering in what they do”. So you just end up thinking, “The whole Bill is telling companies that they’re going to be compelled to act in relation to harm and safety, but not on freedom of expression”. What that means is that you feel all the time as though the Government are saying that they are outsourcing this to third parties, which means that you cannot hold anyone to account.
Civil liberties campaigner Guy Herbert compared this to what is happening with the banks at the moment; they are being blamed by the Government and held to account for things such as politically exposed people and Ts and Cs that overconcentrate on values such as EDI and ESG that may be leading to citizens of this country having their bank accounts closed down. The Government say that they will tell the regulator that it has to act and say that the banks cannot behave in this way, but this all came from legislation—it is not as though the regulator was doing it off its own bat. Maybe it overinterpreted the legislation and the banks then overinterpreted it again and overremoved.
The obvious analogy for me is that there is a danger here that we will not be able to hold anyone to account for overremoval of legitimate democratic discussion from the online world, because everyone is pointing the finger at everyone else. At the very least, the amendments are trying to say that any changes beyond what we have discussed so far on this Bill must come before Parliament. That is very important for any kind of democratic credibility to be attached to this legislation.
Baroness Kidron (CB)
My Lords, I too express my admiration to the noble Baroness, Lady Stowell, for her work on this group with the Minister and support the amendments in her name. To pick up on what the noble Baroness, Lady Harding, said about infinite ping-pong, it can be used not only to avoid making a decision but as a form of power and of default decision-making—if you cannot get the information back, you are where you are. That is a particularly important point and I add my voice to those who have supported it.
I have a slight concern that I want to raise in public, so that I have said it once, and get some reassurance from the Minister. New subsection (B1)(d) in Amendment 134 concerns the Secretary of State directing Ofcom to change codes that may affect
“relations with the government of a country outside the United Kingdom”.
Many of the companies that will be regulated sit in America, which has been very forceful about protecting its sector. Without expanding on this too much, when it was suggested that senior managers would face some sort of liability in international fora, various parts of the American Government and state apparatus certainly made their feelings clearly known.
I am sure that the channels between our Government and the US are much more straightforward than any that I have witnessed, but it is absolutely definite that more than one Member of your Lordships’ House was approached about the senior management and said, “This is a worry to us”. I believe that where we have landed is very good, but I would like the Minister to say what the limits of that power are and acknowledge that it could get in a bit of a muddle with the economic outcomes that we were talking about, celebrating that they had been taken off the list, and government relations. That was the thing that slightly worried me in the government amendments, which, in all other ways, I welcome.
Lord Clement-Jones (LD)
My Lords, this has been a consistent theme ever since the Joint Committee’s report. It was reported on by the Delegated Powers and Regulatory Reform Committee, and the Digital and Communications Committee, chaired by the noble Baroness, Lady Stowell, has rightly taken up the issue. Seeing some movement from the Minister, particularly on Clause 29 and specifically in terms of Amendments 134 to 137, is very welcome and consistent with some of the concerns that have been raised by noble Lords.
There are still questions to answer about Amendment 138, which my noble friend has raised. I have also signed the amendments to Clause 38 because I think the timetabling is extremely welcome. However, like other noble Lords, I believe we need to have Amendments 139, 140, 144 and 145 in place, as proposed by the noble Baroness, Lady Stowell of Beeston. The phrase “infinite ping-pong” makes us all sink in gloom, in current circumstances—it is a very powerful phrase. I think the Minister really does have to come back with something better; I hope he will give us that assurance, and that his discussions with the noble Baroness Stowell will bear further fruit.
I may not agree with the noble Lord, Lord Moylan, about the Clause 39 issues, but I am glad he raised issues relating to Clause 159. It is notable that of all the recommendations by the Delegated Powers and Regulatory Reform Committee, the Government accepted four out of five but did not accept the one related to what is now Clause 159. I have deliberately de-grouped the questions of whether Clauses 158 and 159 should stand part of the Bill, so I am going to pose a few questions which I hope, when we get to the second group which contains my clause stand part proposition, the Minister will be able to tell me effortlessly what he is going to do. This will prevent me from putting down further amendments on those clauses, because it seems to me that the Government are being extraordinarily inconsistent in terms of how they are dealing with Clauses 158 and 159 compared with how they have amended Clause 39.
For instance, Clause 158 allows the Secretary of State to issue a direction to Ofcom, where the Secretary of State has reasonable grounds for believing that there is a threat to public health and safety or national security, and they can direct Ofcom to set objectives in how they use their media-literacy powers in Section 11 of the Communications Act for a specific period to address the threat, and make Ofcom issue a public-statement notice. That is rather extraordinary. I will not go into great detail at this stage, and I hope the Minister can avoid me having to make a long speech further down the track, but the Government should not be in a position to be able to direct a media regulator on a matter of content. For instance, the Secretary of State has no powers over Ofcom on the content of broadcast regulation—indeed, they have limited powers to direct over radio spectrum and wires—and there is no provision for parliamentary involvement, although I accept that the Secretary of State must publish reasons for the direction. There is also the general question of whether the threshold is high enough to justify this kind of interference. So Clause 158 is not good news at all. It raises a number of questions which I hope the Minister will start to answer today, and maybe we can avoid a great debate further down the track.
Baroness Merron (Lab)
My Lords, first, I have to say that, having read Hansard from last Thursday, I feel I should have drawn attention to my interests in the register that relate to the Jewish community. I apologise for not doing so at the time and am pleased to now put this on the record.
I will be brief, as noble Lords have already raised a number of very pertinent points, to which I know the Minister will want to respond. In this group of amendments, there is a very welcome focus on transparency, accountability and the role of Parliament, all of which are absolutely crucial to the success of the Bill. I am grateful to the Minister for his introduction and explanation of the impact of the proposed changes to the role of the Secretary of State and Ofcom, whose codes of practice will be, as the noble Viscount, Lord Colville, said, vitally important to the Bill. We very much welcome the amendments in the name of the noble Baroness, Lady Stowell, which identify the requirements of the Secretary of State. We also welcome the government amendments, which along with the amendments by the noble Baroness, have been signed by my noble friend Lord Stevenson.
The amendments tabled in the name of the noble Lord, Lord Moylan, raise interesting points about the requirement to use the affirmative procedure, among other points. I look forward to the Minister’s response to that and other amendments. It would be helpful to hear from the Minister his thoughts on arrangements for post-legislative scrutiny. It would also be helpful to deliberations to understand whether there have been discussions on this between the usual channels.
Lord Parkinson of Whitley Bay (Con)
My Lords, this is indeed an apposite day to be discussing ongoing ping-pong. I am very happy to speak enthusiastically and more slowly about my noble friend Lady Stowell of Beeston’s Amendments 139 and 140. We are happy to support those, subject to some tidying up at Third Reading. We agree with the points that she has made and are keen to bring something forward which would mean broadly that a statement would be laid before Parliament when the power to direct had been used. My noble friend Lady Harding characterised them as the infinite ping-pong question and the secretive ping-pong question; I hope that deals with the secretive ping-pong point.
My noble friend Lady Stowell’s other amendments focus on the infinite ping-pong question, and the power to direct Ofcom to modify a code. Her Amendments 139, 140, 144 and 145 seek to address those concerns: that the Secretary of State could enter into a private form of ping-pong with Ofcom, making an unlimited number of directions on a code to prevent it from ever coming before Parliament. Let me first be clear that we do not foresee that happening. As the amendments I have spoken to today show, the power can be used only when specific exceptional reasons apply. In that sense, we agree with the intent of the amendments tabled by my noble friend Lady Stowell. However, we cannot accept them as drafted because they rely on concepts— such as the “objective” of a direction—which are not consistent with the procedure for making a direction set out in the Bill.
The amendments I have brought forward mean that private ping-pong between the Secretary of State and Ofcom on a code is very unlikely to happen. Let me set out for my noble friend and other noble Lords why that is. The Secretary of State would need exceptional reasons for making any direction, and the Bill then requires that the code be laid before Parliament as soon as is reasonably practicable once the Secretary of State is satisfied that no further modifications to the draft are required. That does not leave room for the power to be used inappropriately. A code could be delayed in this way and in the way that noble Lords have set out only if the Secretary of State could show that there remained exceptional reasons once a code had been modified. This test, which is a very high bar, would need to be met each time. Under the amendments in my name, Parliament would also be made aware straightaway each time a direction was made, and when the modified code came before Parliament, it would now come under greater scrutiny using the affirmative procedure.
I certainly agree with the points that the noble Lord, Lord Allan, and others made that any directions should be made in as transparent a way as possible, which is why we have tabled these amendments. There may be some circumstances where the Secretary of State has access to information—for example, from the security services—the disclosure of which would have an adverse effect on national security. In our amendments, we have sought to retain the existing provisions in the Bill to make sure that we strike the right balance between transparency and protecting national security.
As the noble Lord mentioned, the Freedom of Information Act provides an additional route to transparency while also containing existing safeguards in relation to national security and other important areas. He asked me to think of an example of something that would be exceptional but not require that level of secrecy. By dropping economic policy and burden to business, I would point him to an example in those areas, but a concrete example evades me this afternoon. Those are the areas to which I would turn his attention.
Lord Allan of Hallam (LD)
Can the Minister confirm that the fact that a direction has been made will always be known to the public, even if the substance of it is not because it is withheld under the secrecy provision? In other words, will the public always have a before and after knowledge of the fact of the direction, even if its substance is absent?
Lord Parkinson of Whitley Bay (Con)
Yes; that is right.
I hope noble Lords will agree that the changes we have made and that I have outlined today as a package mean that we have reached the right balance in this area. I am very grateful to my noble friend Lady Stowell —who I see wants to come in—for the time that she too has given this issue, along with members of her committee.
Baroness Stowell of Beeston (Con)
I am grateful to my noble friend for his constructive response to my Amendments 139 and 140. I am sure he will do me the honour of allowing me to see the Government’s reversioning of my amendments before they are laid so that we can be confident at Third Reading that they are absolutely in line with expectations.
Could I press my noble friend a little further on Amendments 144 and 145? As I understood what he said, the objection from within government is to the language in the amendments I have tabled—although as my noble friend Lady Harding said, they are incredibly modest in their nature.
I was not sure whether my noble friend was saying in his defence against accepting them that issuing a direction would have to be exceptional, and that that led to a need to clarify that this would be ongoing. Would each time there is a ping or a pong be exceptional? Forgive me, because it starts to sound a bit ridiculous when we get into this amount of detail, but it seems to me that the “exceptional” issue kicks in at the point where you issue the direction. Once you engage in a dialogue, “exceptional” is no longer really the issue. It is an odd defence against trying to limit the number of times you allow that dialogue to continue. Bearing in mind that he is willing to look again at Amendments 139 and 140, I wonder whether, between now and Third Reading, he would at least ask parliamentary counsel to look again at the language in my original amendment.
Lord Parkinson of Whitley Bay (Con)
I am certainly happy to commit to showing my noble friend the tidying up we think necessary of the two amendments I said we are happy to accept ahead of Third Reading. On the others, as I said, the code could be delayed repeatedly only if the Secretary of State showed that there remained exceptional reasons once it had been modified, and that high bar would need to be met each time. So we do not agree with her Amendments 14 and 145 because of concerns about the drafting of my noble friend’s current amendment and because the government amendments we have brought forward cater for the scenario about which she is concerned. Her amendments would place a constraint on the Secretary of State not to give more directions than are necessary to achieve the objectives set out in the original direction, but they would not achieve the intent I think my noble friend has. The Bill does not require the direction to have a particular objective. Directions are made because the Secretary of State believes that modifications are necessary for exceptional reasons, and the direction must set out the reasons why the Secretary of State believes that a draft should be modified.
Through the amendments the Government have laid today, the direction would have to be for exceptional reasons relating to a narrower list and Parliament would be made aware each time a direction was made. Parliament would also have increased scrutiny in cases where a direction had been made under Clause 39(1)(a), because of the affirmative procedure. However, I am very happy to keep talking to my noble friend, as we will be on the other amendments, so we can carry on our conversation then if she wishes.
Let me say a bit about the amendments tabled by my noble friend Lord Moylan. His Amendment 218 would require the draft statement of strategic priorities laid before Parliament to be approved by resolution of each House. As we discussed in Committee, the statement of strategic priorities is necessary because future technological changes are likely to shape harms online, and the Government must have an avenue through which to state their strategic priorities in relation to these emerging technologies.
The Bill already requires the Secretary of State to consult Ofcom and other appropriate persons when preparing a statement. This provides an opportunity for consideration and scrutiny of a draft statement, including, for example, by committees of Parliament. This process, combined with the negative procedure, provides an appropriate level of scrutiny and is in line with comparable existing arrangements in the Communications Act in relation to telecommunications, the management of radio spectrum and postal services.
My noble friend’s other amendments would place additional requirements on the Secretary of State’s power to issue non-binding guidance to Ofcom about the exercise of its online safety functions. The guidance document itself does not create any statutory requirements —Ofcom is required only to have regard to the guidance —and on that basis, we do not agree that it is necessary to subject it to parliamentary approval as a piece of secondary legislation. As my noble friend Lady Harding of Winscombe pointed out, we do not require that in numerous other areas of the economy, and we do not think it necessary here.
Let me reassure my noble friend Lord Moylan on the many ways in which Parliament will be able to scrutinise the work of Ofcom. Like most other regulators, it is accountable to Parliament in how it exercises its functions. The Secretary of State is required to present its annual report and accounts before both Houses. Ministers from the devolved Administrations must also lay a copy of the report before their respective Parliament or Assembly. Ofcom’s officers can be required to appear before Select Committees to answer questions about its work; indeed, its chairman and chief executive appeared before your Lordships’ Communications and Digital Committee just yesterday. Parliament will also have a role in approving a number of aspects of the regulatory framework through its scrutiny of both primary and secondary legislation.
Lord Clement-Jones (LD)
My Lords, the key question is this: why have these powers over social media when the Secretary of State does not have them over broadcast?
Lord Parkinson of Whitley Bay (Con)
If I may, I will write to the noble Lord having reflected on that question further. We are talking here about the provisions set up in the Bill to deal with online harms; clearly, that is the focus here, which is why this Bill deals with that. I will speak to colleagues who look at other areas and respond further to the noble Lord’s question.
Let me reassure the noble Baroness, Lady Fox, that, through this Bill, both Ofcom and providers are being asked to have regard to freedom of expression. Ofcom already has obligations under the Human Rights Act to be bound by the European Convention on Human Rights, including Article 10 rights relating to freedom of expression. Through this Bill, user-to-user and search services will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Those points are uppermost in our minds.
I am grateful for the support expressed by noble Lords for the government amendments in this group. Given the mixed messages of support and the continued work with my noble friend Lady Stowell of Beeston, I urge her not to move her amendments.
Member’s explanatory statement
This amendment is consequential on the amendment inserting new subsections (9) to (13) into this Clause in my name.
Member’s explanatory statement
This amendment is consequential on the amendment inserting new subsections (9) to (13) into this Clause in my name.
“(9) Subsection (11) applies to—(a) a draft of the first code of practice prepared under section 36(1) (terrorism code of practice);(b) a draft of the first code of practice prepared under section 36(2) (CSEA code of practice);(c) a draft of the first code of practice prepared under section 36(3) relating to a duty set out in section 9 or 23 (illegal content);(d) a draft of the first code of practice prepared under section 36(3) relating to a duty set out in section 11 or 25 (children’s online safety);(e) a draft of the first code of practice prepared under section 36(3) relating to a duty set out in section 16 or 26 (content reporting);(f) a draft of the first code of practice prepared under section 36(3) relating to—(i) a duty set out in section 17 (complaints procedures) that concerns complaints of a kind mentioned in subsection (4) or (5) of that section, or(ii) a duty set out in section 27 (complaints procedures).(10) For the purposes of paragraphs (c) to (f) of subsection (9) a draft of a code of practice is a draft of the first code of practice relating to a duty if—(a) it describes measures recommended for the purpose of compliance with the duty, and(b) it is a draft of the first code of practice prepared under section 36(3) that describes measures for that purpose.(11) OFCOM must submit a draft to which this subsection applies to the Secretary of State under subsection (1) within the period of 18 months beginning with the day on which this Act is passed.(12) If OFCOM consider that it is necessary to extend the period mentioned in subsection (11) in relation to a draft mentioned in any of paragraphs (a) to (f) of subsection (9), OFCOM may extend the period in relation to that draft by up to 12 months by making and publishing a statement.But this is subject to subsection (15).(13) A statement under subsection (12) must set out—(a) the reasons why OFCOM consider that it is necessary to extend the period mentioned in subsection (11) in relation to the draft concerned, and(b) the period of extension.(14) A statement under subsection (12) may be published at the same time as (or incorporate) a statement under section (Time for publishing first guidance under certain provisions of this Act)(3) (extension of time to prepare certain guidance).(15) But a statement under subsection (12) may not be made in relation to a draft mentioned in a particular paragraph of subsection (9) if—(a) a statement has previously been made under subsection (12) (whether in relation to a draft mentioned in the same or a different paragraph of subsection (9)), or(b) a statement has previously been made under section (Time for publishing first guidance under certain provisions of this Act)(3).”Member’s explanatory statement
This amendment provides that OFCOM must prepare the first draft of certain codes of practice within 18 months of Royal Assent, unless they consider a longer period to be necessary in which case OFCOM may (on one occasion only) extend the period and set out why in a published statement.
“(A1) The Secretary of State may direct OFCOM to modify a draft of a code of practice submitted under section 38(1) if the Secretary of State believes that modifications are required for the purpose of securing compliance with an international obligation of the United Kingdom.(B1) The Secretary of State may direct OFCOM to modify a draft of a code of practice, other than a terrorism or CSEA code of practice, submitted under section 38(1) if the Secretary of State believes that modifications are required for exceptional reasons relating to—(a) national security,(b) public safety,(c) public health, or(d) relations with the government of a country outside the United Kingdom.”Member’s explanatory statement
This amendment (together with other amendments to this Clause in my name) sets out the circumstances in which the Secretary of State can direct OFCOM to modify a draft of a code of practice.
Member’s explanatory statement
This amendment is consequential on the other amendments to this Clause in my name.
Member’s explanatory statement
This amendment removes the ability of the Secretary of State to direct OFCOM to modify a draft of a code of practice for public policy reasons.
“(b) for exceptional reasons relating to public health or relations with the government of a country outside the United Kingdom.”Member’s explanatory statement
This amendment (together with other amendments to this Clause in my name) sets out the circumstances in which the Secretary of State can direct OFCOM to modify a draft of a code of practice.
(c) must be published, except where the Secretary of State considers that doing so would have the effect mentioned in paragraph (b).”Member’s explanatory statement
This amendment requires a direction given under Clause 39 to be published except in cases where the Secretary of State considers that to do so would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom.
“(ca) publish the document, and”Member’s explanatory statement
This amendment requires OFCOM to publish a document submitted to the Secretary of State in response the Secretary of State giving a direction under this Clause.
Member’s explanatory statement
This amendment is consequential on the other amendments to this Clause in my name.
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.
“(A1) OFCOM must produce guidance for providers of Category 1 services to assist them in complying with their duties set out in section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)).”Member’s explanatory statement
This amendment requires OFCOM to produce guidance to assist providers of Category 1 services in carrying out their assessments as required by the new Clause proposed after Clause 11 in my name.
Member’s explanatory statement
This amendment requires OFCOM to consult the Information Commissioner before producing guidance mentioned in the preceding amendment in my name.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 12 into two Clauses.
“OFCOM’s guidance about protecting women and girls
(1) OFCOM must produce guidance for providers of Part 3 services which focuses on content and activity—(a) in relation to which such providers have duties set out in this Part or Part 4, and(b) which disproportionately affects women and girls.(2) The guidance may, among other things—(a) contain advice and examples of best practice for assessing risks of harm to women and girls from content and activity mentioned in subsection (1), and for reducing such risks;(b) refer to provisions contained in a code of practice under section 36 which are particularly relevant to the protection of women and girls from such content and activity.(3) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—(a) the Commissioner for Victims and Witnesses,(b) the Domestic Abuse Commissioner, and(c) such other persons as OFCOM consider appropriate.(4) OFCOM must publish the guidance (and any revised or replacement guidance).”Member’s explanatory statement
This new Clause requires OFCOM to produce and publish a guidance document focusing on online content and activity which disproportionately affects women and girls.
Lord Parkinson of Whitley Bay (Con)
My Lords, as we discussed in Committee, the Bill contains strong protection for women and girls and places duties on services to tackle and limit the kinds of offences and online abuse that we know disproportionately affect them. His Majesty’s Government are committed to ensuring that women and girls are protected online as well as offline. I am particularly grateful to my noble friend Lady Morgan of Cotes for the thoughtful and constructive way in which she has approached ensuring that the provisions in the Bill are as robust as possible.
It is with my noble friend’s support that I am therefore pleased to move government Amendment 152. This will create a new clause requiring Ofcom to produce guidance that summarises, in one clear place, measures that can be taken to tackle the abuse that women and girls disproportionately face online. This guidance will relate to regulated user-to-user and search services and will cover content regulated under the Bill’s frame- work. Crucially, it will summarise the measures in the Clause 36 codes for Part 3 duties, namely the illegal and child safety duties. It will also include a summary of platforms’ relevant Part 4 duties—for example, relevant terms of service and reporting provisions. This will provide a one-stop shop for providers.
Providers that adhere to the codes of practice will continue to be compliant with the duties. However, this guidance will ensure that it is easy and clear for platforms to implement holistic and effective protections for women and girls across their various duties. Any company that says it is serious about protecting women and girls online will, I am sure, refer to this guidance when implementing protections for its users.
Ofcom will have the flexibility to shape the guidance in a way it deems most effective in protecting women and girls online. However, as outlined in this amendment, we expect that it will include examples of best practice for assessing risks of harm to women and girls from content and activity, and how providers can reduce these risks and emphasise provisions in the codes of practice that are particularly relevant to the protection of women and girls.
To ensure that this guidance is effective and makes a difference, the amendment creates a requirement on Ofcom to consult the Domestic Abuse Commissioner and the Victims’ Commissioner, among other people or organisations it considers appropriate, when it creates this guidance. Much like the codes of practice, this will ensure that the views and voices of experts on the issue, and of women, girls and victims, are reflected. This amendment will also require Ofcom to publish this guidance.
I am grateful to all the organisations that have worked with us and with my noble friend Lady Morgan to get to this point. I hope your Lordships will accept the amendment. I beg to move.
Baroness Morgan of Cotes (Con)
My Lords, I will speak very briefly to this amendment; I know that the House is keen to get on to other business today. I very much welcome the amendment that the Government have tabled. My noble friend the Minister has always said that they want to keep women and girls safe online. As has been referred to elsewhere, the importance of making our digital streets safer cannot be overestimated.
As my noble friend said, women and girls experience a disproportionate level of abuse online. That is now recognised in this amendment, although this is only the start, not the end, of the matter. I thank my noble friend and the Secretary of State for their engagement on this issue. I thank the chief executive and the chair of Ofcom. I also thank the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Gloucester, who I know cannot be here today, and the noble Lord, Lord Knight, who signed the original amendment that we discussed in Committee.
My noble friend has already talked about the campaigners outside the Chamber who wanted there to be specific mention of women and girls in the Bill. I thank Refuge, the 100,000 people who signed the End Violence Against Women coalition’s petition, BT, Glitch, Carnegie UK, Professor Lorna Woods, the NSPCC and many others who made the case for this amendment.
As my noble friend said, this is Ofcom guidance. It is not necessarily a code of practice, but it is still very welcome because it is broader than just the specific offences that the Government have legislated on, which I also welcome. As he said, this puts all the things that companies, platforms and search engines should be doing to protect women and girls online in one specific place. My noble friend mentioned holistic protection, which is very important.
There is no offline/online distinction these days. Women and girls should feel safe everywhere. I also want to say, because I know that my noble friend has had a letter, that this is not about saying that men and boys should not be safe online; it is about recognising the disproportionate levels of abuse that women and girls suffer.
I welcome the fact that, in producing this guidance, Ofcom will have to consult with the Domestic Abuse Commissioner and the Victims’ Commissioner and more widely. I look forward, as I am sure do all the organisations I just mentioned, to working with Ofcom on the first set of guidance that it will produce. It gives me great pleasure to have signed the amendment and to support its introduction.
Baroness Fox of Buckley (Non-Afl)
My Lords, I know that we do not have long and I do not want to be churlish. I am not that keen on this amendment, but I want to ask a question in relation to it.
I am concerned that there should be no conflation in the best practice guidance between the actual, practical problems of, for example, victims of domestic abuse being stalked online, which is a threat to their safety, or threatened with physical violence—I understand that—and abuse. Abuse is horrible to be on the receiving end of, but it is important for freedom of thought and freedom of speech that we do not make no distinction between words and action. It is important not to overreact or frighten young women by saying that being shouted at is the same as being physically abused.
Baroness Kidron (CB)
My Lords, I rise briefly to support the noble Baroness, Lady Morgan, to welcome the government amendment and to say that this is a moment of delight for many girls—of all varieties. I echo the noble Baroness, Lady Fox, on the issue of having a broad consultation, which is a good idea. While our focus during the passage of this Bill was necessarily on preventing harm, I hope this guidance will be part of the rather more aspirational and exciting part of the digital world that allows young people to participate in social and civic life in ways that do not tolerate abuse and harm on the basis of their gender. In Committee, I said that we have a duty not to allow digital tech to be regressive for girls. I hope that this is a first step.
