Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Scott of Needham Market) (LD)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume at a time that I will give noble Lords.
Data Protection and Digital Information Bill
Wednesday 20th March 2024
(9 months ago)
Grand CommitteeRead Full debate Data Protection and Digital Information Bill 2022-23 View all Data Protection and Digital Information Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-I(b) Amendments for Grand Committee (Supplementary to the Marshalled List) - (20 Mar 2024)
Lord Clement-Jones
Member’s explanatory statement
To avoid confusion between the reversable pseudonymization mentioned in the bill regarding medical data and non-reversable pseudonymization, this amendment tries to distinguish between both.
Lord Clement-Jones (LD)
My Lords, we are beginning rather a long journey—at least, it feels a bit like that. I will speak to Amendments 1, 5 and 288, and the Clause 1 stand part notice.
I will give a little context about Clause 1. In a recent speech, the Secretary of State said something that Julia Lopez repeated this morning at a conference I was at:
“The Data Bill that I am currently steering through Parliament with my wonderful team of ministers”—
I invite the Minister to take a bow—
“is just one step in the making of this a reality—on its own it will add £10 billion to our economy and most crucially—we designed it so that the greatest benefit would be felt by small businesses across our country. Cashing in on a Brexit opportunity that only we were prepared to take, and now those rewards are going to be felt by the next generation of founders and business owners in local communities”.
In contrast, a coalition of 25 civil society organisations wrote to the Secretary of State, calling for the Bill to be dropped. The signatories included trade unions as well as human rights, healthcare, racial justice and other organisations. On these Benches, we share the concerns about the government proposals. They will seriously weaken data protection rights in the UK and will particularly harm people from marginalised communities.
So that I do not have to acknowledge them at every stage of the Bill, I will now thank a number of organisations. I am slightly taking advantage of the fact that our speeches are not limited but will be extremely limited from Monday onwards—the Minister will have 20 minutes; I, the noble Baroness, Lady Jones, and colleagues will have 15; and Back-Benchers will have 10. I suspect we are into a new era of brevity, but I will take advantage today, believe me. I thank Bates Wells, Big Brother Watch, Defend Digital Me, the Public Law Project, Open Rights Group, Justice, medConfidential, Chris Pounder, the Data & Marketing Association, CACI, Preiskel & Co, AWO, Rights and Security International, the Advertising Association, the National AIDS Trust, Connected by Data and the British Retail Consortium. That is a fair range of organisations that see flaws in the Bill. We on these Benches agree with them and believe that it greatly weakens the existing data protection framework. Our preference, as we expressed at Second Reading, is that the Bill is either completely revised on a massive scale or withdrawn in the course of its passage through the Lords.
I will mention one thing; I do not think the Government are making any great secret of it. The noble Baroness, Lady Kidron, drew my attention to the Keeling schedule, which gives the game away, and Section 2(2). The Information Commissioner will no longer have to pay regard to certain aspects of the protection of personal data—all the words have been deleted, which is quite extraordinary. It is clear that the Bill will dilute protections around personal data processing, reducing the scope of data protected by the safeguards within the existing law. In fact, the Bill gives more power to data users and takes it away from the people the data is about.
I am particularly concerned about the provisions that change the definition of personal data and the purposes for which it can be processed. There is no need to redraft the definitions of personal data, research or the boundaries of legitimate interests. We have made it very clear over a period of time that guidance from the ICO would have been adequate in these circumstances, rather than a whole piece of primary legislation. The recitals are readily available for guidance, and the Government should have used them. More data will be processed, with fewer safeguards than currently permitted, as it will no longer meet the threshold of personal data, or it will be permitted under the new recognised legitimate interest provision, which we will debate later. That combination is a serious threat to privacy rights in the UK, and that is the context of a couple of our probing amendments to Clause 1— I will come on to the clause stand part notice.
As a result of these government changes, data in one organisation’s hands may be anonymous, while that same information in another organisation’s hands can be personal data. The factor that determines whether personal data can be reidentified is whether the appropriate organisational measures and technical safeguards exist to keep the data in question separate from the identity of specific individuals. That is a very clear decision by the CJEU; the case is SRB v EDPS, if the Minister is interested.
The ability to identify an individual indirectly with the use of additional information is due to the lack of appropriate organisational and technical measures. If the organisation had such appropriate measures that separated data into differently silos, it would not be able to use the additional information to identify such an individual. The language of technical and organisational measures is used in the definition of pseudonymisation in Clause 1(3)(d), which refers to “indirectly identifiable” information. If such measures existed, the data would be properly pseudonymised, in which case it would no longer be indirectly identifiable.
A lot of this depends on how data savvy organisations are, so those that are not well organised and do not have the right technology will get a free pass. That cannot be right, so I hope the Minister will respond to that. We need to make sure that personal data remains personal data, even if some may claim it is not.
Regarding my Amendment 5, can the Government explicitly confirm that personal data that is
“pseudonymised in part, but in which other indirect identifiers remain unaltered”
will remain personal data after this clause is passed? Can the Government also confirm that if an assessment is made that some data is not personal data, but that assessment is later shown to be incorrect, the data will have been personal data at all times and should be treated as such by controllers, processors and the Information Commissioner, about whom we will talk when we come to the relevant future clauses.
Amendment 288 simply asks the Government for an impact assessment. If they are so convinced that the definition of personal data will change, they should be prepared to submit to some kind of impact assessment after the Bill comes into effect. Those are probing amendments, and it would be useful to know whether the Government have any intention to assess what the impact of their changes to the Bill would be if they were passed. More importantly, we believe broadly that Clause 1 is not fit for purpose, and that is why we have tabled the clause stand part notice.
As we said, this change will erode people’s privacy en masse. The impacts could include more widespread use of facial recognition and an increase in data processing with minimal safeguards in the context of facial recognition, as the threshold for personal data would be met only if the data subject is on a watchlist and therefore identified. If an individual is not on a watchlist and images are deleted after checking it, the data may not be considered personal and so would not qualify for data protection obligations.
People’s information could be used to train AI without their knowledge or consent. Personal photos scraped from the internet and stored to train an algorithm would no longer be seen as personal data, as long as the controller does not recognise the individual, is not trying to identify them and will not process the data in such a way that would identify them. The police would have increased access to personal information. Police and security services will no longer have to go to court if they want access to genetic databases; they will be able to access the public’s genetic information as a matter of routine.
Personal data should be defined by what type of data it is, not by how easy it is for a third party to identify an individual from it. That is the bottom line. Replacing a stable, objective definition that grants rights to the individual with an unstable, subjective definition that determines the rights an individual has over their data according to the capabilities of the processor is illogical, complex, bad law-making. It is contrary to the very premise of data protection law, which is founded upon personal data rights. We start on the wrong foot in Clause 1, and it continues. I beg to move.
Lord Kamall (Con)
My Lords, I rise to speak in favour of Amendments 1 and 5 in this group and with sympathy towards Amendment 4. The noble Lord, Lord Clement-Jones, will remember when I was briefly Minister for Health. We had lots of conversations about health data. One of the things we looked at was a digitised NHS. It was essential if we were to solve many problems of the future and have a world-class NHS, but the problem was that we had to make sure that patients were comfortable with the use of their data and the contexts in which it could be used.
