House of Lords

Tuesday 5th September 2023 Lords Chamber

Tuesday 5 September 2023

14:30

Prayers—read by the Lord Bishop of Southwark.

Home Office: ODA-funded Support

Tuesday 5th September 2023 Lords Chamber

Question

14:36

Asked by

[Lord Bruce of Bennachie]

To ask His Majesty’s Government whether they will place a cap on the amount of ODA-funded support provided by the Home Office for refugees who have reached the United Kingdom.

[Lord Bruce of Bennachie (LD)]

My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I draw attention to my entry in the register of Members’ interests.

[The Parliamentary Secretary, HM Treasury (Baroness Penn) (Con)]

ODA-eligible costs of supporting refugees and asylum seekers in the UK have increased significantly, including to reflect support offered to Ukrainian and Afghan citizens. The Government have provided £2.5 billion of additional ODA to mitigate impacts on wider aid budgets and will continue to strike an appropriate balance between fiscal responsibility and our development objectives.

[Lord Bruce of Bennachie (LD)]

My Lords, had the Government not broken the pledge to deliver 0.7%, the overseas aid budget would now be £17.5 billion, which is £4.75 billion more than is currently proposed. Worse, domestic support for refugees going on hotels, barges and Rwanda is taken from that reduced ODA budget. Will the Minister acknowledge that giving the Home Office a blank cheque to raid the aid budget gives no incentive for restraint, value for money or processing the backlog of asylum claims and allows it to waste even more money on unsuitable accommodation? Can the Minister be proud of that? Should what is left of the budget not be protected instead of being used to balance the books on the backs of the world’s poorest and most vulnerable people?

[Baroness Penn (Con)]

I do not accept the points that the noble Lord has made. It is right that we provided the responses that we did to crises such as that in Ukraine but it is also important that we deliver value for money in our spending in this area. We continue to look to drive down the costs of asylum accommodation in particular. The Home Office has doubled the number of caseworkers in the last two years and continues to recruit more. It is streamlining and modernising its end-to-end process, with improved guidance and use of digital technology. We are also looking very carefully at where we accommodate people and how we can drive better value for money there too.

[Baroness Chakrabarti (Lab)]

On where the Government choose to accommodate people, the Minister will recall that, in July, the High Court found that the Home Office’s use of hotels for unaccompanied child refugees was “systematic and unlawful”. Have the Government decided on a response to that judgment?

[Baroness Penn (Con)]

My Lords, the Government will update the House when we respond to that judgment.

[Lord Carlile of Berriew (CB)]

Does the Minister agree that the Government would be able to be much fairer to genuine refugees if they got a grip of the shortage of manpower dealing with the vast of cohort of people who are applying for asylum but will never get it, and brought to the places where those applicants live tribunals and officials who could deal with them in what might loosely be called “real time”?

[Baroness Penn (Con)]

My Lords, as I said in response to an earlier question, the Home Office is increasing the number of caseworkers to deal with asylum claims; it has more than doubled that over the last two years. Of course, the Illegal Migration Act will be an important part of our strategy here as it will end illegal entry as a route to asylum in the UK.

[Baroness Sugg (Con)]

My Lords, does my noble friend the Minister acknowledge the difficulties that this uncertainty around ODA allocation and budgeting causes for those who are trying to deliver our programmes around the world? Not only does such uncertainty risk the success of our programmes but it can damage our international relations and, of course, it delivers bad value for money for the UK taxpayer. How are the Government working to provide more certainty here?

[Baroness Penn (Con)]

I acknowledge some of the points that my noble friend has made. There has been disruption to the FCDO’s ODA budget. In addition to the additional £2.5 billion that was allocated to help to manage those, the publication of the FCDO’s provisional ODA allocations for 2024-25 demonstrates our commitment to openness and transparency, and enables FCDO teams and their partners across the world to forward-plan.

[Lord Purvis of Tweed (LD)]

The Minister referred to the Illegal Migration Act. The Home Office assumed that it would be able to score on ODA all the costs of the that Act, but it cannot. I asked for clarification of the consequences for the taxpayer of having to fill that gap for the cost of the Act from the noble and learned Lord, Lord Stewart of Dirleton, on 12 July. He did not reply on that day, so I wrote to him through the noble Lord, Lord Murray, on 14 July. I confirmed with his office just this afternoon that the letter had been received but I have not received a reply. I am glad that the Leader is in his place because he speaks passionately and sincerely about this House being able to do our constitutional duty and ask questions of the Government and hold them to account. The Home Office simply does not wish to reply to letters when it does not like the questions that are in them.

[Baroness Penn (Con)]

I will happily take the noble Lord’s point and make it to my noble friend and the government department. In addressing the point that maybe he was making, as I said, the Illegal Migration Act represents a vital step forward in the Government’s plans to tackle illegal migration. I reassure noble Lords that we will continue to report all ODA, consistent with OECD and DAC rules, and we will continue in our commitment to spending 0.5% until we can return to 0.7% when fiscal circumstances align. We keep all our ODA spending forecasts under review to deliver that, and will be closely looking at the evolution of eligible asylum spending as the Illegal Migration Act is implemented.

[Lord Livermore (Lab)]

My Lords, we are all familiar with the Government’s decision to purchase the “Bibby Stockholm” barge and to move asylum seekers on to it even though it was not fit for habitation. Can the Minister confirm whether that purchase was made, in whole or in part, using any ODA funds? Does she consider that purchase to represent good value for money, and are any other such purchases planned?

[Baroness Penn (Con)]

I reassure the noble Lord that all spending is done in line with DAC rules, and I can report back to him on the specific point about that spending. However, when it comes to looking at accommodation solutions for asylum seekers, we are driven by looking at what represents good value for money for the taxpayer. Accommodating asylum seekers in hotels is absolutely not good value for money, and we will continue to look at different solutions to help to accommodate those to whom we have an obligation.

[Lord Hannay of Chiswick (CB)]

My Lords, could the Minister perhaps confirm whether, under the international rules about using ODA for asylum seekers and, above all, Ukrainians—to whom the Government’s welcome was very good—that runs for only one year? Are the Government now cutting off the mulcting of the aid budget for this purpose for those Ukrainians who have been here for more than a year?

[Baroness Penn (Con)]

The noble Lord is right that ODA-eligible spending runs for the first year in country. Of course, the programmes have been designed to deliver support that is appropriate to those moving to this country and where there are costs beyond that year, they are met from elsewhere in government departments’ budgets.

[The Lord Bishop of London]

My Lords, the impacts of cuts in aid have been and will continue to be significant. The equality impact assessment published by the International Development Committee revealed some of the effects, particularly on women. For example, the number of maternal deaths that will be averted by the women’s integrated sexual health programme will fall by more than half. In Afghanistan, the maternal mortality rate will worsen. How will the Government look to mitigate the impact of these cuts, particularly on women and girls?

[Baroness Penn (Con)]

My Lords, I recognise that the reduction in ODA spending has had important consequences and we are, as I say, committed to returning to 0.7% when the fiscal situation allows. In various international development strategy documents, we have also set out how we will prioritise spending to the lowest-income households in humanitarian efforts, while aligning our programmes further with our ambitions on supporting women and girls in order to address the issues that the right reverend Prelate has set out.

[Lord Dubs (Lab)]

My Lords, the Minister has twice cited the Illegal Migration Act in defence of government policy. Can she say which part of that Act is working?

[Baroness Penn (Con)]

My Lords, that Act is only in the process of being brought into force but it is an important part of our approach to reducing the pressures of illegal migration, so that we can better address the needs of legitimate asylum claims in this country.

[Baroness Butler-Sloss (CB)]

My Lords, following the previous question, how will the Act, when it is implemented, stop the boat people?

[Baroness Penn (Con)]

My Lords, by ending illegal entry as a route to claim asylum in the UK, we will change incentives for those who wish to enter the UK by that route, but it is not the only action that the Government are taking. We are working closely with law enforcement in France; we have a number of other initiatives upstream that are all aimed at tackling this problem, and we have seen that small boat arrivals to the UK are down by 20% this year.

Zimbabwe: Election

Tuesday 5th September 2023 Lords Chamber

Question

14:47

Asked by

[Baroness Hoey]

To ask His Majesty’s Government what assessment they have made of the result of the recent election in Zimbabwe, and whether it was free and fair.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, the United Kingdom commends the Zimbabwean voters for their peaceful participation in Zimbabwe’s recent elections. However, the UK shares the view expressed in international election observation mission preliminary statements that the pre-election period and election day fell short of regional and international standards. The UK is also concerned about the lack of transparency surrounding the compiling of results by the Zimbabwe Electoral Commission and the severe disruption of domestic observation.

[Baroness Hoey (Non-Afl)]

My Lords, it was obvious to every independent observer that those elections were not free and fair. In the words of Nelson Chamisa himself, they were a “blatant and gigantic fraud”, but the hard-hitting SADC report questioned the credibility of the elections and the breaches of its own standards. The saddest thing is that, as the election observers left, the familiar pattern of widespread arrests, abductions and torture of grass-roots supporters of the opposition is taking place as we speak all over the country. There were even lawyers arrested last night in a hospital where they were representing tortured victims—the same kind of retribution that Mugabe did after 2008. Does the noble Lord agree that now is the time for full support by His Majesty’s Government for SADC’s efforts to resolve the crisis, and in particular for our newly arrived ambassador to re-evaluate all facets of our relationship with a Zimbabwean Government who flout their own laws through acts of violence and torture, and to give some hope even in the darkest days to the perseverance and courage of the Zimbabwean people?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Baroness refers to the arrival of our new ambassador. He arrived today and brings both diplomatic and development experience. I am sure he will play an exemplary role in our relations with Zimbabwe, its communities and all parties in Zimbabwe as well. The noble Baroness mentioned the abduction and torture of opposition CCC members, which we have raised directly. I can report that we are relieved that they have been found and are receiving treatment for their injuries. We also note the arrest and subsequent bail of two lawyers acting on behalf of the alleged victims on 4 September.

[Lord Howell of Guildford (Con)]

My Lords, I am sure that the Government’s present concerns and those of the noble Baroness, Lady Hoey, are quite correct, but will the Minister accept that Zimbabwe is a vast country of potentially great wealth? Will he accept that, in the longer term, we will need its markets, its raw materials and its support in keeping the Russians and Chinese from dominating the whole of Africa? Despite the present difficulties—and remembering that Zimbabwe was once a member of the Commonwealth and could be again, although clearly not now—will the Minister accept that these things should be kept in the back of our minds?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I agree with my noble friend, who speaks on these matters with great insight and experience. Membership of the Commonwealth and its unique nature as an institution provide a real alternative to countries around the world. However, any country seeking to join must abide by standards, and, of course, that decision is ultimately for all members of the Commonwealth.

[Baroness Kingsmill (Lab)]

My Lords, I have just returned from Zimbabwe. I was a member of the Commonwealth observer group, and we did an extensive report, the interim statement of which Members can find in the Library. A lot of factors, many of which were also raised in 2018, led us to doubt the credibility of this election. Will the Minister agree that the ideal would be for Zimbabwe to re-enter the Commonwealth, but it can do so only when it meets the standards of proper democracy, the rule of law and free elections?

[Lord Ahmad of Wimbledon (Con)]

I answered the noble Baroness’s question in part in response to my noble friend, but I agree with her. I commend her efforts, and those of all the observer missions, in observing the election. We hope that, ultimately, inclusive and pluralist democracies emerge, and that Zimbabwe can find its way back into the Commonwealth.

[Lord Oates (LD)]

My Lords, in light of the developments in Zimbabwe—the widespread violence and intimidation of voters in the rural areas, the abduction and torture of many opposition activists and the continued detention of opposition Members of Parliament—will the UK Government be rather less equivocal and make absolutely clear that they do not regard these elections as free and fair and that the Government of Zimbabwe have no legitimacy? Will they make clear that, as long as this is the case, it will not be readmitted to the Commonwealth, as far as Britain is concerned, and that we will work with SADC colleagues to try to find resolutions to the problem?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I commend the noble Lord’s work as an observer of Zimbabwe, and I am sure that he has seen the two statements that we have issued since the elections. I agree with him about the importance of working with key regional partners, including SADC, which is very much deployed and making the same representations that we are, along with other key interested parties, to ensure that there is a pluralist approach when it comes to democracy. Democracy needs stability, security and inclusivity to be sustainable—that point has been made consistently to the Zimbabwean authorities.

[Lord Collins of Highbury (Lab)]

My Lords, I will reiterate a point I have made before: the ingredients of a thriving democracy are not limited to elections; civil society’s role is vital. I welcomed the noble Lord’s statement before the Summer Recess about the Government’s response to the legislation that is being introduced, but has his department acknowledged, or made representations about, the new labour Act that they are pushing through in Zimbabwe? The Zimbabwe Congress of Trade Unions has warned that this will allow the Government to interfere in trade union administration. Will the noble Lord work with global unions to ensure that the voice of workers is heard, not just politicians?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord and I have often had exchanges on the importance of all aspects of society being represented, and of civil society organisations and groups having their voices heard—that is clear. The noble Lord points to legislation. We have been extremely concerned and raised directly the implications of when, in June 2023, the Parliament approved the criminal law code amendment Act—the famous “patriot Act”, as they call it—which limits civil society. We are also concerned about the PVO Bill currently in front of the President. We are making representations and will continue to do so.

[Lord St John of Bletso (CB)]

My Lords, it is patently clear from all the international reports that these elections were not free and fair, but CCC still managed to secure at least one-third of the parliamentary seats. What measures can His Majesty’s Government take, as well as our international partners, to call for an all-party conference in Zimbabwe to try to reach an inclusive compromise road map for the economic and political sustainability of the country?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord speaks from great insight about Zimbabwe. First and foremost, he will be aware of the work that Zimbabwe must do with the African Development Bank on the repayment of its arrears. The economic focus that is needed is something that must be prioritised by the new Administration. I also very much agree on the need for inclusivity when it comes to Zimbabwe and its future. Of course, the CCC and indeed all other parties must be part of that. One does hope that these points prevail and, as I said earlier in response to a couple of questions, these then add to the basis and foundation for eventual membership, we hope, of the Commonwealth as well.

[Lord Trefgarne (Con)]

My Lords—

[Lord Hayward (Con)]

My Lords, is it not the case—

[Lord Trefgarne (Con)]

My Lords, how did the recent election in Zimbabwe compare with the very first election, back in 1980, which I had the honour of attending?

[Lord Ahmad of Wimbledon (Con)]

I did not catch that, because of other voices. I will reflect on the Hansard and respond to my noble friend, because I missed the first part of his question.

[Lord Hain (Lab)]

My Lords, after all the major concerns about the Zimbabwean elections raised by observer missions, and the arrest yesterday of human rights lawyers, can the Minister ensure that these issues will retain a primary focus in the governance reform challenges identified in both the African Development Bank-sponsored debt arrears negotiations and discussions with the Commonwealth regarding readmission?

[Lord Ahmad of Wimbledon (Con)]

Yes, I can assure the noble Lord we will make exactly those representations, because they are vital to the discussions we are having with key partners about Zimbabwe.

[Lord Hayward (Con)]

My Lords, is it not the case that, although we send observer teams to oversee the actual election, much of the stealing of elections takes place before any observer team actually arrives there? Was it not significant that the violence that I witnessed after the 2018 election took place after the observer teams left? We are seeing the parallel experience this time: it is before and after the observer teams are there that is the real problem in relation to elections in Zimbabwe.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I understand the point my noble friend is making, and that is why it is extremely important that we continue to engage both pre-election but also importantly now post-election, through our ambassador and of course, as I said earlier, with key partners including most notably SADC and the African Union, to ensure that the very point my noble friend raises is addressed quite directly. I do feel we have traction: through representations, along with others, we see the release of those who are arrested. While it may be a glimmer, it is a positive glimmer in these situations.

2030 Emissions Reduction Target: Heating

Tuesday 5th September 2023 Lords Chamber

Question

14:58

Asked by

[Lord Teverson]

To ask His Majesty’s Government how they intend to decarbonise heating in order to meet the 2030 target of a 68 per cent reduction in emissions.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, the Government are investing £6.6 billion over this Parliament in improving energy efficiency and installing low-carbon heating. A further £6 billion has already been committed for 2025 to 2028. Heat pumps are the key technology for decarbonising heating in the near term and are essential in all 2050 scenarios. Therefore, the Government’s aim is for 600,000 heat pump installations annually by 2028. However, a range of technologies will be needed to decarbonise heating, including expanding heat networks in the longer term.

[Lord Teverson (LD)]

My Lords, the Government’s emission targets are both ambitious and critical, so why are we still allowing gas boilers to be installed in new housing developments right now?

[Lord Callanan (Con)]

As the noble Lord knows, that is a matter for building regulations. The future homes standard will come in from 2025; it will not specify the type of heating but it will put in place standards that will, in effect, end gas boiler installations in new homes.

[Lord Birt (CB)]

My Lords, the Minister will know that heat pumps are a very efficient means of turning electricity into heat, but does he think that, while electricity costs roughly three times as much as gas, there is any prospect whatever of them taking off in the UK?

[Lord Callanan (Con)]

The noble Lord is right about the efficiency of heat pumps and about the cost of electricity. Later this year we will issue a consultation on so-called price rebalancing, which will attempt to bring the electricity price down relative to gas.

[Baroness Whitaker (Lab)]

My Lords, will the Government turn their mind to trying to encourage heat pump installers to install them in flats, where a large proportion of UK residents live? In other countries, they can do this; obviously, it is not feasible in all cases, but in many cases it is.

[Lord Callanan (Con)]

The noble Baroness makes a valid point. Heat networks are probably more appropriate for most flats—for instance, you could have one heat pump in the basement that would heat all the flats—but for some cases she is right.

[Lord Forsyth of Drumlean (Con)]

My Lords, what is the Government’s estimate of the cost of meeting this target and who will pay for it?

[Lord Callanan (Con)]

That depends on what target the noble Lord is referring to. There are a number of different targets but a substantial amount of government funding is going into this—some £450 million for the boiler upgrade scheme and £6.6 billion to decarbonise heating generally.

[Baroness Sheehan (LD)]

My Lords, this July, residents of Whitby in Ellesmere Port vetoed plans to be one of two proposed sites for hydrogen village trials out of safety concerns—concerns which were extremely well-founded, I might add, given that hydrogen is the lightest element in the periodic table and notoriously difficult to control. I have two questions. Can the Minister confirm that the residents of Redcar in Teesside will have a similar right of veto? Which other locations are now being considered for these ill-advised hydrogen boiler trials?

[Lord Callanan (Con)]

Public acceptability is a key component; that is why we ruled out Whitby for the trial. Redcar is the only other location being considered.

[Baroness McIntosh of Pickering (Con)]

My Lords, does my noble friend agree that decarbonisation would be faster if we had better insulated rental properties, rather than seeing most of the heat go through single-glazed windows, particularly in the north of England?

[Lord Callanan (Con)]

I would not characterise just rental properties in that way; whatever form of heating is used, better insulation and better performance of buildings is a good thing.

[Baroness Hayman (CB)]

My Lords, I declare my interest as chair of Peers for the Planet. As the noble Lord, Lord Birt, made clear, the decarbonisation of home heating will require an even greater supply of clean electricity. I therefore welcome the Government’s announcement today that they will finally end the destructive and irrational effective ban on onshore wind development that we have lived with since 2015 by updating the National Planning Policy Framework. What scale of difference does the Minister think this will make to the amount of electricity generated by onshore wind? I am sure he will be aware that, last year, we managed two new onshore wind developments while Ukraine managed 19.

[Lord Callanan (Con)]

The noble Baroness has been dogged in her pursuit of this. It is very difficult to give an estimate, as she asks me to do. It would depend on the number of applications and its acceptability for local communities.

[Baroness Blake of Leeds (Lab)]

My Lords, including industrial processes, heating accounts for about 37% of total UK carbon emissions. Of the 17% of carbon emissions from heating and cooling in buildings, the vast majority can be attributed to domestic homes. Analysis shows that a third of the money pledged for retrofitting and alternative systems has not yet been allocated. That is approximately £2.1 billion unspent. When and how will this be resolved, or do the Government believe that they are on track to reduce emissions as planned without it?

[Lord Callanan (Con)]

I will have to look very closely at the noble Baroness’s figures. I do not recognise £2.1 billion as being unspent; in many of the schemes we are oversubscribed in applications, but we will press on with the progress in many of these schemes. In fact, I went to visit a number of them in the noble Baroness’s home area of Leeds only a few weeks ago, and they are proving extremely successful.

[Lord Hope of Craighead (CB)]

My Lords, what are the Government’s proposals for increasing the number of transmission lines? Electricity once generated must reach the people who are going to use it and at the moment we do not have enough transmission lines.

[Lord Callanan (Con)]

The noble and learned Lord is right. His home area of Scotland will see the installation of a number of transmission lines to help to get power to other parts of the country. This is very important. Ofgem has allowed billions of pounds in the settlement to the DNOs, which will help electricity upgrades, but as he will be aware it is not without its controversial elements.

[Baroness Walmsley (LD)]

My Lords, is the Minister aware that, last year, France installed nearly six times as many heat pumps as the UK? Does he think that a coherent government decarbonisation heat policy, a more effective new-build efficiency regulation, support for a professionalised end-to-end supply chain and independent advice for consumers have anything to do with France’s success? Are the Government planning to adopt any of those strategies?

[Lord Callanan (Con)]

Indeed we are. The situation in France and for ourselves is very different, because France has not had the availability of domestic gas that we have had over the years. Nevertheless, I agree with the noble Baroness’s point: we need to expand the number of heat pumps being installed. In fact, we are already doing many of the measures that she outlined.

[Lord Geddes (Con)]

My Lords, would my noble friend please put greater emphasis on the development of tidal energy, which would greatly reduce carbon emissions? I think he will tell us that the infrastructure is extremely expensive; that is true, but thereafter it is utterly free and totally predictable.

[Lord Callanan (Con)]

That is the case for many renewables. Tidal power is an emerging technology and it is eligible for contracts for difference schemes. We made a number of allocations of tidal power support in the last round. I agree with the noble Lord, but we must look at the costs of that against the costs of other renewable technologies and get the best value for the bill payer and the taxpayer.

[Lord Grantchester (Lab)]

My Lords, it is an unfortunate feature of Conservative Governments that they constantly churn grant schemes—

[The Lord Bishop of St Edmundsbury and Ipswich]

I will be very brief. A crucial component of the decarbonisation of heat in homes agenda is to have enough skilled technicians and engineers to install the various heating solutions. Can the Minister update the House on the progress of creating the necessary training opportunities?

[Lord Callanan (Con)]

I can indeed update the right reverend Prelate. There are a number of schemes and training competitions, and we have recently allocated tens of millions of pounds, training thousands of new installers. I am pleased to say that many of the boiler and heat pump manufacturing companies are running their own training courses, and there are now, I think, about 2,000 registered firms with the Microgeneration Certification Scheme.

[Lord Grantchester (Lab)]

I apologise; I had not noticed the right reverend Prelate rise to ask his question.

It is an unfortunate feature of Conservative Governments that they constantly churn grant schemes and support. The Government is way off on their targets for the boiler upgrade scheme and have now, in consequence, in their usual pattern, extended the support for heat pumps until 2028. Do the Government recognise that this constant lack of commitment undermines the confidence of businesses and householders to plan ahead?