Baroness Burt of Solihull (LD)
My Lords, on behalf of my party, all the groups mentioned by the noble Baroness, Lady Morgan, and potentially millions of women and girls in this country, I briefly express my appreciation for this government amendment. In Committee, many of us argued that a gender-neutral Bill would not achieve strong enough protection for women and girls as it would fail to recognise the gendered nature of online abuse. The Minister listened, as he has on many occasions during the passage of the Bill. We still have differences on some issues—cyberflashing, for instance—but in this instance I am delighted that he is amending the Bill, and I welcome it.
Why will Ofcom be required to produce guidance and not a code, as in the amendment originally tabled by the noble Baroness, Lady Morgan? Is there a difference, or is it a case of a rose by any other name? Is there a timescale by which Ofcom should produce this guidance? Are there any plans to review Ofcom’s guidance once produced, just to see how well it is working?
We all want the same thing: for women and girls to be free to express themselves online and not to be harassed, abused and threatened as they are today.
Baroness Merron (Lab)
My Lords, this very positive government amendment acknowledges that there is not equality when it comes to online abuse. We know that women are 27 times more likely than men to be harassed online, that two-thirds of women who report abuse to internet companies do not feel heard, and three out of four women change their behaviour after receiving online abuse.
Like others, I am very glad to have added my name to support this amendment. I thank the Minister for bringing it before your Lordships’ House and for his introduction. It will place a requirement on Ofcom to produce and publish guidance for providers of Part 3 services in order to make online spaces safer for women and girls. As the noble Baroness, Lady Morgan, has said, while this is not a code of practice—and I will be interested in the distinction between the code of practice that was being called for and what we are expecting now—it would be helpful perhaps to know when we might expect to see it. As the noble Baroness, Lady Burt, just asked, what kind of timescale is applicable?
This is very much a significant step for women and girls, who deserve and seek specific protections because of the disproportionate amount of abuse received. It is crucial that the guidance take a holistic approach which focuses on prevention and tech accountability, and that it is as robust as possible. Can the Minister say whether he will be looking to the model of the Violence against Women and Girls Code of Practice, which has been jointly developed by a number of groups and individuals including Glitch, the NSPCC, 5Rights and Refuge? It is important that this be got right, that we see it as soon as possible and that all the benefits can be felt and seen.
Lord Parkinson of Whitley Bay (Con)
I am very grateful to everyone for the support they have expressed for this amendment both in the debate now and by adding their names to it. As I said, I am particularly grateful to my noble friend Lady Morgan, with whom we have worked closely on it. I am also grateful for her recognition that men and boys also face harm online, as she rightly points out. As we discussed in Committee, this Bill seeks to address harms for all users but we recognise that women and girls disproportionately face harm online. As we have discussed with the noble Baroness, Lady Merron, women and girls with other characteristics such as women of colour, disabled women, Jewish women and many others face further disproportionate harm and abuse. I hope that Amendment 152 demonstrates our commitment to giving them the protection they need, making it easy and clear for platforms to implement protections for them across all the wide-ranging duties they have.
The noble Baroness, Lady Burt of Solihull, asked why it was guidance and not a code of practice. Ofcom’s codes of practice will set out how companies can comply with the duties and will cover how companies should tackle the systemic risks facing women and girls online. Stipulating that Ofcom must produce specific codes for multiple different issues could, as we discussed in Committee, create duplication between the codes, causing confusion for companies and for Ofcom.
As Ofcom said in its letter to your Lordships ahead of Report, it has already started the preparatory work on the draft illegal content and child sexual abuse and exploitation codes. If it were required to create a separate code relating to violence against women and girls, this preparatory work would need to be revised, so there would be the unintended—and, I think, across the House, undesired—consequence of slowing down the implementation of these vital protections. I am grateful for the recognition that we and Ofcom have had on that point.
Instead, government Amendment 152 will consolidate all the relevant measures across codes of practice, such as on illegal content, child safety and user empowerment, in one place, assisting platforms to reduce the risk of harm that women and girls disproportionately face.
On timing, at present Ofcom expects that this guidance will be published in phase 3 of the implementation of the Bill, which was set out in Ofcom’s implementation plan of 15 June. This is when the duties in Part 4 of the Bill, relating to terms of service and so on, will be implemented. The guidance covers the duties in Part 4, so for guidance to be comprehensive and have the most impact in protecting women and girls, it is appropriate for it to be published during phase 3 of the Bill’s implementation.
The noble Baroness, Lady Fox, mentioned the rights of trans people and the rights of people to express their views. As she knows, gender reassignment and religious or philosophical belief are both protected characteristics under the Equality Act 2010. Sometimes those are in tension, but they are both protected in the law.
With gratitude to all the noble Lords who have expressed their support for it, I commend the amendment to the House.
Baroness Fox of Buckley (Non-Afl)
The Minister did not quite grasp what I said but I will not keep the House. Would he be prepared to accept recommendations for a broader consultation—or who do I address them to? It is important that groups such as the Women’s Rights Network and others, which suffer abuse because they say “I know what a woman is”, are talked to in a discussion on women and abuse, because that would be appropriate.
Lord Parkinson of Whitley Bay (Con)
I am sorry—yes, the noble Baroness made a further point on consultation. I want to reassure her and other noble Lords that Ofcom has the discretion to consult whatever body it considers appropriate, alongside the Victims’ Commissioner, the Domestic Abuse Commissioner and others who I mentioned. Those consultees may not all agree. It is important that Ofcom takes a range of views but is able to consult whomever. As I mentioned previously, Ofcom and its officers can be scrutinised in Parliament through Select Committees and in other ways. The noble Baroness could take it up directly with them but could avail herself of those routes for parliamentary scrutiny if she felt that her pleas were falling on deaf ears.
Lord Clement-Jones
Member’s explanatory statement
This amendment seeks to probe whether the bill sufficiently covers certain harmful content users may encounter in services, for example in the metaverse.
Lord Clement-Jones (LD)
My Lords, we had a pretty extensive future-proofing debate in Committee, which I was sadly unable to take part in, but I start this debate with a sinking feeling about the scope of the Bill. This amendment relates to the metaverse in particular.
In metaverse or game-type settings, users interact in a visual or audio environment that is wholly or in part created by the service provider. An analogy might be that the service provider supplies an immersive stage environment for people to act upon, complete with scenery, computer-generated props and characters, some of which could be harmful. The environment created or enabled by the service provider could itself be harmful to children and even adults—for instance, a World War II concentration camp, a sex shop or a Ku Klux Klan rally; at least one online game has allowed people to play the role of an Auschwitz camp guard.
I am particularly influenced by a report from the Center for Countering Digital Hate, Horizon Worlds Exposed, and the research for it, which was carried out by the online CSEA covert intelligence team. This may have been cited earlier but they found that minors are routinely harassed and exposed to adult content on Meta’s flagship virtual reality social network, Horizon Worlds. The research follows Meta’s announcements that Horizon Worlds would be opening up to 13 to 17 year-olds, showing that it is already failing to prevent minors accessing mature content, despite a supposed ban on them accessing its VR applications.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the noble Lord, Lord Clement-Jones, for tabling the amendment. If I had been quicker, I would have added my name to it, because he may— I use the word “may” advisedly, because I am not sure—have identified quite a serious gap in terms of future-proofing. As far as I understand it, in a somewhat naive way, the amendment probes whether there is a gap between provider-generated content and user-generated content and whether provider-generated content could lead to a whole lot of ghastly stuff on the metaverse without any way of tackling it because it is deemed to have fallen outside the scope of the Bill.
I am grateful to Carnegie UK for having tried to talk me through this—it is pretty complicated. As a specific example, I understand that a “Decentraland” avatar pops up on gaming sites, and it is useful because it warns you about the dangers of gambling and what it can lead to. But then there is the problem about the backdrop to this avatar: at the moment, it seems to be against gambling, but you can see how those who have an interest in gambling would be quite happy to have the avatar look pretty hideous but have a backdrop of a really enticing casino with lots of lights and people streaming in, or whatever. I am not sure where that would fit, because it seems that this type of content would be provider-generated. When it comes to the metaverse and these new ways of interacting with 3D immersion, I am not clear that we have adequately caught within the Bill some of these potentially dangerous applications. So I hope that the Minister will be able to clarify it for us today and, if not, possibly to write between now and the next time that we debate this, because I have an amendment on future-proofing, but it is in a subsequent group.
Baroness Kidron (CB)
My Lords, I am interested to hear what the Minister says, but could he also explain to the House the difference in status of this sort of material in Part 5 versus Part 3? I believe that the Government brought in a lot of amendments that sorted it out and that many of us hoped were for the entire Bill, although we discovered, somewhat to our surprise, that they were only in Part 5. I would be interested if the Minister could expand on that.
Lord Knight of Weymouth (Lab)
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for raising this; it is important. Clause 49(3)(a)(i) mentions content
“generated directly on the service by a user”,
which, to me, implies that it would include the actions of another user in the metaverse. Sub-paragraph (ii) mentions content
“uploaded to or shared on the service by a user”,
which covers bots or other quasi-autonomous virtual characters in the metaverse. As we heard, a question remains about whether any characters or objects provided by the service itself are covered.
A scenario—in my imagination anyway—would be walking into an empty virtual bar at the start of a metaverse service. This would be unlikely to be engaging: the attractions of indulging in a lonely, morose drink at that virtual bar are limited. The provider may therefore reasonably configure the algorithm to generate characters and objects that are engaging until enough users then populate the service to make it interesting.
Of course, there is the much more straightforward question of gaming platforms. On Monday, I mentioned “Grand Theft Auto”, a game with an advisory age of 17—they are still children at that age—but that is routinely accessed by younger children. Shockingly, an article that I read claimed that it can evolve into a pornographic experience, where the player becomes the character from a first-person angle and received services from virtual sex workers, as part of the game design. So my question to the Minister is: does the Bill protect the user from these virtual characters interacting with users in virtual worlds?
Lord Parkinson of Whitley Bay (Con)
I will begin with that. The metaverse is in scope of the Bill, which, as noble Lords know, has been designed to be technology neutral and future-proofed to ensure that it keeps pace with emerging technologies—we have indeed come a long way since the noble Lord, Lord Clement-Jones, the noble Lords opposite and many others sat on the pre-legislative scrutiny committee for the Bill. Even as we debate, we envisage future technologies that may come. But the metaverse is in scope.
The Bill will apply to companies that enable users to share content online or to interact with each other, as well as search services. That includes a broad range of services, such as websites, applications, social media services, video games and virtual reality spaces, including the metaverse.
Any service that enables users to interact, as the metaverse does, will need to conduct a child access test and will need to comply with the child safety duties—if it is likely to be accessed by children. Content is broadly defined in the Bill as,
“anything communicated by means of an internet service”.
Where this is uploaded, shared or directly generated on a service by a user and able to be encountered by other users, it will be classed as user-generated content. In the metaverse, this could therefore include things like objects or avatars created by users. It would also include interactions between users in the metaverse such as chat—both text and audio—as well as images, uploaded or created by a user.
Lord Clement-Jones (LD)
My Lords, I hope I am not interrupting the Minister in full flow. He has talked about users entirely. He has not yet got to talking about what happens where the provider is providing that environment—in exactly the way in which the noble Lord, Lord Knight, illustrated.
Lord Parkinson of Whitley Bay (Con)
We talked about bots controlled by service providers before the noble Lord, Lord Knight, asked questions on this. The Bill is designed to make online service providers responsible for the safety of their users in light of harmful activities that their platforms might facilitate. Providers of a user-to-user service will need to adhere to their duties of care, which apply to all user-generated content present on their service. The Bill does not, however, regulate content published by user-to-user providers themselves. That is because the providers are liable for the content they publish on the service themselves. The one exception to this—as the noble Baroness, Lady Kidron, alluded to in her contribution—is pornography, which poses a particular risk to children and is regulated by Part 5 of the Bill.
I am pleased to reassure the noble Lord, Lord Clement- Jones, that the Bill—
Baroness Kidron (CB)
I thank the noble Lord for giving way. The Minister just said that private providers will be responsible for their content. I would love to understand what mechanism makes a provider responsible for their content?
Lord Parkinson of Whitley Bay (Con)
I will write to noble Lords with further information and will make sure that I have picked up correctly the questions that they have asked.
On Amendment 152A, which the noble Lord, Lord Clement-Jones, has tabled, I am pleased to assure him that the Bill already achieves the intention of the amendment, which seeks to add characters and objects that might interact with users in the virtual world to the Bill’s definition of user-generated content. Let me be clear again: the Bill already captures any service that facilitates online user-to-user interaction, including in the metaverse or other augmented reality or immersive online worlds.
The Bill broadly defines “content” as
“anything communicated by means of an internet service”,
so it already captures the various ways in which users may encounter content. Clause 211 makes clear that “encounter” in relation to content for the purposes of the Bill means to,
“read, view, hear or otherwise experience”
content. That definition extends to the virtual worlds which noble worlds have envisaged in their contributions. It is broad enough to encompass any way of encountering content, whether that be audio-visually or through online avatars or objects.
In addition, under the Bill’s definition of “functionality”,
“any feature that enables interactions of any description between users of the service”
will be captured. That could include interaction between avatars or interaction by means of an object in a virtual world. All in-scope services must therefore consider a range of functionalities as part of their risk assessment and must put in place any necessary measures to mitigate and manage any risks that they identify.
I hope that that provides some assurance to the noble Lord that the concerns that he has raised are covered, but I shall happily write on his further questions before we reach the amendment that the noble Baroness, Lady Finlay, rightly flagged in her contribution.
Lord Clement-Jones (LD)
I thank the Minister. I feel that we have been slightly unfair because we have been asking questions about an amendment that we have not been able to table. The Minister has perfectly well answered the actual amendment itself and has given a very positive reply—and in a sense I expected him to say what he said about the actual amendment. But, of course, the real question is about an amendment that I was unable to table.
Member’s explanatory statement
This amendment, and the next two amendments in my name, make it clear that an automated tool which is not a bot - as well as a bot - may be regarded as a user for the purposes of the definition of “user-generated content”.
Member’s explanatory statement
See the explanatory statement to the preceding amendment in my name.
Member’s explanatory statement
See the explanatory statement to the first amendment of this Clause in my name.
Member’s explanatory statement
This amendment ensures consistency of language in referring to kinds of content.
(a) software or an automated tool or algorithm applied by the provider or by a person acting on behalf of the provider, or(b) an automated tool or algorithm made available on the service by the provider or by a person acting on behalf of the provider.”Member’s explanatory statement
This amendment is about what counts as “provider content” for the purposes of the exemption in Clause 49(6) of the Bill (which provides that comments/reviews on provider content don’t count as regulated user-generated content). Words are added to expressly cover the case where an automated tool or algorithm is made available on the service by a provider, such as a generative AI bot.
“(ii) is video or audio content that was originally published or broadcast by a recognised news publisher, and is not a clipped or edited form of such content (unless it is the recognised news publisher who has clipped or edited it), or(iii) is a link to an article or item within sub-paragraph (i) or to content within sub-paragraph (ii).”Member’s explanatory statement
This amendment revises the definition of “news publisher content” so that, in particular, online content published by a recognised news publisher that has not first been broadcast is covered by the definition.
Lord Parkinson of Whitley Bay (Con)
My Lords, as noble Lords know, His Majesty’s Government are committed to defending the invaluable role of a free media, and our online safety legislation must protect the vital role of the press in providing people with reliable and accurate information online. That is why we have included strong protections for recognised news publishers in the Bill.
Clause 49(9) and (10) set out what is considered “news publisher content” in relation to a regulated user-to-user service, while Clause 52 sets out that news publishers’ content is exempt from search services’ duties. The government amendments clarify minor elements of these exemptions and definitions. Given the evolving consumption habits for news, recognised news publishers might clip or edit content from their published or broadcast versions to cater to different audiences and platforms. We want to ensure that recognised news publisher content is protected in all its forms, as long as that content is created or generated by the news publishers themselves.
First, our amendments clarify that any video or audio content published or broadcast by recognised news publishers will be exempt from the Bill’s safety duties and will benefit from the news publisher appeals process, when shared on platforms in scope of the Bill. These amendments ensure that old terminology works effectively in the internet age. The amendments now also make it clear that any news publisher content that is clipped or edited by the publisher itself will qualify for the Bill’s protections when shared by third parties on social media. However, these protections will not apply when a third-party user modifies that content itself. This will ensure that the protections do not apply to news publisher content that has been edited by a user in a potentially harmful way.
The amendments make it clear that the Bill’s protections apply to links to any article, video or audio content generated by recognised news publishers, clipped or edited, and regardless of the form in which that content was first published or broadcast. Taken together, these amendments ensure that our online safety legislation protects recognised news publishers’ content as intended. I hope noble Lords will support them. I beg to move.
Lord Lipsey (Lab)
My Lords, Amendments 159 and 160 are in my name and those of the noble Lord, Lord McNally, and the noble Baronesses, Lady Hollins and Lady Newlove. First, I apologise for the fact that this is the first time I have spoken on the Bill. That was not the plan: illness intervened. Anyway, I am all better now, thanks.
The purport of the amendments is simple. Content posted on social media by newspapers benefits, under the Bill as it stands, from exemption from any regulatory action by the platforms. Nowhere does the Bill set up a system for the public to complain about such pieces. Newspapers can have any complaints system they want and still benefit from the exemption. Under our amendments, the exemption would apply only to newspapers that have a system for public complaints that meets proper standards—at the very least, the complaints code must be independently set up and not under the control of newspapers, their editors or any puppet regulators they may set up.
Noble Lords will have noticed that the amendments do not say that the system must measure up to the standards required by the Press Recognition Panel and monitored by a body approved by that panel; at the moment, only Impress would qualify. We have omitted that particular way of making sure that the complaints system works not because it would not be perfectly good—it would—but because the very mention of PRP/Impress is a red rag to a bull to those who control the press, so we kept the red rag in our pockets. This, of course, says more about those who control the press than about the admirable PRP/Impress set-up, which has, within its limited practical scope, been doing a very fine job.
What the amendments do mean, however, is that newspapers cannot any more hide behind their fig leaf IPSO, the so-called Independent Press Standards Organisation. I know that some Members of your Lordships’ House are IPSO fans who fought for it tooth and nail; indeed, the noble Lord, Lord Faulks, is its chair. I pay tribute to that organisation: the political skills it has deployed in its attempts to give itself credibility have amazed even me, somebody who has been around politics for nearly 50 years. Two former Northern Ireland officials have been hired to produce whitewash reports on it: appointed by IPSO, terms of reference from IPSO and paid for by IPSO. They did their duty. Only last week—perhaps it knew the Bill was coming up in your Lordships’ House—it actually upheld a complaint: that against Jeremy Clarkson for abusing Meghan. That was an event as rare as bumping into a dodo on the streets one night: only three in 1,000 complaints are upheld by IPSO.
A more objective academic view of IPSO than mine was provided by the Media Standards Trust, a study by the academics Martin Moore and Gordon Ramsay published in 2019. It found that IPSO fell short on 25 of 38 Leveson recommendations. I am sorry—we have not heard the word “Leveson” for a while, and I am not sure we are still allowed to utter it, but I will. IPSO has never in its history established a single standards investigation. It has never fined a publisher. It and its editors set the code to suit themselves.
Ever intrepid, I once tried complaining about a case—a slam dunk case, if I may ask the House to take my word for it—against the Express about its use of something it wrongly described as a poll. It was an intriguing experience. IPSO followed the procedural rules minutely and scrupulously, if slowly. The Express obfuscated. Eventually, IPSO produced a ruling that was so bizarre and incomprehensible that I hesitate to describe it to the House and, of course, turned down my complaint. That experience is very typical. Some 1,500 people give up on their complaints every year, despairing of fighting their way through IPSO and the newspapers’ attritional system. The average complaint takes about six months to resolve.
These amendments, partly for the reasons I have already mentioned, do not attempt to specify what body can rule. It could be a body approved by the PRP or one adhering to another kosher code. What should be clear, however, is that the regulator should not be a pussycat regulator controlled by the press, as IPSO is. It should be a genuinely independent regulator with a genuinely independent code to enforce.
“You’re against free speech, Lipsey; you want state regulation”. But there is no inhibition on free speech in our amendments. They merely provide a way of hearing complaints after pieces have been printed, and the state need have nothing to do with it. Incidentally, I find great curiosity in the way in which this state regulation bogey is played about with in this debate. In fact, Ofcom is already a state regulator of many of the things that would be covered by our amendments. Nevertheless, the cry of “state regulation” is obviously red blood that the proponents of total freedom want.
I too want freedom. I spent a third of my working life as a journalist. I was deputy editor of two national newspapers and Bagehot of the Economist. I believe in press freedom to my very core. If I thought for a moment that these amendments in any way threatened press freedom, I would not be proposing them tonight, but I am perfectly certain that they would not. Instead, they would put some inhibition on newspapers planning to abuse often innocent people on their websites; not stopping them saying it but subjecting them to complaints if they do so, which would be independently adjudicated.
I, my co-signatories and my noble friends on the Front Bench are aware that a media Bill is coming up this Session, next Session or sometime sooner or later— I hope sooner, obviously. That will explicitly end the incentives for newspapers to join an independent regulatory system, such as PRP/Impress, by repealing Section 40 of the Act that gives them the incentives to do so. When we last debated these matters, my noble friend Lord Knight on the Front Bench argued that this Bill was not the right way to tackle the complaints problem, and that it could be done under the media Bill. I am pleased to say that my party, the Labour Party, has specifically pledged that it will not repeal Section 40 in any media Bill introduced if and when it takes power. I respect my noble friend Lord Knight’s argument so, for the avoidance of doubt, we shall not seek the opinion of the House on this amendment. But let the press be in no doubt: Parliament remains on the case—sometimes more intently, sometimes less intently; once agreed on the royal charter, but that has gone down the river; but always ready to act if the newspapers defeat the rights of the public to complain.
We will not finish the job tonight, nor with this Bill, but examples of egregious press behaviour continue to mount up. I know that some of them are in the past, and we were all following the recent High Court case, but they still appear to be around. The question will not go away. The Government continue to attempt to curry favour with the press—the Prime Minister even went to a Rupert Murdoch party rather than attend a climate conference—but, at the end of the day, the power of the press is declining. The force of those who argue for a better complaints system multiplies. Sooner or later, something will have to be done.
Lord McNally (LD)
My Lords, my name is also to this amendment. I am moved by a phrase used by the noble Lord, Lord Stevenson, on Monday; he said the passage of this Bill has been a “series of conversations”. So it has been. The way the Minister has engaged with the House on many of the concerns that the Bill tries to cover has been greatly to his credit.
It is somewhat unknown how much the new technologies will impact on our democracy, our privacy and the safety of our children, although they have all been discussed with great thoroughness. That is why the opt-out for recognised news publishers is something of a puzzle, unless you assume that the Government have caved in to pressure from that sector. Why should it be given this opt-out? It is partly because if you ask the press to take responsibility in any way, it becomes like Violet Elizabeth Bott in the Just William stories; it “thkweems and thkweems”—usually led by the noble Lord, Lord Black, whom I am glad to see in his place —and talks about press freedom.
My skin in this game is that I was the Minister in the Lords when the Leveson inquiry was under way and when we took action to try to implement its findings. It is interesting that at that point there was cross-party agreement in both Houses on how to implement them. I advise anybody intending to go into coalitions in future not to take the Conservative Party’s assurances on such matters totally at face value, as that cross-party agreement to implement Leveson was reneged on by the Conservative Party under pressure from the main newspaper publishers.
It was a tragedy, because the “series of conversations” that the noble Lord, Lord Stevenson, referred to will be ongoing. We will not let the press off the hook, no matter how much it wields its power. It is just over 90 years since Stanley Baldwin’s famous accusation of
“power without responsibility—the prerogative of the harlot throughout the ages”.
It is just over 30 years since David Mellor warned the press that it was in the “last chance saloon” and just over 10 years since Rupert Murdoch said that appearing before the Leveson inquiry, with a curious choice of language, was
“the most humble day of my life”.
Of course, like water off a duck’s back, once the pressure was off and the deal had been done with the Conservative Party, we could carry on on our own merry way.
It was a tragedy too because the Leveson settlement—as I think the PRP and Impress have proved—works perfectly well. It is neither state controlled nor an imposition on a free press. Like the noble Lord, Lord Lipsey, I greatly resent the idea that this is somehow an attempt to impose on a free press. It is an attempt to get the press to help the whole of our democracy and make things work properly, just as this Bill attempts to do.
Someone mentioned Rupert Murdoch’s recent summer party. The Prime Minister was not the only one who went—so did the leader of the Opposition. I like to think that Mr Attlee would not have gone. I am not sure that my old boss, Jim Callaghan, would have gone. I do not think that either would have flown half way around the world, as Tony Blair did, to treat with him. The truth is that, over the last decade or so, in some ways the situation has got worse. Politicians are more cowed by the press. When I was a Minister and we proposed some reasonably modest piece of radical change, I was told by my Conservative colleague, “We’ll not get that through; the Daily Mail won’t tolerate it”. That pressure on politics means we need politicians with the guts to resist it.