When we were looking to train AI, it was important that we made sure that the data was as anonymous as possible. For example, we looked at things such as synthetic and pseudonymised data. There is another point: having done the analysis and looked at the dataset, if you see an identifiable group of people who may well be at risk, how can you reverse-engineer that data perhaps to notify those patients that they should be contacted for further medical interventions?
I know that that makes it far too complicated; I just wanted to rise briefly to support the noble Lord, Lord Clement-Jones, on this issue, before the new rules come in next week. It is essential that the users, the patients—in other spheres as well—have absolute confidence that their data is theirs and are given the opportunity to give permission or opt out as much as possible.
One of the things that I said when I was briefed as a Health Minister was that we can have the best digital health system in the world, but it is no good if people choose to opt out or do not have confidence. We need to make sure that the Bill gives those patients that confidence where their data is used in other areas. We need to toughen this bit up. That is why I support Amendments 1 and 5 in the name of the noble Lord, Lord Clement-Jones.
Lord Davies of Brixton (Lab)
My Lords, anonymisation of data is crucially important in this debate. I want to see, through the Bill, a requirement for personal data, particularly medical data, to be held within trusted research environments. This is a well-developed technique and Britain is the leader. It should be a legal requirement. I am not quite sure that we have got that far in the Bill; maybe we will need to return to the issue on Report.
The extent to which pseudonymisation—I cannot say it—is possible is vastly overrated. There is a sport among data scientists of being able to spot people within generally available datasets. For example, the data available to TfL through people’s use of Oyster cards and so on tells you an immense amount of information about individuals. Medical data is particularly susceptible to this, although it is not restricted to medical data. I will cite a simple example from publicly available data.
Baroness Harding of Winscombe (Con)
My Lords, I, too, support the amendments in the name of the noble Lord, Lord Clement-Jones. As this is the first time I have spoken during the passage of the Bill, I should also declare my interests, but it seems that all the organisations I am involved in process data, so I refer the Committee to all the organisations in my entry in the register of interests.
I want to tell a story about the challenges of distinguishing between personal data and pseudonymised data. I apologise for bringing everyone back to the world of Covid, but that was when I realised how possible it is to track down individuals without any of their personal data. Back in November or December 2020, when the first variant of Covid, the Kent variant, was spreading, one test that was positive for the Kent variant came with no personal details at all. The individual who had conducted that test had not filled in any of the information. I was running NHS Test and Trace and we had to try to find that individual, in a very public way. In the space of three days, with literally no personal information—no name, address or sense of where they lived—the team was able to find that human being. Through extraordinary ingenuity, it tracked them down based on the type of tube the test went into—the packaging that was used—and by narrowing down the geography of the number of postcodes where the person might have been ill and in need of help but also in need of identifying all their contacts.
I learned that it was possible to find that one human being, out of a population of 60 million, within three days and without any of their personal information. I tell this story because my noble friend Lord Kamall made such an important point that, at the heart of data legislation is the question of how you build trust in the population. We have to build on firm foundations if the population are to trust that there are reasons why sharing data is hugely valuable societally. To have a data Bill that does not have firm foundations in absolutely and concretely defining personal data is quite a fatal flaw.
Personal data being subjective, as the noble Lord, Lord Clement-Jones, so eloquently set out, immediately starts citizens on a journey of distrusting this world. There is so much in this world that is hard to trust, and I feel strongly that we have to begin with some very firm foundations. They will not be perfect, but we need to go back to a solid definition of “personal data”, which is why I wholeheartedly support the noble Lord’s amendments.
Lord Bassam of Brighton (Lab)
My Lords, I hesitate to make a Second Reading speech, and I know that the noble Lord, Lord Clement-Jones, cannot resist rehearsing these points. However, it is important, at the outset of Committee, to reflect on the Bill in its generality, and the noble Lord did a very good job of precisely that. This is fundamental.
The problem for us with the Bill is not just that it is a collection of subjects—of ideas about how data should be handled, managed and developed—but that it is flawed from the outset. It is a hotchpotch of things that do not really hang together. Several of us have chuntered away in the margins and suggested that it would have been better if the Bill had fallen and there had been a general election—not that the Minister can comment on that. But it would be better, in a way. We need to go back to square one, and many in the Committee are of a like mind.
The noble Baroness, Lady Harding, made a good point about data management, data control and so on. Her example was interesting, because this is about building trust, having confidence in data systems and managing data in the future. Her example was very good, as was that of the noble Lord, Lord Davies, who raised a challenge about how the anonymisation, or pseudonymisation, of data will work and how effective it will be.
We have two amendments in this group. Taken together, they are designed to probe exactly what the practical impacts will be of the proposed changes to Section 3 of the 2018 Act and the insertion of new Section 3A. Amendment 4 calls for the Secretary of State to publish an assessment of the changes within two months of the Bill passing, while Amendment 301 would ensure that the commencement of Clause 1 takes place no earlier than that two-month period. Noble Lords might think this is unduly cautious, but, given our wider concerns about the Bill and its departure from the previously well-understood—
The Deputy Chairman of Committees (Baroness Scott of Needham Market) (LD)
My Lords, a Division having been called, we will adjourn for 10 minutes and resume at 4.48 pm.
Lord Bassam of Brighton (Lab)
As I was saying, it is important for the framework on data protection that we take a precautionary approach. I hope that the Minister will this afternoon be able to provide a plain English explanation of the changes, as well as giving us an assurance that those changes to definitions do not result in watering down the current legislation.
We broadly support Amendments 1 and 5 and the clause stand part notice, in the sense that they provide additional probing of the Government’s intentions in this area. We can see that the noble Lord, Lord Clement-Jones, is trying with Amendment 1 to bring some much-needed clarity to the anonymisation issue and, with Amendment 5, to secure that data remains personal data in any event. I suspect that the Minister will tell us this afternoon that that is already the case, but a significant number of commentators have questioned this, since the definition of “personal data” is seemingly moving away from the EU GDPR standard towards a definition that is more subjective from the perspective of the controller, processor or recipient. We must be confident that the new definition does not narrow the circumstances in which the information is protected as personal data. That will be an important standard for this Committee to understand.
Amendment 288, tabled by the noble Lord, Lord Clement- Jones, seeks a review and an impact assessment of the anonymisation and identifiability of data subjects. Examining that in the light of the EU GDPR seems to us to be a useful and novel way of making a judgment over which regime better suits and serves data subjects.
We will listen with interest to the Minister’s response. We want to be more than reassured that the previous high standards and fundamental principles of data protection will not be undermined and compromised.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
I thank all noble Lords who have spoken in this brief, interrupted but none the less interesting opening debate. I will speak to the amendments tabled by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones; I note that I plan to that form of words quite a lot in the next eight sessions on this Bill. I thank them for tabling these amendments so that we can debate what are, in the Government’s view, the significant benefits of Clause 1.
In response to the points from the noble Lord, Lord Clement-Jones, on the appetite for the reforms in the Bill, we take very seriously the criticisms of the parties that he mentioned—the civil society groups—but it is important to note that, when the Government consulted on these reforms, we received almost 3,000 responses. At that time, we proposed to clarify when data would be regarded as anonymous and proposed legislating to confirm that the test for whether anonymous data can be reidentified is relative to the means available to the controller to reidentify the data. The majority of respondents agreed that greater clarity in legislation would indeed be beneficial.