[Lord Callanan (Con)]

The noble Lord is asking a self-contradictory question. He starts off by saying that the Government have no long-term schemes and then admits that we have extended the boiler upgrade scheme through until 2028—precisely to address the point that he is talking about. We need more long-term schemes and we need a greater commitment over the longer term. That is precisely what the Treasury has allowed us to do, by already announcing £6 billion of extra funding from 2025 to 2028 to provide exactly that certainty. We need to build up the skills base and the supply chains in the longer term.

National Air Traffic Services: Operational Failure

Tuesday 5th September 2023 Lords Chamber

Question

15:09

Asked by

[Lord Young of Cookham]

To ask His Majesty’s Government what assessment they have made of the case for making National Air Traffic Services liable to pay compensation to customers for operational failure.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, the Government deeply regret the recent NATS operational failure and its impact on airlines and their customers. The incident is being investigated and lessons will be learned. NATS has an outstanding aviation safety record and is regulated against service targets set by the Civil Aviation Authority. There are incentives for NATS linked to its performance; failure to reach target levels may incur penalties and reduce the charges paid by airlines.

[Lord Young of Cookham (Con)]

My Lords, last week 2,000 flights were cancelled because of NATS’s inability to process flight plans, and a quarter of a million passengers were grounded. When airlines are responsible for delays, they must pay compensation to the passenger and pay for alternative flights, accommodation and food. When NATS is responsible for delays, no compensation is payable at all—and, worse, the airlines have to pick up the bill for alternative flights, food and accommodation, which, in this case, was £100 million. Both NATS and the airlines are commercial companies—NATS had a profit of £150 million last year—so is not the differential compensation between NATS, on the one hand, and airlines, on the other, wholly indefensible?

[Baroness Vere of Norbiton (Con)]

I am grateful to my noble friend for highlighting this issue, but I am afraid that I do not accept the premise that the two are comparable. There are elements in NATS’s current licence that allow financial penalties to be placed on it in the instances of poor performance. Indeed, as I stated in my first Answer, there is also a mechanism to reduce charges in subsequent years to the airlines because of poor performance. However, I would say that the event that happened was, thankfully, very rare; nothing similar had been seen for over 10 years. Therefore, we are very grateful for the work that the airlines did, and we worked closely with them to repatriate people as necessary.

[Lord Berkeley (Lab)]

My Lords, if a passenger is delayed on a train, they can claim compensation from the train operator, which in turn can claim from Network Rail, the infrastructure manager, if it caused the delay. It seems to me that NATS and Network Rail are very similar—they are infrastructure managers—so what is the difference between compensation if you are on a train or on a plane?

[Baroness Vere of Norbiton (Con)]

I do not think that those two comparisons are quite correct. We have to deal with the situation we are in now, where there are already arrangements for NATS to be penalised financially and for future charges to the airlines to be reduced, should NATS’s performance fall below set levels. I am delighted to say that NATS’s overall performance is incredibly high and it tends to outperform other European air navigation service providers.

[Lord Trefgarne (Con)]

My Lords, was there any disruption to military flying—flying by the Royal Air Force and the other armed services—during the recent NATS problems?

[Baroness Vere of Norbiton (Con)]

There was not, because the miliary planners would not have been able to take over the system as quickly as NATS was able to. There are well-established contingency plans in NATS on what to do in these sorts of very rare events, and those plans were followed. There was a restriction on flow; however, as many flights as possible were kept flying.

[Baroness Randerson (LD)]

My Lords, whatever the cause of the problem, from the passengers’ point of view there was disruption to their flights and many passengers reported being very poorly treated by their airlines. As has been pointed out, it is the airlines’ responsibility to deal with the problem, however they might be reimbursed in the end. Can the Minister explain to us what the Government intend to do to increase the powers and resources of the CAA to ensure that, when passengers have disruption to their flights, they are properly and promptly compensated?

[Baroness Vere of Norbiton (Con)]

As the noble Baroness will be well aware, we retained EU 261, which became UK 261, which puts certain obligations on the airlines to provide information on rights, refunds or rerouting, and care and assistance. Broadly, that is working very well. The CAA already takes action on the airlines not complying with that. The noble Baroness may have seen, a few weeks ago, that the CAA reached an agreement with Wizz Air to go back over many years to rectify some of the times when it had not treated passengers in line with those obligations. However, the Government will legislate, when parliamentary time allows, to give the CAA additional administrative powers to enforce consumer laws.

[Baroness Foster of Oxton (Con)]

My Lords, I was heavily involved in the original regulation 261 on passenger rights 20 years ago and I understand fully the criteria for exceptional circumstances, which was the case with NATS recently. However, can my noble friend tell us what mechanism is in place for the airlines to recover financial losses caused not only by the recent air traffic failure but by other third-party providers involved, such as ground handling companies, so that passengers can be compensated in a fair and proper way by the airlines?

[Baroness Vere of Norbiton (Con)]

As I think I have already outlined, there is no mechanism by which airlines can seek financial compensation directly from NATS in this circumstance. However, there is a mechanism whereby charges can be reduced in the future if NATS does not meet its service targets.

[Lord Browne of Ladyton (Lab)]

My Lords, when the investigation into what the Minister refers to as “these events” is completed, if it concludes that there was negligence on the part of NATS or people who work for it, surely NATS should be responsible for compensating those to whom it owed a duty of care—namely, the airline companies and the passengers. Is that not how it works in this country?

[Baroness Vere of Norbiton (Con)]

The noble Lord raises a hypothetical—the outcome of this investigation —which I will probably not engage with at this moment. However, what I am very clear about, as is the Secretary of State, is that the investigation that NATS is carrying out, overseen by the CAA, will get to the root cause of whatever caused these events and that that will be published in due course with next steps.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, when I represented Carrick, Cumnock and Doon Valley in the other place all those years ago, when the air traffic control in the south had some problems, the air traffic control at Prestwick took over for the whole of the United Kingdom. However, once Swanwick was open, it was integrated and therefore there is now only one NATS service. Would it not be better to have a look at going back to where one could come in when the other failed, and therefore we would have a backup?

[Baroness Vere of Norbiton (Con)]

The noble Lord raises an interesting point. As I said, when the investigations around this are completed and the reports are available, potential next steps will be considered, particularly around mitigations to ensure that this does not happen again.

[Baroness Taylor of Stevenage (Lab)]

My Lords, I think we are all a bit fed up with hearing that lessons will be learned. We have had a number of really serious incidents recently when that has come out again and again. As the noble Lord, Lord Young, said, more than 2,000 flights were cancelled, which meant that many thousands of passengers, including members of my family—and I am sure Members of your Lordships’ House—were left at chaotic airports with no information, help or support from airlines. It was utterly miserable, expensive and very concerning for all those affected. That has now become a routine occurrence during periods of disruption. If lessons are going to be learned, how quickly will the investigation report, will airlines be held to account, and will the enforcement powers for the CAA come forward in the King’s Speech?

[Baroness Vere of Norbiton (Con)]

As I noted, and as I believe noble Lords will be aware, the preliminary report from NATS was submitted to the CAA yesterday. It was then transmitted to the Secretary of State, and it will be made public in due course by either the CAA or NATS—obviously, those two organisations will be carrying out the investigation into this. When we have that report, we will be able to consider what next steps can be taken.

[Lord Hunt of Wirral (Con)]

I thank my noble friend the Minister for commending our air traffic controllers on their very impressive record. When we have discovered the cause of what happened—preliminary reports seem to indicate that a rogue flight plan, out of many thousands of flight plans, was fed into the system and that that seemed to cause this disruption—can we just focus on the pride we have in our own air traffic controllers, who played no part at all in how this incident occurred?

[Baroness Vere of Norbiton (Con)]

I thank my noble friend for raising that, because I am enormously grateful for the work of our air traffic controllers; I have visited Swanwick and seen their work at first hand. It is an enormously stressful job and, in this very rare event, I think all noble Lords must agree that the system failed safely. We are in agreement that at no point was there a risk to life and that shows that the system is working.

Northern Ireland Budget (No. 2) Bill

1st reading
Tuesday 5th September 2023 Lords Chamber

First Reading

15:20

The Bill was brought from the Commons, read a first time and ordered to be printed.

Business of the House

Tuesday 5th September 2023 Lords Chamber

Motion on Standing Orders

15:21

Moved by

[The Lord Privy Seal]

That Standing Order 38(1) (Arrangement of the Order Paper) be dispensed with on Wednesday 6 September and Wednesday 13 September to enable Report stage of the Levelling-up and Regeneration Bill to begin before oral questions on those days.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I cannot let this go through without some explanation. I have raised this every time the business is changed. Havoc arises, Select Committees have to be changed, people have to cancel engagements already made and there is no explanation except that the Government’s legislative programme is in total disarray. Is it not about time that the Leader of the House and his retinue got the legislative programme properly organised? When I raised it before, the Leader of the House said, “Well, this is unlikely to happen again. We will try to organise things better”, but he has not. What has gone wrong? Why are we having this chaos now?

[The Lord Privy Seal (Lord True) (Con)]

My Lords, I would not consider it to be chaos. In fact, I thank the usual channels, who have agreed to sit early to maximise scrutiny time on the levelling-up Bill. The aim is to conclude Report without recourse to a late sitting, which I think many of your Lordships find a great inconvenience.

[Lord Grocott (Lab)]

My Lords, is this the right occasion—if it is not, I am still going to raise it—to consider what a sensible time is for the House to sit? It is not a choice, as it is frequently presented, that the sensible time for us to start on a Wednesday, for example, is 3 o’clock in the afternoon and then we can sit till midnight or thereafter, when the whole quality of debate, the capacity of Members to make a decent contribution and the number willing to do so diminish, and then, out of the blue, when it is convenient to the Government—I fully understand why—we have to start early on certain days on this short-term basis. It seems to me that no serious disadvantage would occur if we regularly started earlier and finished earlier. Is it not time that we made some changes in this direction?

[Lord True (Con)]

My Lords, obviously, that is a matter for the House as a whole, and this probably is not an appropriate occasion to launch a major debate on it. Obviously, we sit earlier on a Thursday. As noble Lords will know, the tradition and reality of this House is that many noble Lords have other activities to undertake—

[Lord Foulkes of Cumnock (Lab Co-op)]

Oh!

[Lord True (Con)]

The noble Lord scoffs, but that is a reality, and this House benefits from the experience that noble Lords have in other walks of life. However, I would always be open to consider and discuss this in the usual channels and elsewhere.

[The Deputy Speaker (Lord Geddes) (Con)]

The Question is that this Motion be agreed to. As many as are of that opinion will say content—

[Baroness Butler-Sloss (CB)]

Perhaps I may be allowed to speak. I just wanted to ask the noble Lord the Leader of the House if we could find time to discuss this.

[Lord True (Con)]

My Lords, I did not wish to make the point because I think that it sometimes appears as though I am reproving the House—which I am not; I am always open to the ear and will of the House—but we had a lengthy consultation, and indeed a debate and a vote, on this matter not so long ago. The House decided then not to change our sitting times.

[The Deputy Speaker (Lord Geddes) (Con)]

My Lords, I apologise to the noble and learned Baroness, Lady Butler-Sloss, for not allowing her to speak. I thought that we had come to the end of this piece of business.

Motion agreed.

Animals (Low-Welfare Activities Abroad) Bill

Order of Commitment discharged
Tuesday 5th September 2023 Lords Chamber

Order of Commitment

15:25

Moved by

[Lord Black of Brentwood]

That the order of commitment be discharged.

[Lord Black of Brentwood (Con)]

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

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

My Lords, I thank my noble friend Lord Black for his good stewardship of this Bill. I also thank my noble friend Lord Borwick for his engagement on it. I refer the House to my letter of assurance, which has been placed in the Library of the House.

Motion agreed.

Veterans Advisory and Pensions Committees Bill

Tuesday 5th September 2023 Lords Chamber

Committee

15:26

Motion

Moved by

[Lord Jackson of Peterborough]

That the House do now resolve itself into Committee.

[Lord Jackson of Peterborough (Con)]

My Lords, on behalf of my noble friend Lord Lancaster of Kimbolton and at his request, I beg to move that the House do now resolve itself into a Committee upon the Bill.

Motion agreed.

Clause 1: Veterans advisory and pensions committees

Amendment 1

Moved by

[Lord Craig of Radley]

1: Clause 1, page 2, line 3, at end insert—
“(i) advising on revisions to or the restructuring of the War Pensions and Armed Forces Compensation Chamber.”

[Lord Craig of Radley (CB)]

My Lords, I wish to speak to my probing amendment. I had thought to speak in the gap during this Bill’s Second Reading when I suddenly realised that there was a connection with an issue that I had dealt with some 15 years ago. However, regrettably, I arrived too late, having missed the opening remarks of the noble Lord, Lord Lancaster. I am therefore most grateful for the indulgence of the House to my tabling a probing amendment about possible VAPC responsibilities in this excellent Private Member’s Bill.

I have intervened a number of times in the past over proposed changes to the arrangements for the PAT— Pensions Appeal Tribunal—in England and Wales. In 2008—15 years ago—following the passing of the Tribunals Courts and Enforcement Act 2007, the Government intended by secondary legislation to do away with the long-standing PAT in England and Wales, first introduced in 1919, and allocate its work to a social entitlement chamber of a First-tier Tribunal. This was part of a wide-ranging government restructuring of tribunals. This change seemed totally wrong and at odds with treating the affairs of serving personnel and veterans in an appropriate manner. The outgoing PAT team—the experts—to a man was against its work passing to a civilian-type tribunal dealing with social benefits and other civilian claims.

15:30

So too were noble Lords on all sides of this House, the Royal British Legion, COBSEO and other interested charities. Meetings with Ministry of Justice Ministers were quite fruitless. The Senior President of Tribunals elect assumed that the relevant SI, which at that stage had not even reached this House, would be nodded through, so he circulated a descriptive note to the Royal British Legion and other charities about the new tribunal structure, based on the SI being agreed, asking them to give it wide publicity. I was so incensed by all this, by the Ministry of Justice disregarding all advice and by the cavalier way this change was being handled, that I tabled a fatal amendment to the statutory instrument just before the start of the Summer Recess. I am glad to say that this encouraged the reconsideration by the Government during the recess before the change was debated on 14 October that year. By then, the rearrangement proposed by the Government was acceptable. Therefore, in place of my fatal amendment, I simply asked why the Government intended to abolish the Pensions Appeal Tribunal. As agreed beforehand, the Minister announced that a separate chamber in the new First-tier Tribunal would be set up to deal with PAT England and Wales claims. Some years later, the Government of the day decided that there should be changes to the composition of the tribunal panel. I was informed, and these economies were eventually agreed.

My purpose in rehearsing these experiences is to seek clarification on what role the strengthened VPACs might have in advising the MoD and other government departments on similar or other changes to this Armed Forces and veterans’ chamber that might be proposed in future. The British Legion, COBSEO and other charities were very supportive of the original objections, as indeed were noble Lords on all sides of the House.

Is there a need for an official body—not just the interested charities—to be a guardian of this vital support for service personnel and veterans? Should VAPCs have that role specifically given to them? Alternatively, it may be that this Bill, when passed, would give the Defence Secretary the freedom by SI to add this duty to VAPCs or, once their responsibilities pass to the Armed Forces Act 2006, the duty could be introduced during a review or re-enactment of the Act. However, a disagreement between the MoD and the Ministry of Justice might arise because the work of the Armed Forces chamber will further diminish and its distinctive responsibility may need safeguarding. I beg to move.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I thank the noble and gallant Lord, Lord Craig of Radley, for his contribution and for explaining his reasons for tabling an amendment to this Bill. His interest is long-standing, and I can understand why he is probing for greater clarification.

This Bill is fully supported by the Government. While I appreciate the noble and gallant Lord’s concern regarding the War Pensions and Armed Forces Compensation Chamber, the purpose of this Bill is to reform the statutory role of the VAPCs, moving them on to a more stable footing and bringing their statutory functions into line with how they have been operating in practice in recent years. The MoD has been careful to ensure that any proposed extension to the scope of the delegated power moving to the Armed Forces Act 2006 is similar to the existing power in Section 25 of the Social Security Act 1989 and that it is limited to only what is necessary to achieve its policy outcomes in relation to MoD functions and services rather than the wider issues that are embraced by the amendment.

The amendment tabled by the noble and gallant Lord would extend the power to make regulations that give VAPCs functions, to include advising on changes to the War Pensions and Armed Forces Compensation Chamber, which is actually a tribunal with separate governance arrangements. It therefore extends beyond MoD functions and service and into the realm of tribunals, which are a matter for the Ministry of Justice. As one would expect, there are separate rules and processes that govern tribunals. Indeed, the advisory steering group was established by the Lord Chancellor to pursue a consistent approach to war pensions and compensation appeals across the whole of the United Kingdom for this very reason. It considers matters relevant to the Scotland and Northern Ireland Pensions Appeal Tribunals as well as the War Pensions and Armed Forces Compensation Chamber. The advisory steering group meets every six months to raise and discuss tribunal issues and ensure that tribunals’ decision and outcomes are fair, transparent and consistent. It is for these reasons that the Government cannot accept this amendment to the Bill as drafted.

The Bill has been carefully drafted in relation to the Veterans Advisory and Pensions Committees—and they are different to tribunals—to retain some flexibility in how the regulations are framed. This is important, given the recent independent reviews. The reviews in question are the Independent Review of the UK Government Welfare Services for Veterans and the reviews of the Armed Forces Compensation Scheme and Veterans Advisory and Pensions Committees, and copies of these reviews have been placed in the House Library. These reviews will help to determine how the VAPCs could be fully developed and aligned to the wider welfare service effectiveness and delivery, so that they can continue to contribute to the veterans community across the whole of the United Kingdom. The Government are considering the recommendations of these reports in full, with responses to be published later in the year. Changes to the VAPCs resulting from these reviews could be implemented via secondary legislation made pursuant to the enabling power in this Bill, and this Bill will ensure statutory backing for the VAPCs to formally engage with all former members of the Armed Forces and their families. When issues relating to the Chamber, embraced in the amendment, are brought to the Minister’s attention, of course the MoD would be able to consider such usage with the Ministry of Justice.

I conclude by thanking the noble and gallant Lord, Lord Craig, for the opportunity to discuss the separate issue of the chamber, which in law is a tribunal, as I have said. I hope that, following these assurances, the noble and gallant Lord will agree to withdraw his amendment.

[Lord Craig of Radley (CB)]

My Lords, I thank the Minister very warmly and sincerely for a very comprehensive response. It will need reading again in Hansard to take the full strength of it. She has been very courteous and kind, and I appreciate the effort that has gone into making this response. I am well aware that any amendment to a Private Member’s Bill could lead to its death before Prorogation. This Bill, under the excellent efforts of the noble Lord, Lord Lancaster, has been in progress for some years, and it is right that it should go on. I will have no difficulty at all in withdrawing my amendment.

Amendment 1 withdrawn.

Clause 1 agreed.

Clauses 2 and 3 agreed.

House resumed.

Bill reported without amendment.

Worker Protection (Amendment of Equality Act 2010) Bill

Report stage
Tuesday 5th September 2023 Lords Chamber

Report

15:38

Report received.

Police Service of Northern Ireland: Security and Data Protection Breach

Tuesday 5th September 2023 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Monday 4 September.

“As you know, Mr Speaker, I was keen to do a Statement on the Police Service of Northern Ireland’s data breach on 8 August, so I am pleased to have this opportunity. I am also happy to provide an update to the House on this matter. However, since writing this Answer, and as the right honourable Gentleman will know, news of the PSNI’s chief constable’s resignation has broken over the past few minutes. I thank Simon Byrne for his years of public service. The right honourable Gentleman will know that the appointment of a new chief constable is a matter for the Northern Ireland Policing Board, and I will continue to liaise with the senior management team of PSNI while the process of appointing a successor gets under way. The PSNI continues to have my and the Government’s full support in responding to the data breach, and we are focused on providing appropriate and proportionate data and expertise.

The breach, where the personal information of more than 10,000 officers and staff was accidentally published in what appears to be a human error involving a number of spreadsheet fields, happened on 8 August. Without it being realised that the relevant document contained a hidden table, the initials and surnames of every rank and grade, the location where an individual was based—but not their home address—and their duty type were published online for approximately three hours. The data breach is deeply concerning and significant. Recent events in Northern Ireland, including the terrible attack on Detective Chief Inspector John Caldwell, show that there is still a small minority in Northern Ireland who wish to cause harm to PSNI officers and staff in Northern Ireland. I take this opportunity to thank all those individuals who work to keep the people of Northern Ireland safe. They have my many thanks, and we all owe them our gratitude.

I recognise, too, that there is significant concern about the consequences of this data breach. Many PSNI officers and staff have raised concerns about themselves and their families, and they have my support and understanding as they go about their important work, keeping communities safe in these worrying and most testing of circumstances. To them, I again say thank you.

In response to these concerns, the PSNI and wider security partners are taking appropriate action and are working around the clock to investigate the incident, provide reassurance and mitigate any risk to the safety and security of officers and staff. As of 30 August, 3,954 self-referrals have been made to the PSNI’s emergency threat management group. That is part of the welfare and support services that have been made available to PSNI officers.

The House will understand that the PSNI is devolved and has operational independence. That has been the case since April 2010 with the creation of the Department of Justice. However, as the House would expect, the Government have remained in close contact with the PSNI since this breach and other data breaches came to light. My officials and I have been receiving regular updates and the Government’s focus has been on providing specialist support and expertise to the PSNI in its handling of this issue. Officials in the Cabinet Office have chaired regular meetings, and I will update the House further, I hope during this Urgent Question.”

15:39

[Lord Murphy of Torfaen (Lab)]

My Lords, the breach of security in the PSNI was absolutely catastrophic for both the morale and the security of all the people who work for it, including civilians. Nearly 4,000 people —40% of police officers who work for the PSNI—have self-referred to its emergency threat management group. It has led to the resignation of the chief constable of Northern Ireland, whom we thank for the service he has put in, and brought particular distress to Catholic officers—but not exclusively, of course—because of possible attacks by republican dissidents. Indeed, it will affect future recruitment of Catholics to the PSNI.

I have a couple of questions for the Minister. Who is now ministerially responsible for the PSNI in the absence of a Security Minister in Northern Ireland? Will the Secretary of State have a role to play when the internal inquiry is finally concluded? Will he have a role to play in trying to ensure the security of all officers? Finally, can he guarantee any costs arising from the breach, which will be considerable and which the PSNI simply cannot afford?

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

I am very grateful to the former Secretary of State for his comments and his questions. Of course, I share his concerns over the security breach that took place. I was in Northern Ireland a day or so after and I was fully briefed at the PSNI headquarters by the then chief constable, who, as the noble Lord reminded the House, handed in his resignation yesterday. I place on record my appreciation for his service and wish him well for the future.

Nobody underestimates the seriousness of the breach. The noble Lord referred to the number of self-referrals to the emergency threat management group, which is absolutely correct. I assure him that the PSNI and His Majesty’s Government take the safety, security and welfare of police officers and support staff as the very highest of priorities. The Government have been keeping in very close contact at official and ministerial level with the PSNI, and we have offered specialist assistance wherever we can.