Those who want a genuinely free press would not leave this festering wound. I will not join in the attack on the noble Lord, Lord Faulks, because we worked together very well in coalition. I would prefer to see IPSO reform itself to become Leveson-compliant. That would not bring any of the dangers that we will hear about from the noble Lord, Lord Black, but it would give us a system of press regulation that we could all agree with.
On Section 40, I remember well the discussions about how we would give some incentive to join. A number of my colleagues feel uncomfortable about Section 40 making even the winners pay, but the winner pays only if they are not within a Leveson-compliant system. That was, perhaps innocently, thought of as a carrot to bring the press in, though, of course, it does not read easily. Frankly, if Section 40 were to go but IPSO became Leveson-compliant, that would be a fair deal.
This Bill leaves us with some very dangerous loopholes. Some of the comments underneath in the press and, as the Minister referred to, the newsclips that can be added can be extremely dangerous if children are exposed to them.
There are many other loopholes that this genuflection to press power is going to leave in the Bill and which will lead to problems in the future. Rather than launch another attack—because you can be sure another case will come along or another outrage will happen, and perhaps this time, Parliament will have the guts to deal with it—it would be far better if the media itself saw Leveson for what it was: a masterful, genuine attempt to put a free press within the context of a free society and protect the individuals and institutions in that society in a way that is in all our interests. As the noble Lord, Lord Lipsey, said, we are not pushing this tonight, but we are not going to go away.
Viscount Colville of Culross (CB)
My Lords, I have been a journalist my whole career and I have great respect for the noble Lords who put their names to Amendments 159 and 160. However, I cannot support another attempt to lever Section 42 of the Crime and Courts Act into the Bill. In Committee I put my name to Amendment 51, which aims to protect journalism in the public interest. It is crucial to support our news outlets, in the interests of democracy and openness. We are in a world where only a few newspapers, such as the New York Times, manage to make a profit from their digital subscribers. I welcome the protection provided by Clause 50; it is much needed.
In the past decade, the declining state of local journalism has meant there is little coverage of magistrates’ courts and council proceedings, the result being that local public servants are no longer held to account. At a national level, newspapers are more and more reluctant to put money into investigations unless they are certain of an outcome, which is rarely the case. Meanwhile, the tech platforms are using newspapers’ contents for free or paying them little money, while disaggregating news content on their websites so the readers do not even know its provenance. I fear that the digital era is putting our legacy media, which has long been a proud centrepiece of our democracy, in great danger. The inclusion of these amendments would mean that all national newspapers and most local media would be excluded from the protections of the clause. The Bill, which is about regulating the digital world, should not be about trying to limit the number of newspapers and news websites covered by the protections of Clause 50; it would threaten democracy at a local and national level.
Lord Black of Brentwood (Con)
My Lords, I am very pleased to say a few words, because I do not want to disappoint my good friend the noble Lord, Lord McNally, who has obviously read the text of my speech before I have even delivered it. I declare my interests as deputy chairman of the Telegraph Media Group and a director of the Regulatory Funding Company, and note my other interests as set out in the register.
It will not come as a surprise that I oppose Amendments 159 and 160. I am not going to detain your Lordships for long; there are other more important things to talk about this evening than this seemingly never-ending issue, about which we had a good discussion in Committee. I am sorry that the two noble Lords were indisposed at that time, and I am glad to see they are back on fighting form. I am dispirited that these amendments surfaced in the first place as I do not think they really have anything to do with online safety and the protection of children. This is a Bill about the platforms, not the press. I will not repeat all the points we discussed at earlier stages. Suffice it to say that, in my view, this is not the time and the place to seek to impose what would be statutory controls on the press, for the first time since that great liberal, John Locke, led the charge for press freedom in 1695 when the Licensing Acts were abolished. Let us be clear: despite what the two noble Lords said, that is what these amendments would do, and I will briefly explain why.
These amendments seek to remove the exemption for news publishers from an onerous statutory regime overseen by Ofcom, which is, as the noble Lord, Lord Lipsey, said, a state regulator, unless they are part of an approved regulator. Yet no serious publisher, by which I mean the whole of the national and regional press, as the noble Viscount, Lord Colville, said—including at least 95% of the industry, from the Manchester Evening News to Cosmopolitan magazine—is ever going to join a regulator which is approved by the state. Even that patron saint of press controls, Sir Brian Leveson, conceded that this was a “principled position” for the industry to take. The net effect of these amendments would be, at a stroke, to subject virtually the entire press to state regulation—a momentous act wholly inimical to any definition of press freedom and free speech—and with very little discussion and absolutely no consultation.
Lord Faulks (Non-Afl)
My Lords, I declare my interest—although I think it has already been declared for me by the noble Lords, Lord McNally and Lord Lipsey—as the chair of the Independent Press Standards Organisation.
We had this debate in Committee, although not with the same actors; I am glad to see both of them now back in their places and restored to health. However, I cannot welcome all the comments they made, particularly not those of the noble Lord, Lord Lipsey, critical as he was of IPSO. I should tell the House that IPSO is not on the side of the press. It is not on anybody’s side: it is an independent organisation for the regulation of the press that regulates, by circulation, some 95% of both national and regional newspapers.
The noble Lord, Lord Lipsey, spoke of how ineffective we were as an organisation and was rather disparaging about the reviews of IPSO’s governance and operations. I ought, at the very least, to maintain a defence of Sir Bill Jeffrey, a very distinguished civil servant in the Ministry of Defence who recently carried out a report on IPSO. I hope that Members of your Lordships’ House, particularly the noble Lords, Lord Lipsey and Lord McNally, will read the report to see in what ways they consider IPSO is still not showing its independence, but I would very much defend Sir Bill Jeffrey’s independence and the way in which he approached the task. I think it unfortunate that he was attacked in the way he was by the noble Lord. I give way.
Lord Lipsey (Lab)
Does the noble Lord agree that a report which gives as part of its evidence conversations with a sample of precisely 12 complainants cannot be taken seriously?
Lord Faulks (Non-Afl)
The report must be read as a whole. I do not accept at all what the noble Lord has said. It is worth visiting the IPSO website, because he was very disparaging about the number of complaints that were upheld. IPSO is very transparent; its website shows all the decisions that were reached and the way in which they were reached. I invite those who doubt its independence to look at the constituent elements of those who are on the complaints committee and the board, and all the published decisions, in order to decide whether IPSO is indeed in the pockets of the press, which seemed to be the suggestion made by both noble Lords.
Of course, the approved regulator, Impress, has very little work to do. I am sure it does its work highly conscientiously. The code by which it regulates is remarkably similar to the editors’ code, which is produced by the industry, it is true, with contributions from all sorts of people. It varies from year to year. There is very little criticism of the editors’ code. It provides a very sensible and balanced view to make the press accountable, allowing the complaints committee to decide whether there has been a violation of the code.
The noble Lord, Lord Lipsey, said that at last it has found the press to be in breach of that code in the recent complaint. It was interesting that the complaints body which I chair was alleged to not be independent of the press. It was roundly criticised by the press for coming to that decision—by the Times, the Telegraph and the Daily Mail. At the same time, it is said that the organisation which I chair is not independent. It is of course independent and will continue to be so.
As for Section 40, before I had anything to do with press regulation, I did not like it. As a lawyer, the idea of somebody having a free hit against anybody is unattractive. Whatever you think of press regulation, I do not think that Section 40 should commend itself to anybody. As they have promised for some time, the Government are quite right to include it in the media Bill, which is to come before your Lordships’ House in due course. It has been a sword of Damocles hanging over the industry. It is not helpful, and I hope that it is repealed. I understand that the Labour Party and perhaps the Liberal Democrats will bring back something of that sort. I understand they may be opposing it when it comes into the media Bill, but that is a matter for them in due course.
Of course, the press should be accountable. Of course, it should be properly regulated. The idea of an independent regulator is to provide reassurance that it is being regulated, as opposed to, until this Bill becomes law, social media—which is not regulated—which provides a source for news which is considerably less reliable than all those newspapers which are subject to regulation.
This is not the occasion to go into further debates about Leveson, but it is perhaps worth rereading the Leveson report and the conclusions that Sir Brian reached—which I have done recently. It must be seen, as all reports, as very much of its time. It is particularly interesting to see the extent to which he promoted and advanced the cause of arbitration. Alternative dispute resolution is very much at the centre of what the legal profession as a whole, and Sir Brian Leveson and his committee in particular, advance as a much better way to resolve disputes. There is an arbitration scheme provided by IPSO, as noble Lords and the House may know. Of course, that is an option which we would encourage people to use—consistent with what Sir Brian and his committee recommended. It is not a substitute for going to court, and if people want to, they should be allowed to do so. However, I think there is a case for courts considering having directions whereby, at first, somebody seeking relief in the court should show that they have exhausted alternative remedies, including alternative dispute resolution. I am in favour of that.
On the idea of being Leveson-compliant—I do not think Sir Brian Leveson particularly likes that expression. He made various recommendations, many of which are reflected in what IPSO does now. I understand there is a great deal of history in this debate. I remember the debates myself. No doubt, we will return to them in due course, but I think we should fight today’s battles, and not the battles of 10 years ago or longer. I think the press is much more accountable and responsible than it was. Of course, as parliamentarians, we will carefully watch what the press do and consider carefully whether this exemption is merited. However, I do not think that this amendment is justified and I hope that the Government do not support it.
Lord Allan of Hallam (LD)
My Lords, I want to bring the tone of the debate down somewhat to talk about government Amendments 158 and 161 in a rather nerdier fashion. I hope that the House will be patient with me as I do that.
The Minister said that these two amendments introduce some “minor changes” that would make the Bill work as intended. I want to explore whether they are rather more significant than the Minister has given them credit for, and whether they may have unintended consequences. As I understand it, the purpose of the amendments is to ensure that all forms of video and audio content, in long form or short form, whether originally broadcast or made exclusively for social media, will now benefit from the news publisher exemptions.
Particularly thinking about this from a social media point of view—the noble Lord, Lord Faulks, just made the point about news publishers such as newspapers—when we have been looking at the Bill and the news publisher exemption, we have been thinking of the BBC and newspapers. We have been thinking a lot less about people who regard themselves to be news publishers but produce things exclusively for social media—often in a clickbait fashion, using a lot of short-form material. As I read these amendments, they are saying very clearly that this kind of material will benefit from the news publisher exemption. That opens up a whole series of questions we must ask ourselves about whether that will have unintended consequences.
Looking at this in the context of what it takes to be registered as a news publisher in Clause 50, the noble Viscount, Lord Colville, referred to the fact that there is an intention and a view that Clause 50 should be kept broad so that people can register as news publishers. Clearly, that is good for media diversity, but if we look at those tests, they are tests that I think that a lot of organisations could pass. We must ask ourselves who might try to establish themselves as a recognised news publisher. They would need to have an office in the United Kingdom. They would also need to apply our standards code, but Clause 50(6)(b) says that the standards code can be their own standards code—it does not have to be anyone else’s.
I am not going to get into a debate about who should be the press regulator; that is for other noble Lords. As I read it, these internet services could pass the Clause 50(2) test by establishing the office and meeting a few basic requirements, then under Clause 50(6)(b) say, “I’ve got a standards code. It’s my standards code. I’ve written it—on the back of an envelope but it’s a standards code”. Then we need to think about who might want to take advantage of that material. My reading of the Bill, thinking about intention, is that services such as Breitbart News—which is not my cup of tea, but is a recognised news publisher—would pass the test and would be able to establish themselves as a news publisher in the UK, benefiting from the exemptions. Whether or not I agree with it, I can see that is a reasonable unintended outcome.
My concern is about other services, such as Infowars, which I am sure everybody is familiar with. It is a service that has caused untold harm and has been sued in the US courts for defamation—which is a pretty high bar. Infowars has clearly caused so much harm that it has found itself on the wrong end of defamation lawsuits in the United States. I do not think it should in any way be our intention that a service such as Infowars should be able to benefit from the special privileges granted to news publishers under the legislation. I know that it is hard to draw lines, and I am not expecting the Minister to say at the Dispatch Box exactly where the line should be drawn. However, I think that without citing examples such as that, we risk not testing the legislation to destruction—which is precisely what we should be doing here—and ending up in a scenario where we have created a news publisher exemption that could be taken advantage of by the wrong organisations. Someone has to draw a line and make a classification.
As we create this news publisher exemption, it is incumbent on us to describe it to people out there in vernacular terms they would understand. My understanding is that the BBC, the Daily Mail, Breitbart News—all those are in. We expect them to be able to pass the Clause 50 test and we have no problem with that. Russia Today, Infowars and a whole host of other services that brand themselves news but are incredibly harmful and destructive to society and individuals—we would want them to fail the Clause 50 test.
I hope the Minister will at least acknowledge that there is going to be a challenge around bad services run by bad people claiming to be news publishers under Clause 50. I hope he will agree that it is not our intention to give publisher privileges to services such as Infowars that cause so much harm to society.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am completely opposed to Amendments 159 and 160, but the noble Lords, Lord Faulks and Lord Black, and the noble Viscount, Lord Colville, have explained the issues perfectly. I am fully in agreement with what they said. I spoke at length in Committee on that very topic. This is a debate we will undoubtedly come back to in the media Bill. I, for one, am extremely disappointed that the Labour Party has said that it will not repeal Section 40. I am sure that these issues will get an airing elsewhere. As this is a speech-limiting piece of legislation, as was admitted earlier this week, I do not want any more speech limiting. I certainly do not want it to be a media freedom-limiting piece of legislation on top of that.
I want to talk mainly about the other amendments, Amendments 158 and 161, but approach them from a completely different angle from the noble Lord, Lord Allan of Hallam. What is the thinking behind saying that the only people who can clip content from recognised news publishers are the news publishers? The Minister mentioned in passing that there might be a problem of editing them, but it has become common practice these days for members of the public to clip from recognised news publishers and make comments. Is that not going to be allowed? That was the bit that completely confused me. It is too prescriptive; I can see all sorts of people getting caught by that.
The point that the noble Lord, Lord Allan of Hallam, made about what constitutes a recognised news publisher is where the issue gets quite difficult. The point was made about the “wrong” organisations, but I want to know who decides what is right and wrong. We might all nod along when it comes to Infowars and RT, but there are lots of organisations that would potentially fail that test. My concern is that they would not be able to appeal when they are legitimate news organisations, even if not to everybody’s taste. Because I think that we already have too much speech limiting in the Bill, I do not want any more. This is important.
When it comes to talking about the “wrong” organisations, I noticed that the noble Lord, Lord McNally, referred to people who went to Rupert Murdoch’s parties. I declare my interests here: I have never been invited or been to a Rupert Murdoch party—although do feel free, I say, if he is watching—but I have read about them in newspapers. For some people in this Chamber, the “wrong” kind of news organisation is, for example, the Times or one with the wrong kind of owner. The idea that we will all agree or know which news publishers are the “wrong” kind is not clear, and I do not think that the test is going to sort it out.
Will the Minister explain what organisations can do if they fail the recognised news publisher test to appeal and say, “We are legitimate and should be allowed”? Why is there this idea that a member of the public cannot clip a recognised news publisher’s content without falling foul? Why would they not be given some exemption? I genuinely do not understand that.
Baroness Stowell of Beeston (Con)
My Lords, I shall speak very briefly. I feel a responsibility to speak, having spoken in Committee on a similar group of amendments when the noble Lords, Lord Lipsey and Lord McNally, were not available. I spoke against their amendments then and would do so again. I align myself with the comments of my noble friend Lord Black, the noble Lord, Lord Faulks, and the noble Viscount, Lord Colville. As the noble Baroness, Lady Fox, just said, they gave a comprehensive justification for that position. I have no intention of repeating it, or indeed repeating my arguments in Committee, but I think it is worth stating my position.
Lord Clement-Jones (LD)
My Lords, we have heard some very well-rehearsed lines during the debate today, with the usual protagonists. Nevertheless, the truth of the matter is that the Press Recognition Panel is as frustrated as many of us on these Benches and other Benches at the failure to implement a post-Leveson scheme of press regulation. Despite many efforts, it has never been fully put into effect.
I do not think I need to repeat a great deal of what has been said today. For instance, the record of IPSO, which the noble Lord, Lord Faulks, talked about, has been very well tracked by Hacked Off. This is not a proposal for state regulation—which is so often, if you like, the canard placed on it.
If not this Bill, which Bill? The media Bill is not going to tackle issues such as this, as my noble friend Lord McNally said. As the noble Lord, Lord Stevenson, has pointed out, this Bill has been a series of conversations —extremely fruitful conversations—but in this particular direction it has borne no fruit at all.
I must admit that, throughout my looking at the draft Bill and continuing to look through its various versions, this opt-out for news publishers has remained a puzzle. The below-the-line opt-out for the mainstream news media always strikes me as strange, because there is no qualification that there should be any curation of that below-the-line, user-generated content. That is peculiar, and it is rather like somebody in the last chance saloon being rewarded with a bouquet. It seems a rather extraordinary provision.
My noble friend Lord Allan rightly pointed to some of the dangers in the new provisions, and indeed in the provisions generally, for these services. I hope the Minister has at least some answers to give to the questions he raised. Progress on this and the scheme that the PRP was set up to oversee, which is still not in place, remain a source of great division across the parties and within them. There is still hope; it may be that under a different Government we would see a different result.
Lord Stevenson of Balmacara (Lab)
My Lords, I was unfortunately unable to attend round 1 of this debate—I had to leave. My noble friend Lord Knight has absented himself from hearing what I am going to say about his remarks, so he must fear that he had got his lines wrong. I apologised to him for leaving him a bit exposed, because we had not quite anticipated how the conversation would go, but I think he did as well as he could, and I repeat the lines he said: this is not the right Bill to rerun the arguments about the Leveson report. I still believe that. The noble Lord, Lord Clement-Jones, does not think the media Bill is; maybe it is not, but at least we can make sure that the debate is properly argued.
It is interesting that, although we clearly have well-defined positions and antipathies present in the debate, a number of things have been said today that will be helpful, if we manage to get a little closer, in trying to resolve some of the issues outstanding. If I am still around and involved in it, I will approach this by trying to see what we can do together rather than the rights and wrongs of positions we have adopted before. It has worked for this Bill: we have achieved huge changes to the Bill because we decided from the start that we would try to see what was the best that could come out of it. That is the instinct I have as we go forward to any future debate and discussion, whether or not it is on the media Bill.
The puzzling thing here is why this is such a continuing concern that it needs to be brought into to any opportunity we have to discuss these areas. The sense we had in the pre-legislative scrutiny committee, which discussed this to some extent but not in quite the same range as we have tonight, or even in Committee, was that the issues raised in this Bill were really about protecting freedom of expression. At that stage, the Bill still had the legal but harmful clauses in it so perhaps had had less exposure to those issues in the debate we had. I still think it is primarily about that. I still have real concerns about it, as have been raised by one or two people already in our discussion. I do not think the recognised news provider definition is a good one; I do not think the definition of a journalist is a good one. The pre-legislative scrutiny committee wanted an objective test of material based around public interest, but the Government would not accept that, so we are where we are. We must try to ensure that what works is what we have in the Bill in relation to the topics before it.
The primary purpose must be to ensure material that will inform and enhance our knowledge about democracy, current affairs and issues that need to be debated in the public space, so it is clearly right that that which is published by recognised journalists—quality journalists is another phrase that has been used—should be protected, perhaps more than other material, but at the fringes there are still doubts as to whether the Bill does that.
I had taken it that in the amendments I signed up to, government Amendments 158 and 161, the material we were talking about was from recognised news publishers, not material self-generated in social media. I am looking hard at the Minister hoping he will be able to come to my aid when he comes to respond. The issue here is about making sure that material that was not originally broadcast but is still provided by a recognised news publisher is protected from being taken down, and it would not have been if those amendments were not made. I hope that is the right interpretation. That was the basis on which I signed up for them; I do not know quite where it leaves me if that is wrong.
Lord Allan of Hallam (LD)
As I opened up that question, just to be clear, I was saying that it is exactly right that an individual user would not be covered, but I was trying to suggest that a social media-only news service that does not exist as a publication or a broadcaster outside social media, if it meets the Clause 50 test to be a recognised news publisher, should be given extra scope under the amendments.
Lord Stevenson of Balmacara (Lab)
I hope they do not, and I think the Minister has to answer that question quite directly. The issue here is about quality material that would otherwise be taken down being kept in place so that we can all as a society be informed by that. That does not mean it needs to be from particular sources that we know to be egregious or running material which is certainly not in the public interest. Again, I make the point that that would have been a better way of approaching this in the legislation, but I take the point made by the noble Lord, Lord Allan, who knows his stuff—I often think we ought to bottle him and carry it around so we can take a whiff of his expertise and knowledge every time we get stuck on a problem, but I am not quite sure how we manage that.
Lord Parkinson of Whitley Bay (Con)
I reassure the noble Lord, Lord Stevenson, that he was right to sign the amendments; I am grateful that he did. I do not know whether it is possible to have a sense of déjà vu about debates that took place before one entered your Lordships’ House, but if so, I feel I have had it over the past hour. I am, however, glad to see the noble Lords, Lord Lipsey and Lord McNally, back in their places and that they have had the chance to express their views, which they were unable to do fully in Committee. I am grateful to noble Lords who have joined in that debate again.
At present, Amendment 159 would enable news publishers that are members of Impress, the sole UK regulator which has sought approval by the Press Recognition Panel, to benefit from the Bill’s protections for news publishers, without meeting the criteria set out in Clause 50(2). This would introduce a legislative advantage for Impress members over other news publishers. The amendment would, in effect, create strong incentives for publishers to join a specific press regulator. We do not consider that to be compatible with our commitment to a free press. To that end, as noble Lords know, we will repeal existing legislation that could have that effect, specifically Section 40 of the Crime and Courts Act 2013, through the media Bill, which was published recently.
Not only is creating an incentive for a publisher to join a specific regulator incompatible with protecting press freedom in the United Kingdom but it would undermine the aforementioned criteria. These have been drafted to be as robust as possible, with requirements including that organisations have publication of news as their principal purpose, that they are subject to a standards code and that their content is created by different persons. Membership of Impress, or indeed any other press regulator, does not and should not automatically ensure that these criteria are met.
Amendment 160 goes further by amending one of these criteria—specifically, the requirement for entities to be subject to a standards code. It would add the requirement that these standards codes be drawn up by a regulator, such as a body such as Impress. This amendment would create further incentives for news publishers to join a press regulator if they are to benefit from the exclusion for recognised news publishers. This is similarly not compatible with our commitment to press freedom.
We believe the criteria set out in Clause 50 of the Bill are already sufficiently strong, and we have taken significant care to ensure that only established news publishers are captured, while limiting the opportunity for bad actors to benefit.
The noble Lord, Lord Allan, asked about protections against that abuse by bad actors. The Bill includes protections for journalism and news publishers, given the importance of a free press in a democratic society. However, it also includes safeguards to prevent the abuse of these protections by bad actors. Platforms will still be able to remove recognised news publisher content that breaches their terms and conditions as long as they notify recognised news publishers and offer a right of appeal first. This means that content will remain online while the appeal is considered, unless it constitutes a relevant offence under the Bill or the platform would incur criminal or civil liability by hosting it. This marks a significant improvement on the status quo whereby social media companies can remove journalistic content with no accountability and little recourse for journalists to appeal.
We are clear that sanctioned news outlets such as RT must not benefit from these protections. We are amending the criteria for determining which entities qualify as recognised news publishers explicitly to exclude entities that are subject to sanctions. The criteria also exclude any entity that is a proscribed organisation under the Terrorism Act 2000 or whose purpose is to support an organisation that is proscribed under that Act. To require Ofcom or another party to assess standards would be to introduce press regulation by the back door.
The noble Baroness, Lady Fox of Buckley, asked about protecting clipped or edited content. Given evolving news consumption habits, recognised news publishers may clip or edit content from their published or broadcast versions to cater to different audiences and to be used on different platforms. We want to ensure recognised news publisher content is protected in all its forms as long as that content is still created or generated by the news publisher. For example, if a broadcaster shares a link to its shorter, online-only version of a long-form TV news programme or documentary on an in-scope platform, this should still benefit from the protections that the Bill affords. The amendment that we have brought forward ensures that this content and those scenarios remain protected but removes the risk of platforms being forced to carry news publisher content that has been edited by a third party potentially to cause harm. I hope that clarifies that.
I am grateful to the noble Lord, Lord Lipsey, for making it clear that he does not intend to press his amendments to a Division, so I look forward to that. I am also grateful for the support for the Government’s amendments in this group.
“(ii) is video or audio content that was originally published or broadcast by a recognised news publisher, and is not a clipped or edited form of such content (unless it is the recognised news publisher who has clipped or edited it), or(iii) is a link to an article or item within sub-paragraph (i) or to content within sub-paragraph (ii).”Member’s explanatory statement
This amendment ensures that, in particular, online content published by a recognised news publisher that has not first been broadcast is included in the list of content which does not count as search content for the purposes of the Bill.