As noble Lords will know, the UK’s data protection legislation applies only to personal data, which is data relating to an identified or identifiable living individual. It does not apply to non-personal, anonymous data. This is important because, if organisations can be sure that the data they are handling is anonymous, they may be able to more confidently put it to good use in important activities such as research and product development. The current data protection legislation is already clear that a person can be identified in a number of ways by reference to details such as names, identification numbers, location data and online identifiers, or via information about a person’s physical, genetic, mental, economic or cultural characteristics. The Bill does not change the existing legislation in this respect.
With regard to genetic information, which was raised by my noble friend Lord Kamall and the noble Lord, Lord Davies, any information that includes enough genetic markers to be unique to an individual is personal data and special category genetic data, even if names and other identifiers have been removed. This means that it is subject to the additional protections set out in Article 9 of the UK GDPR. The Bill does not change this position.
However, the existing legislation is unclear about the specific factors that a data controller must consider when assessing whether any of this information relates to an identifiable living person. This uncertainty is leading to inconsistent application of anonymisation and to anonymous data being treated as personal data out of an abundance of caution. This, in turn, reduces the opportunities for anonymous data to be used effectively for projects in the public interest. It is this difficulty that Clause 1 seeks to address by providing a comprehensive statutory test on identifiability. The test will require data controllers and processors to consider the likelihood of people within or outside their organisations reidentifying individuals using reasonable means. It is drawn from recital 26 of the EU GDPR and should therefore not be completely unfamiliar to most organisations.
I turn now to the specific amendments that have been tabled in relation to this clause. Amendment 1 in the name of the noble Lord, Lord Clement-Jones, would reiterate the position currently set out in the UK GDPR and its recitals: where individuals can be identified without the use of additional information because data controllers fail to put in place appropriate organisational measures, such as technical or contractual safeguards prohibiting reidentification, they would be considered directly identifiable. Technical and organisational measures put in place by organisations are factors that should be considered alongside others under new Section 3A of the Data Protection Act when assessing whether an individual is identifiable from the data being processed. Clause 1 sets out the threshold at which data—and, therefore, personal data—is identifiable and clarifies when data is anonymous.
On the technical capabilities of a respective data controller, these are already relevant factors under current law and ICO guidance in determining whether data is personal. This means that the test of identifiability is already a relative one today in respect of the data controller, the data concerned and the purpose of the processing. However, the intention of the data controller is not a relevant factor under current law, and nor does Clause 1 make it a factor. Clause 1 merely clarifies the position under existing law and follows very closely the wording of recital 26. Let me state this clearly: nothing in Clause 1 introduces the subjective intention of the data controller as a relevant factor in determining identifiability, and the position will remain the same as under the current law and as set out in ICO guidance.
In response to the points made by the noble Lord, Lord Clement-Jones, and others on pseudonymised personal data, noble Lords may be aware that the definition of personal data in Article 4(1) of the UK GDPR, when read in conjunction with the definition of pseudonymisation in Article 4(5), makes it clear that pseudonymised data is personal data, not anonymous data, and is thus covered by the UK’s data protection regime. I hope noble Lords are reassured by that. I also hope that, for the time being, the noble Lord, Lord Clement-Jones, will agree to withdraw his amendment and not press the related Amendment 5, which seeks to make it clear that pseudonymised data is personal data.
Amendment 4 would require the Secretary of State to assess the difference in meaning and scope between the current statutory definition of personal data and the new statutory definition that the Bill will introduce two months after its passing. Similarly, Amendment 288 seeks to review the impact of Clause 1 six months after the enactment of the Bill. The Government feel that neither of these amendments is necessary as the clause is drawn from recital 26 of the EU GDPR and case law and, as I have already set out, is not seeking to substantially change the definition of personal data. Rather, it is seeking to provide clarity in legislation.
Lord Bassam of Brighton (Lab)
I follow the argument, but what we are suggesting in our amendment is some sort of impact assessment for the scheme, including how it currently operates and how the Government wish it to operate under the new legislation. Have the Government undertaken a desktop exercise or any sort of review of how the two pieces of legislation might operate? Has any assessment of that been made? If they have done so, what have they found?
Viscount Camrose (Con)
Obviously, the Bill has been in preparation for some time. I completely understand the point, which is about how we can be so confident in these claims. I suggest that I work with the Bill team to get an answer to that question and write to Members of the Committee, because it is a perfectly fair question to ask what makes us so sure.
In the future tense, I can assure noble Lords that the Department for Science, Innovation and Technology will monitor and evaluate the impact of this Bill as a whole in the years to come, in line with cross-government evaluation guidance and through continued engagement with stakeholders.
The Government feel that the first limb of Amendment 5 is not necessary given that, as has been noted, pseudonymised data is already considered personal data under this Bill. In relation to the second limb of the amendment, if the data being processed is actually personal data, the ICO already has powers to require organisations to address non-compliance. These include requiring it to apply appropriate protections to personal data that it is processing, and are backed up by robust enforcement mechanisms.
That said, it would not be appropriate for the processing of data that was correctly assessed as anonymous at the time of processing to retrospectively be treated as processing of personal data and subject to data protection laws, simply because it became personal data at a later point in the processing due to a change in circumstances. That would make it extremely difficult for any organisation to treat any dataset as anonymous and would undermine the aim of the clause, significantly reducing the potential to use anonymous data for important research and development activities.
Lord Clement-Jones (LD)
My Lords, I thank the noble Lords, Lord Kamall, Lord Davies of Brixton and Lord Bassam, and the noble Baroness, Lady Harding, for their support for a number of these amendments. Everybody made a common point about public trust, particularly in the context of health data.
As the noble Lord, Lord Kamall, said, we had a lot of conversations during the passage of the Health and Care Act and the noble Lord and his department increasingly got it: proper communication about the use of personal, patient data is absolutely crucial to public trust. We made quite a bit of progress with NHSE and the department starting to build in safeguards and develop the concept of access to, rather than sharing of, personal data. I heard what the noble Lord, Lord Davies, said about a locked box and I think that having access for research, rather than sharing data around, is a powerful concept.
I found what the Minister said to be helpful. I am afraid that we will have to requisition a lot of wet towels during the passage of the Bill. There are a number of aspects to what he said, but the bottom line is that he is saying that there is no serious divergence from the current definition of personal data. The boot is on the other foot: where is the Brexit dividend? The Minister cannot have it both ways.
I am sure that, as we go through this and the Minister says, “It’s all in recital 26”, my response would be that the ICO could easily develop guidance based on that. That would be splendid; we would not have to go through the agony of contending with this data protection Bill. It raises all those issues and creates a great deal of angst. There are 26 organisations, maybe more— 42, I think—writing to the Secretary of State about one aspect of it or another. The Government have really created a rod for their own back, when they could have created an awful lot of guidance, included a bit on digital identity in the Bill and done something on cookies. What else is there not to like? As I say, the Government have created a rod for their own back.