On the noble Lord’s specific questions, as he rightly alludes to, there is no direct ministerial direction within the Department of Justice. As he knows, policing is a devolved issue and is the responsibility of the Department of Justice. There is no Minister there at the moment. A number of inquiries have been launched, in particular one by the Policing Board, whose results we hope to see in the autumn, possibly as early as October. Any assessment of that report will obviously have to wait until it has reached its conclusions and been published.

As far as finance is concerned, the noble Lord is aware that policing is a devolved issue, as I said. The Department of Justice has a budget of £1.2 billion. There are certain matters for which the Northern Ireland Office is responsible. It is too early to reach conclusions, but we will have to look at the findings of the various inquiries once they report.

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the Minister for those clarifications to the noble Lord’s questions. Policing in Northern Ireland is always challenging and this very unfortunate release has made it even more so. We have lost the chief constable and replacement will also be challenging. Given what the Minister has said—namely, that policing and justice are devolved, although there is a role for the Northern Ireland Office—does that not reinforce the case for those people who are genuinely concerned about policing, and indeed all other services in Northern Ireland, to recognise that we cannot go on kicking things backwards and forwards between Westminster and a non-existent Assembly or Executive? This is just another case in which those who are blockading the re-establishment of the Assembly are preventing the resolution of the very issues that they are raising concern about in a proper fashion using the devolved Administration that was created for the purpose.

[Lord Caine (Con)]

I am grateful to the noble Lord. I pay tribute to the work of the Police Service of Northern Ireland, which does an amazing job across the entire community, policing in a very difficult situation. Irrespective of the data breach, it faces pressures that are unknown to other police forces within the United Kingdom. Obviously, the breach has caused great anxiety. In respect of the thrust of the noble Lord’s questions, he is absolutely right: we need an Executive back in Northern Ireland as quickly as possible. We are doing everything we can to bring that about; that will obviously include the appointment of a Justice Minister within the department who could give political direction.

[Lord Dodds of Duncairn (DUP)]

As well as questions for the chief constable, who has rightly resigned given the series of gaffes and debacles that have happened under his leadership of the PSNI, are there not questions for the Policing Board of Northern Ireland, the body that holds the police to account directly, given the reports that members of the Policing Board, which is supposed to be completely independent of operational matters, tried to direct the chief constable and how he should behave in certain respects? In relation to the financial issue raised by the noble Lord, Lord Murphy, will the Minister give a guarantee that ordinary people in Northern Ireland will not suffer as a result of the money that will be diverted into clearing up this mess of data leaks?

[Lord Caine (Con)]

I am grateful to the noble Lord for his questions, as always. He will be aware that the Policing Board itself has asked the Department of Justice to undertake an inquiry into its activities; we should await the outcome of that. On funding, I reiterate that funding is primarily a matter for the devolved Administration out of the £1.2 billion that has been allocated to the Department of Justice. We will obviously have to look again at the various reports and investigations, and the conclusions that they come to.

[Lord Reid of Cardowan (Lab)]

My Lords, given the problems raised by my noble friend Lord Murphy, it is doubly unfortunate that Northern Ireland is now left without a chief constable. Can the Minister say something about the timeline for the appointment of any new chief constable, since that will obviously affect the questions raised about the occurrences we have been faced with? Secondly, can he say whether that will be exclusively a matter for the Policing Board, or will it be in any way affected by the absence of an Executive and a Justice Minister?

[Lord Caine (Con)]

I am grateful to the former Secretary of State for his questions. He will understand that the timeline is entirely a matter for the Policing Board, which appoints the chief constable. I am sure that it will wish to seek a resolution for this issue very quickly. It is important that the PSNI has strong leadership restored as quickly as possible, but that is entirely a matter for the Policing Board. It is within its power to appoint an interim chief constable while the formal recruitment process is ongoing, but that is its own issue. On the lack of a Justice Minister, in the unfortunate circumstance that the appointment be made before the Executive is re-established, we would have to take powers for His Majesty’s Government to ratify any appointment that would normally be ratified by the Justice Minister. That happened back in 2019, when the outgoing chief constable was appointed and there was no Executive and Assembly functioning.

[Lord Cormack (Con)]

My Lords, could I revert to the point made by the noble Lord, Lord Bruce? Would my noble friend, for whom we all have the utmost respect, discuss with the Secretary of State the calling together of the leaders of all the parties in Northern Ireland yet again—I know it has been done before—because it is essential that the Executive are re-established? It is essential that the people of Northern Ireland do not continue to be let down by the failure of their elected politicians.

[Lord Caine (Con)]

I am grateful to my noble friend. I am not sure whether it is in order to refer to people sitting outside the Chamber, but my right honourable friend the Secretary of State might well have heard my noble friend’s question direct. I completely agree with my noble friend that the imperative is to restore the Executive and to get the institutions established by the Belfast agreement fully functioning, up and running, at the earliest opportunity. I can assure my noble friend that the Secretary of State and the entire ministerial team are focused on that outcome and that my right honourable friend has been having a number of discussions over the summer with the political parties towards resolving the issues that are preventing the re-formation of the Executive.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Consideration of Commons amendments
Tuesday 5th September 2023 Lords Chamber

Commons Amendments

Scottish Legislative Consent withheld, Northern Ireland Legislative Consent sought.

15:51

Motion A

Moved by

[Lord Caine]

That this House do not insist on its Amendment 20 and do agree with the Commons in their Amendments 20A and 20B in lieu.

20A: Clause 13, page 11, line 9, at end insert—
“(3A) The Commissioner for Investigations must ensure that each review, whether or not a criminal investigation forms part of the review,”

20B: Clause 13, page 13, line 14, at end insert—
“(2B) If particular questions were included in the request for a review (see section 11(1)), the final report must include—
(a) the ICRIR’s response to those questions, if and to the extent that it has been practicable to respond to them in carrying out the review in accordance with section 13;
(b) for each question to which it has not been practicable to respond, a statement of that outcome.”

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I beg to move Motion A and will speak also to Motions B and C.

We have debated these issues at great length since this Bill was introduced in your Lordships’ House in July 2022. I will therefore speak briefly to the remaining issues today. I have always been the first to acknowledge the challenging nature of this legislation and how it requires some very difficult and finely balanced political and moral choices. The Government have, however, continued to listen and sought to strengthen the legislation. Since July last year, I alone have had more than 80 meetings on legacy issues, mostly in Northern Ireland, but also in Ireland, the US and of course in your Lordships’ House. My right honourable friend the Secretary of State has also had a large number of meetings on these issues.

Motion A1, regarding the conduct of reviews by the commission, raised a number of important issues, and I am extremely grateful to the noble Lord, Lord Hain, a distinguished former Secretary of State, for the manner in which he has engaged on these matters. This engagement has resulted in a number of key amendments to strengthen this aspect of the Bill. This includes amendments expressly to confirm that the Commissioner for Investigations, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act 1998 and to make clear that the independent Commissioner for Investigations will determine whether a criminal investigation should form part of any review. The noble Lord has, therefore, already significantly influenced this Bill during its passage, and I genuinely thank him for that.

Respectfully, however, I would suggest that the content of the noble Lord’s amendments has been extensively addressed by the package of amendments tabled both on Report and subsequently at Commons consideration by the Government. Indeed, my right honourable friend the Secretary of State tabled two amendments in lieu in the other place to address further the concerns raised by the noble Lord, Lord Hain, through these amendments.

The first of these amendments, Amendment 20A, clarifies that the duty to look into all the circumstances of a death or harmful conduct when carrying out a review applies no less rigorously in a case where the Commissioner for Investigations has decided that a criminal investigation should not take place. Amendment 20B emphasises the importance of the involvement of victims’ families in the review process. It does so by placing the commission under an express obligation to include in its final report answers to any questions posed by family members as part of a request for a review, where it has been practicable to obtain the requested information as part of that review. I should remind the House that both these amendments in lieu were accepted in the other place without the need for a vote.

Turning to Amendment 20D in the name of the noble Lord, Lord Hain, the Government are also unable to accept the addition of a power that would allow the Secretary of State to prescribe standards under subsection (6A) as an alternative to attempting to provide for those standards on the face of the Bill.

The Government consider it vital to safeguard the independence of the commission. This is something that we have worked very hard to do, and to strengthen, during the Bill’s passage, in direct response to a number of points made in your Lordships’ House. In our view, any such power as set out in the noble Lord’s amendment would run directly counter to this objective.

[Lord Hain (Lab)]

I am grateful to the Minister for accepting this intervention and I thank him for his generous remarks earlier. The point that he has not so far made, and which I hope he will acknowledge, is that the amendment says that it would be by affirmative resolution. In other words, it will require proper consideration by both Houses. My concern in the amendment, as I will explain, is that this Bill can be further improved over time in the light of experience and the views of victims’ groups.

[Lord Caine (Con)]

I thank the noble Lord, although I think my point stands. Throughout the passage of the Bill—in response to criticisms, when it was brought from the other place, that the Secretary of State had too many powers vested in him—we have sought to divest powers and to strengthen the independence of the commission. Whichever procedure is used in this House, this amendment seems to me to be running in the opposite direction. I also remind the House that the Bill already contains a provision in Clause 35 requiring the Secretary of State to review the performance of the new commission by the end of its third year of operation.

I turn next to the issue of conditional immunity, which I readily accept is the most difficult and challenging element of this legislation, but which, in the view of this Government, is essential if the new processes which the legislation establishes are to have a chance of working. I am grateful as always to the noble Lord, Lord Murphy of Torfaen, for his alternative proposal, instead of insisting on the wholesale removal of conditional immunity. Having been passed in your Lordships House by 12 votes, this was decisively overturned in the elected House by 92 votes—far more that the Government’s actual majority in the other place. As I have said, conditional immunity is, in this Government’s view, an important mechanism to help the independent commission to fulfil its functions.

I briefly remind the House that the aim of the Bill is simple and straightforward: to provide more information to more people in a shorter timeframe than is possible under current mechanisms, to establish the facts of what happened to the families who wish for that, and to help society both to remember the past and to look forward to a more genuinely shared future.

I understand that the aim of Amendment 44E in the name of the noble Lord, Lord Murphy of Torfaen, is to give family members a role in whether immunity should be granted. In the Government’s considered view, that would critically undermine the effectiveness of these provisions in their principal aim: the recovery of information for families. For example, the “public interest” consideration element in condition D would lead to uncertainty as to the circumstances in which immunity will be granted, undermining the clear and transparent approach that we have sought to develop.

To ensure that the commission can obtain as much information for families as possible, we need to ensure that the right incentives are in place for individuals to come forward and provide that information. The possibility that eligible individuals who co-operate fully with the commission could be prevented from obtaining immunity is highly likely to act as a significant disincentive for individuals to disclose information.

As the House is well aware from our numerous debates over many months, the commission will grant immunity from prosecution only if individuals provide an account that is true to the best of their knowledge and belief. We have developed a more robust test for immunity in which that account must be tested against any information that the commission holds or can access. The commission must, as a result of amendments in your Lordship’s House, take reasonable steps to secure additional information needed to test the truthfulness of an account.

If an individual does not provide a truthful account of their actions that could be passed to families or does not participate in the immunity process at all, immunity will not be granted and that individual will remain liable for prosecution, should the evidence exist. Where prosecution takes place, should a conviction be secured, an individual will not be eligible for the early release scheme under the Northern Ireland (Sentences) Act 1998—again, as a result of amendments in this House.

16:00

Similarly, while I acknowledge the sentiment behind introducing the so-called licence conditions again under Amendment 44E, I respectfully suggest that the Government have sought to address these issues through amendments that were agreed on Report. They send a clear message that, once immunity is granted, individuals who are convicted of offences that could impede reconciliation will lose that immunity. In our view, that approach strikes the right balance between providing sufficient certainty regarding the effect of a grant of immunity and ensuring that there are appropriate consequences for those whose behaviour after being granted immunity is not compatible with the fundamental aims of this legislation. The alternative tabled by the noble Lord, Lord Murphy, would not support an effective information recovery process, and I therefore ask that the noble Lord does not insist on his Motion B1.

Lastly, the legislation as originally introduced gave the Secretary of State a power to write in the date for “the relevant day” in respect of the cessation of inquests and criminal investigations. However, the clarity brought forward by amendments on Report removed the requirement for defining “the relevant day”. Amendment 119A is therefore entirely technical in nature and seeks to remove that power as it is no longer necessary.

I express my gratitude for the manner in which noble Lords across the House have engaged with, scrutinised and sought to improve the Bill. I pay particular tribute to the Opposition for their patience and encouragement. I add, as I was unable to do at Third Reading, my thanks to officials who have worked tirelessly behind the scenes and put in an incredible amount of work on this legislation. My thanks go to them, to parliamentary counsel for the standard and quality of amendments that they drafted and to the officials in the NIO and Whitehall who have worked on the Bill.

In conclusion, I ask noble Lords not to insist on Motions A1 and B2 and instead to agree with the Commons in their amendments in lieu under Motions A, B and C. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Lord Hain]

Leave out from “20” to end and insert “, do disagree with the Commons in their Amendments 20A and 20B, and do propose Amendments 20C, 20D and 20E in lieu—

20C: Clause 13, page 11, line 9, at end insert—
“(3A) The Commissioner for Investigations must ensure that each review, whether or not a criminal investigation forms part of the review,”

20D: Clause 13, page 11, line 42, at end insert—
“(6A) The Secretary of State may by regulations prescribe the standards to which the Commissioner for Investigations must ensure that reviews by the ICRIR are carried out.
(6B) Standards prescribed under subsection (6A) may include (but need not necessarily include)—
(a) whether reviews should be carried out to criminal justice standards,
(b) what measures should be used to ensure that reviews comply sufficiently with obligations under the European Convention on Human Rights,
(c) whether as much information as possible should be gathered by reviews in relation to the death or harmful conduct, and
(d) whether all evidential opportunities should be explored by reviews.
(6C) The Secretary of State may prescribe standards under subsection (6A)—
(a) following representations from victims’ families or representations on their behalf, or
(b) if the Secretary of State considers standards should be set or changed in the light of experience of the reviews.
(6D) Regulations under this section are subject to affirmative procedure.”

20E: Clause 15, page 13, line 14, at end insert—
“(2B) If particular questions were included in the request for a review (see section 11(1)), the final report must include—
(a) the ICRIR’s response to those questions, if and to the extent that it has been practicable to respond to them in carrying out the review in accordance with section 13;
(b) for each question to which it has not been practicable to respond, a statement of that outcome.””

[Lord Hain (Lab)]

My Lords, I thank the noble Lord, Lord Caine, for his generosity. It is true that, having clearly been uncomfortable with the Bill from the outset—a Bill imposed from elsewhere in the government machine—he has sought to come at least some way towards the deep concerns and criticisms of it that have been expressed on a cross-party basis. Yes, he has made some concessions, but, frankly, they have not gone anything like far enough to satisfy victims’ groups especially. The Bill remains toxic for almost all victims’ groups in Northern Ireland and has not been supported, even in its amended form, by any political party in Northern Ireland, so far as I am aware.

My amendments would ensure that there was an opportunity to improve over time—by affirmative resolution, not executive fiat—what will soon be an Act, thereby creating a measure of consent for it where currently there is absolutely none in Northern Ireland, amended or not. As this sorry Bill slithers towards Royal Assent, one thing is clear: despite the willingness of the noble Lord, Lord Caine, to engage and listen—he has regularly gone out of his way to do so to me, for which I thank him—and despite the amendments that he has tabled that have marginally improved a truly terrible Bill, the Government have monumentally failed to persuade Northern Ireland’s victims and survivors that what is being done in the name of reconciliation is even remotely in their best interests. Instead, the Government turn their back on them, saying, “Take it or leave it. We are done with you”.

Even when the Bill leaves here, with all its worst excesses, and goes to the other place, that will emphatically not be the end of the story, hence the need for my Motion. There remain serious doubts as to the legal basis upon which the Bill is founded. When Sir Declan Morgan, an outstanding jurist of unimpeachable integrity and the immediate past Lord Chief Justice for Northern Ireland, who has been appointed interim chief commissioner of the ICRIR, was asked whether he believed that the legislation was European Court of Human Rights-compliant, he said:

“I am not going to express a view”.


But the Secretary of State at the time that the Bill was published did express a view that it is and I have no doubt that the noble Lord, Lord Caine, will express that same view. What else could he do?

Just last week, Sir Declan said that he welcomed victims challenging the legislation in the courts. I repeat: he welcomed them challenging it in the courts. What on earth are we doing to victims? Will they welcome being forced to go to court to fight for their basic right to be treated fairly, with respect and dignity and within the law? For that is what the Government are doing to them.

There is no doubt that the Bill’s immunity provisions will be challenged and, very possibly, the review/investigations mechanism as well. In my amendments in lieu, I set out a mechanism whereby the commissioner can move towards a Kenova-type operating model, endorsed by this House but rejected by the Commons, that is demonstrably European Court of Human Rights-compliant, and evolve the Bill in the light of experience and the views of victims’ groups, or indeed if the courts rule against what is proposed, as many think is likely. It is a modest amendment but if it is adopted change can evolve by affirmative resolution rather than ministerial fiat or going through further lengthy years of consultation and fresh primary legislation on this perhaps most thorny and difficult of the issues in Northern Ireland’s great list of difficult issues. I tried to address it with the Eames-Bradley report; the Minister has grappled with this issue for years. We who are former Secretaries of State have all tried to address it but it is very difficult.

If the Bill does not have the support of those whom it is designed to address, surely it should be allowed to evolve in the light of representations. That was what my amendments provide for, rather than going through years of further grief and consultation, and fresh primary legislation. I appeal to the Minister, even at this late stage, to accept my Motion and, by doing so, achieve a measure of support for a Bill that currently has none. I beg to move.

[Lord Murphy of Torfaen (Lab)]

My Lords, I will speak to the complicated amendments in the Motion in my name on the Marshalled List. Like the Minister, I wish to pay tribute to his civil servants, who have worked very hard on this Bill during a very long 13 months. I also thank the Minister himself for the courtesy and diligence with which he has taken this dreadful Bill through this House.

I do not believe for one second that the Government were wrong in trying to address the issue. Of course, it has to be addressed. It is a difficult one: Governments and the people of Northern Ireland have tried for a quarter of a century to deal with it. Generally speaking, they have failed, so there is no difficulty in accepting that the Government should try to deal with it. However, I believe that in this instance, particularly because of the most central and controversial part of the Bill—the issue of immunity—they have not succeeded in acquiring the support that would be deserved under normal circumstances in Northern Ireland.

Some months ago, your Lordships agreed the amendment I tabled to delete entirely Clause 18—the central clause dealing with immunity and therefore the central and most controversial issue of the Bill. It was defeated in the House of Commons and has now come back, but, because the clause was defeated here, two important amendments that would have been debated on that occasion—one tabled by my noble friend Lord Hain and one tabled by the noble and right reverend Lord, Lord Eames—were not given the opportunity to be considered by your Lordships. My amendment is an amalgamation of both of them, dealing with licence conditions and family consent.

I point out again to the House that those amendments were originally moved by a former Secretary of State and a former Church of Ireland Primate of All Ireland and Archbishop of Armagh—so they were serious amendments about serious issues. I believe that the Government have tried to remedy some of the worst injustices of the Bill, and I thank them for it, but they have not gone far enough. They have not addressed the real issues that have been expressed over the course of the last 13 months when the Bill has been going through.

My noble friend Lord Hain referred to the comments of the commissioner-designate, Sir Declan Morgan, and I share his view that he is of course a considerable and significant jurist. He said that the issue of compliance and compatibility with the ECHR would now be a “matter for the courts” and international law. Only last week, we heard that the Irish Government are contemplating taking serious legal advice about going to court. That cannot be right for a Bill as significant as this.

Sir Declan went on to say that the Bill has virtually “no support” in Northern Ireland—that is one of the most major understatements I have heard for a very long time. Every Church in Northern Ireland is opposed to the Bill—and Northern Ireland is a very churchgoing place. If all Churches are against it, that should be taken seriously into account. Every single political party is opposed to it, whether they be nationalist, republican, unionist or none of these. Every victims group, and the victims’ commissioner, is opposed to the Bill. The Equality and Human Rights Commission and commissioner are opposed to it, as are all human rights bodies in Northern Ireland. The Irish Government do not like it, the Council of Europe has disagreed with it, the United States Government are dubious about it and the United Nations is against it. With all that opposition, why on earth are the Government insisting on proceeding with this?

My amendment would not solve the whole difficulty with this bad Bill, but it would mean the involvement of victims’ families and the ability to impose conditions on immunity, including the right to revoke it altogether. This would improve it, but we have heard that the Minister will not accept it.

But the best solution is for the Bill to be put on hold and frozen until such time as we have a properly governing Executive and Assembly back in Northern Ireland. Those are the people who should decide how these matters should be dealt with. Once again—finally, I suspect—I appeal to the Government to do such a thing. The Minister knows that imposition on the people of Northern Ireland never works, and nor should it.

[Viscount Hailsham (Con)]

My Lords, although the House is faced with two undesirable options, I very much prefer the position advanced by the Government to that advanced by the noble Lord, Lord Murphy. If accepted, his amendment would preclude immunities from being granted, in the most part. The Government’s position allows for the possibility of immunities, albeit surrounded by provisos and caveats.

I personally take what I know to be a minority view: that the proper way forward is for a statute of limitations to preclude all prosecutions for all offences alleged to have been committed prior to the Good Friday agreement. This would apply both to security personnel and to alleged terrorists; I do not think it is possible to make a distinction between the two.

16:15

My reason is a very simple one: there is, I believe, a serious disparity between the position of former servicemen and the way they are being treated—that is to say that they are at risk of prosecution—and, for example, the distinction, the positions and the respect which have been accorded to people who have been alleged to have committed former terrorist acts. I have in mind, for example, Mr McGuinness. I have the greatest respect for the courage of Mr McGuinness in his decision to renounce terrorism and to participate in constitutional government, but you cannot overlook the past entirely, and it seems to me to be wholly wrong in principle, and an abuse of legal process, to expose former servicemen, whose culpability is probably very much less, to the risk of prosecution when, at the same time, you have given positions of honour and respect to people who have allegedly committed crimes.

It is for that reason that I favour very much a statute of limitations, and I am prepared to call it an amnesty. That is what we recommended when I was at the Foreign Office for many countries that had been through periods of civil discord, and that is what I think is the proper way forward. However, I know full well that that is not a majority view, either in this House or in the Province, or indeed in Ireland itself. That being so, I favour the position adopted by the Government rather than that advocated by the noble Lord, much as I respect him.

[Baroness O’Loan (CB)]

My Lords, I shall speak in favour of the amendment of the noble Lord, Lord Hain, to the Minister’s Motion on Clause 13, and the amendment of the noble Lord, Lord Murphy, to the Minister’s Motion on Clause 18.

The Bill removes fundamental legal rights from victims of the Troubles throughout the United Kingdom. The aim of the Bill is clear. The Minister referred to the purpose of the Bill in his introductory remarks, but actually the Long Title says that its purpose is to limit criminal investigations, civil legal proceedings and inquests, despite the fact that by May 2024, there will be some 15 outstanding legacy inquests to be heard. It is also to prevent police complaints investigations—all this into matters arising between 1966 and 1998. All these ancient and balanced legal procedures are being removed under the Bill, as well, it has to be said, as all the protections and powers that the courts have in the conduct of criminal, civil and inquest proceedings.

The Minister’s amendments do not address the deficiencies identified in the Bill by so many across the world—the noble Lord, Lord Murphy, referred to them—and the other place’s responses to the amendments made in your Lordships’ House do not address the deficiencies identified either.