Member’s explanatory statement
This technical amendment ensures that the new Clauses proposed to be inserted after Clause 54 in my name setting out which kinds of content count as primary priority content and priority content harmful to children apply for the purposes of Part 3 of the Bill.
Member’s explanatory statement
This amendment omits powers to make regulations setting out which kinds of content count as primary priority content and priority content harmful to children. Those kinds of content are now set out on the face of the Bill (see the new Clauses proposed to be inserted after Clause 54 in my name).
Member’s explanatory statement
This amendment inserts a signpost to the new Clause proposed to be inserted after Clause 54 in my name setting out which kinds of content count as primary priority content harmful to children.
Member’s explanatory statement
This amendment inserts a signpost to the new Clause proposed to be inserted after Clause 54 in my name setting out which kinds of content count as priority content harmful to children.
Member’s explanatory statement
This is a technical amendment omitting a line which is superfluous as a result of the next amendment in my name.
Member’s explanatory statement
This amendment omits a provision about the relationship between illegal content and content harmful to children.
Member’s explanatory statement
This amendment ensures that technical provision about content harmful to children extends to primary priority and priority content harmful to children in the new Clauses proposed to be inserted after Clause 54 in my name.
Member’s explanatory statement
This amendment omits a signpost to regulations about primary priority and priority content harmful to children, which is no longer needed as the new Clauses proposed to be inserted after Clause 54 in my name set out those kinds of content on the face of the Bill.
““Primary priority content that is harmful to children”
(1) “Primary priority content that is harmful to children” means content of any of the following kinds. (2) Pornographic content, other than content within subsection (6).(3) Content which encourages, promotes or provides instructions for suicide.(4) Content which encourages, promotes or provides instructions for an act of deliberate self-injury.(5) Content which encourages, promotes or provides instructions for an eating disorder or behaviours associated with an eating disorder.(6) Content is within this subsection if it—(a) consists only of text, or(b) consists only of text accompanied by—(i) identifying content which consists only of text,(ii) other identifying content which is not itself pornographic content,(iii) a GIF which is not itself pornographic content,(iv) an emoji or other symbol, or(v) any combination of content mentioned in sub-paragraphs (i) to (iv).(7) In this section and section (“Priority content that is harmful to children”) “injury” includes poisoning.”Member’s explanatory statement
This amendment describes which kinds of content count as primary priority content harmful to children for the purposes of Part 3 of the Bill.
““Priority content that is harmful to children”
(1) “Priority content that is harmful to children” means content of any of the following kinds.(2) Content which is abusive and which targets any of the following characteristics—(a) race,(b) religion,(c) sex,(d) sexual orientation,(e) disability, or(f) gender reassignment.(3) Content which incites hatred against people—(a) of a particular race, religion, sex or sexual orientation,(b) who have a disability, or(c) who have the characteristic of gender reassignment.(4) Content which encourages, promotes or provides instructions for an act of serious violence against a person.(5) Bullying content.(6) Content which—(a) depicts real or realistic serious violence against a person;(b) depicts the real or realistic serious injury of a person in graphic detail.(7) Content which—(a) depicts real or realistic serious violence against an animal;(b) depicts the real or realistic serious injury of an animal in graphic detail;(c) realistically depicts serious violence against a fictional creature or the serious injury of a fictional creature in graphic detail. (8) Content which encourages, promotes or provides instructions for a challenge or stunt highly likely to result in serious injury to the person who does it or to someone else.(9) Content which encourages a person to ingest, inject, inhale or in any other way self-administer—(a) a physically harmful substance;(b) a substance in such a quantity as to be physically harmful.(10) In subsections (2) and (3)—(a) “disability” means any physical or mental impairment;(b) “race” includes colour, nationality, and ethnic or national origins;(c) references to religion include references to a lack of religion.(11) For the purposes of subsection (3), a person has the characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex, and the reference to gender reassignment in subsection (2) is to be construed accordingly.(12) For the purposes of subsection (5) content may, in particular, be “bullying content” if it is content targeted against a person which—(a) conveys a serious threat;(b) is humiliating or degrading;(c) forms part of a campaign of mistreatment.(13) In subsection (6) “person” is not limited to a real person.(14) In subsection (7) “animal” is not limited to a real animal.”Member’s explanatory statement
This amendment describes which kinds of content count as priority content harmful to children for the purposes of Part 3 of the Bill.
Member’s explanatory statement
This amendment omits Clause 55 (regulations describing kinds of content harmful to children), as the kinds of content are now set out in the Bill - see the new Clauses proposed to be inserted after Clause 54 in my name.
Member’s explanatory statement
This amendment and the next two amendments in my name omit references to regulations which are no longer needed, as primary priority content and priority content harmful to children are now set out in the new Clauses proposed to be inserted after Clause 54 in my name, not in regulations.
Member’s explanatory statement
See the explanatory statement for the first amendment of Clause 56 in my name.
Member’s explanatory statement
See the explanatory statement for the first amendment of Clause 56 in my name.
Member’s explanatory statement
This amendment provides that OFCOM have 3 years from the date this Bill is passed to produce a report reviewing content harmful to children.
Baroness Merron
“Review: offences relating to animal torture content
(1) Within the period of six months beginning with the day on which this Act is passed, the Secretary of State must carry out a review of relevant offences under the—(a) Communications Act 2003, and(b) Animal Welfare Act 2006,to determine whether there is an offence of sending a communication to encourage or assist an act of animal torture, or sharing content related to animal torture, on a regulated service.(2) If the review under subsection (1) determines that one or more offences contained within the Acts does extend to such communications or content, the Secretary of State must, as soon as practicable, make regulations to designate the offence or offences under Schedule 7 to this Act (see section 198(3)).”Member’s explanatory statement
Following answers to a recent oral question (27 June), this amendment would require the Secretary of State to undertake a review of existing criminal offences under the listed enactments to determine whether they apply to online posts containing or facilitating animal torture. If they do, the Secretary of State would be compelled to add these offences to the list of priority offences in Schedule 7.
Baroness Merron (Lab)
My Lords, I am pleased to speak to Amendment 180, and I thank the noble Lord, Lord Clement-Jones, for adding his name to it and tabling Amendment 180A, which follows it. I am grateful to the Badger Trust, Action for Primates, Wildlife and Countryside Link and the many others who have been in contact about the worryingly high volume of animal cruelty and animal torture content that we see online. I thank the Minister for his engagement on this issue. I very much acknowledge the contribution of noble Lords across the House and their interest in this topic, not only when it was raised in Committee but when my noble friend Lady Hayman of Ullock secured a topical Oral Question on it just last month.
The good news is that everybody agrees that there is a problem here—one that was recently brought into sharp focus by a BBC investigation entitled “The Monkey Haters”. The bad news is that we do not seem to be able to agree on how to address these issues, whether under this Bill or through other forms of action. Users of what will become regulated services once this Bill has passed are using these platforms to discuss, order and share photographs and videos of extreme acts of animal cruelty.
The Government’s position appears to be that, while such activities are abhorrent, they do not generate human harm and are therefore outside the scope of this legislation. In my view, that position is undermined by some of the Government’s own amendments to this legislation, which identify content relating to animal cruelty as falling under priority harms to children. Of course, this measure is a welcome addition. However, as a number of noble Lords highlighted during the recent Oral Question, there is a growing body of evidence that those who engage in acts of animal cruelty go on to harm other human beings.
This amendment contains a modest proposal to review whether the offences already cited from the Dispatch Box apply to online animal torture activity and, if so, to designate those offences under Schedule 7 to the Bill. We accept that the Government are already undertaking a review of criminal offences with a view to expanding the list in Schedule 7, but we have not been able to ascertain the timings attached to that review, whether its findings will be made public or whether Parliament will have a role beyond approving statutory instruments.
In our discussions with the Minister, we had a simple ask: that he commit to including animal welfare issues in the ongoing review and to working with Defra’s Secretary of State to publish a Written Ministerial Statement outlining how many prosecutions have been brought under animal welfare laws, the timetable that applies and how those provisions will be kept under review. We do not consider a Written Ministerial Statement from the Secretary of State summarising government policy to be an unreasonable ask—particularly as this Government are happy to claim that they have done more for animal welfare than any other—yet the Government have hitherto been unable to accept our request. I understand that, just a few minutes ago, an offer of a Written Ministerial Statement was made; noble Lords will understand that I have not seen it as I am in the Chamber, but I am advised that it is not from the Defra Secretary of State and does not refer to the number of prosecutions, timescales or any of the other matters that we requested to be included.
The volume of this content has grown exponentially in recent years. This means thousands of animals being harmed and an even higher number of human beings exposed to abhorrent and horrific material. This amendment may not be perfect, but it will, we hope, encourage the Government to take this issue more seriously than they have done to date. The Minister will be aware that, in view of the Government’s response thus far, I am minded to test the opinion of the House on this amendment. I beg to move.
Lord Clement-Jones (LD)
My Lords, I strongly support Amendment 180, tabled by the noble Baroness, Lady Merron. I will also explain why I put forward Amendment 180A. I pay tribute to the noble Baroness, Lady Hayman, who pursued this issue with considerable force through her Question in the House.
There is clearly an omission in the Bill. One of its primary aims is to protect children from harmful online content, and animal cruelty content causes harm to the animals involved and, critically, to the people who view it, especially children. In Committee, in the Question and today, we have referred to the polling commissioned by the RSPCA, which found that 23% of 10 to 18 year-olds had seen animal cruelty on social media sites. I am sure that the numbers have increased since that survey in 2018. A study published in 2017 found—if evidence were needed—that:
“There is emerging evidence that childhood exposure to maltreatment of companion animals is associated with psychopathology in childhood and adulthood.”
The noble Baroness made an extremely good case, and I do not think that I need to add to it. When the Bill went through the Commons, assurances were given by the former Minister, Damian Collins, who acknowledged that the inclusion of animal cruelty content in the Bill deserves further consideration as the Bill progresses through its parliamentary stages. We need to keep up that pressure, and we will be very much supporting the noble Baroness if she asks for the opinion of the House.
Turning to my Amendment 180A, like the noble Baroness, I pay tribute to the Social Media Animal Cruelty Coalition, which is a very large coalition of organisations. We face a global extinction crisis which the UK Government themselves have pledged to reverse. Algorithmic amplification tools and social media recommendation engines have driven an explosive growth in online wildlife trafficking. A National Geographic article from 2020 quoted US wildlife officials describing the dizzying scale of the wildlife trade on social media. The UK’s national wildlife crime units say that cyber-enabled wildlife crime has become their priority focus, since virtually all wildlife cases they now investigate have a cyber component to them, usually involving social media or e-commerce platforms. In a few clicks it is easy to find pages, groups and postings selling wildlife products made from endangered species, such as elephant ivory, rhino horn, pangolin scales and marine turtle shells, as well as big cats, reptiles, birds, primates and insects for the exotic pet trade. This vast, unregulated trade in live animals and their parts is not only illegal but exacerbates the risk of another animal/human spillover event such as the ones that caused Ebola, HIV and the Covid-19 pandemic.
In addition to accepting the animal welfare amendment tabled by the noble Baroness, which I hope they do, the Government should also add offences under the Control of Trade in Endangered Species Regulations 2018 to Schedule 7 to the Bill. This would definitely help limit the role of social media platforms in enabling wildlife trafficking, helping to uphold the UK’s commitments to tackling global wildlife crime.
Baroness Kidron (CB)
My Lords, I rise very briefly to support the noble Baroness, Lady Merron, and to make only one point. As someone who has the misfortune of seeing a great deal of upsetting material of all kinds, I have to admit that it sears an image on your mind. I have had the misfortune to see the interaction of animal and human cruelty in the same sequences, again and again. In making the point that there is a harm to humans in witnessing and normalising this kind of material, I offer my support to the noble Baroness.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
My Lords, Amendments 180 and 180A seek to require the Secretary of State to conduct a review of existing legislation and how it relates to certain animal welfare offences and, contingent on this review, to make them priority offences under the regulatory framework.
I am grateful for this debate on the important issue of protecting against animal cruelty online, and all of us in this House share the view of the importance of so doing. As the House has discussed previously, this Government are committed to strong animal welfare standards and protections. In this spirit, this Government recognise the psychological harm that animal cruelty content can cause to children online. That is why we tabled an amendment that lists content that depicts real or realistic serious violence or injury against an animal, including by fictional creatures, as priority content that is harmful to children. This was debated on the first day of Report.
In addition, all services will need proactively to tackle illegal animal cruelty content where this amounts to an existing offence such as extreme pornography. User-to-user services will be required swiftly to remove other illegal content that targets an individual victim once made aware of its presence.
The noble Baroness asked about timing. We feel it is important to understand how harm to animals as already captured in the Bill will function before committing to the specific remedy proposed in the amendments.
As discussed in Committee, the Bill’s focus is rightly on ensuring that humans, in particular children, are protected online, which is why we have not listed animal offences in Schedule 7. As many have observed, this Bill cannot fix every problem associated with the internet. While we recognise the psychological harm that can be caused to adults by seeing this type of content, listing animal offences in Schedule 7 is likely to dilute providers’ resources away from protecting humans online, which is the Bill’s main purpose.
However, I understand the importance of taking action on animal mistreatment when committed online, and I am sympathetic to the intention of these amendments. As discussed with the noble Baroness, Defra is confident that the Animal Welfare Act 2006 and its devolved equivalents can successfully bring prosecutions for the commission and action of animal torture when done online in the UK. These Acts do not cover acts of cruelty that take place outside the UK. I know from the discussion we have had in this House that there are real concerns that the Animal Welfare Act 2006 cannot tackle cross-border content, so I wish to make a further commitment today.
The Government have already committed to consider further how the criminal law can best protect individuals from harmful communications, alongside other communications offences, as part of changes made in the other place. To that end, we commit to include the harm caused by animal mistreatment communications as part of this assessment. This will then provide a basis for the Secretary of State to consider whether this offence should be added to Schedule 7 to the OSB via the powers in Clause 198. This work will commence shortly, and I am confident that this, in combination with animal cruelty content listed as priority harms to children, will safeguard users from this type of content online.
For the reasons set out, I hope the noble Baroness and the noble Lord will consider not pressing their amendments.
Lord Clement-Jones (LD)
The Minister has not dealt with Amendment 180A at all.
Lord Clement-Jones (LD)
That really is not good enough, if I may say so. Does the Minister not have any brief of any kind on Amendment 180A?
Viscount Camrose (Con)
I am sorry if the noble Lord feels that I have not dealt with it at all.
Lord Clement-Jones (LD)
The words “animal trafficking” have not passed his lips.
Baroness Merron (Lab)
My Lords, I am sure the letter will be anticipated.
I am grateful to the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, for their support for Amendment 180. I appreciate the consideration that the Minister has given to the issue. I am in no doubt of his sympathy for the very important matters at stake here. However, he will not be surprised to hear that I am disappointed with the response, not least because, in the Minister’s proposal, a report will go to the Secretary of State and it will then be up to the Secretary of State whether anything happens, which really is not what we seek. As I mentioned at the outset, I would like to test the opinion of the House.
“(2A) The regulations may also—(a) require providers to retain, for a specified period, data of a specified description associated with a report, and(b) impose restrictions or requirements in relation to the retention of such data (including how the data is to be secured or stored or who may access the data).(2B) The power to require the retention of data associated with a report includes power to require the retention of—(a) content generated, uploaded or shared by any user mentioned in the report (or metadata relating to such content), and(b) user data relating to any such person (or metadata relating to such data).“User data” here has the meaning given by section 206.” Member’s explanatory statement
This amendment provides that regulations under this Clause may require a provider to retain data associated with a report sent to the NCA and impose restrictions or requirements in relation to the retention of the data.
Lord Parkinson of Whitley Bay (Con)
My Lords, child sexual exploitation or abuse is an abhorrent crime. Reporting allows victims to be identified and offenders apprehended. It is vital that in-scope companies retain the data included in reports made to the National Crime Agency. This will enable effective prosecutions and ensure that children can be protected.
The amendments in my name in this group will enable the Secretary of State to include in the regulations about the reporting of child sexual exploitation or abuse content a requirement for providers to retain data. This requirement will be triggered only by a provider making a report of suspected child sexual exploitation or abuse to the National Crime Agency. The provider will need to retain the data included in the report, along with any associated account data. This is vital to enabling prosecutions and to ensuring that children can be protected, because data in reports cannot be used as evidence. Law enforcement agencies request this data only when they have determined that the content is in fact illegal and that it is necessary to progress investigations.
Details such as the types of data and the period of time for which providers must retain this data will be specified in regulations. This will ensure that the requirement is future-proofed against new types of data and will prevent companies retaining types of data that may have become obsolete. The amendments will also enable regulations to include any necessary safeguards in relation to data protection. However, providers will be expected to store, process and share this personal data within the UK GDPR framework.
Regulations about child sexual exploitation or abuse reporting will undergo a robust consultation with relevant parties and will be subject to parliamentary scrutiny. This process will ensure that the regulations about retaining data will be well-informed, effective and fit for purpose. These amendments bring the child sexual exploitation and abuse reporting requirements into line with international standards. I beg to move.
Lord Allan of Hallam (LD)
My Lords, these seem very sensible amendments. I am curious about why they have arrived only at this stage, given this was a known problem and that the Bill has been drafted over a long period. I am genuinely curious as to why this issue has been raised only now.
On the substance of the amendments, it seems entirely sensible that, given that we are now going to have 20,000 to 25,000 regulated entities in scope, some of which will never have encountered child sexual exploitation or abuse material or understood that they have a legal duty in relation to it, it will be helpful for them to have a clear set of regulations that tell them how to treat their material.
Child sexual exploitation or abuse material is toxic in both a moral and a legal sense. It needs to be treated almost literally as toxic material inside a company, and sometimes that is not well understood. People feel that they can forward material to someone else, not understanding that in doing so they will break the law. I have had experiences where well-meaning people acting in a vigilante capacity sent material to me, and at that point you have to report them to police. There are no ifs or buts. They have committed an offence in doing so. As somebody who works inside a company, your computer has to be quarantined and taken off and cleaned, just as it would be for any other toxic material, because we framed the law, quite correctly, to say that we do not want to offer people the defence of saying “I was forwarding this material because I’m a good guy”. Forwarding the material is a strict liability offence, so to have regulations that explain, particularly to organisations that have never dealt with this material, exactly how they have to deal with it in order to be legally compliant will be extremely helpful.
One thing I want to flag is that there are going to be some really fundamental cross-border issues that have to be addressed. In many instances of child sexual exploitation or abuse material, the material has been shared between people in different jurisdictions. The provider may not be in a UK jurisdiction, and we have got to avoid any conflicts of laws. I am sure the Government are thinking about this, but in drafting those regulations, what we cannot do, for example, is order a provider to retain data in a way that would be illegal in the jurisdiction from which it originates or in which it has its headquarters. The same would apply vice versa. We would not expect a foreign Government to order a UK company to act in a way that was against UK law in dealing with child sexual exploitation or abuse material. This all has to be worked out. I hope the Government are conscious of that.
I think the public interest is best served if the United Kingdom, the United States and the European Union, in particular, adopt common standards around this. I do not think there is anything between us in terms of how we would want to approach child sexual exploitation or abuse material, so the extent to which we end up having common legal standards will be extraordinarily helpful.
As a general matter, to have regulations that help companies with their compliance is going to be very helpful. I am curious as to how we have got there with the amendment only at this very late stage.
Baroness Kidron (CB)
My Lords, I rise to make a slightly lesser point, but I also welcome these amendments. I want to ask the Minister where the consultation piece of this will lie and to check that all the people who have been in this space for many years will be consulted.
Lord Clement-Jones (LD)
My Lords, as ever, my noble friend Lord Allan and the noble Baroness, Lady Kidron, have made helpful, practical and operational points that I hope the Minister will be able to answer. In fact, the first half of my noble friend’s speech was really a speech that the Minister himself could have given in welcoming the amendment, which we do on these Benches.
Lord Knight of Weymouth (Lab)
My Lords, from this side we certainly welcome these government amendments. I felt it was probably churlish to ask why it had taken until this late stage to comply with international standards, but that point was made very well by the noble Lord, Lord Allan of Hallam, and I look forward to the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their support for these amendments and for their commitment, as expected, to ensuring that we have the strongest protections in the Bill for children.
The noble Lord, Lord Allan of Hallam, asked: why only now? It became apparent during the regular engagement that, as he would expect, the Government have with the National Crime Agency on issues such as this that this would be necessary, so we are happy to bring these amendments forward. They are vital amendments to enable law enforcement partners to prosecute offenders and keep children safe.
Reports received by the National Crime Agency are for intelligence only and so cannot be relied on as evidence. As a result, in some cases law enforcement agencies may be required to request that companies provide data in an evidential format. The submitted report will contain a limited amount of information from which law enforcement agencies will have to decide what action to take. Reporting companies may hold wider data that relate to the individuals featured in the report, which could allow law enforcement agencies to understand the full circumstances of the event or attribute identities to the users of the accounts.
The data retention period will provide law enforcement agencies with the necessary time to decide whether it is appropriate to request data in order to continue their investigations. I hope that explains the context of why we are doing this now and why these amendments are important ones to add to the Bill. I am very grateful for noble Lords’ support for them.
Member’s explanatory statement
This amendment is consequential on the other amendment to Clause 60 in my name.
Rail Ticket Offices
(10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Taylor of Stevenage (Lab)
My Lords, it is difficult to overestimate just how valued the staff and services provided by station ticket offices are by the travelling public. This major change affecting 150 million passenger journeys, hitting the disabled and vulnerable elderly the hardest, is proposed to be completed in just three weeks.
Yesterday, in answer to my question on ticket office closures, the Minister said that the industry will of course do an impact assessment. The Royal National Institute of Blind People has said:
“A mass closure of rail ticket offices would have a hugely detrimental impact on blind and partially sighted people’s ability to buy tickets, arrange assistance and, critically, travel independently”.
Should that impact assessment have been carried out and published before the decision was taken? How credible does the Minister believe any consultation can be with a proposal being rammed through so quickly?
Ticket offices were used 150 million times last year, and assessments contained in consultation documents suggest that millions of those sales would be impossible through ticket machines, which simply do not have the full range of fares and services. The fares and ticketing on our railways are notoriously complicated, and it is often ticket office staff who help passengers navigate that complexity. Should the whole system of ticketing have been reviewed and simplified before this step was taken?
Lastly, I urge the Minister to consider extending the consultation period for this proposal to allow all those who will be affected to make their views known.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, I am grateful to the noble Baroness for a succession of questions there. She is right that the staff are valued. They are very much valued by the Government and indeed by the train operating companies, so much so that we have concluded that they do not need to be sitting in a ticket office to help passengers in whichever way they need.
The noble Baroness talked about ticketing and availability. It is the case that 99% of all tickets are available through ticket vending machines or online. On the question of an impact assessment, the impacts for each station are assessed individually under the process, which I am sure the noble Baroness is aware of as it was in place during the last Labour Government.
Baroness Randerson (LD)
My Lords, the train operators have made it clear that this is being imposed on them by the Government. The Government have said that only 12% of tickets are bought through ticket offices, but what does that 12% mean? In the past year there were 1.4 billion separate rail journeys, so 168 million tickets were bought in ticket offices. Passengers who use ticket offices will be inconvenienced and deterred by the closure of those offices. That will hit elderly, disabled and poorer people most of all.
What assessment have the Government made of the particular impact on those in our society less able to buy tickets from machines? Does the Minister accept that the truth is that this is a question of trust? We do not believe government promises that there will be people wandering around stations to help people. There will be for the first few weeks, but they will disappear after that. The Government will tell us that there have to be reductions. We do not trust the Government to deliver on their promises.
Finally, does the Minister agree that at the very least there should be no ticket office closures until the Government have delivered on their long-awaited commitment to simplify the fare structure?
Baroness Vere of Norbiton (Con)
The Government have an ongoing commitment to simplify the fare structure and we are continuing to do so. The Rail Minister has engaged extensively and directly with accessibility groups and will continue to do so. We are also engaging with the Disabled Persons Transport Advisory Committee to ensure that we hear its views as well.
As I said in answer to a previous question, 99% of tickets can be bought through a ticket vending machine or online, and members of staff will be around to help anybody who has any problems in buying their tickets.
Lord Berkeley of Knighton (CB)
My Lords, does the Minister know that the delay repay system, which I referred to in a question last week, often rewards people with vouchers from the companies? They often will not put money into your account. You are able to cash in those vouchers only at offices that sell railway tickets, so we could be in a very difficult situation here. If the Minister needs to write to me about this, I would quite understand.
Baroness Vere of Norbiton (Con)
I will certainly write to the noble Lord about this, but there will be various functionality within the new system, which will be more mobile than it is now and will allow people using cash, for example, to buy a ticket or a ticket to ride, which is one of the options available. On vouchers, I will write to him but I am fairly sure that will have been taken into account by the train operating companies when they put forward their proposals.
Baroness Stedman-Scott (Con)
My Lords, I use the ticket office at Staplehurst station and its staff are outstanding. The care that they show the customers and the way in which they help them plan their journey and buy the correct tickets is a credit to them. I truly hope that their skills will be kept, because the business will be the poorer without them. I am afraid that the ticket machines do not quite match up to the staff. Can my noble friend tell me if the new ticket machines will be able to replicate this service and whether AI will be used to enhance them?