As regards pseudonymised data, that is also helpful. We will hold the Minister to that as we go through, if the Minister is saying that that is personal data. I am rather disappointed by the response to Amendment 5, but I will take a very close look at it with several wet towels.
We never know quite whether CJEU judgments will be treated as precedent by this Government or where we are under the REUL Act. I could not tell you at this moment. However, it seems that the Minister is again reassuring us that the CJEU’s judgments on personal data are valid and are treated as being part of UK law for this purpose, which is why there is no change to the definition of personal data as far as he is concerned. All he is doing is importing the recitals into Clause 1. I think I need to read the Minister’s speech pretty carefully if I am going to accept that. In the meantime, we move on. I beg leave to withdraw the amendment.
Baroness Kidron
Member's explanatory statement
This amendment, and another to Clause 1 in the name of Baroness Kidron, would ensure that controllers have a duty to identify when a user is or may be a child to give them the data protection codified by the Data Protection Act 2018.
Baroness Kidron (CB)
My Lords, I speak to Amendments 2, 3, 9 and 290 in my name. I thank the noble Baronesses, Lady Jones and Lady Harding, and the noble Lord, Lord Clement-Jones, for their support.
This group seeks to secure the principle that children should enjoy the same protections in UK law after this Bill passes into law as they do now. In 2018, this House played a critical role in codifying the principle that children merit special, specific protection in relation to data privacy by introducing the age-appropriate design code into the DPA. Its introduction created a wave of design changes to tech products: Google introduced safe search as its default; Instagram made it harder for adults to contact children via private messaging; Play Store stopped making adult apps available to under-18s; and TikTok stopped sending notifications through the night and hundreds of thousands of underage children were denied access to age-inappropriate services. These are just a handful of the hundreds of changes that have been made, many of them rolled out globally. The AADC served as a blueprint for children’s data privacy, and its provisions have been mirrored around the globe. Many noble Lords will have noticed that, only two weeks ago, Australia announced that it is going to follow the many others who have incorporated or are currently incorporating it into their domestic legislation, saying in the press release that it would align as closely as possible with the UK’s AADC.
As constructed in the Data Protection Act 2018, the AADC sets out the requirements of the UK GDPR as they relate to children. The code is indirectly enforceable; that is to say that the action the ICO can take against those failing to comply is based on the underlying provisions of UK GDPR, which means that any watering down, softening of provisions, unstable definitions—my new favourite—or legal uncertainty created by the Bill automatically waters down, softens and creates legal uncertainty and unstable definitions for children and therefore for child protection. I use the phrase “child protection” deliberately because the most important contribution that the AADC has made at the global level was the understanding that online privacy and safety are interwoven.
Clause 1(2) creates an obligation on the controller or processor to know, or reasonably to know, that an individual is an identifiable living individual. Amendments 2 and 3 would add a further requirement to consider whether that living individual is a child. This would ensure that providers cannot wilfully ignore the presence of children, something that tech companies have a long track record of doing. I want to quote the UK Information Commissioner, who fined TikTok £12.7 million for failing to prevent under-13s accessing that service; he said:
“There are laws in place to make sure our children are as safe in the digital world as they are in the physical world. TikTok did not abide by those laws … TikTok should have known better. TikTok should have done better … They did not do enough to check who was using their platform”.
I underline very clearly that these amendments would not introduce any requirement for age assurance. The ICO’s guidance on age assurance in the AADC and the provisions in the Online Safety Act already detail those requirements. The amendments simply confirm the need to offer a child a high bar of data privacy or, if you do not know which of your users are children, offer all users that same high bar of data privacy.
As we have just heard, it is His Majesty’s Government’s stated position that nothing in the Bill lessens children’s data privacy because nothing in the Bill lessens UK GDPR, and that the Bill is merely an exercise to reduce unnecessary bureaucracy. The noble Lords who spoke on the first group have perhaps put paid to that and I imagine that this position will be sorely tested during Committee. In the light of the alternative view that the protections afforded to children’s personal data will decline as a result of the Bill, Amendment 9 proposes that the status of children’s personal data be elevated to that of “sensitive personal data”, or special category data. The threshold for processing special category data is higher than for general personal data and the specific conditions include, for example, processing with the express consent of the data subject, processing to pursue a vital interest, processing by not-for-profits or processing for legal claims or matters of substantial public interest. Bringing children’s personal data within that definition would elevate the protections by creating an additional threshold for processing.
Finally, Amendment 290 enshrines the principle that nothing in the Bill should lead to a diminution in existing levels of privacy protections that children currently enjoy. It is essentially a codification of the commitment made by the Minister in the other place:
“The Bill maintains the high standards of data protection that our citizens expect and organisations will still have to abide by our age-appropriate design code”.—[Official Report, Commons, 17/4/23; col. 101.]
Before I sit down, I just want to highlight the Harvard Gazette, which looked at ad revenue from the perspective of children. On Instagram, children account for 16% of ad revenue; on YouTube, 27%; on TikTok, 35%; and on Snap, an extraordinary 41.4%. Collectively, YouTube, Instagram and Facebook made nearly $2 billion from children aged nought to 12, and it will not escape many noble Lords that children aged nought to 12 are not supposed to be on those platforms. Instagram, YouTube and TikTok together made more than $7 billion from 13 to 17 year-olds. The amendments in this group give a modicum of protection to a demographic who have no electoral capital, who are not developmentally adult and whose lack of care is not an unfortunate by-product of the business model, but who have their data routinely extracted, sold, shared and scraped as a significant part of the ad market. It is this that determines the features that deliberately spread, polarise and keep children compulsively online, and it is this that the AADC—born in your Lordships’ House—started a global movement to contain.
This House came together on an extraordinary cross-party basis to ensure that the Online Safety Bill delivered for children, so I say to the Minister: I am not wedded to my drafting, nor to the approach that I have taken to maintain, clause by clause, the bar for children, even when that bar is changed for adults, but I am wedded to holding the tech sector accountable for children’s privacy, safety and well-being. It is my hope and—if I dare—expectation that noble Lords will join me in making sure that the DPDI Bill does not leave this House with a single diminution of data protection for children. To do so is, in effect, to give with one hand and take away with the other.
I hope that during Committee the Minister will come to accept that children’s privacy will be undermined by the Bill, and that he will work with me and others to resolve these issues so that the UK maintains its place as a global leader in children’s privacy and safety. I beg to move.
Baroness Harding of Winscombe (Con)
My Lords, in the nearly nine years that I have been in this House, I have often played the role of bag carrier to the noble Baroness, Lady Kidron, on this issue. In many ways, I am rather depressed that once again we need to make the case that children deserve a higher bar of protection than adults in the digital world. As the noble Baroness set out—I will not repeat it—the age-appropriate design code was a major landmark in establishing that you can regulate the digital world just as you can the physical world. What is more, it is rather joyful that when you do, these extraordinarily powerful tech companies change their products in the way that you want them to.
This is extremely hard-fought ground that we must not lose. It takes us to what feels like a familiar refrain from the Online Safety Act and the Digital Markets, Competition and Consumers Bill, which we are all still engaged in: the question of whether you need to write something in the Bill and whether, by doing so, you make it more clear or less clear.