It is important to remember that the Council of Europe, its Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the UN High Commissioner for Human Rights, the UN special rapporteurs, national human rights organisations, our own parliamentary committees, civil society organisations, all political parties in the UK, with the exception of the Conservative Party, political parties in Ireland and the US, victims groups and community groups have all declared the Bill to be unacceptable because of its manifest deficiencies, and because of the breach of our international legal obligations.

I remind noble Lords of the fact that, under the Bill, the ICRIR does not even have powers to demand information as of right but must justify each request as reasonable. That does not happen in normal criminal investigations. Yet untrammelled access to information is fundamental to the conduct of criminal investigations, and it has frequently only been the determination of judges, coroners, lawyers and litigants which has resulted in the disclosure of relevant and important information which should have been disclosed as a matter of course. Even in that situation, the police and the MoD have frequently said that they cannot produce the material because they do not have the resources to do so.

The answer to this situation cannot be to close down the justice system; rather, as Patten recommended, policing must be delivered in the context of a coherent and co-operative justice system. We do not have that in Northern Ireland. For example, the Kenova investigation submitted some 33 files from 2019 onwards, but no decisions have been made by the Public Prosecution Service for Northern Ireland because it does not have access to the lawyers it needs.

The Secretary of State and the Minister keep reiterating that resources must be found within the Northern Ireland budget, yet what happened in Northern Ireland over the years of the Troubles was not the responsibility of paramilitaries alone. Agents of the state also played their part. In my 2007 report on the case of the murder of Raymond McCord Junior and associated matters, I said:

“it has emerged that all of the informants at the centre of this investigation were members of the UVF. There was no effective strategic management of these informants, and as a consequence of the practices of Special Branch, the position of the UVF particularly, in North Belfast and Newtownabbey, was consolidated and strengthened … information was withheld … Instructions were given that matters should not be recorded. The general absence of records has prevented senior officers, who clearly have significant responsibility for the failings, from being held to account. It is abundantly clear that this was not an oversight, but was a deliberate strategy and had the effect of avoiding proper accountability”.

That was accepted by the chief constable at the time and by the Secretary of State. In many other cases, there were similar findings. It is these situations, for which the state had responsibility, which demonstrate what happened and show the responsibility of the state for some of it. That is why I would argue that the Government have, at the very least, a moral duty to support those engaged in the pursuit of justice and truth and not to impede their search for it through passing this Bill—for that is what this Bill in its final form will do.

Your Lordships have discussed at length the requirements of the European Convention on Human Rights in the context of investigation and pondered the Government’s commitments under the Good Friday agreement. The Minister’s Motion A does not make the Bill compliant with the ECHR or the Good Friday agreement. The amendments of the noble Lord, Lord Hain, would at least impose an obligation for any regulations made by the Secretary of State in this context to be compliant with the European Convention on Human Rights and be subject, as he so articulately said, to the affirmative procedure.

The conditional immunity scheme, despite the Government’s amendments and others tabled by noble Lords, remains in breach of the Government’s obligations under the Good Friday agreement to provide people with access to the courts and remedies for breaches of the convention. That fact is profoundly important.

Victims’ groups such as the Truth and Justice Movement regard this Bill as destroying their democratic and human right to truth and justice. Nobody, not even the Government, thinks that this Bill will provide truth and justice, let alone reconciliation. The Secretary of State has repeatedly acknowledged the problems with the Bill, most recently stating:

“This Government believes that the conditional immunity provisions will be key in helping to generate the greatest volume of information, in the quickest possible time”.


There is no evidence to demonstrate that immunity will have this effect and it is well known that former paramilitaries involved in murder really have no incentive to tell all. All they have to do is sit out the five years within which cases may be brought for review. Even when information is provided, it is rarely the whole truth. On some occasions, information that has been provided has been demonstrated to be untrue.

The conditional immunity scheme which the Minister is again promoting, and which we are debating, would result in impunity for serious human rights violations and the unilateral shutting down of avenues to justice for victims and would give rise to questions about the ability of the independent commission for information recovery to deliver outcomes that would meet human rights standards.

The noble Lord, Lord Murphy, seeks by his amendment to provide the victims of the Troubles and the close family members of those who died with the right to be asked for their consent to a grant of immunity. It states that the chief commissioner must be satisfied

“the close family member has given consent for the granting of immunity and no objections have been raised by any other close family member within three months of the consent being given”.

Alternatively,

“if no consent has been given by that close family member within three months or an objection has been raised by any other close family member”

within three months, the chief commissioner can decide that

“it is nevertheless in the public interest to proceed with the granting of immunity”,

regardless of the views of the family. This modest amendment by the noble Lord, Lord Murphy, seeks to put victims at the centre of the process of granting immunity. It is qualified by an overriding right of the ICRIR chief commissioner to determine that, even when victims do not want immunity granted to a perpetrator, the views of the victims can be overridden in the public interest.

One of the problems of the current system is that judicial review has repeatedly been necessary to challenge decisions made by public authorities involved in dealing with legacy. Judicial reviews cost a lot of money. They take a long time to be resolved in our underresourced legal system, and they cause immense further distress to victims. If approved, the Secretary of State’s amendment will simply lead to more judicial reviews. Rather than solve the problem, it will add to it.

Your Lordships were right to remove Clause 18 from the Bill. The other place has—as it is entitled to do—overridden your Lordships. This amendment, in the name of the noble Lord, Lord Murphy, will at least qualify the operation of Clause 18 by inserting some recognition of the fact that any process which ignores the views of victims simply has the capacity to cause them even more suffering, rather than to promote reconciliation.

As the noble Lords, Lord Murphy and Lord Hain, said, the Bill is fatally flawed. It deprives people across the United Kingdom who suffered so grievously during the Troubles of their fundamental rights under the Good Friday agreement, the European Convention of Human Rights and the Human Rights Act. If and when it is passed, it will lead to lengthy and complex litigation—something welcomed by the former Lord Chief Justice, Declan Morgan. This is not the way to promote reconciliation in a divided society. In the event of a Division, I will support the noble Lords, Lord Hain and Lord Murphy.

[Lord Eames (CB)]

My Lords, I once more find myself speaking as earnestly as I can in support of the sentiments of two former Secretaries of State for Northern Ireland—two men who undertook those tasks at times of division, suffering and what I can only term injustice for so many people in Northern Ireland. Given the fact that two men who had that experience have voiced sentiments in your Lordships’ House this afternoon and spoken in terms of their experience, I cannot understand why His Majesty’s Government do not understand that there are those outside this Chamber and this Mother of Parliaments who cannot understand why their voices are being ignored.

Yes, there have been attempts to bring the concept of victimhood into the legislation that is proposed, and yes, the Government can claim that they have made efforts, but, in God’s name, I ask your Lordships to consider the overall impetus of what changes have been made to try to recognise the needs of victims and their families, and of those who, in years to come, when they read what has been said, attempted and failed to be produced, will find it incredulous to understand that the Mother of Parliaments has ignored their crying.

16:30

The noble Lord, Lord Murphy, was kind enough to refer to the efforts I made on Report, and before that, to try to bring the sentiments he has expressed in his amendment before the House. I do not want to go over that again, except to say that, at the back of my mind as I listen to this final debate on these issues, I cannot come to any peace of mind that future generations will not condemn us for not recognising the human cost—yes, the human, emotional and spiritual cost—we are putting before the people of Northern Ireland. I cannot find words strong enough to express my personal hurt and ongoing dismay. The opportunity is being given to His Majesty’s Government, not to wreck the Bill but to make it better, stronger and, above all, more amenable to those who are the subject, or should be the subject, of our concern—namely, the victims.

There will be much discussion about the technicalities and what we are proposing to do, but I make this appeal to the House. Please hear the voices of those who have condemned what is happening and have made the simple human plea, “Please remember we have carried the hurt, pain and loss over the Troubles in Northern Ireland, and you have the opportunity now to do something about it”. Please do not miss the opportunity.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the noble and right reverend Lord, Lord Eames, on this very difficult and vexatious issue that impacts most families not only in Northern Ireland and Ireland but across the wider UK. Many people have been impacted by the untimely and summary death of a family member as a result of the Troubles. Therefore, very clearly, the victims should be central to the Bill—as this House has said; it was articulated by the noble and right reverend Lord, Lord Eames, and the noble Baroness, Lady O’Loan. However, I am sorry to say that the victims are not central to the Bill. This is probably an issue of expedience on the part of the Government to deal with this issue—and that is totally unacceptable. I will support both amendments in the names of my noble friends Lord Hain and Lord Murphy, if they choose to put them to Divisions.

It is interesting to note that we are joined today in the Public Gallery by some of the representatives of victims from Northern Ireland, including Raymond McCord, to whom the noble Baroness, Lady O’Loan, referred, and his colleagues. They have direct experience. They have told the Government, the Irish Government, the European Union and political parties in Northern Ireland, this House and the other place, that the Bill will not meet the needs of victims and that victims will be undermined.

On Monday of last week, 28 August, Sir Declan Morgan gave an interview to the Irish News, to which my noble friends Lord Hain and Lord Murphy already referred. When I bought my copy of the Irish News last Monday morning, I was immediately struck by heading, “Legacy Body Chair Welcomes Any Legal Challenges”. I would like to tell him that there will be legal challenges; they will come not only from the victims’ groups but, probably, from the Irish Government and other bodies in the European Union. The European Commissioner has already highlighted the issues around immunity. There is no doubt that the Bill, as it exists, will impede justice and truth; it will relegate victims, not to the second division but to the eighth or ninth division.

I implore the Government at this late hour to support the amendments in the names of my noble colleagues. If that is not possible, I beg them to stop the Bill and to stop further hurt in an already divided society that has seen so much over the last number of weeks in relation to policing, to victims and to the Bill and legacy. Those were two thorny issues that came out of the Good Friday agreement which required resolution. We thought that the policing issue was resolved but now it appears that a greater investment in the structures is required to ensure that there is proper retention, proper recruitment and a return to 50:50 recruitment, and that police officers and civilian staff are properly protected. However, victims also need to be protected.

In his wind-up, will the Minister demonstrate to this House how the Bill will be human rights compliant? I note that Sir Declan Morgan has said that he is committed to ensuring that the commission is human rights compliant. From his interview, I would deduce that Sir Declan is probably now querying whether the Bill, if enacted, will be human rights compliant, and whether it will comply with the ECHR. I know where I stand. I stand with the victims of the Troubles on all sides; whether their loved ones were executed by paramilitaries or by state forces, victims come first in all of this.

[Lord Dodds of Duncairn (DUP)]

My Lords, we return to this issue of legacy, almost certainly for the last time in this House as far as the Bill is concerned but certainly not for the last time in this or the other place—and possibly sooner than expected.

I have no difficulty in supporting the amendments brought forward by the noble Lord, Lord Murphy of Torfaen, which represent an improvement on what is currently before the House. We all know and acknowledge, and it has been said across all sides of the House, that all the amendments, including the ones brought forward by the Government during the passage of the Bill, do not and cannot rectify the fundamental flaw at the heart of the Bill, which is that it provides immunity from prosecution to terrorists. As the noble and right reverend Lord, Lord Eames, said so passionately and eloquently, what will future generations think of this mother of Parliaments, which was prepared to do such a thing to innocent families?

Nevertheless, some important work has been done to try to mitigate some of the worst aspects of this wretched piece of legislation, although I regret that, despite our best efforts, the glorification of terrorism has still not been adequately addressed in the Government’s amendments. Again, week after week, in Northern Ireland and in the Irish Republic, we see Sinn Féin, and the person who wants to be the First Minister of Northern Ireland, supporting and glorifying the bloodshed and terrorism that the IRA committed. They were not the only ones to engage in terrorism but they are the ones that are most to the fore in glorifying it, much to the trauma, pain and hurt of their victims.

The Government have brought forward a number of amendments, some of which had been originally tabled in the other place by my party colleagues, especially Gavin Robinson. I think of the repeal of the Northern Ireland (Sentences) Act 1998, which the Minister referred to, as well as the increase in fines. It is also beneficial to the Bill that there is now the ability to revoke immunity should it be obtained through deception or lies. Again, that was tabled in the other place by my party colleagues. The Government committed in the other place to delivering that change in this House, and it is good that that was done.

I am glad that in these amendments, both in the other place and here, a lot of heavy lifting has been done by colleagues over many hours—in opposition parties, as well as by colleagues on our Benches—in an attempt to improve what is fundamentally flawed during long, what appeared sometimes to be interminable, debates, often with few outside those who were really interested present.

It has been argued by some that because of previous betrayals of victims and the previous setting aside over many years of the principle of justice in various ways, we should now somehow not be too hard on this Bill. People have referred to the on-the-runs legislation, to letters of comfort handed out to terrorists, to republicans, via Sinn Féin, and indeed to many other things that happened to the hurt of victims under both Labour and Conservative Governments.

But, my Lords, that is not something that victims say to us today. I am glad that our party in and outside Parliament, and many others, stood with innocent victims and opposed those previous obnoxious steps which were taken to appease terrorists and their supporters at that time. We opposed them then, just as we oppose this legislation, not out of any idea of populism but as a matter of principle. We have been consistent in that.

Indeed, we opposed one of the greatest betrayals of victims, when those guilty of some of the most heinous crimes imaginable, including mass murder, were given early release in 1998—something that to this day traumatises many victims, as they will tell you if you speak to them, and which was cheered on by those who should have known better, and indeed did know better at the time.

It is right as we finish these debates in this House to call out some of those people who purport to stand on the side of victims. We hear about all the political parties which are opposed to this legislation, and that is right, but Sinn Féin purports to talk about victims, victims’ rights and justice, and it is the greatest perpetrator of murder, which still to this day glorifies and defends it. It cannot speak for victims, and its cynicism and opportunism should be called out. Nor can the Irish Government, for that matter, who for many decades harboured terrorist fugitives from Northern Ireland and refused to extradite them there for justice. Whatever about the issues in the Bill—and we are opposed to it—it ill becomes the Irish Government in particular to complain. Even to this day, they refuse to co-operate properly in regard to allegations of collusion between the Garda Siochana and IRA terrorists in relation to a number of incidents in the Irish Republic and refuse to instigate a public inquiry in relation to the Omagh atrocity.

All along, we have believed, as other noble Lords and Baronesses have said, that the victims should be listened to. It is their crying that should be taken account of. If the evidence justifies it, terrorists should not be able to hide or escape justice by having the ability to invoke some kind of immunity or amnesty—conditional or otherwise.

In closing, I want to pay tribute to those innocent victims. I think of the delegation which came to Westminster in late January of this year. Among them was Pam Morrison from County Fermanagh, who will be known to many from Northern Ireland, whose three brothers, the Graham brothers, were all brutally murdered by the IRA one by one between 1981 and 1985. She also lost her sister, serving with the UDR: four brothers and sisters. Pam pleaded with the Government to listen. They have refused, but I have no doubt that we will hear her voice again, and we will all return to this subject soon.

16:45

[Lord Bruce of Bennachie (LD)]

My Lords, these amendments are really an attempt to respond, in a way, to the way in which the Minister has engaged with this Bill. Before I speak to them, let me say that I am speaking on behalf of my noble friend Lady Suttie, who has been very engaged on this Bill but is unable to be here today. I know that she was appreciative of the engagement from the Minister; indeed, I have sat in on one or two of those meetings as well as these debates.

Many of these arguments have been rehearsed many times. We do not need to say them over and over again. I want to say only two or three brief things.

The heart of this Bill is an attempt to provide immunity, yet it was driven by a minority in the Conservative Party who really wanted to give immunity to one side only. It is not possible to do that without giving immunity to the other side. That is why nobody can support this Bill—because nobody can feel satisfied that they can secure justice in that environment.

A question has been raised about compatibility with the European Convention on Human Rights and, indeed, the possibility of tests in the court. I have had the honour of serving as a member of the Parliamentary Assembly of the Council of Europe and was a member of the Committee on Legal Affairs and Human Rights. Most of the democratic members of the Council of Europe—all of them are democratic, in fact, which is why Russia is no longer there—recognised that the point of the convention and the existence of the court was to try to avoid matters going to court while recognising that the court was there for when failures had taken place. Like the noble Baroness, Lady Ritchie, I therefore find it extraordinary that the Government and their representative in this context are saying, “Let’s test it in the courts”.

The question I have for the Minister, then, is this: if a case is taken to the ECHR and the court determines that this Bill is in contravention of the convention— all that will take time, of course; no doubt the measures that the Bill provides for will have been implemented and followed through by then—what will the impact be? Will it mean all the decisions taken under this legislation being invalidated? In the meantime, as the noble Baroness, Lady O’Loan, said, many inquests that are currently nearing progression, at least to a point where they could continue, will have been abandoned. I suggest that this Government or their successor would find themselves in an extraordinarily difficult situation, which would also be difficult to remedy because so much damage would have been done.

All of us in this House, apart from on the Conservative Benches, are quite clear that this Bill should not go ahead. However, the Minister should acknowledge, as we have in turn acknowledged of him, that there has been genuine engagement to try to move the Bill to the least damaging place, if you like—even though we all agree that it should not be here at all. These amendments are designed to be helpful and in that spirit. Frankly, it would do the Government a lot of good if they were prepared to accept them because it would show that the good will goes in both directions. I certainly make it clear that, if a Division is called on either of these amendments, we on these Benches will support it.

I hope that he will forgive me for saying so but the noble and right reverend Lord, Lord Eames, made what was a short intervention for him. However, it was so passionate in terms of his dismay and hurt, as he put it. I think many of us know how uncomfortable the Minister must be when almost anybody and everybody who has been involved in this matter in Northern Ireland says, “This is wrong. This should not be happening”. I do not think that the Bill will stand the test of time as anything other than a dishonourable and disreputable course of action by a British Government.

At this stage, I want to pick up a point made by the noble Lord, Lord Dodds. The Bill is supposed to provide reconciliation. As has been said on many occasions, it does not do that, but the noble Lord’s speech demonstrated that it not only does not provide reconciliation but aggravates grievance, which is the exact opposite of its intention and that is extremely disappointing.

The amendments in the names of the noble Lords, Lord Hain and Lord Murphy, are constructive and helpful. In particular, the point about the Kenova process has been well respected by everybody. Given the necessary resources, it could have led to progress; the amendment in the name of the noble Lord, Lord Hain, is commendable for that reason. The right of victims to be consulted properly, which is what the noble Lord, Lord Murphy, seeks, is also essential. As the noble Baroness, Lady Ritchie, said, the victims are at the heart of the problem, yet they are the people who have been most ignored by this legislation.

In that context, I hope that the House will be prepared to support these amendments, which means that we will of course be back here debating them again in the not-too-distant future.

[Baroness Hoey (Non-Afl)]

My Lords, I do not support the amendment tabled by the noble Lord, Lord Hain, who seems to be attempting to turn the ICRIR and its reviews into the sum of all the existing legacy reinvestigations that have already happened, by the PSNI, the Police Ombudsman for Northern Ireland and by Operation Kenova under Jon Boutcher. His amendment is complicated but would effectively mean that the new arrangements would be no different from what went before, and that the time required and the funding involved would be limitless, as I have said in the past. Given that to date we have already spent some £2 billion on Troubles reinvestigations, for little resultant value, if we are honest, this is not an attractive prospect.

The amendment also attempts to bind the ICRIR to the international standards required by the European Court of Human Rights at Strasbourg. I thought that the Government had already dealt with that aspect in a very late amendment by invoking the Human Rights Act. That Act has a domestic UK effect which is exactly appropriate for the ICRIR, rather than it having to respond to the political machinations of the court’s enforcing body—the committee of Ministers of the Council of Europe.

In the earlier stages of this Bill, the noble Lord, Lord Hain, and others, presented the Kenova process as a model for the ICRIR. That option seems to have disappeared from today’s amendment. I am not quite sure why the name has been removed. However, it is important to look a little at the background and history. The noble Lord knows that he played a very important role in an earlier stage of legacy policy, as Secretary of State for Northern Ireland between 2005 and 2007. In July 2005, seven years after the Belfast agreement, the IRA, in its words, “dumped arms”. A few months later, the Government responded with the Northern Ireland (Offences) Bill. This proposed an alternative justice system, outside the existing institutions, to deal with the legacy of Northern Ireland’s past.

Government Ministers have not mentioned this precedent for their current Bill, but they could well have cited this attempt to further the process, conducted by then Prime Minister Tony Blair and Jonathan Powell on behalf of the Government, and by Gerry Adams and Martin McGuinness on behalf of Sinn Féin and the IRA. The political situation in 2005-6 was not unlike that prevailing during the course of this Bill. The then Secretary of State, the noble Lord, Lord Hain, was opposed by all local parties except Sinn Féin. However, Clause 1 of the 2005 Bill referred to offences

“in connection with terrorism and the affairs of Northern Ireland (whether committed for terrorist purposes or not)”.

This meant that the amnesty provisions—and it was an amnesty, which the noble Viscount, Lord Hailsham, was very honest about in his speech—could extend to the security forces. Immediately, in the other place in December 2005, Mark Durkan, the leader of the SDLP, asserted that the Bloody Sunday soldiers, still being inquired into by the noble and learned Lord, Lord Saville, could benefit from the Bill. Sinn Féin immediately withdrew its support for the Bill and, in January 200,6 the noble Lord, Lord Hain, dropped the Bill. However, it is important to remember that the Republicans—the IRA/Sinn Féin—did not lose out. Gerry Adams and Martin McGuinness had been working on the on-the-runs scheme, which would soon move into its Operation Rapid phase, with comfort letters being issued to several hundred IRA men, as the noble Lord, Lord Dodds, has said.

Now, 20 years on, this Bill with its many imperfections sets out what the Government believe is a new model for addressing the legacy of the Troubles, something that—everyone is now being honest—was not considered back in 1998, and which the local political parties have not been able to agree on since. I therefore oppose this amendment, as it brings us back to where we started and is not moving us forward in any way, no matter what we think of the Bill.

I want to mention the amendment in the name of the noble Lord, Lord Murphy of Torfaen. I am pleased that I was signature to the noble and right reverend Lord, Lord Eames, in his amendment, which did not get put to the vote. This amendment, picked up by Labour’s Front Bench, is beginning again to put the victim at the centre of the whole issue. I feel that, if the person who is the victim has gone through the whole process of listening to someone who has come forward and given what they say is the truth, and everyone has listened and a great deal of time has been invested, and in the end the victim—the person who has really suffered—is prepared to accept that that person can have immunity, we can live that. I am disappointed that the Government have not moved a little bit on that, because some sensible suggestions were made in Committee, particularly by the noble and right reverend Lord. I hope that today perhaps they will come back and look at that.

Overall, this legacy Bill is—and I hate to use this expression—a dog’s breakfast. It has been cobbled together in a way that tries to please everyone and is ending up pleasing absolutely nobody. The Government are determined to put it through, which is why I have, in the past, supported certain amendments that would make it slightly better. I think that is all we can do at this stage, but I certainly do not think that the amendment tabled by the noble Lord, Lord Hain, is moving us forward in any way.