Baroness Vere of Norbiton (Con)
I am grateful to my noble friend for her exposition of the greatness of the staff. We absolutely value the staff, which is why we want to get them out there to enable them to help more people. Ticket vending machines are being continually upgraded and there are all sorts of ways we can upgrade them: for example, we are adding video calling to enable people to ask the absolute experts if they wish to take a particularly complicated route. If AI is appropriate, I am sure that the train operating companies are looking at it.
Lord Woodley (Lab)
My Lords, I speak from personal experience, having travelled up and down from Liverpool twice this week alone. Only this morning, I was listening to the staff there who were worried sick about their jobs, but more importantly, I watched a partially sighted customer trying to get help and support which would not have been available had there been no assistant to help them. This is not about people; it is about profits and wiping people’s jobs out. I urge others to make sure, as I have already done today, that in respect of the consultation paper they vote no to this outrageous proposal.
Baroness Vere of Norbiton (Con)
My Lords, those staff will still be there to help the passenger, whether they be partially sighted or for whatever reason they need help. The noble Lord says that this is about profits but it is not at all, because the costs of running the railways fall to the taxpayer. We need to have a modern seven-day railway and that is what this Government are going to deliver.
Lord Deben (Con)
My Lords, this is a necessary modernisation of the railways but what we have heard is the kind of thing that is argued about any change. The railways do not make money and need to be more modern; we ought to accept this and celebrate it.
Baroness Vere of Norbiton (Con)
I absolutely agree with my noble friend. There have been various interventions with technology over recent years. For example, the addition of gate lines necessarily meant that certain members of staff did not need to check tickets, and that is absolutely right. They can do far more valuable things. It is about helping passengers to get where they need to go, whether they have reduced mobility or not.
Baroness Bull (CB)
My Lords, there has been mention of the issues for disabled passengers. The Office of Rail and Road published its annual report today, which showed that only 66% of those with physical impairments received their pre-booked assistance. That is a one in three chance of not getting assistance, despite booking in advance. Can the Minister please explore how this situation can be improved, so that people with disabilities can use the railways?
Baroness Vere of Norbiton (Con)
That is absolutely at the front of our minds when considering these changes. The ORR also published statistics which showed that there has been a 68% increase in passengers who need assistance to use our railways. Of course, getting people out from ticket offices and on to platforms and into gathering areas and waiting rooms to enable those people to travel more freely is top of mind.
Lord Sikka (Lab)
My Lords, the Minister said that people can buy tickets online. That presupposes that people have a good mobile phone or a computer and a broadband line. Can the Minister tell the House how many individuals and households do not have a good phone, access to a computer or a broadband link? What help will the Government be offering to those who do not have these things?
Baroness Vere of Norbiton (Con)
There are all sorts of channels for reaching train operating companies, including by traditional telephone. As I mentioned, not a single station which is currently staffed will be unstaffed in the future. There will therefore be no change for such individuals. They will be able to go to the station to seek the help of the staff, who will be able to assist them in buying a ticket.
Arrangement of Business
(10 months ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate
Lord Davies of Gower
That the House do adjourn during pleasure.
Lord Davies of Gower (Con)
My Lords, I beg to move that the House now take a short adjournment during pleasure, resuming at a time to be notified on the Annunciator.
The Deputy Speaker (Lord Beith) (LD)
The Question is that the House do adjourn during pleasure.
The Deputy Speaker (Lord Beith) (LD)
I will put that Question again. As many as are of that opinion will say “Content”; to the contrary “Not content”.
The Deputy Speaker (Lord Beith) (LD)
I am not sure that the House wishes this matter to be decided by a Division, but I have no alternative if that is persisted.
Lord Kennedy of Southwark (Lab Co-op)
I understand the desire of the House to get on with the business. I get that, but the problem may be that we have not got any papers yet, so we will have to have a short adjournment to get those ready.
Lord Kennedy of Southwark (Lab Co-op)
No, they are not all ready, sadly. We have yet to get the Marshalled List produced. We need to get some papers produced so, on this occasion, I support the government Whip in moving a short adjournment. But having heard the House, I would say that it should be a short adjournment to get these papers printed.
Baroness Bennett of Manor Castle (GP)
My Lords, may I move an alternative motion, which is that this House do now adjourn and recommence at 11 am tomorrow? I am holding in my hand the papers—not yet the complete papers—and there are 23 Motions, lettered A to Y. I got this, still warm from the printer, about 15 or 20 minutes ago and I put it on the record for Hansard that it is now 7.45 pm. We have just been talking about the issue of discrimination and access, and everyone being able fully to participate in this debate. We are supposed to be the mother of all Parliaments. We cannot reasonably have a proper debate on an absolutely crucial Bill, which the world is watching, starting at some time presumably after 8 pm and going into the early hours. This is no way to run a country and I put it to your Lordships that we should now adjourn and come back and do this properly.
The Deputy Speaker (Lord Beith) (LD)
I am going to take it that the view of the House, so far as I can establish it, is that we do now adjourn. I see no more participants in the debate—sorry, the Chief Whip wishes to speak.
Baroness Williams of Trafford (Con)
Perhaps I could have a word. It is 7.45 pm and a lot of amendments were tabled very late on, towards 1 pm. There has been much discussion. I asked the Clerk of the Parliaments why there was a delay; it was because there was discussion of the amendments with those who proposed them. Yes, it is 7.45 pm and I suggest that we keep going. My Front Bench is certainly happy to keep going.
Lord Rooker (Lab)
In my experience, this is normal for ping-pong and I am not going to be told what to do by the Greens.
Lord Kennedy of Southwark (Lab Co-op)
We have heard from a number of Members. I certainly want us to adjourn briefly—I stress briefly—and then come back to decide these issues.
Baroness Williams of Trafford (Con)
What time is the noble Lord suggesting might be brief? To be honest, we should be having a usual channels discussion but would half an hour suit the noble Lord?
The Deputy Speaker (Lord Beith) (LD)
The occupant of the Woolsack has not been provided with the papers for the session to resume immediately if we do not adjourn. It is not in the interests of the House for that to happen.
Baroness Williams of Trafford (Con)
My Lords, may I suggest that we adjourn during pleasure until we receive the Marshalled List? Ah—we have it, okay. Would the noble Baroness like to withdraw her proposal?
Baroness Bennett of Manor Castle (GP)
With extreme reluctance, as I think the world is watching and I invite the House to consider what message the world is getting from the way we are supposedly doing democracy, I withdraw it.
Illegal Migration Bill
Wednesday 12th July 2023
(10 months ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 159-I Marshalled list for Consideration of Commons Amendments and Reasons - (12 Jul 2023)
20:32 - Division on Motion A1 - Ayes: 217 / Noes: 151 - Motion A1 agreed.
22:08 - Division on Motion F1 - Ayes: 212 / Noes: 151 - Motion F1 agreed.
22:21 - Division on Motion G1 - Ayes: 209 / Noes: 143 - Motion agreed.
22:33 - Division on Motion J1. - Ayes: 220 / Noes: 141 - Motion agreed.
22:45 - Division on Motion K1 - Ayes: 202 / Noes: 144 - Motion K1 agreed.
22:59 - Division on Motion P1 - Ayes: 207 / Noes: 140 - Motion P1 agreed.
23:29 - Division on Motion W1 - Ayes: 174 / Noes: 122 - Motion W1 agreed.
00:05 - Division on Motion X1 - Ayes: 157 / Noes: 114 - Motion X1 agreed.
00:18 - Division on Motion Y1 - Ayes: 154 / Noes: 107 - Motion Y1 agreed.
Lord Murray of Blidworth
That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, in moving Motion A, I will, with the leave of the House, also speak to Motions D, S, T, U and V.
The Lords amendments do significant damage to the scheme provided for in the Bill. The Bill will only prevent and deter illegal migration if persons who meet the conditions in Clause 2 are swiftly returned to their home country or removed to a safe third country. For that to happen, we must end the cycle of late, repeated and spurious legal challenges. The Lords amendments will perpetuate that cycle.
Motion A relates to Lords Amendment 1, which would replace Clause 1 with a new clause that sets out that nothing in the Act shall
“require any act or omission that conflicts with the obligations of the United Kingdom under”
the five international agreements specified in the amendment.
As I have set out throughout the passage of the Bill, the Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the Bill that requires any act or omission that conflicts with the UK’s international obligations. The only way to break the business model of the criminal gangs and to deter illegal migrants is if it is abundantly clear that the only outcome of illegal entry is not a new life in the UK. Therefore, it is essential that we take bold steps. Although some of the provisions in the Bill are novel, the Government are satisfied that the Bill can be implemented in line with convention rights.
As my noble friend Lord Wolfson set out on Report, Lords Amendment 1 is also objectionable from a constitutional perspective. In the United Kingdom, we follow a dualist approach, whereby international law is integrated into domestic law solely through parliamentary legislation. The Government are often criticised for rushing legislation and not allowing adequate scrutiny. Here, the tables are turned. Amendment 1 has profound and wide-ranging implications. It should not be shoehorned into this Bill without proper consideration of its consequences and an opportunity for Parliament properly to scrutinise the significance of such a step. If a future Government want to incorporate into domestic law the refugee convention or the UN Convention on the Rights of the Child, it is open for them to do so, but that would be a significant legislative undertaking and a profound change to our domestic legal landscape. Amendment 1 is not the way to do it.
I turn to Motion S and Amendments 74B and 74C from the noble and learned Lord, Lord Etherton, which relate to the meaning of serious and irreversible harm. Serious harm suspensive claims recognise that there may be a clear reason as to why a person cannot be removed to a particular third country specified in the removal notice, while any human rights claim in respect of a removal—or related judicial review, if that took place following removal—is resolved. These claims must be based on the fact that the person would face a real, imminent and foreseeable risk of serious and irreversible harm if they were removed for such a temporary period. This test reflects the approach and terms on which the European Court of Human Rights may decide to indicate interim measures under Rule 39 of their rules of court. It is fitting that we use it here in an analogous situation.
We also continue to believe that it is helpful to decision- makers and the courts to set out in the Bill specific examples of harm that do not, or are unlikely to, constitute serious and irreversible harm. This will ensure a consistent approach in the determination of claims by the Home Office and appeals by the Upper Tribunal. That said, we have reflected on the debates on these clauses in this House and revisited the recommendations from the Constitution Committee. I am grateful to the noble and learned Lord, Lord Etherton, for his time in discussing his concerns. As a result, we have brought forward an amendment in lieu which limits the power by regulations to amend the meaning of serious and irreversible harm, such that the power cannot be used to remove the existing examples of harm that constitute serious and irreversible harm.
I reiterate two points made by my noble friend Lord Stewart on Report. First, Clause 38 makes it clear that persecution and onward refoulement are examples of harm which constitute serious and irreversible harm for the purposes of a suspensive claim. Secondly, if the open expression of a person’s sexual orientation would prevent them living in a specified third country for the relevant period without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim, in line with the principles set out by the Supreme Court in the case of HJ (Iran). With these assurances and the amendment in lieu, I hope that I have been able to address the concerns of the noble and learned Lord, Lord Etherton, and he would feel able to support Motion S.
In relation to Motions T and U, we remain firmly of the view that it is right to place limitations on judicial review challenges to removal. We are not preventing such challenges but saying that they should not suspend removal. The Bill includes bespoke provisions for removal condition suspensive claims and serious harm suspensive claims, which themselves afford appropriate opportunities for a person to challenge their removal before it takes place. Given these remedies, it is entirely appropriate that other legal challenges should be non-suspensive.
Finally, in relation to Motion V, I again reassure the noble and learned Lord, Lord Hope, that the Bill, in enabling a court to overturn an age assessment decision on the basis that it is wrong in law, already covers challenges based on Wednesbury unreasonableness. It therefore follows that Lords Amendment 95 is not needed.
The House of Commons has disagreed with Lords Amendments 1, 73, 90, 93 and 95 by strong majorities in each case. It has proposed Amendment 74A in lieu of Lords Amendments 73 and 74, which addresses one of the key concerns of the noble and learned Lord, Lord Etherton. I therefore invite the House to agree the government Motions in this group. I beg to move.
Motion A1 (as an amendment to Motion A)
Baroness Chakrabarti
At end insert “, and do propose Amendment 1B in lieu—
“Introduction
In interpreting this Act, regard shall be given to the intention that its provisions, and any acts and omissions made as a result, are intended to comply with the United Kingdom’s obligations under-
(a) the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) the 1951 UN Convention relating to the Status of Refugees including the Protocol to that Convention;
(c) the 1954 and 1961 UN Conventions on the Reduction of Statelessness;
(d) the 1989 UN Convention on the Rights of the Child;
(e) the 2005 Council of Europe Convention on Action against Trafficking Human Beings.””
Baroness Chakrabarti (Lab)
My Lords, I beg to move Motion A1 as an amendment to Motion A. Ministers suggest that our Amendment 1, Amendment 7 as a consequential and Amendment 90 are wrecking and unnecessary. These criticisms are contradictory. If the Government take their international obligations so seriously, why should they be afraid to ensure that those charged with operating this proposed legislation, which clearly impacts on the rights of vulnerable people, understand that Ministers intend not to violate these rights? Why should Ministers have been unable to make a statement of their belief in ECHR compatibility in the Bill?
Alongside that strange logic comes a pseudo-legal argument from the Mickey Mouse school of jurisprudence that even to reference binding international obligations in domestic instruments somehow offends the sanctity of our dualist system. This is nonsense. It is because of our system, whereby international obligations signed by Ministers do not automatically become directly enforceable domestically without parliamentary approval, that successive Governments of both stripes have had to refer to various treaties or their contents in a host of relevant domestic measures. Section 2 of the Asylum and Immigration Appeals Act 1993 expressly gave primacy to the refugee convention. In 2009, in the EN Serbia case, the Court of Appeal found that that provision did not constitute informal or backdoor incorporation or undermine the principle of dualism, which is designed to protect parliamentary sovereignty and not to insulate Governments from their obligations. The Children Act 1989 takes its central best interests of the child principle directly from the UN Convention on the Rights of the Child—two of numerous precedents.
The treaties in our Amendment 1 were chosen by truly cross-party, all-party and non-party consensus for relevance to the people, measures and rights engaged by this Bill. The Government’s real objection, and to consequential Amendment 7 and Amendment 90, is that no one, especially His Majesty’s judges, should be able to second-guess Home Office decisions. That is simply contrary to the rule of law on which any civilised society, let alone a great democracy, must be built. None the less, in the spirit of respectful dialogue, we have listened, compromised and amended our new Clause 1, softening its requirement to require having regard to the various conventions when interpreting the Bill. There is no way that that can now be regarded as incorporation rather than interpretation.
Further, the consequential Amendment 7 is reformulated so that the Section 2 duty to remove a person will stand, notwithstanding an application for judicial review, if a court refuses permission, or even just refuses to make an interim injunction. To respond further to concerns from the other place and the Benches opposite about so-called protracted legal knots, interim relief preventing a removal is to be granted under our new version of Amendments 90 only after the Secretary of State has had a reasonable opportunity to tell a court why this should not happen. Far from being wrecking amendments, these are wholly reasonable compromises to restore some semblance of legality and respect for international obligations, domestic judges and the rule of law. I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, there are three reasons we should be stubborn about not allowing the Bill to go through. The first is that this was not in the Tory Party manifesto: we do not have a duty to pass it. Secondly, Rwanda is not a safe country. Thirdly, we cannot pass legislation that allows the Government to break the law; that does not make sense.
Lord Etherton (CB)
My Lords, I support the amended version of Clause 1, put forward by the noble Baroness, Lady Chakrabarti. Whether or not Parliament intends to incorporate international treaties within our own law depends on the wording. The point was made on Report that the noble Baroness’s previous wording had no reference to interpretation. It seems to me quite clear now that the emphasis has been put on having regard to the provisions in these international treaties which bind this country for the purposes of interpreting this Act. I consider that this falls plainly on the right side of the line.
As for my own amendment to Motion S, which the noble Lord, Lord Murray, has addressed, I thank the Minister for his time, patience and reasonableness over the discussions concerning this. I was principally concerned that those who are entitled to the protection of the convention because of a well-founded fear of persecution in the country stated in the removal notice should not have to have an additional test of irreversible harm in order to prevent removal there. The assurances the noble Lord has given have satisfied me over that concern, particularly in relation to the principles in the case to which he drew attention, HJ (Iran) for LGBT refugees. My concerns have been satisfied and for that reason I will not oppose the Motion of the Government on this point.
Baroness Ludford (LD)
My Lords, briefly, we on these Benches support all the Motions to amend the government Motions. The noble Baroness, Lady Chakrabarti, has well made the point that even if one could have argued that the original Amendment 1 was a backdoor incorporation—an argument I always found unpersuasive—that objection certainly cannot be made of the new text of Motion A1, which is clearly nothing of the sort. The Prime Minister has been at the NATO summit in Vilnius upholding international law against breaches through Russian aggression. Indeed, the North Atlantic Treaty of 1949 cited the rule of law at one of the core principles. The Prime Minister was also recently at the Council of Europe summit. Again, the core values in the declaration were the threats to human rights, democracy and the rule of law.
On Report, the noble Baroness, Lady Helic, talked about how this amendment
“is firmly in the Conservative tradition of strengthening, not undermining, the international rule of law”.—[Official Report, 28/6/23; col. 704.]
She reminded noble Lords that
“Conservative Governments were instrumental in creating the first four conventions listed in the amendment”.
Finally, on Amendment 93, we still have concerns, as do doctors, about the proposals in the Bill for as yet unproven medical age assessments. Amendment 93 provides the most basic safety net for those undergoing age assessment: the right to appeal a judgment. Removing that right will not deter any smugglers, or child refugees in need of appropriate safety and protection. We urge support for the amendment Motions.
The Lord Bishop of Manchester
My Lords, I support Motion A1 but will speak more particularly to Motion U1 in my name, to which the noble Baroness just referred. It proposes that if an age-assessment judicial review is in progress, removal should be delayed until its completion. I welcome comments from Ministers that those subject to an age dispute will be accommodated in an age-appropriate setting here in the UK, but can the Minister confirm that will be the case in a third country? Will Rwanda, for example, be informed that a young person is subject to an age dispute, and will the Rwandan Government then be required by the UK to keep that person separate from other adult residents and to supervise them properly as a child until the courts have made a judgment?
The Secretary of State has a legal duty to have regard to the need to safeguard and promote the welfare of children. Can the Minister therefore say how the welfare of a child will be protected by not allowing judicial review to act as a temporary delay to their removal? The Government appear to be arguing that when a child legally challenges an age assessment, it is simply a spurious attempt to use legal methods to postpone removal. However, as we know, the majority of children are found to be children after local authority assessments, so it is more likely that what is happening is an attempt to protect their proper right to be treated as a child. Can the Minister therefore take the opportunity at least to confirm that when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and a child protection team for a more comprehensive age-assessment process?
The determination that an individual may be a child and therefore could deserve all the rights a child is due should and must be reason enough to prevent their removal. When the implications for children are so grave and lifelong, it seems that to not delay a child’s removal from the UK until those questions are resolved is immoral. I plead with the Government to recognise this as a failure of safeguarding, which we are all trying to treat at the highest possible standard. However, in view of the lateness of the hour when we are likely to reach a vote on this matter, and the many other matters your Lordships’ House has to deal with tonight, I am not minded at present to press this Motion to a Division.
Lord Wolfson of Tredegar (Con)
My Lords, I do not know whether I should declare an interest as a pseudo-lawyer, or perhaps as Mickey Mouse. I am not entirely convinced that framing the debate in that way is appropriate.
I have a number of things to say. First, the fact that Motion A1, in the name of the noble Baroness, Lady Chakrabarti, has been rephrased as it has been, shows that those of us who argued that the previous version was substantive, and not interpretative, were right. However, the Motion as redrafted is also improper because it does two things—here I again respectfully part company with the noble and learned Lord, Lord Etherton. He read the Motion but omitted words in its second line. Let us have a look at what it actually says:
“In interpreting this Act, regard shall be given to the intention that its provisions”—
that refers to the provisions in the Bill—
“and any act and omissions made as a result, are intended to comply”.
Even now, it is not properly an interpretative provision, because it does not just apply to interpreting the words; it is also said to apply to any acts and omissions made under the Act, as it will become. That still has substantive consequences, and the effect is still—this time in an evening rather than in an afternoon—that we are effectively incorporating these treaties into our domestic law.
That is why the words
“and any acts and omissions made as a result”
are still objectionable, but the rest of it, while maybe not objectionable, is unnecessary. As I mentioned on Report, the law of this country has always been that, in the absence of express words to the contrary, all statutes are presumed to be in accordance with our international obligations. That was most recently set out by Lord Dyson, speaking for the Supreme Court in the Assange case, when he said that
“there is no doubt that there is a ‘strong presumption’ in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations”.
The fact that we now have to go through the contortions of trying to fit this reformulated amendment into interpretation when it still has substantive consequences shows that this is a road down which we should not be going at all. In so far as the intention is that legislation should be interpreted in line with our international commitments, that is already part of the law. In so far as it says that
“any acts and omissions made as a result”
of this Bill are to be so interpreted, that has substantive consequences.
I respectfully suggest that those points are not those of a pseudo-lawyer, nor are they Mickey Mouse points. If I may finish where I began, it is somewhat unfortunate that that is how they are being described.
Lord Hope of Craighead (CB)
My Lords, I have the misfortune to disagree with the noble Lord, Lord Wolfson. I support entirely what the noble and learned Lord, Lord Etherton, said. The key words in this reformulated amendment are “In interpreting this Act” and “regard”. It would not write these conventions into our law, as the previous amendment was in danger of doing. This a pure interpretation provision, and it is entirely consistent with the way the courts approach these various conventions. The assumption is that the United Kingdom, having signed up to the conventions, will respect them in the formulation of its provisions in our domestic law. The court applies that principle in finding a meaning of the words before it in statutory instruments and in primary legislation. This is entirely in accordance with the way the courts approach the matter. The key words are, “In interpreting this Act”, and “regard”. It is not binding; it is just that regard will be had. That is the way the provision should read. I support the amendment because it is entirely orthodox and consistent with principle.
Lord Coaker (Lab)
My Lords, I support my noble friend Lady Chakrabarti’s Motion A1 and the various provisions that follow from it. Without getting into the legal arguments that have just been articulated by the noble and learned Lords, Lord Hope and Lord Etherton, I support the fact that the key words are the first few words, in particular to try to deal with the criticism that was made of the previous amendment.
The only point I would add is that it is important for us to have something like this in the Bill given the criticism, concern and questions that have been raised about the Bill by many well-respected international organisations, bodies and individuals. We all expect something to be done about the challenge that we face, but we want it done in a way which enhances our international reputation and conforms to the various international treaties and our responsibilities. That is why Motion A1 is particularly important and should be supported.
Lord Murray of Blidworth (Con)
My Lords, I thank the House for the dispatch this group has been dealt with and for the contributions from across the Chamber. It will come as no surprise to the noble Baroness, Lady Chakrabarti, that I disagree with her interpretation and agree with that of my noble friend Lord Wolfson. Frankly, if one looks at Amendment 1B, one can see that “regard” must be read alongside “intended to comply”, so this revised amendment is equally problematic. The point my noble friend Lord Wolfson made is entirely right: it amounts to an acceptance that the earlier version of the amendment would also have been a very significant constitutional innovation, predicated on the back of an amendment to the Bill and a massive change to our constitutional framework. I am afraid that I therefore disagree with the noble Baroness and the noble and learned Lord, Lord Hope, on Amendment 1B.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to all noble Lords, particularly to the noble and learned Lords who gave their ruling on the backdoor incorporation point. Of course, Section 2 of the 1993 Act was much stouter than either version of our Amendment 1.
Dr King, not a judge but a man of God, famously said:
“It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important”.
Across this House yesterday, we pleaded for kindness. Today, we come with a more modest plea: for the rule of law. I have moved the Motion and ask the House to approve it.
Lord Murray of Blidworth
That this House do not insist on its Amendments 2, 12, 20 and 22 and do agree with the Commons in their Amendments 22A to 22Q in lieu.
“Amendment of date in section 2(3) etc
(1) The Secretary of State may by regulations amend the date which is for the time being specified in—
(a) section 2(3) (duty to remove: date of entry or arrival in the United Kingdom);
(b) section 4(7)(a) (application to claims made on or after passing of this Act);
(c) section 5(12)(a) or (14)(a) (application to claims made on or after passing of this Act).
(2) Regulations under subsection (1) may make consequential amendments to this Act or any other enactment.
(3) Provision made by virtue of subsection (2) may, in particular, amend this Act or any other enactment to modify the operation of a provision which would otherwise apply to a person who meets, or has ever met, the condition in section 2(3) (including to enable that provision to operate as if an amendment to section 2(3) had not been made).
(4) An amendment made by virtue of subsection (1) may have the effect that a provision mentioned in that subsection specifies—
(a) a particular calendar date, or
(b) a date which is determined by the occurrence of a particular event (for example the coming into force of a provision of this Act, generally or for a particular purpose).