Does my noble friend the Minister agree with the fundamental principle, enshrined in the Data Protection Act 2018, that children deserve a higher bar of protection in the online world and that children’s data needs to be protected at a much higher level? If we can all agree on that principle first, then the question is: how do we make sure that this Bill does not weaken the protection that children have?
I am trying to remember on which side of the “put it in the Bill or not” debate I have been during discussions on each of the digital Bills that we have all been working on over the last couple of years. We have a really vicious problem where, as I understand it, the Government keep insisting that the Bill does not water down data protection and therefore there is no need to write anything into it to protect children’s greater rights. On the other hand, I also hear that it will remove bureaucracy and save businesses a lot of money. I have certainly been in rooms over the last couple of years where business representatives have told me, not realising I was one of the original signatories to the amendment that created the age-appropriate design code, how dreadful it was because it made their lives much more complicated.
I have no doubt that if we create a sense—which is what it is—that companies do not need to do quite as much as they used to for children in this area, that sense will create, if not a wide-open door, an ajar door that enables businesses to walk through and take the path of least resistance, which is doing less to protect children. That is why, in this case, I come down on the side of wanting to put it explicitly in the Bill, in whatever wording my noble friend the Minister thinks appropriate, that we are really clear that this creates no change at all in the approach for children and children’s data.
That is what this group of amendments is about. I know that we will come back to a whole host of other areas where there is a risk that children’s data could be handled differently from the way envisaged in that hard-fought battle for the age-appropriate design code but, on this group alone, it would be helpful if my noble friend the Minister could help us establish that firm principle and commit to coming back with wording that will firmly establish it in the Bill.
Lord Clement-Jones (LD)
My Lords, I keep getting flashbacks. This one is to the Data Protection Act 2018, although I think it was 2017 when we debated it. It is one of the huge achievements of the noble Baroness, Lady Kidron, to have introduced, and persuaded the Government to introduce, the age-appropriate design code into the Act, and—as she and the noble Baroness, Lady Harding, described—to see it spread around the world and become the gold standard. It is hardly surprising that she is so passionate about wanting to make sure that the Bill does not water down the data rights of children.
I think the most powerful amendment in this group is Amendment 290. For me, it absolutely bottles what we need to do in making sure that nothing in the Bill waters down children’s rights. If I were to choose one of the noble Baroness’s amendments in this group, it would be that one: it would absolutely give the assurance and scotch the point about legal uncertainty created by the Bill.
Both noble Baronesses asked: if the Government are not watering down the Bill, why can they not say that they are not? Why can they not, in a sense, repeat the words of Paul Scully when he was debating the Bill? He said:
“We are committed to protecting children and young people online. The Bill maintains the high standards of data protection that our citizens expect and organisations will still have to abide by our age-appropriate design code”.
He uses “our”, so he is taking full ownership of it. He went on:
“Any breach of our data protection laws will result in enforcement action by the Information Commissioner’s Office”.—[Official Report, Commons, 17/4/23; col. 101.]
I would love that enshrined in the Bill. It would give us a huge amount of assurance.
Lord Bassam of Brighton (Lab)
My Lords, we on the Labour Benches have become co-signatories to the amendments tabled by the noble Baroness, Lady Kidron, and supported by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Harding. The noble Baroness set out very clearly and expertly the overarching purpose of retaining the level of protection currently afforded by the Data Protection Act 2018. Amendments 2 and 3 specifically stipulate that, where data controllers know, or should reasonably know, that a user is a child, they should be given the data protection codified in that Act. Amendment 9 takes it a stage further and includes children’s data in the definition of sensitive personal data, and gives it the benefit of being treated to a heightened level of protection—quite rightly, too. Finally, Amendment 290—the favourite of the noble Lord, Lord Clement-Jones—attempts to hold Ministers to the commitment made by Paul Scully in the Commons to maintain existing standards of data protection carried over from that 2018 Act.
Why is all this necessary? I suspect that the Minister will argue that it is not needed because Clause 5 already provides for the Secretary of State to consider the impact of any changes to the rights and freedoms of individuals and, in particular, of children, who require special protection.
We disagree with that argument. In the interests of brevity and the spirit of the recent Procedure Committee report, which says that we should not repeat each other’s arguments, I do not intend to speak at length, but we have a principal concern: to try to understand why the Government want to depart from the standards of protection set out in the age-appropriate design code—the international gold standard—which they so enthusiastically signed up to just five or six years ago. Given the rising levels of parental concern over harmful online content and well-known cases highlighting the harms that can flow from unregulated material, why do the Government consider it safe to water down the regulatory standards at this precise moment in time? The noble Baroness, Lady Kidron, valuably highlighted the impact of the current regulatory framework on companies’ behaviour. That is exactly what legislation is designed to do: to change how we look at things and how we work. Why change that? As she has argued very persuasively, it is and has been hugely transformative. Why throw away that benefit now?
My attention was drawn to one example of what can happen by a briefing note from the 5Rights Foundation. As it argued, children are uniquely vulnerable to harm and risk online. I thought its set of statistics was really interesting. By the age of 13, 72 million data points have already been collected about children. They are often not used in children’s best interests; for example, the data is often used to feed recommender systems and algorithms designed to keep attention at all costs and have been found to push harmful content at children.
When this happens repeatedly over time, it can have catastrophic consequences, as we know. The coroner in the Molly Russell inquest found that she had been recommended a stream of depressive content by algorithms, leading the coroner to rule that she
“died from an act of self-harm whilst suffering from depression and the negative effects of online content”.
We do not want more Molly Russell cases. Progress has already been made in this field; we should consider dispensing with it at our peril. Can the Minister explain today the thinking and logic behind the changes that the Government have brought forward? Can he estimate the impact that the new lighter-touch regime, as we see it, will have on child protection? Have the Government consulted extensively with those in the sector who are properly concerned about child protection issues, and what sort of responses have the Government received?
Finally, why have the Government decided to take a risk with the sound framework that was already in place and built on during the course of the Online Safety Act? We need to hear very clearly from the Minister how they intend to engage with groups that are concerned about these child protection issues, given the apparent loosening of the current framework. The noble Baroness, Lady Harding, said that this is hard-fought ground; we intend to continue making it so because these protections are of great value to our society.
Viscount Camrose (Con)
I am grateful to the noble Baroness, Lady Kidron, for her Amendments 2, 3, 9 and 290 and to all noble Lords who have spoken, as ever, so clearly on these points.
All these amendments seek to add protections for children to various provisions in the Bill. I absolutely recognise the intent behind them; indeed, let me take this opportunity to say that the Government take child safety deeply seriously and agree with the noble Baroness that all organisations must take great care, both when making decisions about the use of children’s data and throughout the duration of their processing activities. That said, I respectfully submit that these amendments are not necessary for three main reasons; I will talk in more general terms before I come to the specifics of the amendments.
First, the Bill maintains a high standard of data protection for everybody in the UK, including—of course—children. The Government are not removing any of the existing data protection principles in relation to lawfulness, fairness, transparency, purpose limitation, data minimisation, storage limitation, accuracy, data security or accountability; nor are they removing the provisions in the UK GDPR that require organisations to build privacy into the design and development of new processing activities.