[Lord Weir of Ballyholme (DUP)]

My Lords, I rise to deal particularly with the amendment of the noble Lord, Lord Murphy, and support, in as far as it goes, the good intentions of his amendment. I say “as far as it goes”, because I think the noble Lord himself would be the first to admit the limitations that can be brought forward at this stage of any amendment. There have been, throughout this process, as my noble friend Lord Dodds highlighted, from all sides of this Chamber, attempts to mitigate and ameliorate this Bill. I am glad that at least some of those have been successful, and I think we should acknowledge where improvements have been made. It is undoubtedly the case that, despite of all that, we are left with a Bill that is unsalvageable and insupportable and which perverts the course of justice to the detriment of victims.

Nevertheless, as a House, I think we are left with no alternative but to seize, where possible, any opportunity to make any improvements that we can, however small. I support in particular the amendment proposed by the noble Lord, Lord Murphy, because it seeks to put the rights of victims much closer to the heart of this Bill, irrespective of what community those victims come from, irrespective of whether they come from Northern Ireland or are external to Northern Ireland, and irrespective of what organisation has been responsible for making them victims. It is right that the ultimate focus should be on victims.

When dealing with Northern Ireland, there are two glib but dangerous lies that are often told. First, it is said that collectively there is guilt for what has happened —that we are, in some shape or form, all perpetrators. That is fundamentally wrong. The vast majority of people in Northern Ireland, from whatever community, were never involved in nor supported violence. They got on with their day-to-day lives. If there is acceptance of the idea that, in some way, there is a collective guilt, it gives credence to the notion that there was no alternative to violence. The vast majority of people in Northern Ireland pursued that alternative—the democratic alternative—and the violence was imposed by tiny minorities on both sides, and victims suffered as a result of it.

The second lie that is often told in Northern Ireland is that somehow collectively in our society we are all victims. There are many—indeed, there are some in this House—who have suffered that victimhood at first hand, and there are far too many victims in Northern Ireland, but we are not all victims. For my part, I was fortunate enough to grow up in as relative normality as I could. I was not a victim. I cannot and do not claim victimhood, which is one of the reasons why I am particularly disturbed by this legislation, because it seeks to impose on others a system that denies them their opportunities.

The principal reason why I was not a victim in Northern Ireland was because of the brave work of the men and women of our security forces in keeping us safe. I particularly want to highlight the brave women of the security forces, because they are sometimes forgotten. In particular, this month represents the 50th anniversary of the formation and first enlistment of the UDR Greenfinches. I think they were the first units in the British Army to serve alongside men on the front line. Four of the Greenfinches—Eva Martin, Jean Leggett, Ann Hearst and Heather Kerrigan—paid the ultimate sacrifice for protecting ordinary citizens like me against terrorism. That is a very good reason why we cannot throw justice out of the window.

17:00

The reality is that if we accept this Bill—I appreciate that, from the point of view of this House, there may be a limited amount that we can do—we accept the notion of a codification of the perversion of justice. It would take away victims’ right to have any prospect of justice. There will be those who say that, given the passage of time, it is unlikely that there will be many convictions in Northern Ireland. There are practical barriers to getting a conviction, but there is a fundamental difference between saying that and saying, “We are taking away your right or your opportunity to ever have justice”. That is something that I do not believe we are entitled to do. Indeed, we also would be saying to those victims, from whatever source they come, “Your relative, or you yourself, are a lesser person than others”, because we would be applying a different standard of justice than we apply in any other crime. We must acknowledge that what happened throughout the Troubles was a crime.

It is worse than that, because not only are we throwing away the concept of justice and besmirching victims, but there is not even any countervailing benefit on the other side. In opposing the Motion from the noble Lord, Lord Murphy, the Minister said in his opening remarks, “Of course, if this was to be accepted, it would effectively kill off the benefits of the system and we would not have this information flowing”. I say with deep regret—it is something that they can still rectify—that if the Irish Government, who are refusing to have an inquiry into Omagh and, despite countless attempts from the victims’ families, have still not provided all the information that they hold on, for example, the Kingsmill massacre, are not providing that flow of information, what chance is there of the paramilitary organisations opening up their books to say, “Here is what happened in the past”? We are perverting the course of justice to sell fool’s gold to people, because if we are raising any level of expectation among families, and if we seriously believe, that they will get the answers and details as to why their relatives were killed by terrorist organisations, we are living in a fool’s paradise. The reality is that we will have traded in justice for no material benefit whatever. That is why the Bill is fundamentally flawed, but why there is at least a step of mitigation in the Motion from the noble Lord, Lord Murphy.

[Lord Cormack (Con)]

My Lords, I rise briefly on a very sad day. There is no Minister in His Majesty’s Government who has a better command and understanding of his brief than my noble friend Lord Caine. He is rightly respected and admired in Northern Ireland and, I think, in all parts of your Lordships’ House. He was clearly extremely unhappy about the Bill in its original form. He has clearly tried very hard indeed to improve it, and to some small degree it has been improved. But the speech that really should dominate this debate when it comes to be talked about in the future is the extremely powerful and moving speech of the noble and right reverend Lord, Lord Eames.

In my time as the chairman of the Northern Ireland Affairs Committee in the other place, I got to know and love Northern Ireland, and I came to respect a number of people, including the noble Baroness, Lady O’Loan, but none more than the noble and right reverend Lord, Lord Eames, who was rightly held in fond affection throughout Northern Ireland, was looked up to, and did so much, particularly with the commission that he and Denis Bradley chaired. What he said today was an eloquent endorsement of the point made from the Opposition Front Bench by a much-respected former Secretary of State, the noble Lord, Lord Murphy. He effectively said that this Bill is unimprovable.

I missed some of the debates on the Bill for domestic reasons, which many Members of your Lordships’ House are aware of, but I did speak at the beginning on a number of occasions. Although it has been before your Lordships’ House for over a year, it is still, frankly, an unacceptable Bill, because it does not command any support outside the Government, and quite a number of us on the Conservative Benches in both Houses are very unhappy about it.

There was a degree of impeccable logic in the speech of my noble friend Lord Hailsham. There is a case for a statute of limitations; it is a clear, unambiguous answer. It is equally clear—the noble Viscount, Lord Hailsham, recognised this in his speech—that that would not command support either at the moment.

It is incumbent upon the Government, in view of the widespread concern, anxiety and deep unhappiness, to pause this Bill. We have a new Session of Parliament opening on 7 November, just a little over two months ahead. We have a fairly frenetic week this week and next week, and a few days after, and then we break for the so-called Conference Recess. We come back for about 10 days. There will be no further opportunity for detailed examination of this Bill, and we cannot play indefinite ping-pong. I am one of those who is frequently on record as saying that of course the will of the other place, as the elected House, must prevail in the end.

It would be doing a service, to the people of Northern Ireland in particular, to pause on this. However, one service deserves another, and I revert to a point I made during Questions earlier this afternoon. It is incumbent upon political leaders in Northern Ireland to come together and have an Assembly and an Executive, because the ultimate verdict on the Bill should be given in Northern Ireland itself after a close re-examination of all the alternatives, including a statute of limitations. This is not a Bill that should go on to the statute book in the fag end of this Session. With every possible tribute to the noble Lord, Lord Caine, and I genuinely mean what I said, I beg him to have urgent conversations with the Secretary of State and to press the pause button.

[Lord Caine (Con)]

My Lords, I am, as ever, extremely grateful to all noble Lords who have participated in the debate on these amendments. I will attempt to be very brief. I had not planned to make a long wind-up speech. I will reply to just one or two points, if I may.

In his remarks, the noble Lord, Lord Murphy of Torfaen, referred to the long history of attempts to deal with legacy issues. In 1998, it was, of course, put into the “too difficult” drawer. There have been subsequent attempts, none of which have come to a successful resolution. I refer to the valiant efforts of the noble and right reverend Lord, Lord Eames, and his work with Denis Bradley. As noble Lords know, I was involved in the 2014 Stormont House agreement which, despite all of our best efforts, never managed to make it on to the statute book, and the level of consensus that we thought we had achieved at the time very quickly evaporated. There have been many attempts and many failures around legacy over the years.

This legislation, as I made clear in my opening remarks, sets out a different approach. The overall objective is very straightforward. It is to try to get for victims and survivors of the Troubles more information about what happened to loved ones in a far shorter time than is possible under existing mechanisms in a context in which, unfortunately for many, the prospect of prosecutions and convictions is going to be vanishingly rare.

I acknowledged as far back as Second Reading that I totally understand and acknowledge the feelings of many victims and survivors. I have met so many over the years, especially over the course of the past year, and for many the emotion, grief and anguish are as raw today as they were whenever the particular incident that caused their loved ones to be lost actually occurred. I referred in my Second Reading speech last November to my friend Ian Gow. Only last week, I dug out the letter that Ian sent to me on 4 June 1990, looking forward to lunch in the Strangers’ Dining Room on 11 June, just a matter of weeks before he was brutally murdered by the Provisional IRA—so I am acutely aware of the victims of terrorism.

However, I say to noble Lords that, if we are to pause this Bill or to refer it to the Assembly, all we are really doing is setting ourselves up for a further significant delay in providing answers to victims and survivors of the Troubles. The noble Lord, Lord Murphy, and my noble friend Lord Cormack—I am very grateful for and touched by my noble friend’s generous words towards me—talked about referring this back to the Assembly. I think I said in the past that it was always the assumption, going back to the Haass/O’Sullivan talks in 2013, that these matters would be dealt with in the Assembly after the Stormont House agreement, which largely covered devolved issues. Martin McGuinness and Peter Robinson, then Deputy First Minister and First Minister respectively, came to the then Secretary of State and said, “Secretary of State, these issues are all far too difficult for us to deal with in the Assembly. Please could you take all the legislation through Westminster?” That is when we ended up unsuccessfully trying to convert the Stormont House agreement into legislation through this House. So I do not necessarily agree with the noble Lord that the answer is to refer this back to the Assembly.

I dealt in my opening remarks with the Government’s objections to the two amendments; I do not intend to add to those remarks. The subsequent debate has to some extent taken on the nature of another Second Reading debate, in that a number of issues have been raised that have been debated extensively throughout the past year. So, once again, with the greatest respect to the House, I do not intend to go over all those points again; we have debated them exhaustively.

17:15

I will comment on just one point, raised by the noble Lord, Lord Bruce. He referred to what might happen in the event of a case in Europe. I can only say what I have said many times at this Dispatch Box: the Government are confident that the legislation is compatible with our international obligations, not least as a result of the amendments that we have brought forward on Report. I know that others disagree. The noble Baroness, Lady O’Loan, has made her views very clear; we respectfully disagree on this issue.

There is one correction that I would like to make. The noble Lord, Lord Bruce, referred to Sir Declan Morgan, the chief commissioner designate, as “the Government’s representative”. That is not quite the accurate description. As I stressed in my opening comments, one thing we have sought to do throughout the passage of this Bill through your Lordships’ House is strengthen and bolster the independence of the commission. In the interviews to which the noble Baroness, Lady Ritchie of Downpatrick, referred, Sir Declan has already shown that he will be a fiercely independent chair of the commission.

I give way—with reluctance, I am afraid.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for taking my intervention. In that same article in the Irish News there was a subheading which indicated that the staff to assist Sir Declan would come from the Northern Ireland Office. Can the Minister confirm that this is correct and, if so, how will it address the issue of independence of the commission?

[Lord Caine (Con)]

There are officials from the Northern Ireland Office assisting with the establishment of the body, but the staffing of the body will be entirely for the commission itself; it is not a matter for the Northern Ireland Office. The legislation is not yet passed, so the commission will not formally come into being until next year. All that is happening is that officials from my department are helping with the establishment during that transition phase.

As I said, this has taken on something of a Second Reading debate. We have heard many points rehearsed extensively. Therefore, I conclude by asking noble Lords not to insist on Motions A1 and B1 but instead to agree with the Commons amendments in lieu under Motions A, B and C, and pass this Bill; that is the clear will of the elected House of Commons. I beg to move.

[Lord Hain (Lab)]

My Lords, I want to thank especially the noble Baroness, Lady O’Loan, the noble and right reverend Lord, Lord Eames, and my noble friend Lady Ritchie, for their fulsome support for my amendment. In the circumstances, I reluctantly beg leave to withdraw Motion A1.

Motion A1 withdrawn.

Motion A agreed.

Motion B

Moved by

[Lord Caine]

That this House do not insist on its Amendment 44 and do agree with the Commons in their Amendments 44A, 44B and 44C to the words restored to the Bill by the Commons disagreement to Lords Amendment 44.

44A: Clause 18, page 16, line 35, at end insert “, and
(b) any other law that might or would prevent a prosecution of P for an offence from being begun or continued (for example abuse of process—but see paragraph 3 of Schedule (No immunity in certain circumstances)).”

44B: Clause 18, page 17, line 22, after “revoked” insert “, except by a court under section (Subsequent convictions: revocation of immunity)”

44C: Clause 18, page 17, line 31, for “section 19” substitute “Schedule (No immunity in certain circumstances).”

Motion B1 (as an amendment to Motion B)

Moved by

[Lord Murphy of Torfaen]

At end insert “, and do propose Amendments 44D, 44E, 44F and 44G as additional amendments to the words so restored to the Bill and Amendments 44H and 44J as consequential amendments—

44D: Clause 18, page 16, line 16, leave out “C” and insert “E”

44E: Clause 18, page 16, line 35, at end insert—
“(6A) Condition D: in relation to immunity for offences causing death, consent of a close family member of the deceased has been sought, and the Chief Commissioner is satisfied that—
(a) the close family member has given consent for the granting of immunity and no objections have been raised by any other close family member within three months of the consent being given, or
(b) if no consent has been given by that close family member within three months or an objection has been raised by any other close family member, it is nevertheless in the public interest to proceed with the granting of immunity.
(6B) Condition E: the Chief Commissioner is satisfied that P—
(a) has complied with any conditions imposed by the ICRIR following the request for immunity under subsection (2), and
(b) is likely to comply with any licence conditions imposed as part of the granting of immunity.
(6C) For the purposes of subsection (6B), conditions imposed by the ICRIR, whether before or after the granting of immunity, may include—
(a) attendance at a specified place,
(b) provision of fingerprints and non-intimate samples,
(c) restrictions on P’s ability to approach or otherwise communicate with—
(i) a victim, in the case of injury, or
(ii) a victim’s family, in relation to a death,
without the consent of the victim or victim’s family (as the case may be), and
(d) restrictions on activity which might allow P to gain financially from the offences for which immunity is sought or granted.
(6D) The ICRIR may revoke P’s immunity from prosecution if the Chief Commissioner is satisfied that P has breached one or more licence conditions imposed by the ICRIR.
(6E) A revocation of immunity under subsection (6D)—
(a) has immediate effect, and
(b) does not prevent a person making a further request for immunity under subsection (2).
(6F) For the purposes of this section, a person (F) is a close family member of the deceased (D) if F—
(a) was the spouse, civil partner or co-habitee of D on the day of D’s death (and for the meaning of “co-habitee”, see paragraph 2 of Schedule 3),
(b) is a child of D,
(c) is a parent of D,
(d) is a brother or sister of D,
(e) is a step-child of D (see paragraph 3 of Schedule 3),
(f) was a step-parent of D on the day of D’s death or is a step-parent of D on the day on which consent is sought (see paragraph 4 of Schedule 3),
(g) is a half-brother or half-sister of D, or
(h) is a step-brother or step-sister of D (see paragraph 5 of Schedule 3).”

44F: Clause 18, page 16, line 36, leave out “C” and insert “E”

44G: Clause 18, page 17, line 22, at beginning insert “Other than in accordance with subsection (6D),”

44H: As an amendment to Lords Amendment 111, in paragraph 1, leave out “C” and insert “E”

44J: As an amendment to Lords Amendment 111, in paragraph 6, leave out “C” and” and insert “E”

[Lord Murphy of Torfaen (Lab)]

My Lords, I beg leave to test the opinion of the House.

17:19

Division 1

Ayes: 201

Noes: 190

17:30

Motion C

Moved by

[Lord Caine]

That this House do agree with the Commons in their Amendment 119A.

119A: Clause 52, page 41, line 7, leave out paragraph (d)

Motion C agreed.

Work Capability Assessment Consultation

Tuesday 5th September 2023 Lords Chamber

Statement

17:32

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Viscount Younger of Leckie) (Con)]

My Lords, with the leave of the House, I will repeat a Statement given in the other place by my right honourable friend the Secretary of State for Work and Pensions. The Statement is as follows:

“With permission, I would like to make a Statement on our proposed changes to the work capability assessment, which aim to ensure that no one who can work is permanently written out of this country’s strong labour market story. It is a story that has seen nearly 4 million more people in work compared to 2010; 2 million more disabled people in work than in 2013; and record numbers of people on payrolls. But, although it is the case that the number of people overall who are economically inactive has fallen strongly from its pandemic peak, there remain over 2.5 million people who are inactive because of long-term sickness and disability.

Yet we know that one in five people on incapacity benefits who are currently not expected to prepare for work want to work in the future, if the right job and support were available, and the proportion of people going through a work capability assessment who are being given the highest level of award and deemed to have no work-related requirements at all has risen from 21% in 2011 to 65% last year. This situation is excluding significant numbers of people from receiving employment support to help them to move closer to work opportunities. It is holding back the labour market and economy but, perhaps most important of all, it is holding back human potential. I want to ensure that everyone who can benefits from all the opportunities that work brings—not just the financial security but all the physical and mental health benefits too.

No one who can work should be left behind. That is why, earlier this year, we announced an extra £2 billion-worth of investment to help disabled people and those with health conditions move into work. That includes bringing in our new universal support employment programme, which will assist disabled people and those with health conditions to connect with vacancies, and will provide support and training to help them start and stay in a role. Through our individual placement and support in the primary care programme, we are investing £58 million to help more than 25,000 people to start and stay in work. We are modernising mental health services in England, providing wellness and clinical apps, piloting cutting-edge digital therapies and digitising the NHS talking therapies programme. We have also published fundamental reforms to the health and disability benefits system through our health and disability White Paper. That will see the end of the work capability assessment and a new personalised, tailored approach to employment support to help everyone reach their full potential.

The scale of our reforms means that they will take time to implement, but there are changes we can make more quickly that will also make a difference. So before the White Paper reforms come in, I want to make sure that the work capability assessment—the way in which we assess how someone’s health limits their ability to work and therefore what support they need—is delivering the right outcomes and supporting those most in need. Today my department is launching a consultation on measures to ensure that those who can work are given the right support and opportunities to move off benefits and towards the jobs market.

As I have said, we know that many people who are on out-of-work benefits due to a health condition want to work and, assisted by modern working practices, they could do so while managing their condition effectively. We have seen a huge shift in the world of work in the last few years—a huge change that has accelerated since the pandemic. This has opened up more opportunities for disabled people and those with health conditions to start, stay in and succeed in work.

The rise in flexible and home working has brought new opportunities for disabled people to manage their conditions in a more familiar and accessible environment. More widely, there have been improvements in the approach that many employers take to workplace accessibility and reasonable adjustments for staff. A better understanding of mental health conditions and neuro- diversity has helped employers to identify opportunities to adapt job roles and the way disabled people and people with health conditions work.

The consultation that I am publishing today is about updating the work capability assessment so that the way it works keeps up with the way people work. The activities and descriptors within the work capability assessment, which help to decide whether people have any work preparation requirements to improve their chances of gaining work, have not been comprehensively reviewed since 2011. It is right that we look afresh at how we can update them, given the huge changes we have seen in the world of work. For instance, the work capability assessment does not reflect how someone with a disability or health condition might be able to work from home—yet we know many disabled people do just that.

Our plans include taking account of the fact that people with mobility problems, or who suffer anxiety within the workplace, have better access to employment opportunities due to the rise in flexible and home working. We are consulting on whether changes should be made to four of the activities and descriptors that determine whether someone can work, or prepare to work, to reflect changes in working practices and better employment support. This includes looking at changing, removing or reducing the points for descriptors relating to mobilising, continence, social engagement and getting about. We are not consulting on changes to the remaining descriptors, which will remain unaltered. These changes will not affect people who are nearing the end of life or receiving cancer treatment, nor will they affect the majority of activities for those with severe disablement—for example, if a person has severe learning disabilities or is unable to transfer from one seat to another.

We are also consulting on changes to the provision for claimants who would otherwise be capable of work preparation activity but are excluded from work preparation requirements on the basis of substantial risk, most commonly on mental health grounds. The original intention for substantial risk was for it to be advised only in exceptional circumstances. It was intended to provide a safety net for the most vulnerable. However, the application of risk has gone beyond the original intent. We are therefore consulting on how we might change how substantial risk applies, so that people are able to access the support they need to move closer to work and a more fulfilling life. We are also considering the tailored and appropriate support that will be needed for this group, safely helping them move closer to work.

These proposals will help people move into, or closer to, the labour market, and to fulfil their potential. We are consulting over the next eight weeks to seek the views of disabled people, employers, charities and others about our proposed changes. If the proposals were taken forward following consultation, the earliest we could implement any change would be from 2025, given the need to make changes to regulations and ensure appropriate training for health assessors.

These plans are part of our wider approach to ensuring that we have a welfare system that encourages and supports people into work, while providing a vital safety net for those who need it most—a welfare system that focuses on what people can do, not on what they cannot, and that reflects the modern changes to the world of work. It is time to share the opportunities of work far more fairly. It is time for work to be truly available to all those who can benefit from it. It is time to get Britain working. I commend this Statement to the House.”

17:40

[Baroness Sherlock (Lab)]

My Lords, I thank the Minister for repeating the Statement and for advance sight of it. The way we support sick and disabled people in this country is of huge importance, both to the millions directly affected and their families and to our country as a whole, and it says something about who we are as a nation. Labour believes passionately that everyone who can should be able to access a decent job, with all the financial and other benefits that brings. That is why we have been so concerned at the Government’s failure to address the disability employment gap over such a long time. Nobody should be shut out of the workplace when, with the right help and support, they could be working.

We are now in a position where an astonishing 2.6 million people are out of work as a result of long- term sickness—the highest number ever, and up almost half a million since the pandemic. This is a serious problem for individuals and a challenge for our country. The Government have been warned for many years now that benefit assessments are not fit for purpose and, crucially, that unless we have a proper plan to support sick and disabled people, even more people will end up stuck out of work when they do not need or want to be.

So what can be done? Our approach has been to set out some serious plans in this area: to transform back-to-work help by personalising employment support and tackling the huge backlogs in our NHS and social care; by offering an “into work guarantee” so that people can try work without worrying about losing their benefits—something that has had widespread support both from the voluntary sector and within Parliament; to make sure that employment support meets local needs by devolving appropriately to local areas; and to make sure that, when disabled people get a job, they get the support they need when they need it, not several months down the line.

By contrast, this consultation is rather small in scope. The Statement seems to suggest that the Government have decided that the main problem is that too many people who undergo a work capability assessment are classed in the higher rate, and therefore the only way to solve that is to change the criteria. We will look at the outcome of this consultation carefully but let me ask a few questions of the Minister now.

Is the sole intention of this exercise to reduce the number of people who are classed as having limited capability for work and work-related activity? If so, by how many? Is there a target? The Statement says that the current situation

“is excluding significant numbers of people from receiving employment support”.

Will the Minister tell the House whether DWP could choose to offer employment support now to people who are deemed LCWRA?

If in future more of these millions of people were classed as simply having limited capability for work, rather than in the higher area, would that make any other difference to them, as opposed to just getting employment support? Might it affect how much money they were given to live on while they were waiting to get a job? Can the Minister tell us how these proposals will address the total inadequacy of decision-making, which causes untold stress and wastes millions of pounds?