(5) But such an amendment may not have the effect that the provision specifies a date which is earlier than the date specified before the amendment was made.”
“(5) For the purposes of this section and section 16, a person (“C”) is an unaccompanied child if—
(a) C meets the four conditions in section 2, reading subsection (3) of that section as if it referred to a person entering or arriving in the United Kingdom as mentioned in subsection (2) of that section on or after 7 March 2023,
(b) C is under the age of 18, and
(c) at the time of C’s entry or arrival in the United Kingdom by virtue of which C meets the condition in section 2(3), no individual (whether or not a parent of C) who was aged 18 or over had care of C.”
“(4) Until section 2(1) comes into force in relation to a person, section 8AA of the Immigration Act 1971 has effect in relation to that person as if it also permitted the Secretary of State to give the person limited leave to enter or limited leave to remain in the United Kingdom in any other circumstances, subject as follows.
(5) If a person in relation to whom section 8AA of the Immigration Act 1971 applies leaves or is removed from the United Kingdom after having become such a person, subsection (4) of this section does not permit the Secretary of State to give the person limited leave to enter the United Kingdom if the person returns to the United Kingdom (but see section 8AA(3) of that Act).
(6) If a person in relation to whom section 8AA of the Immigration Act 1971 applies is given limited leave to enter the United Kingdom under subsection (3) of that section, subsection (4) of this section does not permit the Secretary of State to give the person limited leave to remain in the United Kingdom (but see section 8AA(4) of that Act).
(7) Any leave to enter or remain in the United Kingdom given to a person by virtue of subsection (4) is to be disregarded in determining, for the purposes of this Act or any other enactment, whether the person meets the four conditions in section 2.”
“(za) section (Amendment of date in section 2(3) etc) (amendment of date in section 2(3) etc);”
Lord Murray of Blidworth (Con)
My Lords, with the leave of the House, I will speak also to Motions F and G.
Motion B deals with the retrospective application of the duty to make arrangements for removal. We have reflected on the arguments put forward on this issue by the noble Lord, Lord Carlile, on Report. We have brought forward Amendments 22A and 22Q in lieu. Noble Lords will recall that the Lords amendments sought to move the operative date of the Clause 2 duty from 7 March this year to the date of that clause’s commencement. We believe that such a change carries a significant risk of there being a surge in channel crossings—a fire sale, if you will—as we approach the commencement date. To guard against this, the amendments in lieu instead provide for the duty to remove to apply to a person who enters the United Kingdom unlawfully from the date of this Bill’s Royal Assent.
We will keep this under review ahead of the Bill’s implementation, as we have included a reserve power to change the new operative date by regulations. This could, for example, enable us to focus the initial implementation of the Bill on those who arrived here illegally via small boats rather than by other means. I should stress that the 7 March date will continue to apply for the purpose of the power conferred on the Secretary of State to provide accommodation for unaccompanied children and for the purpose of the ban on re-entry, settlement and citizenship. I trust that this compromise approach will meet with the approval of the noble Lord, Lord Carlile.
Motion F relates to Lords Amendment 9, moved on Report by the noble Lord, Lord German. This relates to the issue of the inadmissibility of asylum and human rights claims within the UK system. It remains the Government’s contention that declaring such claims to be admissible is a core part of the scheme provided for in the Bill. The Court of Appeal unanimously confirmed that removing asylum seekers to a safe country for their asylum claims to be processed is entirely consistent with the refugee convention, including Article 31—a point that I mentioned a moment ago. This amendment would simply encourage people to game the system, drawing things out in an attempt to reach a six-month cut-off date. This amendment was rejected by the Commons by a strong majority of 76. Given that, I hope that the noble Lord, Lord German, will be content to agree to Motion F.
Finally, Motion G relates to Lords Amendment 23, put forward by the noble and learned Lord, Lord Etherton. The United Kingdom is a stout defender of LGBT communities across the globe. Our commitment to this cause remains unwavering. So, although I understand and sympathise with the noble and learned Lord’s desire to protect LGBT people who would face persecution were they to be sent to one of the countries listed in the amendment, I remain strongly of the view that the amendment is unnecessary as the Bill already delivers the protections that he seeks.
We are committed to the principle of non-refoulement, as a Jamaican national who makes a protection claim will not be returned to Jamaica. Were they to be fearful of being at real risk of suffering serious and irreversible harm, and were they to be removed to a specified third country, they would be able to make a serious harm suspensive claim. As I have previously indicated, in considering such a claim, the principles enunciated by the Supreme Court in the case of HJ (Iran) would be applied such that if the open expression of a person’s sexual orientation would prevent them from living in the specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim.
I hope the noble and learned Lord has been able to reflect on my assurances and on the outcome of the vote yesterday in the other place, and that he now feels able to support Motion G. I beg to move.
Motion B1 (as an amendment to Motion B)
Lord Carlile of Berriew
Moved by
At end insert “, and do propose Amendment 22R as an amendment to Amendment 22B—
Lord Carlile of Berriew (CB)
My Lords, I hope I will be allowed a moment when referring to my Motion B1 and Amendment 22R on page 5 of the Marshalled List to pay a very short tribute to the staff of the Public Bill Office. I was treated very kindly by a very tolerant member of staff there when I was being completely dysfunctional late last night and early this morning. They have been put under enormous pressure, and I think we should appreciate that. It may have felt to them like bullying, I am afraid.
I do not know why we have been forced to consider these amendments today, or indeed before the Summer Recess. The very earliest this Bill could ever be used would be after the Supreme Court decision in October, or whenever that is given; we do not know the exact date. Indeed, that may not be the end of the litigation in any event. I do not understand why we were not left to consider this in the sittings in September. I hope we will not be put in this position again.
I now turn to my Motion. This is where I express my genuine gratitude to the Government—to the Minister and others, including the Chief Whip—because they have made, in my view, a correct and noble concession to the objections that this House voted for in an amendment I moved on retrospectivity, pointing out as I did at the time that retrospectivity, though not a “never”, is frowned on in our law.
My Motion on page 5 of the Marshalled List—which I will not test the opinion of the House on tonight—mitigates the rigour of the exception that has been created in the Government’s amendments. They say they have abandoned retrospectivity, to put it crudely, but they have retained a regulatory power to abandon retrospectivity. I am not going to force the issue tonight, but I ask the Government to reflect on the constitutionality of that approach, because it makes me feel decidedly uncomfortable. I do not want to dilute my thanks for the acceptance in principle of what I moved a few days ago.
Lord German (LD)
My Lords, I draw attention to my interests as laid out in the register. These Benches are supportive of the discomfiture, which the noble Lord, Lord Carlile of Berriew, just referred to, to find that eventual clarification. We also support Motion G1 in this group.
My Motion F1 would mean that if an individual has been made inadmissible under this legislation and has not been removed to a safe country after six months, their claim will be processed within the UK system. The Ministers in both Chambers, in response to my amendment at an earlier stage, said—it has been repeated here—that people might game the system or that it would incentivise people to make spurious claims so as to extend their time in the United Kingdom in order to reach the magic six months.
In response to this concern, the current form of Motion F1 would pause the calculation of six months during any suspensive claim as set out in the Bill. It is also important to be mindful that the Bill in itself is claimed by Ministers to prevent people from making last-minute legal challenges to stop removals. My Motion totally disincentivises people from making spurious claims.
The Minister in the other place said that my earlier amendment would undermine the Bill. It does not. It would simply provide a backstop that protects the taxpayers of this country from indefinitely supporting people existing in the UK in limbo.
The Government’s own impact assessment on the Bill assumes that people will be detained for 40 days before removal. In this Chamber, we have heard constantly from the Minister that it will be not months but weeks or days when people are removed. On that basis, the ability to make a claim after six months should not be a problem, because it is totally in line with the Government’s expectations of their very own Bill.
Without this amendment, the Home Secretary is setting herself up for an extremely challenging time. There will be no way of resolving the foreseeable challenge of not having anywhere to remove people who arrive in the United Kingdom on irregular routes. Whether that is resolved in the future, the Government express the desire that they will be able to make this happen. If you believe, in the Government’s own words, that the Bill can be “workable”, then it is entirely financially prudent for us in this Chamber to try and insist that, in the current climate, the Government should be prudent with their spending of the public purse in using taxpayers’ money to support people indefinitely and without a returns agreement—because six months will have passed.
In addition to the financial considerations, it does not seem to me to be particularly in line with a Conservative mindset to enforce that people remain in the United Kingdom without being able to contribute, use their skills or participate in society. If these people cannot be removed after a reasonable amount of time, their claim should be processed, so that they either get on with their lives in the United Kingdom or be removed to their country of origin.
Lord Etherton (CB)
My Lords, I draw attention to Motion G and my Amendment 23B in lieu. I thank the noble Lord, Lord Cashman, in particular, who has been a stalwart supporter of me in relation to this clause from the very beginning.
The clause identifies countries currently specified in Schedule 1 which, the evidence and the law show—by virtue of decisions made by UK courts—are not safe places. I explained to the House on Report what the evidence briefly was in relation to each of them. The House and I have not received any refutation of the point that I made—that all these countries are unsafe places for LGBT people. The only answer that is given by the Government and repeated by the Minister is that this will all come out in the wash when a removal notice is served, and a serious harm suspensive claim can be made.
I am afraid that simply is not good enough. The Bill contains a schedule: Schedule 1. Schedule 1 identifies itself as listing places to which persons can be removed. Schedule 1 is related back to the provisions of Clauses 5 and 4, which provide that people can be moved only to those countries in Schedule 1.
If the approach of the Minister were correct, we would not have a schedule at all. But we have a schedule, and it rightly makes a distinction between those countries which are safe—so it says—and those which are not. There is also a division between those which are safe for women and those which are not. I have put forward the amendment for another group of disadvantaged people, who, as the Minister referred to, are long recognised in our own law: LGBT people.
Lord Cashman (Lab)
My Lords, I will speak very briefly to the amendment in lieu, in Motion G1, in the name of the noble and learned Lord, Lord Etherton. Taking what the Government have said at face value on their protections of LGBT people, I ask them to accept the amendment, because it reinforces the principle of the protection of LGBT people and others.
On reflection, I point out that, of the 58 countries that currently criminalise homosexuality—and they are on the increase, as we have seen with Uganda—over 50% are in the Commonwealth. They are countries with which we are more than likely to reach safe third country agreements. Furthermore, 11 countries currently have the death penalty, and there is further agitation for the increase of that across other states. I therefore argue that the amendment is proportionate and necessary.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I congratulate the noble Lord, Lord Carlile, on getting a concession from the Government and understand the point he made with his Motion, which I understand he will not move. I am pleased that it has been accommodated.
The noble Lord, Lord German, explained his amendment extremely well; it provides a backstop for the taxpayer to stop people going into legal limbo, being a burden on the taxpayer indefinitely and getting into the grey area which so many in this situation are in right now. As he said, it is totally in line with the Government’s expectations of the Bill, so if the noble Lord chooses to press his Motion F1 then we will support it.
My noble friend Lord Cashman summed up the support for Motion G1, in the name of the noble and learned Lord, Lord Etherton. If he chooses to move it, we will support him. As my noble friend said, it reinforces the principle of protection for LGBT people. In the words of the noble and learned Lord, Schedule 1 should not provide a veneer of respectability to certain countries that are currently on it, so we would support him.
Lord Carlile of Berriew (CB)
My Lords, as I indicated earlier, I ask the Government to consider leaving to Parliament the final decision on any regulations reintroducing retrospectivity. That said, for the reasons I gave earlier, I beg leave to withdraw Motion B1.
Lord Murray of Blidworth
Moved by
That this House do not insist on its Amendments 6, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, 63, 64 and 65, to which the Commons have disagreed for their Reason 65A.
Lord Murray of Blidworth (Con)
My Lords, I will speak also to Motions H, P and Q. It remains the Government’s view that there are clear opportunities to misuse our modern slavery protections. The amendments agreed by your Lordships’ House on Report would severely undermine and in some cases prevent the Government from being able to prevent potential misuse and effectively tackle the crisis of illegal entry.
As I have repeatedly made clear, the scheme provided for in the Bill will succeed in preventing and deterring illegal migration into the UK only if we can swiftly remove illegal entrants either to their home country or to a safe third country. Having to wait more than 500 days for a conclusive grounds decision is not swift by any stretch of the imagination.
While it remains the case that the Government cannot support any of the amendments to which these Motions relate, I recognise the concerns raised by my noble friend Lord Randall and others about the impact of the Bill on those who are exploited in the United Kingdom. It is worth reminding this House that these provisions will not affect potential victims of modern slavery referred into the national referral mechanism who are British nationals and nor will they impact unaccompanied children under the age of 18 or those who lawfully entered the UK and subsequently overstayed. Additionally, changes to the Bill agreed in the other place mean that the retrospective application of the duty to remove will be applicable only from Royal Assent, removing a significant cohort from the reach of these time-limited provisions.
Furthermore, this change reduces the likelihood of individuals in this cohort being exploited in the UK, given that they are more likely to be in detention rather than out in the community. None the less, the Government recognise the importance of enabling potential victims of modern slavery to co-operate with law enforcement to ensure successful prosecutions.
We are committed to stamping out human trafficking and to bringing criminal gangs to justice, including those who commit offences in the United Kingdom. That is why, alongside our pre-existing exception, which allows victims to remain in the United Kingdom to co-operate with an investigation where necessary, we will provide in statutory guidance that an individual who has arrived in the UK illegally and has a positive reasonable grounds decision based on an incident that has taken place in the United Kingdom will be afforded 30 days from this positive decision to confirm that they will co-operate with an investigation in relation to their exploitation. They will not be removed within this period, which affords them protection equivalent with those set out in ECAT. Should they continue to co-operate with such an investigation, they will continue to be entitled to the support and protections of the NRM. Given this, I do not see the need for my noble friend’s Amendment 56, or for the amendment of the noble Lord, Lord Carlile, Amendment 57.
I hope I have been able to reassure my noble friend Lord Randall and other noble Lords as to how these provisions will apply and operate. We expect that relatively few of those subject to the duty in Clause 2 will be potential victims of modern slavery whose exploitation took place in the UK, and for those potential victims, our statutory guidance will make it clear that they can continue to access support where they are co-operating with an investigation.
On this basis, and in view of the votes in the other place to disagree with Amendments 6 and 56, I invite the House to agree the government Motions. I beg to move.
Motion C1 (as an amendment to Motion C)
Lord Hunt of Kings Heath
Leave out from “House” to end and insert “do insist on its Amendments 6, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, 63, 64 and 65, to which the Commons have disagreed for their Reason 65A”
Lord Hunt of Kings Heath (Lab)
My Lords, I beg to move Motion C1, as an amendment to Motion C. I shall not repeat the extensive arguments we had both in Committee and on Report, save to say that this concerns modern slavery, which is a brutal crime that involves sophisticated criminal networks buying and selling people for profit.
I listened very carefully to what the Minister said this evening, but the fact is that if the Bill is left unamended, it completely undermines the Modern Slavery Act, and we will see victims of crime punished for crimes committed by the perpetrators, deported or held in detention centres, exacerbating the pre-existing trauma that so many of them face. Once again, the Minister implies that his own modern slavery national referral mechanism process provides opportunities to misuse the modern slavery protections, despite the evidence, to which he has never responded, that 90% of competent authorities’ decisions were positive last year—in other words, there were reasonable grounds that someone was a victim of modern slavery. Where are the failings there with the NRM system, which his own officials oversee and administer?
The Minister did not repeat the claim tonight that the national referral mechanism rate for people arriving in the UK on small boats and being detained for return has risen from 6% in 2019 to 73% in 2021. That was a claim which he has made both in Committee and on Report and which his colleague, the Minister in the Commons, made in the other place. But last night, Mrs Theresa May pointed out that the figures that Ministers cite of that increase from 6% to 73% are simply not right in respect of modern slavery. They are actually talking about people who are subsequently detained for removal. As Mrs May asked, will the Government confirm that the average percentage of people coming on small boats and claiming modern slavery has not changed over the last three years and is around 7%?
I have of course listened to the Government’s concession on retrospection, although I noted the intervention from the noble Lord, Lord Carlile, which really qualifies the concession which has been made.
Lord Randall of Uxbridge (Con)
My Lords, I shall speak briefly to my Motion P, to which the Minister referred. I should refer to my interest as a deputy chairman of the Human Trafficking Foundation. Perhaps it should be called not the Human Trafficking Foundation but the “modern slavery foundation”, because there is a difference with human trafficking, which is what I think stop the boats is all about. By dint of modern slavery, everybody who is enslaved and arrives in this country has come in illegally. Nobody comes in legally for modern slavery.
I am very disappointed with this Bill. However, I am a pragmatist. Years in retail taught me that sometimes you cannot have everything you want. So when my right honourable friend Theresa May spoke so eloquently and voted against the Government—and I can say as a former Deputy Chief Whip that that was only the second time she has ever voted against the Conservative Whip, which tells you something; you could not wish for a more loyal person—she did so because, as the noble Lord, Lord Hunt of Kings Heath, just said, it is not a great Bill in respect of modern slavery.
However, my noble friend and my right honourable friend down the other end in the other place made some concessions about what they would put in the guidance. My Motion basically asks that those concessions, that guidance, be put in the Bill. I would have preferred my original words—I would have preferred all sorts of things—but in order to make sure that we can get something done for the victims of this horrendous, heinous crime, if the Minister does not have a damascene conversion, when the time comes, I will test the opinion of the House.
Baroness Hamwee (LD)
My Lords, from these Benches, I cannot express strongly enough our huge disappointment about what is happening with the Modern Slavery Act. I very much agree with everything that the noble Lord, Lord Hunt, said. The Minister talked about “opportunities to misuse”, when it is the Home Office which approves the first responders who have to get possible victims of slavery into the NRM in the first place. He talked about enabling co-operation but, with what most of the people in this situation will have gone through, 30 days is simply insufficient for them to be able to bring themselves to co-operate with an authority figure in a foreign country when they are still worried about what their trafficker might do when he finds them and about what they will do if they have to try to get away from the system. It is simply not enough.
To co-operate requires support. That, in turn, requires trust, and that, in turn, requires time. Statutory guidance will of course be welcome. But only today I and other noble Lords received a briefing from the Rights Lab at the University of Nottingham on government commitments relating to Part 5 of the 2022 Act—the modern slavery part—analysing whether they had been met, partially met or not met at all. It did not make for very happy reading. It is a shame that one has to say that. We support the amendment of the noble Lord, Lord Randall. We wish that there were more coming before the House tonight that we could support too.
Lord Coaker (Lab)
My Lords, I thank my noble friend Lord Hunt for moving his amendments in a concise and informed way and for putting before the House the importance of the Modern Slavery Act and defending its principles.
I draw attention to Motion P1, moved by the noble Lord, Lord Randall, which is particularly important as it seeks to protect victims of modern slavery exploited in the UK. Although the Minister pointed to the protection the Government may give to British citizens, some of the exploited people the noble Lord, Lord Randall, referred to would not be British citizens and would therefore be out of scope.
It is worth spending a minute considering that we as a Parliament are here tonight reflecting on what was one of the finest achievements of the last Conservative Government and one of the proudest achievements of a former Conservative Prime Minister. I stand here as a proud Labour politician saying that. It was one of the reasons why our country was regarded as a world leader by countries across the world, and it was brought about by the actions of a Conservative Government.
When you read the speeches of not only a former leader, Iain Duncan Smith MP, but a former Prime Minister, it is no wonder that the latter is incredulous that her own party and Government would seek, as she says, to undermine completely an Act of which everyone was proud, including most Conservatives. I find it astonishing that the Government Front Benches of this House and the other place should simply sweep her views aside, almost as though they are the rantings of a failed person who is no longer relevant. She deserves greater respect than that, and to be recognised for what she achieved. I think I am right in saying that it was the first such legislation in the world. It was blown away not by a vindictive Labour Government but by her own Conservative Government, who have somehow just brushed it aside.
The noble Lord, Lord Randall, does us a huge service in bringing forward an amendment that I hope has the support of many of your Lordships, from all sides, and which tries to protect something of that achievement, that triumph, of a previous Conservative Government. In doing that, he gives us the opportunity to mark with great respect that achievement and work of a previous Conservative Government and Prime Minister.
I hope that the noble Lord will test the opinion of the House and that noble Lords will see fit to support the amendment in very large numbers, so that when it goes back to the other place they will think again about what they have done.
Lord Murray of Blidworth (Con)
My Lords, I thank the House for the dispatch with which the speeches on this group have been dealt with. To respond to the noble Lord, Lord Hunt of Kings Heath, on just one point, clearly, we do not agree and I am afraid that I cannot accept his amendment. On the statistic that he cited, I simply say that that statistic demonstrates the problem we face when we seek to remove people. Such statistics relate to people who were in detention and it was those in detention who, at a massively increased rate, sought to claim to be victims of modern slavery in order, I suggest to Members of this House, to defer their removal.
For that reason, I must stress to the House that the proposed amendment would blow a hole in this scheme, and I am afraid we cannot accept my noble friend Lord Randall’s amendment, as supported by the noble Baroness, Lady Hamwee. There are too many opportunities to misuse the provisions in the Modern Slavery Act, with allegations of modern slavery being made by those entering the country illegally. I entirely take on board what the noble Lord, Lord Coaker, has said about the triumph of the Modern Slavery Act, and I remind the House that it remains in force in relation to victims of modern slavery who are within Britain and are British citizens. These provisions are protected in Clause 21 by a sunset provision. These are emergency measures to deal with an emergency, and for those reasons I cannot accept the amendments.
Lord Hunt of Kings Heath (Lab)
My Lords, it is tempting to respond in detail to the Minister, but obviously I will not do it. What is so striking is how little confidence he has in the department he and his Ministers run to administer a system they have legislated for. It is deeply disappointing, but I beg leave to withdraw Motion C1.
Lord Murray of Blidworth
That this House do not insist on its Amendment 7, to which the Commons have disagreed for their Reason 7A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion D. I beg to move.
Motion D1 (as an amendment to Motion D)
The Deputy Speaker (Lord Beith) (LD)
The original Question was that Motion D be agreed to, since when Motion D1 has been moved as an amendment to Motion D. The Question therefore is that Motion D1 be agreed to. The matter will be decided by a Division.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, this is a consequential amendment and should just be moved formally by the House.
The Deputy Speaker (Lord Beith) (LD)
It is a matter for the House whether it is treated as a consequential amendment, and not one that I can rule on.
Lord Murray of Blidworth
That this House do not insist on its Amendment 8, to which the Commons have disagreed for their Reason 8A.
Lord Dubs
At end insert, “and do propose Amendment 8B in lieu—
Lord Dubs (Lab)
My Lords, this amendment to the Motion is about the rights of children, giving them their entitlement to claim asylum, which would be declared inadmissible under the provisions of the Bill. We have talked about children a great deal; indeed, concerns about children run right through many of the debates we have had and many of the other amendments. My point is that any child who arrives in this country, even if not by legally approved means, should still not lose their right to claim asylum. If, for example, a child in Calais with family in this country, not finding any legal method, gets here and uses, unfortunately, these nasty people traffickers, all I would say is that surely we should not deny that child the right to come to this country and claim asylum here; or, having got to this country, to claim asylum here. It is a very simple proposition.
As I understand it, in most instances they will not be removed from this country until they are 18, but at that point they will be removed. This seems to me a very harsh provision, penalising some of the most vulnerable asylum seekers that there can be: children.
There are two other amendments to Motions to do with children, Motion J1 in the name of the noble Baroness, Lady Mobarik, and Motion K1 in the name of the right reverend Prelate the Bishop of Manchester. Both are good and both are concerned with the length of time that a child might have to stay in detention. They seek to limit that to fewer days and I shall want to support them both. They do not go as far as my Motion E1, which is much more comprehensive and a much better way of protecting the rights of children. However, we have to be realistic and I shall certainly give my full support to Motions J1 and K1.
I have thought about this at length and had quite detailed discussions with my colleagues. The point is that we, of course, want to support Motions that have the best chance of making the Commons think again. I was persuaded that the Motions in the name of the noble Baroness, Lady Mobarik, and the right reverend Prelate the Bishop of Manchester probably have a better chance of making the Commons think again than something coming from me, even if my Motion is, with all due respect, better. I therefore feel that the right thing to do is to support a Motion tabled by a Conservative and a Member from the Bishops’ Bench, because they are more likely to persuade the Government. They do not have to persuade the Minister but they are more likely to persuade Members of the Commons. It is in that spirit that I have spoken to Motion E1, but I shall in due course be very keen to support the Motions I have referred to. I will not therefore press Motion E1 to a vote, but I shall certainly vote for the other Motions.
Lord Murray of Blidworth (Con)
My Lords, as ever, the noble Lord, Lord Dubs, was ahead of me, and clearly I should address the amendments in this group. I have already moved Motion E, which is:
“That this House do not insist on its Amendment 8.”
With the leave of the House, I shall speak also to Motions J, K, L, M and N.
The Government have considered carefully the concerns raised in your Lordships’ House about the detention of unaccompanied children and pregnant women. We recognise the sensitivities around the detention of these cohorts and, accordingly, the Government have brought forward amendments in lieu, to which the Commons has agreed.