The existing legislation acknowledges that children require specific protection for their personal data, as they may be less aware of the risks, consequences and safeguards concerned, and of their rights in relation to the processing of personal data. Organisations will need to make sure that they continue to comply with the data protection principles on children’s data and follow the ICO’s guidance on children and the UK GDPR, following the changes we make in the Bill. Organisations that provide internet services likely to be accessed by children will need to continue to comply with their transparency and fairness obligations and the ICO’s age-appropriate design code. The Government welcome the AADC, as Minister Scully said, and remain fully committed to the high standards of protection that it sets out for children.
Secondly, some of the provisions in the Bill have been designed specifically with the rights and safety of children in mind. For example, one reason that the Government introduced the new lawful ground of recognised legitimate interest in Clause 5, which we will debate later, was that some consultation respondents said that the current legislation can deter organisations, particularly in the voluntary sector, from sharing information that might help to prevent crime or protect children from harm. The same goes for the list of exemptions to the purpose limitation principle introduced by Clause 6.
There could be many instances where personal data collected for one purpose may have to be reused to protect children from crime or safeguarding risks. The Bill will provide greater clarity around this and has been welcomed by stakeholders, including in the voluntary sector.
Viscount Camrose (Con)
While some provisions in the Bill do not specifically mention children or children’s rights, data controllers will still need to carefully consider the impact of their processing activities on children. For example, the new obligations on risk assessments, record keeping and the designation of senior responsible individuals will apply whenever an organisation’s processing activities are likely to result in high risks to people, including children.
Thirdly, the changes we are making in the Bill must be viewed in a wider context. Taken together, the UK GDPR, the Data Protection Act 2018 and the Online Safety Act 2023 provide a comprehensive legal framework for keeping children safe online. Although the data protection legislation and the age-appropriate design code make it clear how personal data can be processed, the Online Safety Act makes clear that companies must take steps to make their platforms safe by design. It requires social media companies to protect children from illegal, harmful and age-inappropriate content, to ensure they are more transparent about the risks and dangers posed to children on their sites, and to provide parents and children with clear and accessible ways to report problems online when they do arise.
After those general remarks, I turn to the specific amendments. The noble Baroness’s Amendments 2 and 3 would amend Clause 1 of the Bill, which relates to the test for assessing whether data is personal or anonymous. Her explanatory statement suggests that these amendments are aimed at placing a duty on organisations to determine whether the data they are processing relates to children, thereby creating a system of age verification. However, requiring data controllers to carry out widespread age verification of data subjects could create its own data protection and privacy risks, as it would require them to retain additional personal information such as dates of birth.
The test we have set out for reidentification is intended to apply to adults and children alike. If any person is likely to be identified from the data using reasonable means, the data protection legislation will apply. Introducing one test for adults and one for children is unlikely to be workable in practice and fundamentally undermines the clarity that this clause seeks to bring to organisations. Whether a person is identifiable will depend on a number of objective factors, such as the resources and technology available to organisations, regardless of whether they are an adult or a child. Creating wholly separate tests for adults and children, as set out in the amendment, would add unnecessary complexity to the clause and potentially lead to confusion.
Lord Bassam of Brighton (Lab)
As I understand it, the basis on which we currently operate is that children get a heightened level of protection. Is the Minister saying that that is now unnecessary and is captured by the way in which the legislation has been reframed?
Viscount Camrose (Con)
I am saying, specifically on Clause 1, that separating the identifiability of children and the identifiability of adults would be detrimental to both but particularly, in this instance, to children.
Amendment 9 would ensure that children’s data is included in the definition of special category data and is subject to the heightened protections afforded to this category of data by Article 9 of the UK GDPR. This could have unintended consequences, because the legal position would be that processing of children’s data would be banned unless specifically permitted. This could create the need for considerable additional legislation to exempt routine and important processing from the ban; for example, banning a Girl Guides group from keeping a list of members unless specifically exempted would be disproportionate. However, more sensitive data such as records relating to children’s health or safeguarding concerns would already be subject to heightened protections in the UK GDPR, as soon as the latter type of data is processed.
I am grateful to the noble Baroness, Lady Kidron, for raising these issues and for the chance to set out why the Government feel that children’s protection is at least maintained, if not enhanced. I hope my answers have, for the time being, persuaded her of the Government’s view that the Bill does not reduce standards of protection for children’s data. On that basis, I ask her also not to move her Amendment 290 on the grounds that a further overarching statement on this is unnecessary and may cause confusion when interpreting the legislation. For all the reasons stated above, I hope that she will now reconsider whether her amendments in this group are necessary and agree not to press them.
Lord Bassam of Brighton (Lab)
Can I press the Minister more on Amendment 290 from the noble Baroness, Lady Kidron? All it does is seek to maintain the existing standards of data protection for children, as carried over from the 2018 Act. If that is all it does, what is the problem with that proposed new clause? In its current formulation, does it not put the intention of the legislation in a place of certainty? I do not quite get why it would be damaging.
Viscount Camrose (Con)
I believe it restates what the Government feel is clearly implied or stated throughout the Bill: that children’s safety is paramount. Therefore, putting it there is either duplicative or confusing; it reduces the clarity of the Bill. In no way is this to say that children are not protected—far from it. The Government feel it would diminish the clarity and overall cohesiveness of the Bill to include it.
Lord Clement-Jones (LD)
My Lords, not to put too fine a point on it, the Minister is saying that nothing in the Bill diminishes children’s rights, whether in Clause 1, Clause 6 or the legitimate interest in Clause 5. He is saying that absolutely nothing in the Bill diminishes children’s rights in any way. Is that his position?
Baroness Harding of Winscombe (Con)
Can I add to that question? Is my noble friend the Minister also saying that there is no risk of companies misinterpreting the Bill’s intentions and assuming that this might be some form of diminution of the protections for children?
Viscount Camrose (Con)
In answer to both questions, what I am saying is that, first, any risk of misinterpreting the Bill with respect to children’s safety is diminished, rather than increased, by the Bill. Overall, it is the Government’s belief and intention that the Bill in no way diminishes the safety or privacy of children online. Needless to say, if over the course of our deliberations the Committee identifies areas of the Bill where that is not the case, we will absolutely be open to listening on that, but let me state this clearly: the intent is to at least maintain, if not enhance, the safety and privacy of children and their data.
Lord Bassam of Brighton (Lab)
My Lords, that creates another question, does it not? If that is the case, why amend the original wording from the 2018 Act?
Viscount Camrose (Con)
Sorry, the 2018 Act? Or is the noble Lord referring to the amendments?
Lord Bassam of Brighton (Lab)
Why change the wording that provides the protection that is there currently?
Viscount Camrose (Con)
I assume the noble Lord is referring to Amendment 290.
Viscount Camrose (Con)
Okay. The Government feel that, in terms of the efficient and effective drafting of the Bill, that paragraph diminishes the clarity by being duplicative rather than adding to it by making a declaration. For the same reason, we have chosen not to make a series of declarations about other intentions of the Bill overall in the belief that the Bill’s intent and outcome are protected without such a statement.
Baroness Kidron (CB)
My Lords, before our break, the noble Baroness, Lady Harding, said that this is hard-fought ground; I hope the Minister understands from the number of questions he has just received during his response that it will continue to be hard-fought ground.