The Minister pointed out that the Government have longer-term plans. The Health and Disability White Paper outlined plans to abolish the work capability assessment altogether and replace it with a single assessment, which will be the PIP—the personal independence payment assessment. I do not want to be mean, but PIP is hardly a model of good practice: 80% of PIP decisions get overturned at tribunal, and only 2% are down to new evidence. In any case, these plans are way in the future, beyond this Parliament. If the proposals contained in this consultation will not come in until 2025, when will we possibly see the plans that will not even be considered until after the next election? Will the Minister give us some idea of when, if his Government were returned to power—I accept that it is an “if”—they would expect to see those plans come to fruition?

We need a big plan now to help sick and disabled people who want to get back to work—after all, the backlog for Access to Work payments has trebled to 25,000 since the pandemic. Where are the proposals to bring that down? Where is the plan to slash the waiting lists for those who are struggling with anxiety and depression, which is keeping them out of the workplace? Where are the plans to give help to carers to support their sick and disabled loved ones so they can get back to work?

I understand what the Minister is trying to do, but the truth is that this is tinkering around the edges of a system which is failing sick and disabled people. It is not providing the help they need and, in the meantime, our NHS and social care, on which sick and disabled people depend more than anyone, is being run into the ground. We need more than this and we need it soon.

[Lord Palmer of Childs Hill (LD)]

My Lords, what a mixed message there is in this Statement. The first page of the Statement that the Minister so kindly read says how successful the Government have been in getting people back to work and in the next part it tells us how we need to get more people into work. If ever a message was mixed, that is it. It is not a good story, and the fact that it needs consultation shows that. With all this so-called success, the Statement says that the policies are, in its words, “holding back human potential” so let us have the old idea of consultation.

Flexible and home working usually require that the employee has adequate access to space and technology to safely work. This is even more the case for someone with a disability. Will the Minister say whether the Government will also commit to extra funding for the aids, adaptions and technology required to take up work- from-home opportunities?

The Minister, in rereading the Statement, is suggesting removing descriptors. Will the Government also review additional descriptors, which can impact on someone’s ability to work? At the moment, fatigue is not a descriptor. However, we know that this is a significant symptom for people with long Covid, MS and pain conditions. Sitting at a desk—we know all about sitting on the Benches here in the Lords—for long periods, even for people who do not need to leave their house, may be no less fatiguing. Will the Minister consult to make sure a safety net is kept in place?

I am concerned about the consultation on substantial risk. We know that, for many people, engagement with the DWP can create anxiety and worsen their mental health. In doing his review, will the Minister take the opportunity to get his own house in order and make employment support a positive experience and not one that has, sadly, seen so many people come to harm and even take their own lives?

Finally, in the real world, when somebody comes before someone at the Department for Work and Pensions, how consistent will the DWP be in treating them in the way they should be treated? I am worried about the balance between helping people into work and forcing people—and I do mean forcing—to give up on support for those least fortunate in society.

[Viscount Younger of Leckie (Con)]

I begin by thanking the noble Lord, Lord Palmer, and the noble Baroness, Lady Sherlock, for their points. The way I read it is that the consultation has broadly been accepted, but I understand that a number of questions have been raised and I will do my best to answer them.

First, there is some agreement that it is very important to support disabled people and to give them every opportunity, if they are not in work, to find a way of getting into it or to prepare for it. Hopefully, there is agreement to that extent. The noble Baroness, Lady Sherlock, is absolutely right that no one should be shut out of the workplace. We are at the forefront in wanting to do more to ensure that disabled people who want to and can work are able to do so. However, some disabled people may not be able to work; we are a compassionate country and it is important to make the point that, where they are generally unable to work, the state should step in and support them, as it does at the moment.

I take issue with what the noble Baroness said about the intention and scope. We believe that it is an important measure to look at the conditionalities during this eight-week consultation, because it is important to move quickly. It is part of a whole package of measures that the Government have taken and continue to take for the disabled, which includes, as the House will be aware, the national disability strategy and the disability action plan. I will expand on that to try to be helpful. By the way, the sole intention is not to do with figures —there is no target; it is not to do with that at all; it is to look more closely at who in the disabled diaspora might be willing to work and how they can be encouraged and helped into work or preparing for work.

To pick up a point from the noble Lord, Lord Palmer, as he will know, the consultation is inviting comments on the four descriptors: mobilising, continence, getting about and coping with social engagement. As the House will know, people are referred for a WCA when they report a health condition or disability which may prevent or limit their ability to work or undertake work preparation activities. Currently, the activities do not take account of somebody’s ability to work from home, as the Statement said. We have identified some activities as the most likely to be affected by modern changes in the workplace, including working from home and better support and understanding from employers around how to overcome barriers to work for disabled people and people with health conditions. To that extent, we are moving more quickly and offering this targeted approach as part of the consultation.

On our broader support, I remind the noble Baroness that we announced £2 billion at the Spring Budget 2023 to support disabled people and people with health conditions into work, including through WorkWell and universal support. We also increased our support offer to help people move back into work when they can with additional work coach time.

I will set out some figures for the House. Roughly 700,000 new benefit claimants go through a work capability assessment each year and we are seeing around 450,000 determined as having limited capability for work-related activity. Hopefully, that gives some scope of the population we are working within. Clearly, if we helped just 10% of that cohort, around 45,000 more people per year would be placed in a group in which they would receive the necessary help to get into employment.

[Baroness Sherlock (Lab)]

I do not think the Minister answered some of the questions I asked—maybe he omitted to do so. I asked about the timing and whether a shift away from the higher rate to the lower rate would have any implications for the amount of money somebody got, for example. Did he miss those questions?

[Viscount Younger of Leckie (Con)]

This is unusual procedure. On the timing, I made it clear in the Statement that we will work through this consultation and receive the results. In terms of the results coming through, I mentioned 2025. I will certainly look at the other questions the noble Baroness raised and write to her, although I think there were probably just one or two.

17:54

[Baroness Stedman-Scott (Con)]

My Lords, I apologise for not being here for the start of the Statement. In all my time in the department, now being carried on by my noble friend the Minister, there was real ambition to help those people in the work capability assessment—earlier rather than later, because the longer you leave it, the worse the condition gets.

This weekend, I was trying to tidy up my study, which is a massive job, when I came across an independent evaluation of a programme we ran at Tomorrow’s People when I was there—I declare an interest, although I am not there any more. We had a programme in a doctor’s surgery called “The Right Prescription: A Job”. When somebody was physically or mentally unwell and came to the doctor, if there was nothing he could do for them, he called them his “heartsink patients” because his heart sank when they walked in the room. He wrote “a job” with us on the prescription pad.

We had a consulting room and, initially, we worked with a cohort of 200 people. The results were pretty astounding. We ended up with 880 surgeries across the country wanting us, representing millions of patients. The Government at the time—I will not declare which—said that it was too expensive, but for an investment of £2,000 you got a return to society of £10,000. We reduced the anti-depressant prescription bill by 34% for those 200, saved the doctor 20% of his time, saved referrals to counsellors and got people into work. On average, 80% of them were there 12 months later, although it was intense.

We must look at the consultation as an opportunity for people to put forward ideas that make life better for people. If the department will have me in for 10 minutes, I will certainly come back and share that evaluation to see whether it can help, because people with mental health issues in particular need all the help we can give them.

[Viscount Younger of Leckie (Con)]

I take this opportunity to encourage all those who are interested to give input to the consultation. To pick up on my noble friend’s point about GPs, a key principle is that the WCA considers what impact the person’s disability or health condition has on them, not the condition itself. To clarify, the department does not ask claimants’ doctors to make decisions about their patients’ capability for work. This is because the doctor diagnoses and treats a patient’s illness, whereas the WCA healthcare professional’s role is to assess the effects of the claimant’s illness on their ability to perform everyday work-related activity. It is important to make that distinction.

[Baroness Bennett of Manor Castle (GP)]

My Lords, my question is informed by a study published this May by a group called INvolve, which spoke to 500 UK employed adults with invisible disabilities, including visual impairment and chronic pain. Two-fifths said they were not getting the support they needed at work, particularly as businesses cut back under the current economic challenges; two-thirds said it was up to them to sort out their own support, as they were not getting help from their employer; one-quarter said they had a workload that they simply could not manage; and one- fifth said they were considering leaving their job as a result of their difficulties. The kinds of things these sick and disabled workers were seeking were flexible working hours, training for other employees to understand their situation and assistive technologies and tools.

This government action is focused entirely on people suffering from sickness and disabilities, but they are going out into a workplace where there is clearly significant discrimination. The Statement makes a lot of the move towards working from home, but quite a number of businesses have been heading in the opposite direction, trying to force staff now working from home to come back into the office. Do the Government plan measures of a similar scale to those in this Statement to crack down on discrimination in the workplace and to ensure that employers offer conditions in which the people this Statement refers to can work?

[Viscount Younger of Leckie (Con)]

The noble Baroness makes a very good point, which allows me to emphasise the dependence on employers. The noble Baroness will know that we have reached out considerably to employers to encourage them, and we continue to encourage them to take on those who are disabled. ONS data from September 2022 to January 2023 shows that 44% of working adults work from home exclusively or at least some of the time each week. If that is translated into those who are disabled working for employers, that is quite encouraging. We encourage everyone to input into the consultation.

The noble Baroness may know that recent published data suggests that disabled people are more likely to work in the health, retail or education sectors. As of July 2023, these three industries have a combined total of 350,000 vacancies. There is a tremendous opportunity there, and we need to work through that.

Lifelong Learning (Higher Education Fee Limits) Bill

Report stage
Tuesday 5th September 2023 Lords Chamber

Report

18:01

Clause 1: New method for determining fee limit

Amendment 1

Moved by

[Baroness Garden of Frognal]

1: Clause 1, page 2, line 10, at end insert—
“(1A) For the purposes of this Schedule, one credit corresponds to 10 notional learning hours.”Member's explanatory statement
This amendment puts the number of hours that constitute a credit on the face of the Bill.

[Baroness Garden of Frognal (LD)]

Amendment 1 proposes the widely accepted requirement that the learning hours associated with credit must be consistent with sector-wide standards. It would be beneficial to have 10 hours written in the Bill in order to cement its definition, because that would mean that no new definition could be introduced or imposed at a later date for the purposes of setting fee limits.

We continue to express concern that the lack of detail in the Bill could mean that in the future the policy could significantly change from the intentions of the current Government, and there is little constraint against decisions made by the Secretary of State—often a “here today, gone tomorrow” Minister—but I recognise that on Report we are unlikely to be able to change the powers of the Secretary of State.

Amendment 2 proposes the insertion of a new clause to review the provisions in the Act. Businesses are reporting having difficulty recruiting employees with the relevant skills. In August 2022, the Federation of Small Businesses found that 80% of small firms faced difficulties recruiting applicants with suitable skills in the previous 12 months. The Recruitment and Employment Confederation estimates that if labour shortages are not addressed, the UK economy will be £39 billion worse off each year from 2024.

Despite the rising population, many employers are facing skills gaps. Some 28,300 London employers report that not all their employees have the right skills for the job. Almost a quarter—23%—of all vacancies in London are due to a lack of applicants with the right skills, while almost half of firms—42%—are not confident that they will be able to recruit people with the higher-level skills their organisation needs over the next five years. It is possible that many of the migrants waiting to be processed will have the skills that the country urgently needs, so when will the Home Office speed up the processing so that we can see if that is the case?

We are not convinced that the introduction of the lifelong loan entitlement will help to plug the gaps. The Liberal Democrats have called for grants, rather than loans, to encourage adult reskilling, concerned that many adults will be reluctant to take on debt for their further training. Will the LLE allow people to upskill effectively? Will they want to take out loans to upskill? It will be important for the Government to review the impact of the provisions of the Bill to assess whether these measures alleviate the skills shortages.

I am not my party’s expert on sharia finance, but I am aware of the Islamic belief that benefiting from lending money by charging interest or repaying more than the initial amount borrowed—riba—is forbidden. The investments made by loan companies, which might be in industries such as gambling or alcohol, are also considered problematic. For these reasons, Muslim students are deterred from taking out student loans from the Student Loans Company to cover the tuition fees and living costs associated with higher education. Research has shown this can act as a barrier to higher education for Muslims or cause financial hardship for those who do choose to study at university.

The UK Government first proposed a student finance product consistent with Muslim beliefs about interest-bearing loans in 2013. The Higher Education Research Act 2017 allows the Government to introduce such a product, but it has yet to do so. The issue has been raised in Parliament a number of times, with the delay described as shameful by my noble friend Lord Sharkey, who is indeed an expert on sharia finance.

In March 2023, in their response to the consultation on the lifelong loan entitlement, the Government said that a sharia-compliant alternative student finance product would not be available as part of the launch of the LLE in England in 2025. In July 2023, the Government said that they remain committed to delivering alternative student finance as soon as possible after 2025. Can the Minister say why the Government have yet to do this? It would be useful to understand their thinking behind the delays and whether they could explain how the introduction of the LLE would impact those who require sharia-compliant loans.

The other part of the amendment calls for a review before the end of 2026, and preferably earlier. I have also added my name to Amendment 4, which Labour will introduce. I look forward to the Minister’s response, and I beg to move.

[Baroness Wilcox of Newport (Lab)]

My Lords, I rise to speak to Amendment 4, which would require the Secretary of State to publish a review of the lifelong loan entitlement before bringing in further regulations on fee limits. I welcome the Minister's comments in Committee, and I fully understand her feedback about what information will accompany further regulations as these changes are rolled out.

We have brought this amendment back to further raise the point about ensuring that students, the sector and Parliament are given clear information on the details of the LLE as soon as possible. Throughout the passage of this Bill, we have raised concerns, often after input from those in the higher education sector, that so little about the LLE in terms of course provision, maintenance, credits, transfers, and further rollout of modular study at other levels is confirmed in any meaningful detail.

I am none the less grateful that, following Committee, the Minister outlined further details of the LLE that relate to this Bill in a letter. However, as we know, this huge shift in higher education policy goes further than fee limits. We all want this change to work, but for that to happen the sector will need much more clarity than has been provided through this very narrow Bill.

The accounting officer assessment for the LLE states:

“The main feasibility risk of LLE is meeting the 2025 delivery timescale”.


Is the Minister still confident that the department will be able to deliver on time, particularly in the light of current pressures arising from the major emergency that the department is currently dealing with in school buildings across the UK?

My next question follows on naturally: what is in place if this timescale turns out to be unworkable? There are a great many sector stakeholders—as well as the students themselves, of course—who will need clearly communicated timelines. Amendment 1 from the noble Baroness, Lady Garden, puts in the Bill the number of hours that constitute a credit. We understand why she tabled that amendment: it is important that the sector is given clarity and control over the definition of working hours and that it is consistent with the QAA’s higher education credit framework. As she noted, her concern is about the lack of detail. This is one of many areas in which the higher and further education sectors still have questions about how a credit will be defined.

The concept of a credit in education terms will also be completely alien to the general public, and there is a risk that employers simply do not understand its value. The Government need to think about how this can be communicated. We do not believe that putting a number in the Bill at this point would be beneficial. However, we would like a commitment from the Government that they will not seek to amend the value of a credit and will be led by the sector’s understanding of it.

On Amendment 2, I am glad that the Minister has outlined the Government’s plans to ensure sharia-compliant loans in writing; we look forward to receiving further engagement on this issue as the LLE progresses. But, as the noble Baroness, Lady Garden, pointed out, there is a distinct problem with skills gaps—a lack of applicants with the right skills. The economy cannot move forward appropriately with skills shortages.

[Lord Willetts (Con)]

My Lords, the amendments reflect widespread cross-party support for the Bill and its principles; they are not intended to destroy the Bill in any way. I see the case for the Bill, which of course I warmly welcome, as opening up new possibilities. We genuinely do not know the circumstances in which people may take them up and we do not know whether debt aversion is much more of an issue among mature learners than among young people aged 18 or 19; we will find out only if we give this a try. Similarly, we do not know how much suppressed demand there is for level 4 or level 5 qualifications because of the way in which loans are currently structured; we will find out only if we give this a try. So this is definitely worth going forward with.

I have three brief comments on the amendments. First, one of the temptations we have in this House— I have occasionally succumbed to it myself—is to try to determine the details of policy through primary legislation. That is one of the risks in Amendment 1, with its specification of the definition of “one credit”. Of course, it is an important and interesting area but, as we are embarking on a journey with a new and more flexible system, trying to put that into primary legislation would inhibit necessary policy flexibility—a point that I think the noble Baroness, Lady Wilcox, referred to.

Secondly, I agree with the point made by the noble Baroness, Lady Garden, on sharia-compliant loans. We have been at this for 10 years now, and it really is time that a scheme such as this were available and in force. There were initially some tricky problems, but I think that the long work that the department has done over the years has resolved them. My understanding is that the technical and theological issues have been addressed. I know that the Minister herself is keen to get on with this, so anything that she can say to the House about her commitment to that timescale would be very welcome.

Finally, on Amendment 4, I am proud to say that I am acting as the spokesman for the noble Baroness, Lady Wolf. She very much regrets that she cannot be with us; she briefly appeared, but I think she had to catch a plane to Lithuania. In many ways, she is the intellectual origins of the Bill. I know that her spirit is that she wants to get on with it. Her concern about this amendment—which I completely understand and support—is that requiring another review before we can get on with things will slow down the pace still further. I think that the mood across this House is that we want to get on with it; we do not want reasons for further delay. I fear that Amendment 4 would constitute another obstacle to this potentially important and significant innovation in policy, which I warmly support.

18:15

[Lord Berkeley of Knighton (CB)]

My Lords, many interesting points have been made about the amendments. I agree with the noble Lord, Lord Willetts, and the other speakers that we would like to see this progress; it is a good idea. We want to improve access to education, which means having more and better information about fees and recognising the fact that they cannot just continue uncontrolled.

Another point I endorse is that which the Minister said in a previous speech on this subject: that the Government had a “phased approach” to this. I think consideration has been given to the many points that have been very intelligently raised; I am sure that the Minister is grateful for them.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, ahead of speaking to the amendments tabled, I thank all noble Lords across the Chamber for their contributions and the support they have expressed, both for this Bill and for the wider programme to transform opportunities to build qualifications over one’s lifetime. We heard from the noble Baronesses, Lady Garden and Lady Wilcox, about the importance of filling skills gaps so that the economy can grow. I thank both my noble friend Lord Willetts and the noble Lord, Lord Berkeley of Knighton, for their support and acknowledgement that the Bill will open new opportunities for learners.

Amendment 1, tabled by the noble Baroness, Lady Garden of Frognal, would define a credit as equivalent to “10 notional learning hours” in the Bill. The Government believe that it is crucial that the definitions of credits in the fee limit calculations align to standard practice in the sector—a point the noble Baroness, Lady Wilcox, made. The Government plan to set out this detail in regulations, rather than in primary legislation. The power to do so is provided for in new paragraph 1B of Schedule 2 to the Higher Education and Research Act 2017, introduced through Clause 1 of this Bill. Specifying learning hours in secondary rather than primary legislation means that providers that might choose to use a different number of learning hours per credit will simply have those courses treated as non-credit-bearing for fee limit purposes. If we took the approach of this amendment, those same providers could instead be considered in breach of the fee limit rules as a whole, with all the regulatory consequences that might bring. I am sure that is not what the noble Baroness intends with her amendment.

To be clear, as I think the noble Baroness’s amendment seeks to do, the Government do not intend to change the number of learning hours in a credit unless standards in the sector change. Learning hours are, and should continue to be, based on sector-led standards. Regulations on learning hours will follow the affirmative resolution procedure, so Parliament will get the opportunity to debate and formally approve any changes to those regulations.

Amendment 2 and Amendment 4, tabled by the noble Baroness, Lady Twycross, and the noble Lord, Lord Watson of Invergowrie, would require the Secretary of State to publish a review of the impact of the future Act on the progress of the rollout of the lifelong loan entitlement. Amendment 4 sets out that such a review must be published ahead of regulations being laid, and Amendment 2 would require the review to be presented to Parliament before the end of 2026. I thank my noble friend Lord Willetts for being the very eloquent messenger of the noble Baroness, Lady Wolf. We absolutely agree with her point and that made by the noble Lord, Lord Berkeley. Amendment 2 specifies that the review should include the impact of the credit-based method on sharia-compliant loans and skills gaps.

I thank your Lordships for these amendments. The Government agree with the sentiment behind them, if such sentiment seeks the department’s commitment to monitoring the impact of these measures on the transformation of student finance under the lifelong loan entitlement. As your Lordships will be aware, the Government published an impact assessment alongside the Bill upon its introduction in the other place in February this year. Subsequently, the department published an updated and more extensive impact assessment of the lifelong loan entitlement, more broadly, alongside the publication of the consultation response in March. As was committed to in the impact assessment published in March, and in accordance with the Better Regulation Framework, a more detailed assessment of impacts will be published at the point when the Government lay the necessary secondary legislation to implement the lifelong loan entitlement fully. Therefore, the Government already intend to publish an updated impact assessment covering all aspects of the LLE, including the measures in the Bill, when regulations are laid.

In addition, parliamentary accountability mechanisms are already in place to review Acts of Parliament and the impact that they have on policy, including post-legislative scrutiny in particular, but not exclusively. There will be continued scrutiny of the LLE and the impact of these measures in both this place and the other place, including the role of the Education Select Committee in scrutinising the work of the department.

I will just rest for a moment on the point about post-legislative scrutiny, which I understand the noble Baronesses raised at the briefing yesterday. The noble Baroness, Lady Wilcox, will be aware that under the current government guidance and as proposed in 2008, between three to five years after an Act is passed it should be reviewed by the government department and Parliament. I can assure the noble Baroness that the Government will seek to work together with the relevant Select Committee in line with that guidance. However, while we recognise the importance of reviewing the implementation, it should be not just of this Act but of the reform of the system—and again, I can commit that the Government would like to see that review happen.

On the specific details within the amendments themselves, the timing requirement in Amendment 4 would require a review of the impact of the Bill on the rollout of the LLE prior to regulations being laid. I want to be clear here that any impact assessment which is conducted ahead of laying regulations would not be any different to the impact assessment currently available for the Bill and the consultation process. The next point at which impacts can be assessed is when the regulations are laid and, as stated, the Government are committed to publishing an impact assessment at that time.

Amendment 2 relates to the impact of the credit-based method on sharia-compliant loans and skills gaps. First, it is important to note that fee limits are set on courses, not on students. Therefore, the credit-based method—like the current fee limit system—will not depend on any characteristics of individual students. All students on a course will have their fees determined in line with the same fee limit rules, regardless of whether they use their LLE, self-fund, or use alternative loan arrangements.

I take this opportunity to assure your Lordships that the Government remain committed to delivering an alternative student finance product compatible with Islamic finance principles. The noble Baroness, Lady Garden, questioned why it was taking so long. I will not rehearse all the arguments, but I think she will remember that we touched on this in Committee, and it really is linked to the complexity of implementation. Every element that changes within the student finance systems needs to be mirrored for the alternative finance product, so it is a more complicated process and is contingent, and it has to follow the building of the systems which will allow us to deliver the new approach.