Regarding the detention of pregnant women, Amendments 38A to 38E are wholly in line with those tabled on Report by the noble Baroness, Lady Lister, and my noble friend Lady Sugg. These amendments preserve the existing 72-hour time limit on the detention of pregnant women. As now, this 72-hour time limit would be extendable to an absolute maximum of one week, provided there is ministerial authorisation in place for the extension. It is important to note that, as per the existing Section 60 provision, this time limit will apply only where an immigration officer or the Secretary of State, as the case may be, is satisfied that the woman is pregnant. I trust that these amendments will be welcomed on all sides of the House.
On the detention of unaccompanied children, the challenge we received in the House of Commons was that in enabling a person to apply for First-tier Tribunal immigration bail after 28 days of detention, the Bill did not differentiate between adults and unaccompanied children, and there needed to be judicial oversight of the detention of unaccompanied children much earlier in the process. Amendments 36A and 36B, agreed by the Commons, do just that. They enable the First-tier Tribunal to review the detention of an unaccompanied child after eight days, where the detention is for the purposes of removal. The eight-day period aligns with the existing framework governing immigration bail for those detained at ports and the eight-day period for making a suspensive claim under the Bill.
I again assure my noble friend Lady Mobarik and other noble Lords that any period of detention for unaccompanied children will be the shortest possible. Where there is doubt that a person is indeed aged under 18, as they claim to be, they will be treated as a child while an age assessment is undertaken. Such a person will be detained in age-appropriate accommodation, as the law already provides. This is provided for by the Detention Centre Rules 2001, made under Section 153 of the Immigration and Asylum Act 1999. Rule 11 provides:
“Detained persons aged under 18 and families will be provided with accommodation suitable to their needs”.
If no such accommodation is available, an unaccompanied child will not be detained and will be transferred to a local authority instead as soon as possible. I hope this provides the assurances that my noble friend has been seeking.
The Commons has proposed no change to the Bill in response to my noble friend’s Amendment 33, which relates to the detention of families. We believe this amendment would put children at risk, as well as significantly weakening our ability to remove people from the UK, in accordance with the duty provided for in Clause 2. Such a change would incentivise unscrupulous individuals to co-opt unaccompanied children into a bogus family unit to escape detention. This presents very real safeguarding risks for those children. I hope my noble friend, having secured an important change to the Bill in respect of the detention of unaccompanied children, will be content not to pursue her Amendment 33 any further.
I turn to Motion M and the amendments originally tabled by the noble Lord, Lord Carlile, which sought to reinstate the existing Hardial Singh principles. Here again the Commons has agreed with the Government that the changes should be made to the existing legislation and that Clause 11 should stand. The Hardial Singh principles provide, among other things, that a person may be detained only for a period that is reasonable in all the circumstances and that if, before the expiry of the reasonable period, it becomes apparent that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, that person’s detention should not continue. The Government continue to take the view that it is for the Home Secretary, not the courts, to decide such matters as she will be in full possession of the relevant facts and best placed to decide whether continued detention is reasonable in all the circumstances. As I say, the Commons has endorsed this approach, and I hope that the noble Lord, having achieved some significant changes to other aspects of the Bill, will be content to agree Motion M.
Motion N relates to the right reverend Prelate the Bishop of Durham’s Amendment 50 to Clause 16. This relates to the Secretary of State’s power to direct a local authority in England to cease accommodating an unaccompanied child and to transfer the child into Home Office-provided accommodation. The amendment would limit the power such that it can be exercised only where the transfer would be in the best interests of the child.
We all accept that the best interests of the child is a very important consideration. That is why the Secretary of State is already required, under Section 55 of the Borders, Citizenship and Immigration Act 2009, to have regard to the need to safeguard and promote the welfare of children when exercising her immigration functions. In exercising the power in Clause 16, the Home Office will continue to comply with the Section 55 duty. I should also emphasise again that we expect to exercise the power in Clause 16 in only limited circumstances —for example, in advance of returning an unaccompanied child to a parent in their home country.
Finally, I can deal briefly with Motion E, given that this covers similar ground to Motion F, which we have already debated. As I said, it remains the Government’s contention that declaring such claims to be inadmissible is a core part of the scheme provided for in the Bill. The Motion from the noble Lord, Lord Dubs, would incentivise the people smugglers to prioritise young people, putting more lives at risk and splitting families. I am sure that the noble Lord would not wish to see this.
The Government have listened to the concerns raised by noble Lords about the Bill’s provisions relating to detention and the Commons has agreed significant changes. I hope, on this basis, that the noble Baroness, Lady Lister, my noble friend Lady Mobarik and the right reverend Prelate the Bishop of Manchester would be content to agree Motions J, K and L. Where the Commons has disagreed with your Lordships’ amendments to Clauses 4, 11 and 16, I hope that the noble Lords, Lord Dubs and Lord Carlile, and the right reverend Prelate the Bishop of Manchester will be minded to accept that verdict and agree Motions E, M and N.
The Lord Bishop of Manchester
My Lords, I am very grateful to the noble Lord, Lord Dubs, for his support for my Motion K1, even though I suspect we would both prefer his stronger Motion. I also welcome the government amendments that would allow an unaccompanied child to seek bail after eight days if they have been detained for removal.
I struggle to see why similar rules should not apply to all children. Hence, Motion K1 seeks to rectify the unreasoned omission of children who are with their families. It proposes a 24-hour extension to the current statutory 72-hour time limit for detention of children with families. Hence, the detention of these children would not be indefinite but be for no more than 96 hours or, if a Minister personally approved it, for no more than seven days. This seems a fair and reasonable change and I urge the Government to seriously reflect on it. I really cannot see that it is morally justified not to have equal provisions for children with families and those who are alone; one child is not different from another.
It remains the fact that the institutional nature of detention affects both the physical and mental development of the child and leads to their significant emotional and psychological regression. These impacts, which were witnessed often in children prior to 2010, were not limited to unaccompanied children. All children suffered under a regime which this Government are now proposing to reintroduce without limit for unaccompanied children. I cannot accept that it is right to be prepared to lock up these children for an indefinite period, simply because they happen to arrive with families, when we know the grave consequences. The evidence has not changed. How can it now suddenly be tolerable?
Baroness Mobarik (Con)
My Lords, I shall speak to Motion J1 in my name. First, I am grateful to the Minister for his invitation to discuss this matter last week and for acknowledging the particular vulnerabilities of children who arrive in this country alone. But, having carefully read the Government’s Amendments 36A and 36B in lieu, I think it is clear that the Bill would contain no absolute time limit or safeguards on the powers to detain unaccompanied children. Permitting a tribunal to grant bail to only some detained unaccompanied children, after eight days, is not the same as an actual time limit on detentions for all unaccompanied children. They would still be a great many unaccompanied children who could be detained without any time limit and to whom the First-tier Tribunal could not grant bail for 28 days. Therefore, I would like to provide the other place with an opportunity to reconsider this matter.
If an unaccompanied child is detained under any of the new powers in the Bill, under the amendments I now propose, that child cannot be detained for more than 72 hours. If in regulations the Home Secretary wishes to specify a time limit for detaining unaccompanied children for less than 72 hours, then of course she has that prerogative. However, a matter as fundamental as the ultimate period for which an unaccompanied child can be held in detention should not be left to mere regulations or verbal assurance. It must be stated in the Bill. Overturning the legal safeguards and time limits introduced—and I say once again, under a Conservative Prime Minister and Conservative Home Secretary—and detaining children without any stated time limit serves neither British nor Conservative values. Therefore, I will divide the House on this, so that we may provide the Commons with the opportunity to think again carefully about the powers created by this Bill. I ask the House to approve Motion J1.
Baroness Lister of Burtersett (Lab)
My Lords, with reference to Motion L, I welcome the government amendments, which have the same effect as our original amendments of restoring the status quo ante with regard to pregnant women.
Before my round of thanks, I have one query from the lawyer who has kindly been advising us. He says that his only concern is that they are a separate provision for the new powers in paragraph 16(2C) and proposed new subsection (2A) of Section 62 rather than reapplying the protection of Section 60. The reason that this matters is that for the purposes of the time limit, the period of detention under the old detention powers would not be aggregated with the period of detention under the new detention powers. However, now, in theory, a pregnant woman could be detained for up to seven days under the old detention powers and then for another seven days under the new detention powers. Could the Minister confirm that this is not the intention and that the powers would not be used in this way?
I turn to my thanks. First, I pay tribute to Women for Refugee Women, in particular Gemma Lousley, for all their invaluable work in pressing this amendment, and also to David Neale of Garden Court Chambers for his pro bono legal advice. I thank all noble Lords around the House who have supported the amendments by adding their names, speaking in support, voting in support or deliberately abstaining. I am particularly grateful to those Members—largely women, I think—on the Government Benches who could not bring themselves to support the Government on this. That there was so much support for the amendments on the Government Benches is largely down to the noble Baroness, Lady Sugg, who I think of as a noble friend. She has been tireless, both behind the scenes and on the Floor of the House, as was recognised by the Immigration Minister yesterday.
The preservation of the time limits on the detention of pregnant women in recognition of the likely health impact of the original proposal to remove them represents one small beacon of light in what otherwise continues to be the gloom of a punitive Bill that will do untold harm. The government Motion was described on both sides of the Commons yesterday as a no-brainer. Nevertheless, it would be churlish not to recognise that the Government have listened on this issue at least, and I thank them for doing so.
Baroness Butler-Sloss (CB)
My Lords, I rise to speak to Motion N1 in my name, which is just ahead of the Motion in the name of the right reverend Prelate the Bishop of Manchester. This is a rather different point; it relates to a situation where there may be a stand-off between the Home Office and the local authority.
Picture a child who is either being accommodated under Part III of the Children Act or for whom a judge or magistrate has made a care order which the local authority is complying with, and the Home Office, according to Clause 16, wishes the child to be removed in order to send them back to their parents or to some other place. Although it said to use it only occasionally, it does not say in Clause 16 that the local authority should be consulted or, rather more importantly, should actually consent. In particular, if there is a care order, that is an order of the court. As far as I can see, it would be very difficult for the Home Office just to pick the child up and take them away where there is a court order saying that the child must live with the family, or whoever it may be, arranged by the local authority.
Quite simply, what I am seeking is that the Secretary of State should bear in mind all these things and not just consult the local authority but gain its consent to the removal of the child from its care. It is a very simple proposition.
What I would like from the Minister is either an assurance that the Secretary of State will do that, or that he will take it back to the Home Office for the Secretary of State to consider and agree to it. I do not propose to put this issue to the House, but it is very important that the Home Office’s interaction with local authorities under Clause 16 be clarified and that the Home Office recognise the fact that it cannot just remove a child if it is contrary to the Children Act.
Baroness Sugg (Con)
My Lords, on the narrow issue of the detention of pregnant women, I thank the Government and the Minister for listening to and considering carefully the arguments made in your Lordships’ House and acting on them. Thanks to the many who made the case, and the government amendment, the existing protection of a 72-hour time limit remains in place. That is a small change, but it will make a big difference to the women in question, and for that I am very grateful.
Lord Scriven (LD)
My Lords, on these Benches, we support Motions E1, J1, K1, N1 and N2. We welcome the Government’s Motion L on time-limiting detention for women who are pregnant. This suite of Motions is about the depriving of liberty of some of the most vulnerable people who reach these shores and, in particular, the welfare of children.
Government Motion J is narrow, as the noble Baroness, Lady Mobarik, said. It is a limited concession, and as Tim Loughton pointed out in the other place yesterday, unaccompanied children’s arrivals are to be treated the same way as adult arrivals in terms of their detention for initial processing, and the amendment proposes nothing for unaccompanied children detained for those purposes.
As the noble Baroness, Lady Mobarik, said, for those who are deemed in detention for removal, there is no automatic condition of eight days; there is a condition that, at that point, a child can ask for bail. Just think of a 10 year-old child in detention: how will they have the support to be able to ask for bail? It is for that reason that, if the noble Baroness moves Motion J1 to a vote, these Benches will definitely support her. The same is true for the right reverend Prelate the Bishop of Manchester’s Motion on unaccompanied children.
I support Motions N1 and N2, and particularly the points made by the noble and learned Baroness, Lady Butler-Sloss. Throughout the passage of the Bill, these Benches have asked on a number of occasions, as have other noble Lords throughout the House, what the role is of the corporate parent—the local authority—under Clause 16. To date, the Minister still has not answered that question. It is really important that the Minister says something from the Dispatch Box; otherwise, this will end up in the court, given the contradiction between the Bill and the provisions in the Children Act 1989, particularly Sections 17 and 47. That is why it is important that the assurance the noble and learned Baroness asked for be addressed by the Minister now. We believe that Motions E1, J1, K1, N1 and N2, if put to the House—particularly Motions J1 and K1—will add a little more humanity, kindness and compassion to the Bill.
Baroness Berridge (Con)
My Lords, I will speak to the Motion in the name of noble and learned Baroness, Lady Butler-Sloss, as I had put my name to a similar amendment on Report.
We should not take for granted the decades of work done by many in your Lordships’ House, and others, to put together a child protection system that is well understood. In her most recent email of today, the Children’s Commissioner stated that the local authority must have responsibility for the safety and well-being of children in all settings, including when they are detained.
The child protection system that I have outlined is like a jigsaw: it is well put together and each of the bodies involved knows what its role currently is. That includes many bodies, such as the police, the local authority, schools, the NHS and, at government level, the Department for Education. It is noteworthy that in many of the legal cases taken by children’s rights organisations, the main submissions, if not the only submissions, that the court has wanted to hear are from the Department for Education, not the Home Office.
What we have with this jigsaw puzzle of people responsible is a Home Office that seems to have taken out some of the pieces of that child protection system, and we are not sure how they fit together again. Since this is an area where retrospectivity will apply to those children in hotels—they are now in hotels again—I hope that there will be clarity, at last, from my noble friend the Minister as to how the pieces of that well-understood jigsaw will be put back together, so that everybody knows what their role is. We know from history that if people are confused about their role in a child safeguarding situation, information, communication and the welfare of children themselves can fall between those gaps.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been an interesting debate and I thank my noble friend Lord Dubs for the way that he introduced his amendment to Motion E. He has been extremely practical and political, if I may use that word, in the way that he proposes to deal with the suite of amendments in this group. I agree with him that the two Motions in the names of the noble Baroness, Lady Mobarik, and the right reverend Prelate the Bishop of Manchester, Motions J1 and K1, stand the best chance of making the House of Commons think again. On that basis, from these Benches we will be supporting the noble Baroness and the right reverend Prelate if they choose to put their Motions to a vote.
I want to comment briefly on the contributions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Berridge, and on the point made by the noble Lord, Lord Scriven. In a sense, they are talking from a local authority point of view. I too got the email from the Children’s Commissioner today; she is absolutely right to point to the jigsaw of child protection, which is very much overseen by local authorities. As she rightly pointed out, retrospectivity will apply to those children because that is the point which the Government did not concede on.
Responsibility is key to trying to resolve this as clearly as possible. We hope that the Minister will be able to say something clearer, but the real point is that if it is not, it will be resolved in the courts. The noble Lord, Lord Scriven, made that point and it is a very fair one. I understand that the noble and learned Baroness will not be pressing her amendment to a vote. Nevertheless, the Minister should give as clear an explanation as possible of how this matter will be looked at. For the purposes of this group, we will support Motions J1 and K1.
Lord Murray of Blidworth (Con)
My Lords, I thank the House for the contributions to this debate. I will focus, if I may, on three points and address first the point raised by the noble Baroness, Lady Lister, on aggregating detention periods. Noble Lords will recall that a question was asked whether the 72-hour limit for pregnant women could be evaded by detaining a pregnant woman first under the powers in the Bill, and then under the powers in the Immigration Act, or vice versa. From a practical point of view, any pregnant women subject to the Clause 2 duty would be detained under the new detention powers provided for in Clause 10. I assure the noble Baroness that we would not detain pregnant women under existing powers then switch to new detention powers, or vice versa, in order to double the detention period.
I thank my noble friend Lady Sugg for her kind remarks. I am gratified for the receipt from Members of the House for the position which we have arrived at in relation to pregnant women.
I turn to the issues raised by the noble and learned Baroness, Lady Butler-Sloss, for whom I have very great admiration. They were raised also by the noble Lords, Lord Scriven and Lord Ponsonby, and my noble friend Lady Berridge in relation to Motion N1.
Amendment 50B would afford local authorities influence over whether the Home Secretary can utilise her powers. I am afraid we do not agree that her powers should be fettered in this way if a local authority simply does not consent. It would also create additional decision-making burdens for local authorities and could have unintended consequences—for example, if local authorities faced legal challenges in respect of their decisions. The Home Office, of course, already works closely with local authorities on matters concerning unaccompanied children and will continue to do so.
I turn to the question raised by the right reverend Prelate the Bishop of Manchester and Motion N2. The Home Office considers that Amendment 50C, tabled by the right reverend Prelate, is unnecessary. That is so because of Section 55 of the 2009 Act, which already requires the Secretary of State to have regard to the interests of children as a primary factor in immigration decisions affecting them. I assure the House that, in making decisions and in devising policy guidance under the Bill, the Home Office will continue to comply with the Section 55 duty.
In answer to the noble Lord, Lord German, and my noble friend Lady Berridge, the Home Office does not have, and therefore, for clarity, cannot discharge, duties under Part III of the Children Act 1989. It is for the local authority where an unaccompanied child is located to consider its duties under the Children Act 1989. There is nothing in the Bill which changes this position and local authorities will be expected to meet their statutory obligations to unaccompanied children from the date of arrival. The relevant duties under the Children Act 1989 sit with the local authority in which the young person is physically present. Accommodation of unaccompanied children by the Home Office does not change the obligations of any local authority in respect of assessment and the provision of services and support, including, where appropriate, suitable accommodation.
Lord Dubs (Lab)
My Lords, I am grateful to the Minister and all noble Lords who have contributed. They have covered a number of aspects, all under the heading of this debate. I am not persuaded by the Minister’s arguments that the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Mobarik, are not totally right in what they are saying. I very much hope the Minister will say something more positive to support them.
I have already indicated that I do not wish to press Motion E1, and I beg leave to withdraw it.
Lord Murray of Blidworth
That this House do not insist on its Amendment 9, to which the Commons have disagreed for their Reason 9A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion F. I beg to move.
Motion F1 (as an amendment to Motion F)
Lord German
At end insert “, and do propose Amendment 9B in lieu—
(3A) From the point at which the provisions of subsection (3) apply to a person, no other provision made by or by virtue of this Act applies to that person.
(3B) For the purpose of calculating the period of six months under subsection (3), any period during which the person cannot be removed by virtue of section 46 (suspensive claims: duty to remove) is to be disregarded.””
Lord German (LD)
I beg to move Motion F1 and wish to test the opinion of the House.
Lord Murray of Blidworth
That this House do not insist on its Amendment 23, to which the Commons have disagreed for their Reason 23A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion G. I beg to move.
Motion G1 (as an amendment to Motion G)
Lord Etherton
At end insert “, and do propose Amendment 23B in lieu—
“Restrictions on removal destinations: LGBT and other persons
(1) Where the Secretary of State is required by section 2(1) to make arrangements for the removal of a person from the United Kingdom—
(a) trans men and women must not be removed to Brazil;
(b) LGBT persons must not be removed to Gambia, Ghana, Jamaica, Kenya, Liberia, Malawi, Mauritius, Nigeria, Rwanda or Sierra Leone;
(c) no person may be removed to a territory or country listed in Schedule 1 (countries or territories to which a person may be removed) if the exceptional circumstances specified in section 5(5)(b) apply to that territory or country;
(d) no person may be removed to Rwanda until the conclusion of all litigation concerning the lawfulness of arrangements for removal to that country.
(2) the Secretary of State may by regulations amend subsection (1) to—
(a) dd or remove a country or territory, or part of a country or territory, in order to apply relevant decisions of courts and tribunals operating in the United Kingdom and having regard to decisions of the European Court of Human Rights and any other material change of circumstances;
(b) reflect changes made to Schedule 1 by regulations made under section 6.””
Lord Murray of Blidworth
That this House do not insist on its Amendments 30, 32 and 34, to which the Commons have disagreed for their Reason 34A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion H.
Lord Murray of Blidworth
That this House do not insist on its Amendments 31, 35 and 36 and do agree with the Commons in their Amendments 36A and 36B in lieu.
“(3A) A person who is being detained under paragraph 16(2C)(d)(iv) of Schedule 2 to the Immigration Act 1971 or section 62(2A)(d)(iv) of the Nationality, Immigration and Asylum Act 2002 (detention of unaccompanied child for purposes of removal) must not be granted immigration bail by the First-tier Tribunal until after the earlier of—
(a) the end of the period of 28 days beginning with the date on which the person’s detention under any provision of paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 or section 62(2A) of the Nationality, Immigration and Asylum Act 2002 began, and
(b) the end of the period of 8 days beginning with the date on which the person’s detention under paragraph 16(2C)(d)(iv) of Schedule 2 to the Immigration Act 1971 or section 62(2A)(d)(iv) of the Nationality, Immigration and Asylum Act 2002 began.
(3B) A person who is being detained under—
(a) paragraph 16(2C)(a), (b), (c) or (d)(i) to (iii) of Schedule 2 to the Immigration Act 1971, or
(b) section 62(2A)(a), (b), (c) or (d)(i) to (iii) of the Nationality, Immigration and Asylum Act 2002, must not be granted immigration bail by the First-tier Tribunal until after the end of the period of 28 days beginning with the date on which the person’s detention under paragraph 16(2C) of that Schedule or section 62(2A) of that Act began.
(3C) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the periods referred to in sub-paragraphs (3A) and (3B) begin with the date on which the person was first detained under the relevant provisions of either of those Acts.”
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion J.
Motion J1 (as an amendment to Motion J)
Baroness Mobarik
Leave out from “36” to end and insert “, do disagree with the Commons in their Amendment 36A and 36B in lieu, and do propose Amendments 36C and 36D in lieu of Amendments 31, 35 and 36—
“(2E) If the person being detained under sub-paragraph (2C) is an unaccompanied child, then the person may not be detained under that sub-paragraph for more than a period of 72 hours.
(2EA) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the period referred to in sub-paragraph (2E) begins with the point at which the person was first detained under the relevant provisions of either of those Acts.
(2EB) The Secretary of State may, by regulations, specify time limits of less than 72 hours that apply in relation to the detention of an unaccompanied child under sub-paragraph (2C).”
“(2C) If the person being detained under subsection (2A) is an unaccompanied child, then the person may not be detained under that sub-paragraph for more than a period of 72 hours.
(2CA) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the period referred to in subsection (2C) begins with the point at which the person was first detained under the relevant provisions of either of those Acts.
(2CB) The Secretary of State may, by regulations, specify time limits of less than 72 hours that apply in relation to the detention of an unaccompanied child under subsection (2A).””
Lord Murray of Blidworth
Moved by
That this House do not insist on its Amendment 33, to which the Commons have disagreed for their Reason 33A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion K. I beg to move.
Motion K1 (as an amendment to Motion K)
The Lord Bishop of Manchester
Moved by
At end insert “, and do propose Amendment 33B to the words so restored to the Bill—
Lord Murray of Blidworth
That this House do not insist on its Amendments 37 and 38 and do agree with the Commons in their Amendments 38A to 38E in lieu.
“(2CA) But if the immigration officer is satisfied that a woman being detained under sub-paragraph (2C) is pregnant, then the woman may not be detained under that sub-paragraph for a period of—
(a) more than 72 hours from the relevant time, or
(b) more than seven days from the relevant time, in a case where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).
(2CB) A woman who has been released as a result of sub-paragraph (2CA) may be detained again under sub-paragraph (2C) in accordance with sub-paragraph (2CA).
(2CC) Where a woman being detained under sub-paragraph (2C) has previously been detained under section 62(2A) of the Nationality, Immigration and Asylum Act 2002 and has not been released in between, the definition of “the relevant time” in sub-paragraph (2CD) is to be read as if paragraph (b) referred to the time when the woman was first detained under sub-paragraph (2C) or section 62(2A) of that Act.
(2CD) In sub-paragraphs (2CA) to (2CC)—
“the relevant time” means the later of—
(a) the time at which the immigration officer is first satisfied that the woman is pregnant, and
(b) the time at which the detention under sub-paragraph (2C) begins;
“woman” means a female of any age.”
“(2AA) But if the Secretary of State is satisfied that a woman being detained under subsection (2A) is pregnant, then the woman may not be detained under that subsection for a period of—
(a) more than 72 hours from the relevant time, or
(b) more than seven days from the relevant time, in a case where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).
(2AB) A woman who has been released as a result of subsection (2AA) may be detained again under subsection (2A) in accordance with subsection (2AA).
(2AC) Where a woman being detained under subsection (2A) has previously been detained under paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 and has not been released in between, the definition of “the relevant time” in subsection (2AD) is to be read as if paragraph (b) referred to the time when the woman was first detained under subsection (2A) or paragraph 16(2C) of that Schedule to that Act.
(2AD) In subsections (2AA) to (2AC)—
“the relevant time” ” means the later of—
(a) the time at which the Secretary of State is first satisfied that the woman is pregnant, and
(b) the time at which the detention under subsection (2A) begins;
“woman” means a female of any age.”