I really regret having to say this at such an early stage on the Bill, but I think that some of what the Minister said was quite disingenuous. We will get to it in other parts of the Bill, but the thing that we have all agreed to disagree on at this point is the statement that the Bill maintains data privacy for everyone in the UK. That is a point of contention between noble Lords and the Minister. I absolutely accept and understand that we will come to a collective view on it in Committee. However, the Minister appeared to suggest—I ask him to correct me if I have got this wrong—that the changes on legitimate interest and purpose limitation are child safety measures because some people are saying that they are deterred from sharing data for child protection reasons. I have to tell him that they are not couched or formed like that; they are general-purpose shifts. There is absolutely no question but that the Government could have made specific changes for child protection, put them in the Bill and made them absolutely clear. I find that very worrying.
I also find it worrying, I am afraid—this is perhaps where we are heading and the thing that many organisations are worried about—that bundling the AADC in with the Online Safety Act and saying, “I’ve got it over here so you don’t need it over there” is not the same as maintaining the protections for children from a high level of data. It is not the same set of things. I specifically said that this was not an age-verification measure and would not require it; whatever response there was on that was therefore unnecessary because I made that quite clear in my remarks. The Committee can understand that, in order to set a high bar of data protection, you must either identify a child or give it to everyone. Those are your choices. You do not have to verify.
I will withdraw the amendment, but I must say that the Government may not have it both ways. The Bill cannot be different or necessary and at the same time do nothing. The piece that I want to leave with the Committee is that it is the underlying provisions that allow the ICO to take action on the age-appropriate design code. It does not matter what is in the code; if the underlying provisions change, so does the code. During Committee, I expect that there will be a report on the changes that have happened all around the world as a result of the code, and we will be able to measure whether the new Bill would be able to create those same changes. With that, I beg leave to withdraw my amendment.
Lord Clement-Jones
Member’s explanatory statement
This amendment would ensure all uses under this Clause are in the public interest, however they may be described.
Lord Clement-Jones (LD)
My Lords, I am going to get rather used to introducing a smorgasbord of probing amendments and stand part notices throughout most of the groups of amendments as we go through them. Some of them try to find out the meaning of areas in the Bill and others are rather more serious and object to whole clauses.
I am extremely sympathetic to the use of personal data for research purposes, but Clause 2, which deals with research, is rather deceptive in many ways. That is because “scientific research” and “scientific research purposes” will now be defined to mean
“any research that can reasonably be described as scientific, whether publicly or privately funded and whether carried out as a commercial or non-commercial activity”.
The rub lies in the words “commercial or non-commercial activity”. A loosening of requirements on purpose limitation will assist commercial and non-commercial organisations in research and reusing personal data obtained from third parties but will do nothing to increase protection for individual data subjects in these circumstances. That is the real Pandora’s box that we are opening as regards commercial activity. It opens the door to Meta to use our personal data for its own purposes under the guise of research. That seems very much to be a backward step. That is why I tabled Amendment 6, which would require the public interest to apply to all uses under this clause, not just public health uses.
Then there is the question of consent under Clause 3. How is the lawful and moral right of patients, constituents or data subjects to dissent from medical research, for instance, enshrined in this clause? We have seen enough issues relating to health data, opt-outs and so on to begin to destroy public trust, if we are not careful. We have to be extremely advertent to the fact that the communications have to be right; there has to be the opportunity to opt out.
In these circumstances, Amendment 7 would provide that a data subject has been given the opportunity to express dissent or an objection and has not so expressed it. That is then repeated in Clause 26. Again, we are back to public trust: we are not going to gain it. I am very much a glass-half-full person as far as new technology, AI and the opportunities for the use of patient data in the health service are concerned. I am an enthusiast for that, but it has to be done in the right circumstances.
Baroness Kidron (CB)
My Lords, I speak to Amendments 8, 21, 23 and 145 in my name and thank the other noble Lords who have added their names to them. In the interests of brevity, and as the noble Lord, Lord Clement-Jones, has done some of the heavy lifting on this, I will talk first to Amendment 8.
The definition of scientific research has been expanded to include commercial and non-commercial activity, so far as it
“can reasonably be described as scientific”,
but “scientific” is not defined. As the noble Lord said, there is no public interest requirement, so a commercial company can, in reality, develop almost any kind of product on the basis that it may have a scientific purpose, even—or maybe especially—if it measures your propensity to impulse buy or other commercial things. The spectre of scientific inquiry is almost infinite. Amendment 8 would exclude children simply by adding proposed new paragraph (e), which says that
“the data subject is not a child or could or should be known to be a child”,
so that their personal data cannot be used for scientific research purposes to which they have not given their consent.
I want to be clear that I am pro-research and understand the critical role that data plays in enabling us to understand societal challenges and innovate towards solutions. Indeed, I have signed the amendment in the name of the noble Lord, Lord Bethell, which would guarantee access to data for academic researchers working on matters of public interest. Some noble Lords may have been here last night, when the US Surgeon- General Vice Admiral Dr Murthy, who gave the Lord Speaker’s lecture, made a fierce argument in favour of independent public interest research, not knowing that such a proposal has been laid. I hope that, when we come to group 17, the Government heed his wise words.
In the meantime, Clause 3 simply embeds the inequality of arms between academics and corporates and extends it, making it much easier for commercial companies to use personal data for research while academics continue to be held to much higher ethical and professional standards. They continue to require express consent, DBS checks and complex ethical requirements. Not doing so, simply using personal data for research, is unethical and commercial players can rely on Clause 3 to process data without consent, in pursuit of profit. Like the noble Lord, Lord Clement-Jones, I would prefer an overall solution to this but, in its absence, this amendment would protect data from being commoditised in this way.
Amendments 21 and 23 would specifically protect children from changes to Clause 6. I have spoken on this a little already, but I would like it on the record that I am absolutely in favour of a safeguarding exemption. The additional purposes, which are compatible with but go beyond the original purpose, are not a safeguarding measure. Amendment 21 would amend the list of factors that a data controller must take into account to include the fact that children are entitled to a higher standard of protection.
Amendment 23 would not be necessary if Amendment 22 were agreed. It would commit the Secretary of State to ensuring that, when exercising their power under new Article 8A, as inserted by Clause 6(5), to add, vary or omit provisions of Annex 2, they take the 2018 Act and children’s data protection into account.
Finally, Amendment 145 proposes a code of practice on the use of children’s data in scientific research. This code would, in contrast, ensure that all researchers, commercial or in the public interest, are held to the same high standards by developing detailed guidance on the use of children’s data for research purposes. A burning question for researchers is how to properly research children’s experience, particularly regarding the harms defined by the Online Safety Act.
Proposed new subsection (1) sets out the broad headings that the ICO must cover to promote good practice. Proposed new subsection (2) confirms that the ICO must have regard to children’s rights under the UNCRC, and that they are entitled to a higher standard of protection. It would also ensure that the ICO consulted with academics, those who represent the interests of children and data scientists. There is something of a theme here: if the changes to UK GDPR did not diminish data subjects’ privacy and rights, there would be no need for amendments in this group. If there were a code for independent public research, as is so sorely needed, the substance of Amendment 145 could usefully form a part. If commercial companies can extend scientific research that has no definition, and if the Bill expands the right to further processing and the Secretary of State can unilaterally change the basis for onward processing, can the Minister explain, when he responds, how he can claim that the Bill maintains protections for children?