The noble Baroness, Lady Wilcox, questioned our commitment to being able to deliver by 2025. I remind the House of the measures that we set out in the letter that I sent your Lordships on this point following Grand Committee. I am pleased to confirm that in August, the Student Loans Company commenced delivery planning for alternative student finance, and it is supported on this phase of work by experts in Islamic finance, the Islamic Finance Council UK. I continue to meet on a quarterly basis with the Student Loans Company, the Islamic Finance Council UK, the noble Lord, Lord Sharkey, Stephen Timms MP and representatives from the Islamic community to discuss the steps the Government are taking to deliver alternative student finance as swiftly as possible. Because of the delays there have been, we need to be as transparent as possible to make sure that we build or rebuild trust with the community that we really will deliver on this. I will provide a further update on alternative student finance later this year.

On skills gaps, in response to the LLE consultation, the Government made it clear that they will be taking a phased approach to modular funding, as the noble Lord, Lord Berkeley, reminded the House, focusing on higher technical courses which have the clearest employer value. It is important to note that fee limits are not a means to address skills gaps; they are to ensure that students have affordable access to higher education provision provided by those higher education providers who receive government funding to support course delivery.

Finally, it is worth noting that the LLE policy is much wider than the provisions of the Bill, and as such, the reviews sought through these amendments would focus narrowly on fee limits and not on the impact of the LLE as a whole.

For these reasons, while the department understands the sentiment behind these amendments, they would either have unintended consequences or would be unnecessary, as there will already be mechanisms in place to provide such review. Therefore, the Government cannot accept these amendments and I hope that your Lordships will withdraw or not move them.

[Baroness Garden of Frognal (LD)]

My Lords, I thank the Minister for her response and her reassurance, and I thank the noble Baroness, Lady Wilcox, and the noble Lords, Lord Willetts and Lord Berkeley, for their comments on this short debate.

Of course, we are all committed to encouraging lifelong learning—it is essential for the well-being of the country and of individuals—and we all want to make sure that it is encouraged. As I say, we continue to express concern that adults may not prepared to take on loans for this but, obviously, only time will tell. I thank the Minister for her remarks about sharia finance, because it is a concern that Muslim students are deterred from entering higher education because they cannot get the means to do so. With that, I thank all your Lordships and I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Amendment 3

Moved by

[Baroness Twycross]

3: After Clause 2, insert the following Clause—
“Review of the operation of the Act(1) The Secretary of State must conduct an annual review of the operation of the provisions of this Act.(2) The review must consider the impact of the provisions of this Act on—(a) learner uptake of modular study;(b) learner uptake of non-modular part-time study;(c) adult learner uptake of Level 3, Level 4, Level 5 and Level 6 study;(d) access to higher education for students with disabilities; (e) access to higher education for students from lower- income backgrounds;(f) access to higher education for students from ethnic minority backgrounds;(g) uptake of modular study amongst learners between the ages of 30 and 60;(h) employer spending on lifelong learning, retraining and upskilling opportunities for their employees;(i) the provision of courses offered by higher education and further education providers;(j) the financial sustainability of the tertiary education sector;(k) differences in higher education provision across different regions of England;(l) skills gaps in the United Kingdom.(3) The Secretary of State must lay the report on the findings of the first review before Parliament within one year of the introduction of the Level 4 lifelong loan entitlement provision.”Member’s explanatory statement
This new Clause would require the Secretary of State to annually review the impact of the Act on various aspects of higher education and adult learning, starting within one year of the rollout of the Lifelong Learning Entitlement.

[Baroness Twycross (Lab)]

My Lords, I will speak to Amendment 3, standing in my name and the names of my noble friends Lady Wilcox, Lady Thornton and Lord Blunkett. I thank the noble Lord, Lord Evans, for giving his time yesterday to meet to discuss the Bill, and I thank the Minister for her own engagement in correspondence on the Bill.

As my noble friend Lady Wilcox stated in the debate on the previous group of amendments, Labour supports the aspiration in this Bill, and we want the change to work. However, we think that the Bill could be strengthened, and all the amendments we have tabled have the aim of making sure that it succeeds.

Labour wants students to have access to funds and to have a lifelong loan entitlement and the opportunity to learn throughout their careers. I have found the cross-party consensus and debate on aspects of this Bill of great interest, and one of the most compelling points in the debate in Committee was from the noble Lord, Lord Willetts. To paraphrase—and I apologise to him if this is an incorrect interpretation—he stated that one of the main issues for the success of the Bill’s measures will be whether or not those who are thinking about deferring their entitlement believe and trust that the funding will still be there in the future. I think it was a really well-made point. We need enough trust in future Governments keeping the entitlement to ensure that people do not instead decide to use it all at an early stage of their career to ensure they do not lose it, thereby negating part of the point of the Bill.

18:30

Labour believes that reviewing the impact of the Bill on various aspects of higher education and adult learning annually, starting within one year of the rollout of the LLE, would make it more likely that any issues would be identified and more likely to succeed and to be there for the future learning needs and aspirations of students. It might arguably, therefore, improve confidence on the part of students and potential students in future entitlements. I would welcome the Minister’s view on how the Government intend to carry out reviewing the impact of the Bill in the absence of formal review, as the amendment would provide. How will the Government ensure confidence in the future-proofing of this entitlement?

The amendment would ensure ongoing analysis of the impact of the Bill on higher education uptake, the financial stability of the higher and further education sectors and our current skills gap. The Government’s related announcement on higher education just prior to the Summer Recess was concerning in many ways. It completely reduced the value of the course to graduate salaries, ignoring the wider reasons why we value higher education, and risks higher education provision, often for local people in areas of the country the Government claim they want to level up. The courses and institutions targeted by these changes could seriously impact particular groups, especially disabled students, students from ethnic minorities and those from lower-income backgrounds.

The Minister has pointed to the lifelong loan entitlement as something that can help those seeking flexible and part-time studies or looking to retrain or build further skills, but we absolutely need to ensure that students seeking flexible study are not limited in choice by using this entitlement or how it works in practice. Can she outline how flexible learning will be supported?

It is also essential that the Government ensure that this entitlement does not become simply a fund for employers looking to push training costs back on to their staff; it must be in addition, not instead of. I hope to hear from the Minister on how the Government are working with both prospective students and employers to prevent that, as well as on the other points raised in this debate. I hope the Government will be able to give a very positive response to the amendment, and I beg to move.

[Lord Watson of Invergowrie (Lab)]

My Lords, I start by apologising for my bad timing in not arriving for the previous set of amendments to which I was a signatory. I was caught on the hop, and it takes a few hops to get here from my office in Millbank House, so I apologise to the House.

It is important that some of the issues to which my noble friend Lady Twycross referred are emphasised. The impact of the Bill’s provisions on a number of education sectors is considerable, and I return again to the impact on the access to higher education for students from lower-income backgrounds. I shall not rehearse the arguments about BTECS and AGQs, the Minister will be relieved to hear, but that is one issue that needs to be borne in mind as the legislation proceeds.

I can no longer speak on behalf of the party as I am no longer on the Front Bench, but I very much hope that an incoming Labour Government would retain much of this legislation, because I think it is very positive and it would be a great shame if that was not done. I think it will; I think common sense will mean that that happens. Some of how we shape the Bill now, therefore, will have an impact further down the line, whatever happens at the next general election. I particularly mention the skills gaps in the economy, mentioned at the end of subsection (2) of the new clause proposed in the amendment; it is very important that we bear that in mind going forward.

The Minister, in response to the previous set of amendments, talked about impact assessments: the one done before the Bill was published and one in, I think, March this year. I was surprised that she did not mention—at least, not when I was here, and I think I was here when she was speaking—the report issued just under two weeks ago by the Permanent Secretary of the department on the assessment of the lifelong loan entitlement, which I thought was potentially rather worrying. The Permanent Secretary was questioning the ability to complete the rollout by 2025, as is intended. She said, and I quote from her report, that the biggest risk to feasibility of the lifelong loan entitlement is “significant delivery challenges”.

I will not go through all of those, as I am sure noble Lords will have seen them—this is the report issued on 25 August. It is all very well to talk about an impact assessment, but an assessment has been made of whether the deadline can be met, and I would like the Minister at least to comment on it, because we are getting fairly close to the time when, if certain preparations for the implementation of the lifelong loan entitlement are not completed, that 2025 introduction date will slip. That would be very unfortunate, to say the least, and could have considerable knock-on impacts.

Coming to my final point—perhaps I am being a little unfair to the Minister, but I am going to say it anyway—I referred, in my Oral Question in July, to a thematic report published by Ofsted which raised some questions about T-levels. I know that this is not the same thing, but I think the way that T-levels roll out will have an effect on the number of people who are properly prepared to take up some of the options under the lifelong loan entitlement. Could she say whether—if she thinks it is not appropriate to do so now, I should be very happy if she could write—she and her officials, having had more time to study the Ofsted report, have any other comments to make on it? I thought it unusual for His Majesty’s inspector to be as openly critical on such a fundamental part of the Government’s education and skills policy. If she would prefer not to rise to that today, I would be very happy for her to write, but it would be helpful to have some comment on that thematic report issued in July.

With those remarks, I think that the issues covered in Amendment 3 are important, and I do not really see why the Government should be unhappy about the Secretary of State conducting an annual review considering the various issues listed in the amendment.

[Baroness Thornton (Lab)]

My Lords, I support the amendment, to which my name is attached, but I also echo my noble friend’s remarks on this matter. As I mentioned to the Minister, the rollout will be very important, and the three to five-year assessment of whether the legislation has worked will not serve, because it will be a moving feast. Indeed, I thank the Open University for writing to us to draw our attention to the accounting officer’s assessment, which my noble friend mentioned, which highlights concerns within the department that the rollout might be a problem.

There are two things here, really. First, I seek some clarity on how this will be promoted. This partly echoes the remarks made by the noble Lord, Lord Willetts, in Committee, which we rather liked; they were about trust and how this will be sold to people as something that we would want them to take up in the long term. The second point is about addressing the concerns that have been expressed within the department by the accounting officer.

[Baroness Garden of Frognal (LD)]

My Lords, we have here a fairly formidable list of things, all of them important. I want to focus on subsection (2)(j) in the new clause proposed by Amendment 3, which concerns:

“the financial sustainability of the tertiary education sector”.

We note that student fees have not gone up in all the years they have been there and that universities now face intense financial pressures. I note that, in Committee, the noble Lords, Lord Willetts and Lord Johnson, put forward a suggestion that student fees should rise with inflation; that has not gone further but I wonder whether the Minister could give some succour to university vice-chancellors, who are desperately worried about how on earth they can balance their books as costs go up but income does not.

[Baroness Barran (Con)]

My Lords, I now turn to Amendment 3, tabled by the noble Baronesses, Lady Twycross, Lady Thornton and Lady Wilcox of Newport, and the noble Lord, Lord Blunkett. This amendment would require the Secretary of State to publish an annual review of the operation of the provisions of this Act and specifies several areas that the review must cover, including learner uptake, access to higher education and financial sustainability in tertiary education more broadly.

As mentioned in relation to Amendments 2 and 4, the Government published an impact assessment upon the introduction of this Bill in February and an extensive impact assessment of the lifelong loan entitlement more broadly in March. The Government intend to publish an updated impact assessment covering all aspects of the LLE, including the measures in this Bill, when regulations are laid.

There will be continued scrutiny of the Bill and the LLE via existing parliamentary accountability mechanisms, for example post-legislative scrutiny and the Education Select Committee. In addition, there are already systems by which the areas mentioned in this amendment are monitored. I will take each area in turn to provide reassurances as to the existing work being undertaken in these areas and the mechanisms in place for review.

In relation to the point from the noble Baroness, Lady Thornton, about three to five years, I was speaking specifically about post-legislative scrutiny. It is in the Cabinet Office guidance from 2008—a period that I imagine the noble Baroness might support. Obviously, as I have just listed, there are a number of other mechanisms for scrutiny.

The amendment lists a number of areas relating to uptake. I want to take this opportunity to refer noble Lords to the publications produced by the Higher Education Statistics Agency, which will continue to include data on learner uptake and enrolments. For example, the Higher Education Statistics Agency website allows anyone to view information about higher education student enrolments broken down by year, level of study, higher education provider, subject, mode of study and more. High-level national results are also published in its annual statistical bulletin.

Regarding uptake of modular and part-time study, the Government expect to see a shift in how, what and when people study as the LLE provides support for alternatives to full-time study. For example, Universities UK polling in 2020 on modular study indicated that 82% of prospective students polled who were either unemployed, at risk of unemployment or looking to learn a new skill would be keen to study individual modules of a university degree.

Turning to access, tackling inequality in higher education is a central part of the Office for Students’ mission. The OfS shares information through its access and participation data dashboard, which allows it and the public, alongside registered universities and colleges, to identify gaps between groups. The OfS also maintains an equality of opportunity risk register, which identifies key sector-level risks to equality of opportunity in higher education and highlights the student groups that are most affected by each one.

The Government recognise the importance of supporting access, which is why maintenance loans will be available for all eligible courses and modules that require in-person attendance under the LLE, as will targeted support grants such as the disabled students’ allowance and the childcare grant. The impact assessment published alongside this Bill notes that learners who will particularly benefit from the introduction of fee limits for short courses and modules are more likely to be older, female, from ethnic minority backgrounds or from lower socioeconomic groups.

18:45

The noble Baroness, Lady Twycross, was critical of the Government’s recent announcements on higher education reform and focused purely on salary. Let me just remind the House that the issues we are looking at include the continuation of students from one year to the next and the completion of courses as well as graduate-level salaries. The focus is very much on courses, but the question that we all need to ask is this: why does the same qualification at different institutions result in very different continuation and completion levels as well as very different salary levels? I know that the noble Baroness agrees with me here, but it is exactly those disadvantaged students who need to know which institutions are the ones where courses do not lead to the kind of outcomes that we would all hope for them.

Regarding employer spending on lifelong learning, employers are at the heart of the Government’s reforms that seek to improve the prestige, profile and uptake of high-quality technical education at levels 4 and 5. The lifelong loan entitlement will not substantively change the balance between workplace training and loan-funded study. It will sit alongside the opportunities afforded through apprenticeships and employer skills funding, meaning that people will have a wider choice in how and when they study to acquire new skills. The department will continue to engage closely with stakeholders, including employers, as part of the development and delivery of its reforms.

Regarding the financial sustainability of the tertiary education sector, which was also raised by the noble Baroness, Lady Garden, this Bill’s impact assessment notes that providers may see increased tuition fee revenue if the LLE encourages more people to engage with lifelong education. As is currently the case, providers will be free to assess the potential profitability of any course however they see fit and will offer only those that they see as beneficial to their institution. The Higher Education Statistics Agency collects and publishes finance data from English HE providers as part of its annual financial return. The data includes the income and expenditure of higher education providers, key financial indicators and change over time.

With regard to skills gaps, the Government made clear in their response to the LLE consultation that they will take a phased approach to modular funding, focusing on higher technical courses that have the clearest employer value or where they address skills gaps to support learners into jobs that employers need. It is important to note that fee limits are not in themselves a means to address skills gaps; they are there to ensure that students have affordable access to HE provision provided by those higher education providers that receive government funding to support course delivery.

I turn now to timings. The proposal to review with no end date, as this amendment seeks to do, would be an undue and disproportionate burden. In addition, introducing ongoing reviews into primary legislation before policies have been fully implemented or had sufficient time to bed in would be of limited, if any, value.

I reiterate that it is unlikely that the fee limit provisions in this Bill will, in themselves, have substantial impacts on, for example, employer spending on lifelong learning or skills gaps in the UK. These and other impacts must be considered in the context of the LLE as a whole and not through the narrow lens of a single policy issue.

I want to return to the points raised by the noble Lord, Lord Watson of Invergowrie. I will write to him about the T-level point but I want to quote from the conclusion of the Permanent Secretary’s report. She writes:

“As accounting officer for the Department for Education, I have considered this assessment against the 4 accounting officer standards, and I am satisfied that the LLE programme meets the standards of managing public money and accords with the generally understood principles of public life, represents good value for money for the Exchequer as a whole, and is feasible to deliver (with significant delivery challenges to meet the 2025 launch)”.

I think that she is still saying that it is feasible. However, it is a major programme, and any major programme would have significant challenges in that regard.

For these reasons, although the department understands the sentiment behind this amendment, it would be unnecessary and burdensome as there will be mechanisms in place to provide such a review. Therefore, the Government cannot accept it.

[Baroness Twycross (Lab)]

My Lords, I thank the Minister for her detailed response and thank all those who participated in this short debate. It is regrettable that the Government do not view this as a useful amendment. In Labour’s view, it would improve the likely outcomes of the Bill and the outcomes for the students who the Bill intends to help. Notwithstanding that, I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

Clause 3: Extent, commencement and short title

Amendment 4 not moved.

Countess of Chester Hospital Inquiry

Tuesday 5th September 2023 Lords Chamber

Statement

The following Statement was made in the House of Commons on Monday 4 September.

“With permission, Mr Speaker, I would like to make a statement on the inquiry into the circumstances surrounding the crimes of Lucy Letby.

On 18 August, as the whole House is aware, Letby was convicted of the murder of seven babies and the attempted murder of six others. She committed these crimes while working as a neonatal nurse at the Countess of Chester Hospital between June 2015 and June 2016. As Mr Justice Goss said as he sentenced her to 14 whole-life orders, this was a

‘cruel, calculated and cynical campaign of child murder’

and a

‘gross breach of the trust all citizens place in those who work in the medical and caring professions’.

I think the whole House will agree it is right that she spends the rest of her life behind bars.

I cannot begin to imagine the hurt and suffering that these families went through, and I know from my conversations with them last week that the trial brought these emotions back to the surface. Concerningly, that was exacerbated by the fact the families discovered new information about events concerning their children during the course of the trial.

Losing a child is the greatest sorrow any parent can experience. I am sure the victims’ families have been in the thoughts and prayers of Members across the House, as they have been in mine. We have a duty to get them the answers they deserve, to hold people to account and to make sure that lessons are learned. That is why, on the day of conviction, I ordered an independent inquiry into events at the Countess of Chester Hospital, making it clear that the victims’ families would shape it.

I arranged with police liaison officers to meet the families at the earliest possible opportunity to discuss with them the options for the form the inquiry should take, and it was clear that their wishes are for a statutory inquiry with the power to compel witnesses to give evidence under oath. That is why I am confirming this to the House today.

The inquiry will examine the case’s wider circumstances, including the trust’s response to clinicians who raised the alarm and the conduct of the wider NHS and its regulators. I can confirm to the House that Lady Justice Thirlwall will lead the inquiry. She is one of the country’s most senior judges. She currently sits in the Court of Appeal, and she had many years of experience as a senior judge and a senior barrister before that. Before making this Statement, I informed the victims’ families of her appointment, which was made following conversations with the Lord Chief Justice, the Lord Chancellor and the Attorney-General.

I have raised with Lady Justice Thirlwall the fact that the families should work with her to shape the terms of reference. We hope to finalise those in the next couple of weeks, so that the inquiry can start the consultation as soon as possible. I have also discussed with Lady Justice Thirlwall the families’ desire for the inquiry to take place in phases, so that it provides answers to vital questions as soon as possible. I will update the House when the terms of reference are agreed and will continue to engage with the families.

Today, I would also like to update the House on actions that have already been taken to improve patient safety and identify warning signs more quickly, as well as action that is already under way to strengthen that further. First, in 2018, NHS England appointed Dr Aidan Fowler as the first national director of patient safety. He worked with the NHS to publish its first patient safety strategy in 2019, creating several national programmes. Those included requiring NHS organisations to employ dedicated patient safety specialists, ensuring that all staff receive robust patient safety training and using data to quickly recognise risks to patient safety. Last summer, to enhance patient safety further, I appointed Dr Henrietta Hughes, a practising GP, as England’s first patient safety commissioner for medicines and medical devices. Dr Hughes brings leaders together to amplify patients’ concerns throughout the health system.

Secondly, in 2019, the NHS began introducing medical examiners across England and Wales to independently scrutinise deaths not investigated by a coroner. Those senior doctors also reach out to bereaved families and find out whether they have any concerns. All acute trusts have appointed medical examiners who now scrutinise hospital deaths and raise any concerns they have with the appropriate authorities.

Thirdly, in 2016, the NHS introduced freedom to speak up guardians, to assist staff who want to speak up about their concerns. More than 900 local guardians now cover every NHS trust.

Fourthly, in 2018, Tom Kark QC was commissioned to make recommendations on the fit and proper person test for NHS board members. NHS England incorporated his review findings into the fit and proper person test framework published last month. It introduced additional background checks, the consistent collection of directors’ data and a standardised reference system, thus preventing board members unfit to lead from moving between organisations.

Fifthly and finally, I turn to maternity care. In 2018 NHS England launched the maternity safety support programme to ensure that underperforming trusts receive assistance before serious issues arise. Also since 2018, the Government have funded the national perinatal mortality review tool, which supports trusts and parents to understand why a baby has died and whether any lessons can be learned to save lives in the future. Furthermore, the Government introduced the maternity investigations programme, through the Health Safety Investigation Branch, which investigates maternity safety incidents and provides reports to trusts and families. In 2020, NHS England’s Getting It Right First Time programme was expanded to cover neonatal services. It reviewed England’s neonatal services using detailed data and gave trusts individual improvement plans, which they are working towards. Indeed, Professor Tim Briggs, who leads that programme, has confirmed that all neonatal units have been reviewed by his programme since 2021.

Let me now turn to our forward-facing work. First, we have already committed to moving medical examiners to a statutory basis and will table secondary legislation on that shortly. It will ensure that deaths not reviewed by a coroner are investigated in all medical settings—in particular, extending coverage in primary care—and will enter into force in April.

Secondly, on the Kark review, at the time the NHS actively considered Kark’s recommendation 5 on disbarring senior managers and took the view that introducing the wider changes he recommended in his review mitigated the need to accept that specific recommendation on disbarring. The point was considered further by the Messenger review. In the light of evidence from Chester and ongoing variation in performance across trusts, I have asked NHS England to work with my department to revisit this. It will do so alongside the actions recommended by General Sir Gordon Messenger’s review of leadership, on which the Government have already accepted all seven recommendations from the report dated June last year. This will ensure that the right standards, support and training are in place for the public to have confidence that NHS boards have the skills and experience needed to provide safe, quality care.

Thirdly, by January all trusts will have adopted a strengthened ‘freedom to speak up’ policy. The national model policy will bring consistency to freedom to speak up across organisations providing NHS services, supporting staff to feel more confident to speak up and raise any concerns. I have asked NHS England to review the guidance that permits board members to be freedom to speak up guardians, to ensure that those roles provide independent challenge to boards.

Fourthly, the Getting It Right First Time programme team will launch a centralised and regularly updated dataset to monitor the safety and quality of national neonatal services.

Fifthly and finally, we are exploring introducing Martha’s rule to the UK. Martha’s rule would be similar to Queensland’s system, called Ryan’s rule. It is a three-step process that allows patients or their families to request a clinical review of their case from a doctor or nurse if their condition is deteriorating or not improving as expected. Ryan’s rule has saved lives in Queensland, and I have asked my department and the NHS to look into whether similar measures could improve patient safety here in the UK.

I want to take the first opportunity on the return of the House to provide an update on the Essex statutory inquiry. In June, I told the House that the inquiry into NHS mental health in-patient facilities across Essex would move forward on a statutory footing. Today, I can announce that Baroness Lampard, who led the Department of Health’s inquiry into the crimes of Jimmy Savile, has agreed to chair the statutory inquiry. I know that Baroness Lampard will wish to engage with Members of the House and the families impacted, and following their input I will update the House on the terms of reference at the earliest opportunity.