“(d) paragraph 16(2CA) to (2CD) (limitation on detention of pregnant women).”
“(aa) subsections (2AA) to (2AD) (limitation on detention of pregnant women);”
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion L. I beg to move.
Lord Murray of Blidworth
That this House do not insist on its Amendments 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49, to which the Commons have disagreed for their Reason 49A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion M. I beg to move.
Lord Murray of Blidworth
That this House do not insist on its Amendment 50, to which the Commons have disagreed for their Reason 50A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion N. I beg to move.
Lord Murray of Blidworth
That this House do not insist on its Amendment 56, to which the Commons have disagreed for their Reason 56A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion P. I beg to move.
Motion P1 (as an amendment to Motion P)
Lord Randall of Uxbridge
At end insert “, and do propose Amendment 56B in lieu—
“(3A) If the relevant exploitation took place in the United Kingdom subsection (2) also does not apply in relation to a person—
(a) for a period of 30 days following the making of the decision referred to in subsection (1)(b);
(b) for a further period if the Secretary of State deems it necessary for a victim to establish cooperation with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation; and
(c) on expiration of the period in paragraphs (a) and (b) if the Secretary of State is satisfied that the person is cooperating with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation for the duration of those criminal proceedings thereafter.
(3B) Where subsection (3) or (3A) applies in relation to a person the following do not apply in relation to the person—
(a) section 22,
(b) section 23, and
(c) section 24.
(4) In this section—””
Lord Murray of Blidworth
That this House do not insist on its Amendment 57, to which the Commons have disagreed for their Reason 57A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion Q. I beg to move.
Lord Murray of Blidworth
That this House do not insist on its Amendments 66 and 67, to which the Commons have disagreed for their Reason 67A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion R. I beg to move.
Lord Murray of Blidworth
That this House do not insist on its Amendments 73 and 74 and do agree with the Commons in their Amendment 74A in lieu.
“(2A) Regulations under subsection (1) may not amend subsection (4) of section 38 to remove any example of serious and irreversible harm which is listed in that subsection when this Act is passed.”
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion S. I beg to move.
Lord Murray of Blidworth
That this House do not insist on its Amendment 90 and do agree with the Commons in their Amendments 90A, 90B and 90C to the words restored to the Bill by the Commons disagreement to Lords Amendment 90.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion T. I beg to move.
Motion T1 (as an amendment to Motion T)
Baroness Chakrabarti
At end insert “, and do propose Amendment 90D to the words so restored to the Bill—
Baroness Chakrabarti (Lab)
My Lords, I understand that Motion T1 is consequential on Motions already passed. I beg to move.
Lord Murray of Blidworth
That this House do not insist on its Amendment 93, to which the Commons have disagreed for their Reason 93A.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion U. I beg to move.
Lord Murray of Blidworth
That this House do not insist on its Amendment 95 and do agree with the Commons in their Amendments 95A and 95B in lieu.
Lord Murray of Blidworth (Con)
My Lords, I have already spoken to Motion V. I beg to move.
Lord Stewart of Dirleton
That this House do not insist on its Amendment 102, to which the Commons have disagreed for their Reason 102A.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I am grateful for the debates we have had on safe and legal routes and their importance. As has been stated hitherto, the Government are committed to providing safe and legal routes, and we recognise the United Kingdom’s role in providing protection for those in need.
The United Kingdom has been proud to offer for many years a range of global resettlement routes as part of our safe and legal offer. Our global resettlement schemes offer safety in the United Kingdom to refugees who have been displaced by conflict, violence and persecution, and identified by the UNHCR as the most in need of resettlement. Beside our global schemes, we also offer country-specific safe and legal routes for those from Afghanistan, Hong Kong and Ukraine.
Baroness Stroud
At end insert “, and do propose Amendment 102B in lieu—
“Duty to establish safe and legal routes
(1) The Secretary of State must, within three months of the publication of the report required by section 59(1), make regulations specifying additional safe and legal routes.
(2) In subsection (1), a “safe and legal route” means a route which allows relevant persons to come to the United Kingdom lawfully from abroad.
(3) In subsection (2), a “relevant person” is—
(a) a person who, if they were in the United Kingdom, would be a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention,
(b) a person who, if they were in the United Kingdom, would be eligible for a grant of humanitarian protection in accordance with the immigration rules, or
(c) a person who, if they were in the United Kingdom, could not lawfully be removed from the United Kingdom by virtue of Article 3 or 4 of the Human Rights Convention.””
Baroness Stroud (Con)
My Lords, I brought a variation of this amendment to the House on Report. I refer to my entry in the register of interests. I said in that debate that this amendment is very simple. It is designed purely to place a duty on the Government to do what we have just heard they intend to do anyway—introduce safe and legal routes. This should therefore be a simple amendment to respond to. The moral credibility of the entire Bill depends on the existence of safe and legal routes. The basis on which we are disestablishing illegal and unsafe routes is that we are committed to creating legal and safe routes. That therefore needs to be reflected in the Bill.
For the purpose of clarity, I will take two minutes to lay out both the framework that sits alongside this Motion already and why the Government can feel confident in accepting it. First, as we have just heard, the Government have total freedom to undertake consultation with local authorities in any way they choose to ascertain the capacity that exists for local authorities to welcome refugees and asylum seekers through safe and legal routes. This is already committed to in the Bill.
Secondly, the Government then draft their own report, which they have already committed to doing by the end of January. This is already committed to in the Bill. Even then, the number of people who would be able to come via those safe and legal routes would be subject to a cap, as decided and voted on by this House. This is already in the Bill. This is the framework under which this Motion would sit. Its purpose, therefore, is that, within those limits and that context—all of which are already committed to in the Bill—the Government would then have a duty to do what they say they want to do: create safe and legal routes. The lack of a substantial commitment in primary legislation to this end is a serious omission and one that this amendment gives us an opportunity to address.
I am grateful to the Minister for making the statement that the Government intend to outline new safe and legal routes in the January report and implement them as soon as is practicable—in any event, by the end of 2024. However, if this really is the case, surely the Government would want to place it in the Bill, too, so that it cannot get lost with the passage of the time and electoral cycles, as has happened with the consultation, the publication of the report and the structure of the cap. Surely, at the very least, the Government would want to place a duty on themselves to have brought in safe and legal routes no later than the end of 2024.
Let me turn to the timeframe that has been introduced to this revised version of the Motion. I have chosen a timeline of three months after the publication of the Government’s report on safe and legal routes for three reasons: first, this will be nine months after the enactment of the legislation, which is more than enough time to develop and implement a serious proposal and respect the proper process to which the Minister referred; secondly, it is enough time for the Bill to have had effect in stopping the small boats if it is going to do so; and, thirdly, it will ensure that the commitment as set out in legislation should not cut across a general election or purdah next year. As I mentioned on Report, if the Minister would like to propose putting an alternative timeline in the Bill, I would welcome that conversation, but I have not yet heard of an alternative legally binding timeframe from the Minister.
I look forward to hearing the Minister’s response. For all the talk of safe and legal routes, we have reached ping-pong with no commitment to them as part of the Bill. I beg to move.
Lord Purvis of Tweed (LD)
My Lords, on behalf of these Benches, I will support the noble Baroness if she presses her amendment to the Motion. I wish to make two points very briefly, but before doing so I declare an interest. I returned last night from the Horn of Africa, where, as I am sure the Minister will be aware, many of the discussions I had with parliamentary colleagues from that region related to this Bill and the damage we are doing to our international reputation.
My first point relates to a letter that the noble Lord, Lord Murray, sent me after the conclusion of Report stage. I thank him for it. It referred to one of the existing schemes that the Government operate. It is an uncapped scheme—the UK resettlement scheme. In Committee and on Report I asked for clarification of whether the Government’s uncapped scheme has, by virtue of ministerial discretion, in effect become capped.
That scheme, which is global, is now being prioritised only for those from Afghanistan, in effect closing routes from all other countries that we have debated in this debate so far. It took until the 10th paragraph of the Minister’s letter to say, effectively, that I was correct. He said:
“As a result, we are necessarily prioritising those who have been referred by the UNHCR and who are already awaiting resettlement”.
That means that we have closed the safe and legal routes that we are seeking to expand, as the noble Baroness has argued for.
The Advocate-General for Scotland suggests that the Government should not be criticised for having a delay. The outstanding question is: why do the Government not have a baseline capacity now that any safe and legal routes would operate under, and what funding would be available to it? Which countries are the Government considering as candidate countries for new safe and legal routes? The Government’s opaqueness suggests that they do not have a plan that would be ready on the conclusion of the Bill, so it is necessary that we put in statute the guarantee that we will have these routes.
The second point I wish to ask the Minister for clarification on is the use of overseas development assistance. The Government have used overseas development assistance to score all the budgets for those to be resettled under the Bill—indeed, for asylum under all the schemes for safe and legal routes. This is at a cost of £1.9 billion of ODA, which has been taken away from other development projects in many of the candidate countries from which we are seeking safe and legal routes.
I understand that the Bill, and the way it has been drafted, means that the Home Office will no longer be able to score any of those individuals who will be deemed inadmissible under overseas development assistance. That means that, under the current budget, the Home Office itself would have to find up to £1.9 billion of expenditure which could not be scored against overseas development assistance. Under the Development Assistance Committee rules, the Government are now placing on the taxpayer inordinate sums of money for a Bill that cannot be operated and is inoperable. Will the Advocate-General confirm to me now that that is the case and the measures under this Bill will mean that the current way that the Government are funding those to be resettled will no longer be able to be used and there is an enormous black hole in the funding of this scheme?
Regardless of the answer, we support the noble Baroness, Lady Stroud. We need the guarantee because, so far, the Government have been woeful in offering any reassurance.
Lord Coaker (Lab)
My Lords, I would just like to say how much these Benches support the Motion in the name of the noble Baroness, Lady Stroud, for the reasons she outlined in her introduction. If she seeks to test the opinion of the House, we will certainly support her.
Lord Stewart of Dirleton (Con)
My Lords, we do not characterise the time taken properly to consider the identification and implementation of safe and legal routes as being in any sense a delay. Rather, it is a proper, considered application of thought to make sure that the measures will work correctly. Beyond that point, I have nothing further to add.
Baroness Stroud (Con)
I would like to test the will of the House.
Lord Bellamy
That this House do not insist on its Amendment 103, to which the Commons have disagreed for their Reason 103A.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, in moving Motion X, with the leave of the House, I will also speak to Motion Y.
Motion X relates to the function of the National Crime Agency. On Report, the noble Lord, Lord Coaker, indicated that he had brought forward his amendment to generate a debate about the role of the NCA in tackling organised immigration crime. That debate has been most useful, but on the substance of the amendment I hope that your Lordships will accept that it is not in fact needed, as the Commons has decided.
As regards proposed new Section 6A of the Crime and Courts Act 2013, which is now proposed in Amendment 103B, I respectfully suggest that the NCA’s annual report and annual plan already set out the range of activities in which it is already engaged to tackle the cross-channel people-smuggling gangs. Again, this is an unnecessary addition to the 2013 Act.
Finally on this aspect, I gently say that this here is, after all, the legislature. We are not the Executive, and I would respectfully suggest that the legislature should be slow to overmanage the independent executive agencies, when there is no compelling reason to do so in this case. That is the Government’s position on Motion X.
As regards Motion Y, the Government are of course grateful to have the further opportunity to discuss Lords Amendment 104 with the most reverend Primate the Archbishop of Canterbury. The Government can wholeheartedly concur with the sentiments behind this amendment. While our immediate focus is on enacting this Bill, we also need to take a longer-term view if we are to tackle refugee crises and human trafficking. That is what the Government are doing. The Government entirely accept that these challenges cannot be solved by the UK alone and that we need to work collaboratively with our international partners if we are to achieve our shared goals.
The interconnected nature of migration and the need to work collectively is why the Government are already working with the UN High Commissioner for Refugees and other international partners. Noble Lords will be aware that my right honourable friend the Prime Minister has secured agreements quite recently with France, Italy, Albania and the EU to work together to address illegal migration, through a combination of operational, diplomatic and development-led interventions. The UK has every incentive to continue to develop that work at international level to address the international problems of migration.
Against that background, the Government’s position, while accepting fully the very good, worthy and wise intentions behind the amendment proposed by the most reverend Primate, is that this amendment is unnecessary. If I may, I again respectfully and humbly question whether it is a proper use of legislation to provide in law how a Government—it would be any Governments over the next 10 years—should set out their policy on working with international partners over a 10-year period. Government policies change, adapt and respond to circumstances. What those policies should be is a matter of public debate and political debate.
In the Government’s view, it would be a somewhat unusual use of legislation to set this out alone for migration. Why not do it for defence, health or education? This is particularly where the Government are expected to set out their strategy for working diplomatically with international partners in such a circumstances, unless it is really required. But in the Government’s submission, with all respect to those who support and have proposed this amendment, it is not necessary because the Government are well aware of the need to develop a strategy and co-operate with international partners, as I have just said.
Lord Coaker
At end insert “, and do propose Amendment 103B in lieu—
“Organised immigration crime enforcement
(1) The Crime and Courts Act 2013 is amended as follows.
(2) In section 1 (the National Crime Agency), after subsection (10) insert—
“(10A) The NCA has a specific function to combat organised crime where the purpose of that crime is to enable the illegal entry of a person into the United Kingdom via the English Channel (the “organised immigration crime function”).”
(3) After section 6 (duty to publish information), insert—
“6A Duties in relation to organised immigration crime
(1) The Director General must, in addition to other reporting requirements under this Part, make arrangements for publishing information about the NCA’s progress in fulfilling the organised immigration crime function.
(2) Reports under subsection (1) must be made at least once every six months but may be made more frequently if the Director General deems it appropriate.
(3) Reports under subsection (1) must be submitted to the Secretary of State.
(4) Reports under subsection (1) may, if the Director General deems it appropriate, include recommendations regarding potential additional measures in relation to the NCA’s organised immigration crime function.
(5) The Secretary of State must, as soon as practicable, lay before both Houses of Parliament—
(a) a summary of each report under subsection (1), and
(b) the Secretary of State’s response to the report.””
Lord Coaker (Lab)
My Lords, before I speak to my own amendment, I would like to say that we very much support the most reverend Primate’s Motion Y1. Contrary to what the Minister has said, it gives us a great and important opportunity to discuss these global issues, which matter so much. Some of you will have listened to Nick Robinson on the “Today” programme—he is brilliant, of course—who highlighted some of the issues that have emerged in various areas of the world. The most reverend Primate gives us the opportunity to do that, and we very much support his Motion.
I do not intend, given the hour, to speak for long to my Motion. In the whole discussion we have had on the Bill, my proposed amendment is the only one that deals with criminal gangs. This is one of the most important ways to tackle the problem of illegal migration. Contrary to what the Minister has just told us, it is part and parcel of what Parliament should be doing—legislating in the face of what the Government themselves have described as a national emergency. The full power of the state is required to tackle this issue. It is only right that Parliament put forward amendments and Motions and ask itself and the agencies that work for the state whether enough is being done. That is what my Motion seeks to do.
To be honest, I could not believe it when the Minister said that there was no compelling reason to do this. In the last few months, I have not heard anything different from the Government about the crisis unfolding across the channel, with hundreds of people—a record number just a few days ago—coming across the channel every day. Frankly, there is every compelling reason to do something to tackle the criminal gangs who are exploiting some of the most vulnerable.
One alternative we have to the Government’s proposal concerns the international nature of the crisis, which the most reverend Primate will no doubt refer to. In my Motion I refer to the need for not only action by the National Crime Agency but international co-operation of law enforcement and police forces across Europe and beyond if we are to tackle this problem. I hope that your Lordships will feel able to accept my Motion, because there is a continuing need to ask the Government whether we are doing enough to tackle and break up the criminal gangs and to get to the really big figures who organise this business on a massive scale and exploit the weakness and vulnerability of people across the continent and beyond. Just by demanding that the Government answer that, we can get some of the answers we deserve. I look forward to the Minister’s reply, and I beg to move.
The Archbishop of Canterbury
My Lords, I am very grateful to the noble and learned Lord, Lord Bellamy, and to the noble Lord, Lord Coaker, for what he said. Like him, I will be brief.
Immigration and asylum, as the long series of debates on this Bill has shown, is an extraordinarily divisive issue. Speaking as someone who has been deeply embedded in east Kent for more than a decade now, I know from experience the extent to which communities are divided and individuals are torn between their desire to do what they know is right and care for those arriving, and their apprehension about the impact on local communities. One understands both those feelings very well.
When this amendment was tabled in its previous form last week, it produced considerable reconciliation and unity across the House. It was agreed that this is a massive, international issue on a generational basis and that tackling it needs profound thinking on a long-term basis. Legislation and strategy must be fitted to the problem, not the problem to the legislation. That is not how it works. For some things we do not debate strategy or have strategy on the face of a Bill, but it is impossible to imagine that we can solve a problem of this kind by taking short-term view after short-term view. It is essential that the solutions, as we go forward, bring together the whole of politics, all sides of both Houses, and unite our country instead of using this as a wedge issue to divide things.
This is a moment of reconciliation and an opportunity for profound long-term thought. This happens with climate change, on which there is legislation about 2050, never mind 10 years’ time; it happens with defence, where documents are produced that look at our proposals out to 2030; it happens with spending plans, where we have three-year committed views on spending because we know that you cannot do it in 12-month sections.
Secondly, this provides accountability. I could not agree more that a legislature is not operational, but it is the place in which the operational Executive is held to account, never mind which party it is. That will be as inconvenient to any other party in government as it is to the current party and there will be moments, if another party is in government, when it will not like it. That is the nature of our constitution. This provides for accountability; Ministers and Secretaries of State must come to both Houses and allow their view of the world to be tested, challenged, informed and improved.
Thirdly, it enables flexibility. The strategy shifts and changes as circumstances shift and change. Most of your Lordships will know Keynes’s remark:
“When the facts change, I change my mind. What do you do?”
Of course we will need to change our mind as time goes on—if the boats are stopped, if new threats emerge to do with migration and if there are new issues.
The 10-year strategy will enable the whole country, united, to understand where we are going, what the sacrifices are and how they will be mitigated. This is not a party-political issue but one in which we must work together: if we work separately, we will fall separately. Finally, it puts us back into leadership globally. Without leadership, we cannot lead as this country should do and as we have so often shown we can. This is an international issue. We have enormous clout. It does not involve only the UNHCR, who I think are among the most extraordinary people I meet, but so many other groups. We need to see how that leadership is being exercised.
If this Motion passes this evening or if I have eloquently persuaded the Minister to stand up and say that he has changed his mind—I am not that hopeful—there are, of course, other ways of doing it. Before we come back for the next bit of ping-pong, I would be very happy and open to talk about alternative, but solid and dependable, ways of achieving the same ends for our country: reconciliation over this issue, accountability for this and future governments, flexibility in strategy, and leadership in the world. There may be other ways, and I am very open to those. I beg to move.
Lord Blunkett (Lab)
My Lords, as someone who rarely goes to bed after 11 pm, I will be incredibly brief. I will comment on both propositions and give my support to my noble friend Lord Coaker and to the most reverent Primate.
We reached an agreement with the French 21 years ago that tackled organised criminality, not its victims. For a time, it was successful. The business model changed, and we must change with it. The National Crime Agency, working with its counterparts in France, could do a similar job, with the Government negotiating with the Government of France. We could pay for a licensing scheme in France that would make it a criminal offence for anyone to purchase, transport or sell a boat without a licence. Our agencies and theirs could then work together to tackle the organised criminal fraternity, who are bringing such misery.
In support of the most reverend Primate, if we ever needed a long-term strategy of 10 years rather than 10 months, one geared not to a general election but to solving a problem, and to dealing with it internationally, on a long-term basis, we need it now. That is why this House should support both propositions.
Lord Paddick (LD)
My Lords, today the Government heralded a reduction in the vacancies in the social care sector. This was achieved mainly through the arrival of 70,000 overseas workers in the last year, while the Bill tries to stop 45,000 people desperately seeking sanctuary in the UK. We on these Benches support Motions X1 and Y1. In a Bill devoid of any measures that target people smugglers, Motion X1 is the very minimum required. It is remarkable that stopping the boats is one of the Prime Minister’s five priorities, and yet it is not one of the Home Secretary’s strategic priorities for the National Crime Agency.
The most reverend Primate has made a compelling case in Motion Y1. The Government have set out in legislation the need for a climate change strategy. But, again, on one of the Prime Minister’s five top priorities, there is no need to set out in legislation the need for a strategy in relation to the movement of refugees and human trafficking. How can the Minister possibly say that that is a consistent position for the Government to take? We on these Benches will support both these Motions if the noble Lord and the most reverend Primate decide to test the opinion of the House.
Lord Bellamy (Con)
My Lords, if I may I will first deal briefly with Motion X1 and the National Crime Agency. It is important to remind the House that the Government have a dedicated multi-agency task force on organised immigration crime, which includes the NCA. The task force is committed to dismantling organised immigration crime groups internationally, including the criminal networks which facilitate people smuggling. In partial response, at least, to the noble Lord, Lord Blunkett, the task force is active in 17 countries worldwide, working with partners to build intelligence and prosecution capability.
The Government’s position, and indeed the position of the House of Commons, is that there is no need for further legislative measures to support the effectiveness of the National Crime Agency. That is the reason why the Government cannot support Motion X1. As regards Motion Y1, no one could have listened to the speeches tonight without recognising the power and sincerity with which they were made. The Government are all for reconciliation and accountability; that is a matter, in the Government’s view, for the normal political process. The House of Commons’ view, as expressed very recently and by a substantial majority, is that Amendment Y1 is unnecessary, although I am sure the sentiment behind it is shared by all of us.
Lord Coaker (Lab)
My Lords, I thank those who have spoken in this brief debate. I thank my noble friend Lord Blunkett for his support and one or two of the ideas he brought forward, which highlight the point I am trying to make. That I have tabled an amendment has caused my noble friend Lord Blunkett to put before your Lordships the idea of licensing the boats. That may be a good idea, there may be better ideas or there may be additional ideas, but at least that was an idea that came forward.
The Minister himself has given the House a couple of facts about 17 countries working together; that has never come up in our discussions on the Bill. We need to continue to ask questions of the Government and to keep making demands of them; through that, public policy will be improved. The very least we can do is for at least one part of the Bill to concentrate on the criminal gangs who are causing such misery, rather than on the people who suffer misery at the hands of those gangs. That is the purpose of my amendment, and I thank the noble Lord, Lord Paddick, for his support.
I finish with reference to the most reverend Primate the Archbishop of Canterbury. How refreshing it is to have a contribution which talks about how to deal with a common problem facing humanity, whatever our views or wherever we come from—actually looking at what we might do to come together to solve that common problem rather than seeking to divide us, as sometimes happens.
I finish with this: we either try to solve this problem as one country—where one country believes that it can solve the problem by tightening up its borders and pulling up the drawbridge—or we recognise that across the continent and the globe countless millions of people are moving and the number who are going move in the future is probably going to increase. Some of the poorest countries in the world take in more refugees than many of the richer countries. All that needs to be discussed, debated and looked at—not just in a debate in Parliament but over a period of time in which people can contribute. That should include not just people in the legislature but members of the public, organisations and people from different parts of the globe.
I thought that the most reverend Primate’s contribution was refreshing and is to be welcomed. I hope that as well as supporting my own Motion your Lordships see fit to support the Motion in his name. It deserves support. It allows us to look forward, up and out, rather than inward. For that, we are in his debt. I look forward to all of us supporting his Motion. I wish to test the opinion of the House on Motion X1.
Lord Bellamy
That this House do not insist on its Amendments 104 and 107, to which the Commons have disagreed for their Reason 107A.
Lord Bellamy (Con)
My Lords, I have already spoke to Motion Y. I beg to move.
Motion Y1 (as an amendment to Motion Y)
The Archbishop of Canterbury
At end insert “, and do propose Amendments 107B and 107C in lieu—
“Ten-year strategy on refugees and human trafficking
(1) The Secretary of State must prepare a ten-year strategy for tackling refugee crises affecting migration by irregular routes, or the movement of refugees, to the United Kingdom through collaboration with signatories to the Refugee Convention or any other international agreement on the rights of refugees.
(2) The strategy must include an evaluation of the factors driving migration by irregular routes and the movement of refugees to the United Kingdom.
(3) The strategy must also include provisions for tackling human trafficking to the United Kingdom and an evaluation of the factors driving demand.
(4) The Secretary of State must make and lay before Parliament a statement of policies for implementing the strategy.
(5) The first statement must be made within twelve months of the passing of this Act; and a subsequent statement must be made within twelve months of the making of the previous statement.
(6) A Minister of the Crown must, within three months of a statement under this section being laid before Parliament, move a motion in each House for the statement to be debated.
(7) “Ten-year strategy” means a strategy for the period of ten years beginning with the day on which preparation of the strategy is completed.
(8) “The Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.”
“(ba) section (Ten-year strategy on refugees and human trafficking);””
The Archbishop of Canterbury
My Lords, despite the gracious and kind words of the noble and learned Lord, Lord Bellamy, for which I am most grateful, I would like to test the opinion of the House. I beg to move.