The crimes of Lucy Letby were some of the very worst the United Kingdom has witnessed. I know that nothing can come close to righting the wrongs of the past, but I hope that Lady Justice Thirlwall’s inquiry will go at least some way towards giving the victims’ families the answers they deserve. My department and I are committed to putting in place robust safeguards to protect patient safety and to making sure that the lessons from this horrendous case are fully learned. I commend this Statement to the House.”

18:52

[Baroness Merron (Lab)]

My Lords, the Statement that we consider today reminds us of acts that were so cruel that it is hard to make sense of them. Our thoughts must be with the families who have suffered the worst of ordeals and with the children who were so brutally taken from them. It can only be hoped that the conviction and the sentencing have helped bring some closure, even though the murderer dared not face up to them in person in court. More than this, the extent of the crimes committed by Lucy Letby may not yet be fully known, as Cheshire police have widened the investigation to now cover her entire clinical career.

There are heroes in this story—the doctors who fought to sound the alarm in the face of a hard-headed and stubborn refusal to even consider the evidence that was brought forward. I am sure that the whole House would wish to join me in recognising the courage of Dr Stephen Brearey and Dr Ravi Jayaram.

This killer should and could have been stopped months before. If it had not been for the persistent bravery of the staff who finally forced the hospital to call in the Cheshire police, the lives of even more babies would have been put at risk. The refusal to listen, the failure to approach the unexplained deaths of infants with an open mind, and the failure to properly investigate when the evidence appeared to be so clear, are absolutely unforgivable. There was then the insult of ordering concerned medics to write a letter of apology to a serial killer. It is clear that the allegations that were made and the evidence produced were not met with any respect or regard.

This is a tragic and true story, where events came together and flags were raised and ignored. It is to this point that I would like to take the Minister. I start by saying that we very much welcome that the inquiry has been put on a statutory footing, and it is welcome that the full force of the law will be behind it. However, can the Minister tell your Lordships’ House why it took so long to get to that correct decision? It is right that families have now been listened to, but why were they not consulted before the initial announcement? Will they be consulted ahead of any future decisions?

This is not the first time that whistleblowers in the National Health Service have been ignored. On all the occasions such as these where they have not been listened to, there has been a missed opportunity to save lives. The reality is that nobody thinks that the system of accountability, professional standards and regulation of NHS managers and leaders is good enough. Why were senior leaders at the hospital still employed after the conviction? Regarding the absence of serious regulation, which enables a revolving door of those with records of poor performance or misconduct, does the Minister agree that this is unacceptable, particularly when lives are at stake?

I refer the Minister to the duty of candour. It is 10 years since Sir Robert Francis’s report was published in which he put forward the duty of candour, and yet the duty of candour of a number of consultants was ignored and overridden in this case. As a result of that, will the Minister ensure that there is an independent external route through which concerns can be raised in future? Will he look at the accountability, scrutiny and supervision of clinicians throughout the National Health Service, because the pressures on the service at the moment mean that, sometimes, these vital double-checks can be missed? What review has been conducted into the effectiveness of the duty of candour? What is the conclusion of any review that has taken place about what has gone wrong over the past 10 years?

The terrible events at the Countess of Chester Hospital shine a clear light on a lack of consistent standards. Therefore, it is welcome that the Government are considering a register of NHS executives and the power to disbar, which was recommended by 2019 Kark review. However, the Government should go further. Will they begin the process of bringing in a regulatory system for managers, and standards and quality training, as was recommended by the 2022 Messenger review? Can the Minister indicate how and when there will be progress on bringing together a single set of unified core leadership and management standards for managers, and training and development to meet these standards? What is being done to promote excellence in leadership and to ensure patient support when things go wrong?

I am sure we can all agree—I know that the Minister will join with this—that we owe it to the children who lost their lives and to the families who grieve their loss to do what we can to prevent anything like this ever happening again.

[Lord Allan of Hallam (LD)]

My Lords, we have all been appalled at what happened at the Countess of Chester Hospital, and we would also like to extend our sympathy to all those affected, especially those parents of children who were taken from them. Those were losses that we now know that could, and should, have been prevented. I echo the comments of the noble Baroness, Lady Merron, in praise of those doctors who did raise concerns and fought to have them taken seriously. The accounts that we have seen of legitimate concerns either being ignored, or in some cases being actively suppressed, are truly shocking and represent a call to action that we must heed.

The inquiry is welcome, and will cover a lot of important ground, and I will not try to pre-empt their work today. Instead, I want to focus on one aspect where the department could act now without cutting across the work of the inquiry, and that is the role of NHS trust non-executive directors. This is something which the patient safety commissioner also highlighted in her statement on the Letby case. She said of NHS non-executive directors that

“it is vital that they are able to ask the right questions and escalate concerns where needed.”

The relationship between non-executive directors on a board and senior management teams in any organisation involves the delicate balance of responsibilities. Would the Minister agree that NHS trust non-executive directors should see patient safety as a priority responsibility—perhaps the single most important among their broad set of duties? Would he also agree that it is a healthy and positive situation if trust managers feel that they are under scrutiny from their non-executive directors on safety issues and believe that they will be pulled up if they are not fully open with them? We saw in this case claims of management not presenting the full sets of facts to their boards. They must be entirely candid with their non-executive directors and must expect to be challenged; that is the culture we want to see on trust boards, not one of cover-up and misleading.

In this context, could the Minister confirm whether the department will take steps now to reinforce with trust boards the importance of non-executive directors being able to raise safety issues? Importantly, will they be providing non-executive directors with training on how to perform this function effectively, so that they understand the best ways in which to challenge executives where necessary?

As I said at the outset, we welcome the inquiry from these benches, but I hope that the Government will not wait until the inquiry has completed its work to start making changes, and that they will be equally committed to making changes now where these would improve governance, and that the Minister can confirm that they are looking at strengthening the role of non-executive directors on NHS trust boards.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

I would like to thank the comments, and the spirit of the comments, made by noble Lords. I start by adding my condolences to the parents and families in question. As we all know as parents, it is the most horrible thing we could ever imagine happening to us.

Clearly, the inquiry will find out the full facts of the matter, but at the same time it is important that lessons are learned quickly. To the point of the noble Baroness, Lady Merron, the families will continue to be consulted throughout this time. We would all agree that what happened is unforgivable, and we should praise the doctors for the work that they did and the courage that it took to bring it forward. I am convinced, as mentioned by the noble Lord, Lord Allan, that we need to make sure that we are doing sensible things in the meantime to ensure that we learn those lessons quickly. The foremost responsibility—the first line of defence as I like to call it—is the role of the board and the NEDs.

Speaking to colleagues about this, Chris Whitty was just saying that any sensible statistician and someone with sound common sense should have been able to say that there is something seriously awry here. We must all ensure that the boards are equipped to be able to challenge in the right way. That does take training, but it is important to make very clear to them that their primary duty must, beyond anything else, be the safety of the patients in that hospital. That has to be the first line of defence. There are things that we need to do to help them, including training—and to the noble Baroness’s point, that they are equipped with the records of those people so that it is known whether they are fit and proper people. One of the questions that I have asked, and got answered, is that I know there is a list so that, when you are looking to employ people, you know now whether a person is not a fit and proper person. As happened in this case, people moved on to other trusts in intervening periods, and there must be a mechanism where the trust can annually review, or review even more frequently, whether they are fit and proper through past cases that have just come to light, so that they have the ability to act.

It is our role to arm those boards, and give them the information and training to be that first line of defence. Tragically, we know in this case that first line of defence failed. These actions should bolster that first line of defence, but we also need to look at some of the second lines of defence. Medical examiners are a good way forward. From April 2024, they will now oversee all deaths that have not been put to coroners. I am told that this happens quite regularly already in the hospital setting; the challenge is more in the primary care setting. Along with other lines of defence, there is the duty of candour, allied with the freedom to speak up, so that we are gaining knowledge from the staff and people on the front line. Again, it is clear in this case that, while doctors were very brave in bringing it up, a lid was kept on it for too long. Clearly, we need to do more in terms of that whole approach of them feeling emboldened to speak up.

At the same time, the steps being taken in terms of the Getting It Right First Time programme and the health and safety investigations board and CQC are all good steps in that direction. But what is vital is that we do not, by putting in those central measures, somehow give boards the feeling that the first responsibility does not lie with them. It is the most important job that they can do, and the last thing that any of us would want is the feeling that they do not have to worry so much about that, because there are these other bodies looking into it. Absolutely fundamental to all of this is that they realise that it is their primary duty and that we in the centre are arming them to do that properly.

I hope that gives a good sense of the direction of travel we are going in, and I hope it accords very much with the points made. As to whether we should be going further in terms of registers to make that regulatory, we are absolutely open to that. It is just about trying to work out the practicalities and where the right level is. There are, however, some things, such as making sure this fit and proper persons list is up and running. That is something that we can do very quickly and are doing tomorrow. Clearly, there will be other opportunities for questions that I am taking in a moment. As ever, I will follow up all of this with a detailed reply. Most of all, I want to give a moment’s pause.

19:09

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare that I am registered with the General Medical Council. I am a doctor and I have been involved in providing some support to the Nuffield review into disagreements in care of critically ill children, which is about to report. As the noble Baroness, Lady Merron, pointed out, this is unbearably and unbelievably terrible. I watched the whole story unfold almost with a sense of disbelief, except the awful thing is that one can believe it happened as it did, with the suppression of the whistleblowers.

That is what I want to pick up from the point made by the noble Lord, Lord Allan: we do not have a senior doctor on every board. The training of a doctor is different from the training of a nurse, a manager or an HR manager. That understanding of statistics is different. When a doctor tries to raise a concern but hits a brick wall, they need to be able to go directly to another doctor on the board to explore what they want to raise and because that other doctor is also subject to the GMC’s requirements. I quote from the GMC’s duties of a doctor:

“You must take prompt action if you think patient safety, dignity or comfort is being compromised”—


“must” being the key word. It was easier for staff to raise issues in the days when there was a senior doctor on the board. It did not always work, but I hope the Government will look at that as an action that could be taken much more rapidly. The GMC also says that doctors must contribute to adverse event recognition.

Again, as has been pointed out, these things have happened before: we had the Robert Francis report into Mid Staffs and the Bristol inquiry into heart surgery. Those people who have been whistleblowers have been traumatised, but nobody has been as completely destroyed as the parents when they know that their child has been killed. Child bereavement is overwhelmingly terrible, but when you know that it was from the action of another person it is even more impossible to come to terms with it.

I hope the Government really will look at whether some urgent intermediate action can be taken, and whether they can have discussions with the GMC so that doctors who are reported to the GMC as being difficult because they are raising concerns are not treated with some of the problems that have arisen, where we have seen doctor suicides and so on when they have been inappropriately referred. I hope the Government will seriously consider whether there needs to be a senior doctor on every board, both in hospital and a provision in the community. Even the appraisal systems that are in place do not seem to be working adequately to protect whistleblowers.

[Lord Markham (Con)]

I thank the noble Baroness for bringing her knowledge and skills to this. Bringing senior doctors very much goes along with the sentiment that we were all trying to express about equipping boards in the right way to be the first line of defence in bringing such things up. I know that many boards have doctors on them, but the noble Baroness raised a very good point; it is something that we should take back. From my point of view, I absolutely see the sense in making sure we do that.

[The Lord Bishop of London]

My Lords, I also declare my interests as noted in the register, specifically as a previous Chief Nursing Officer for England and as a non-executive director of a number of NHS trusts for a number of years. I also extend my sympathy and prayers to those who have been impacted by these awful and unimaginable atrocities.

I join others in welcoming that this is now a statutory inquiry. I also support the points made by the noble Baroness, Lady Merron, particularly around NHS manager regulation. I ask the Minister whether, when the Government look at that regulation, they will consider that it should go beyond the NHS executive, who themselves are managers, so providing external scrutiny.

The NHS has sought to improve patient safety for decades. It has also sought to improve people’s ability to be whistleblowers through a number of reports— I was involved in the publication of some of them. There are policies, guidelines and NHS bodies. A number of policies are even referred to in the Statement, some of which are now up to eight years old. My question to the Minister is whether the review will look at why those policies, procedures and bodies that are already in place, with the aspiration of improving patient safety and enabling people to whistleblow, were not enough to prevent this. The question that goes alongside that is whether the review will look at culture. It is not just about the policies and procedures; what was the culture that enabled this to happen? How might we recognise it and prevent it happening again?

[Lord Markham (Con)]

Again, I thank the right reverend Prelate for the sentiment of her reply. On whether we should be looking at the regulations beyond the executive, all these things are very much in the mix, for want of a better word, to ensure we have the right ones there. On the question of why the bodies that are in place did not catch it, obviously we will learn more as the inquiry goes along, but one of the major things for me when I looked at this was the fact that, because a lot of those cases did not go to a coroner, the medical examiner system was not fully in place at that point, so there was no other set of eyes in all that. I have to believe that if the medical examiners had looked at that they would have picked it up incredibly quickly. The fact that is now being put in place so that everything will have to be overviewed by a medical examiner or a coroner will be a key issue in all this.

There is an issue around the culture. I have a quote from a report by Sir Gordon Messenger, which is a perfect example on this and absolutely covers that point. It says that the culture that is set down by these places can often cause these problems. It is clear that, in the case of this hospital, the culture was not right. He said:

“We heard too frequently that poor inter-personal behaviours and attitudes were experienced in the workplace. Although by no means everywhere, acceptance of discrimination, bullying, blame cultures and responsibility avoidance has almost become normalised in certain parts of the system, as evidenced by staff surveys and several publicised examples of poor practice. This exists at the micro-level, in individual workplaces, and across sectors, where the enduring lack of parity of esteem, conditions and status between healthcare and social care remains a blight on effective collaborative working”.


That sums up a lot of the problem with the culture. The board, in terms of its training and equipment, is where staff surveys and feedback should act as one of the early warning mechanisms that we should look to put in place.

[Baroness Stuart of Edgbaston (CB)]

My Lords, I reinforce the points made by the noble Lord, Lord Allan, and the noble Baroness, Lady Finlay, about the importance of boards and patient safety being a key factor that they ought to take responsibility for. I will make a wider point. As health is a devolved matter and we are talking about the NHS in England, I urge the Minister to have comparisons of best practice: talk to the devolved Administrations, see what happens in Scotland, Wales and Northern Ireland, both for the way in which we can learn from each other’s experiences but also so we can arrive at common standards that can be accepted across the United Kingdom. Similarly, if any registers are being set up, these should not be confined to just England but should be UK-wide.

[Lord Markham (Con)]

I thank the noble Baroness; that is a good point. We clearly need to be looking at best practice across the board. That is not limited to any one devolved authority, but means learning from each of them and, I think, somehow making sure that hopefully they can learn from the terrible events that have taken place here—so they are putting that in place as well. For me, one of the main failings that we are now putting right is the medical examiners, which I want to make sure are spread out across all the devolved authorities. Clearly it is up to them whether they take it or not, but we should absolutely be making sure that we are cross-fertilising some of those key learnings, so they go both ways.

Nutrient Neutrality: Levelling-up and Regeneration Bill

Tuesday 5th September 2023 Lords Chamber

Commons Urgent Question

19:21

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

My Lords, with the leave of the House, I shall now repeat the Answer to an Urgent Question given in the other place by my honourable friend Minister Maclean.

“Mr Speaker, the Secretary of State for Levelling Up tabled a Written Ministerial Statement yesterday on the Government’s plans, but I am happy to provide an update to the House. In proposing the amendments, we are responding to calls from local councils, which want the Government to take action to allow them to deliver the homes their communities need. The Government recognise that nutrient pollution is a real problem, but the contribution from new houses is very small compared with that from other sources such as industry, agriculture and existing housing.

We are already taking action to mandate water companies to improve their wastewater treatment works to the highest technically achievable limits. Those provisions alone will more than offset the nutrients expected from new housing developments, but we need to go further, faster. That is why, as well as proposing targeted amendments to the habitats regulations, the Government are committing to a package of environmental measures. Central to this is £280 million of funding to Natural England to deliver strategic mitigation sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030. We have also announced more than £200 million for slurry management and agricultural innovation in nutrient management and a commitment to accelerate protected site strategies in the most affected catchments.

In our overall approach, there will be no loss of environmental outcomes and we are confident that our package of measures will improve the environment. Nutrient neutrality was only ever an interim solution. With funding in place, and by putting these sites on a trajectory to recovery, we feel confident in making this legislative intervention”.

[Baroness Hayman of Ullock (Lab)]

My Lords, the Statement asks why the Government took the decision to use the Levelling-up and Regeneration Bill for these amendments. I bring the House’s attention to the fact that on 11 July, I expressed our concerns about the Government’s approach to the proper and timely legislative scrutiny of the levelling up Bill. On that particular occasion, I was referring to the late addition, following Committee, of the Government’s decision to add in a whole raft of amendments on childminding.

Now, at an even later stage in the Bill’s progress, amendments that introduce significant changes to the habitats regulations have been tabled by the Government, limiting the ability for full parliamentary scrutiny and consideration. Does the Minister agree with me that the Levelling-up and Regeneration Bill appears to have become a dumping ground for anyone’s good—or bad—ideas? Does she also agree that, in order for these very important issues to receive proper scrutiny from your Lordships’ House, further time will have to be allocated? If not, how does she envisage that these key issues and others that are still to be debated will be dealt with in just one day next week, given that we have already agreed to start early at 11 am?

[Baroness Scott of Bybrook (Con)]

My Lords, I thank the noble Baroness for that. I understand her concerns, but this has been quite a complex issue to deal with. But it is an important issue; we need these measures to unblock housing, as well as other developments such as hotels and care homes, which connect to standard wastewater treatment works. This also covers, by the way, septic tanks. We need this; it has been complex and we have taken a little time to ensure to ensure that we are putting in the mitigation to deal with the environmental issues—not as a sticking plaster, as nutrient neutrality was, but at source. We have a Bill that is about levelling up; I think it is important that that Bill is used for this important issue. I am sorry; we will give noble Lords the required time, as we promised with the childcare amendments, to discuss this fully and I am sure we will get through the rest of the Bill in the time allowed.

[Lord Teverson (LD)]

My Lords, I declare an interest as chair of the Cornwall and Isles of Scilly Local Nature Partnership, but also as a director of Wessex Strategic, which has an interest in housebuilding—so I have a foot in both camps here. But I am very clear about which side I am on, and hats off to the Office for Environmental Protection for actually saying very robustly how this proposed change of legislation really stands as a regress of environmental law.

As chair of a local nature partnership—and my colleagues throughout England will have a similar issue—I can say that we are at the moment trying to persuade stakeholders to contribute to local nature recovery strategies. These are absolutely core in terms of what it says on the tin: nature recovery. That is on the Defra side, yet here in terms of levelling up we have the Government saying, “We’re not interested in that agenda; we actually want to change and regress environmental legislation”. So my question to the Minister is a very practical one: how do I and my colleagues as chairs of local nature partnerships persuade stakeholders —farmers, housebuilders, businesses and communities—to take local nature recovery strategies seriously when the Government are giving a completely different view on nature recovery?

[Baroness Scott of Bybrook (Con)]

I think you explain to people that we are building houses that people will need in the areas that that particular group works in, and that we do not accept that this constitutes a regression in environmental outcomes. The packages of environmental measures, backed by significant additional investment, will more than offset the very small amount of additional nutrient discharge attributable to those 100,000 houses. They should carry on the great work that they are doing. We should be building out those houses and at the same time investing in making sure that we are dealing with the environmental outcomes at source.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I was speaking today with businesses which have been working with farmers and land managers to develop mitigation schemes that could be used by housing developers. They were, I think it would be fair to say, in a state of shock. The rug has literally been pulled out from underneath their business plans. They said that there are other ways in which the Government might have approached this. People have been working on the idea of a levy as an alternative and on the idea of changing the planning system so that housing developers could later in the process bring in mitigation schemes. What we have seen is a sudden nuclear option from the Government to just throw away what has been there without any kind of replacement. Can the Minister tell me whether the Government have considered these other proposals of a levy or of changing the way in which mitigation schemes come in, or have they just gone ahead with this single stroke without any consideration or consultation?

[Baroness Scott of Bybrook (Con)]

As I said to the noble Baroness opposite, this is why it has taken time. It has taken time to look at all the options. As far as farmers are concerned, the package that we are offering includes £200 million for slurry infrastructure grants, which are really important to farmers, and £25 million for nutrient management innovation. There is a lot of innovation going on, but farmers need support to be able to deliver it. I think farmers may not have seen all the information that is here, but I am sure that when they do, they will support it wholeheartedly. We know that agricultural outputs put a significant amount of nutrients into water—far more than small housing developments do—and we want to help farmers to deal with that.

I want to give an example of what has been stopped by this: a proposal for a change of use around a house in multiple occupancy in the Solent to include one additional resident was dismissed on appeal due to the additional nutrient pollution. That cannot be right. Another example, which was reported in the Times, is that of a retired couple who have struggled for seven years to convert barns on their Herefordshire property into four homes, including one for their son. The scheme received outline planning permission in 2016, but nutrient neutrality rules have left them unable to build to this day. We want those houses, but we also want to protect the environment, and that is what we are doing with these amendments.

[Baroness Stedman-Scott (Con)]

What pressure are the Government putting on water companies to deal with pollution at source?

[Baroness Scott of Bybrook (Con)]

In the Levelling-up and Regeneration Bill we address pollution at source by placing a new statutory duty on water companies in designated catchment areas to upgrade wastewater treatment works by 2030. Interestingly enough, the analysis suggests that this will lead to about a 69% reduction in phosphorus loads and around a 57% reduction in nitrogen loads in total from wastewater treatment works across all the affected catchments, reducing a significant source of nutrient pollution and supporting the recovery of habitat sites most affected by this pollution. This is on top of the much wider improvements being driven forward through our plan for water.

[Baroness Parminter (LD)]

My Lords, when the Minister introduced the Levelling-up and Regeneration Bill into this House on 19 December, in accordance with the Environment Act, she made a statement. I quote from the front page of the Bill:

“Baroness Scott of Bybrook has made the following statements under section 20(2)(a) and (3) of the Environment Act 2021 … In my view … the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.


Given that, as my noble friend Lord Teverson said, the Government’s statutory watchdog, the OEP, has said that the amendments that she has tabled to this Bill to reduce water quality will demonstrably reduce the environmental protection afforded by current laws and that they are a “regression”, does she stand by her statement?

[Baroness Scott of Bybrook (Con)]

Yes, I stand by our statement. As I think I have said before, we do not accept that this constitutes a regression on the environmental outcomes and therefore we do not agree with the Office for Environmental Protection, because it took into account the amendments without the mitigation alongside them, as I understand. The package of environmental measures, which are backed by significant additional investment, will more than offset that very small amount of additional nutrient discharge attributed to the development of 100,000 houses between now and 2030. So, I do not agree with the noble Baroness. I stick by what I said because we are mitigating any small amount of additional nutrient discharge.

Economic Crime and Corporate Transparency Bill

Tuesday 5th September 2023 Lords Chamber

Returned from the Commons

The Bill was returned from the Commons with amendments and reasons. It was ordered that the Commons amendments and reasons be printed.

House adjourned at 7.36 pm.