Baroness Harding of Winscombe (Con)
My Lords, I will be brief because I associate myself with everything that the noble Baroness, Lady Kidron, just said. This is where the rubber hits the road from our previous group. If we all believe that it is important to maintain children’s protection, I hope that my noble friend the Minister will be able to accept if not the exact wording of the children-specific amendments in this group then the direction of travel—and I hope that he will commit to coming back and working with us to make sure that we can get wording into the Bill.
I am hugely in favour of research in the private sector as well as in universities and the public sector; we should not close our minds to that at all. We need to be realistic that all the meaningful research in AI is currently happening in the private sector, so I do not want to close that door at all, but I am extremely uncomfortable with a Secretary of State having the ability to amend access to personal data for children in this context. It is entirely sensible to have a defined code of conduct for the use of children’s data in research. We have real evidence that a code of conduct setting out how to protect children’s rights and data in this space works, so I do not understand why it would not be a good idea to do research if we want the research to happen but we want children’s rights to be protected at a much higher level.
It seems to me that this group is self-evidently sensible, in particular Amendments 8, 22, 23 and 145. I put my name to all of them except Amendment 22 but, the more I look at the Bill, the more uncomfortable I get with it; I wish I had put my name to Amendment 22. We have discussed Secretary of State powers in each of the digital Bills that we have looked at and we know about the power that big tech has to lobby. It is not fair on Secretaries of State in future to have this ability to amend—it is extremely dangerous. I express my support for Amendment 22.
Lord Davies of Brixton (Lab)
I just want to say that I agree with what the previous speakers have said. I particularly support Amendment 133; in effect, I have already made my speech on it. At that stage, I spoke about pseudonymised data but I focused my remarks on scientific research. Clearly, I suspect that the Minister’s assurances will not go far enough, although I do not want to pre-empt what he says and I will listen carefully to it. I am sure that we will have to return to this on Report.
I make a small additional point: I am not as content as the noble Baroness, Lady Harding of Winscombe, about commercial research. Different criteria apply; if we look in more detail at ensuring that research data is protected, there may be special factors relating to commercial research that need to be covered in a potential code of practice or more detailed regulations.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to all noble Lords who have spoken on this group. Amendment 6 to Clause 2, tabled by the noble Lord, Lord Clement-Jones, rightly tests the boundaries on the use of personal data for scientific research and, as he says, begins to ask, “What is the real purpose of this clause? Is it the clarification of existing good practice or is it something new? Do we fully understand what that new proposition is?”
As he said, there is particular public concern about the use of personal health data where it seems that some private companies are stretching the interpretation of “the public good”, for which authorisation for the use of this data was initially freely given, to something much wider. Although the clause seeks to provide some reassurance on this, we question whether it goes far enough and whether there are sufficient protections against the misuse of personal health data in the way the clause is worded.
This raises the question of whether it is only public health research that needs to be in the public interest, which is the way the clause is worded at the moment, because it could equally apply to research using personal data from other public services, such as measuring educational outcomes or accessing social housing. There is a range of uses for personal data. In an earlier debate, we heard about the plethora of data already held on people, much of which individuals do not understand or know about and which could be used for research or to make judgments about them. So we need to be sensitive about the way this might be used. It would be helpful to hear from the Minister why public health research has been singled out for special attention when, arguably, it should be a wider right across the board.
Noble Lords have asked questions about the wider concerns around Clause 2, which could enable private companies to use personal data to develop new products for commercial benefit without needing to inform the data subjects. As noble Lords have said, this is not what people would normally expect to be described as “scientific research”. The noble Baroness, Lady Kidron, was quite right that it has the potential to be unethical, so we need some standards and some clear understanding of what we mean by “scientific research”.
That is particularly important for Amendments 7 and 132 to 134 in the name of the noble Lord, Lord Clement-Jones, which underline the need for data subjects to be empowered and given the opportunity to object to their data being used for a new purpose. Arguably, without these extra guarantees—particularly because there is a lack of trust about how a lot of this information is being used—data subjects will be increasingly reluctant to hand over personal data on a voluntary basis in the first place. It may well be that this is an area where the Information Commissioner needs to provide additional advice and guidance to ensure that we can reap the benefits of good-quality scientific research that is in the public interest and in which the citizens involved can have absolute trust. Noble Lords around the Room have stressed that point.
Finally, we have added our names to the amendments tabled by the noble Baroness, Lady Kidron, on the use of children’s data for scientific research. As she rightly points out, the 2018 Act gave children a higher standard of protection on the uses for which their data is collected and processed. It is vital that this Bill, for all its intents to simplify and water down preceding rights, does not accidentally put at risk the higher protection agreed for children. In the earlier debate, the Minister said that he believed it will not do so. I am not sure that “believe” is a strong enough word here; we need guarantees that go beyond that. I think that this is an issue we will come back to again and again in terms of what is in the Bill and what guarantees exist for that protection.
In particular, there is a concern that relaxing the legal basis on which personal data can be processed for scientific research, including privately funded research carried out by commercial entities, could open the door for children’s data to be exploited for commercial purposes. We will consider the use of children’s data collected in schools in our debate on a separate group but we clearly need to ensure that the handling of pupils’ data by the Department for Education and the use of educational apps by private companies do not lead to a generation of exploited children who are vulnerable to direct marketing and manipulative messaging. The noble Baroness’s amendments are really important in this regard.
I also think that the noble Baroness’s Amendment 145 is a useful initiative to establish a code of practice on children’s data and scientific research. It would give us an opportunity to balance the best advantages of children’s research, which is clearly in the public and personal interest, with the maintenance of the highest level of protection from exploitation.
I hope that the Minister can see the sense in these amendments. In particular, I hope that he will take forward the noble Baroness’s proposals and agree to work with us on the code of practice principles and to put something like that in the Bill. I look forward to his response.
Viscount Camrose (Con)
I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for this series of amendments.
I will first address Amendment 6, which seeks to amend Clause 2. As the noble Lord said, the definitions created by Clause 2, including “scientific research purposes”, are based on the current wording in recital 159 to the UK GDPR. We are changing not the scope of these definitions but their legal status. This amendment would require individual researchers to assess whether their research should be considered to be in the public interest, which could create uncertainty in the sector and discourage research. This would be more restrictive than the current position and would undermine the Government’s objectives to facilitate scientific research and empower researchers.
We have maintained a flexible scope as to what is covered by “scientific research” while ensuring that the definition is still sufficiently narrow in that it can cover only what would reasonably be seen as scientific research. This is because the legislation needs to be able to adapt to the emergence of new areas of innovative research. Therefore, the Government feel that it is more appropriate for the regulator to add more nuance and context to the definition. This includes the types of processing that are considered—
Lord Clement-Jones (LD)
I am sorry to interrupt but it may give the Box a chance to give the Minister a note on this. Is the Minister saying that recital 159 includes the word “commercial”?
Viscount Camrose (Con)
I am afraid I do not have an eidetic memory of recital 159, but I would be happy to—
Lord Clement-Jones (LD)
That is precisely why I ask this question in the middle of the Minister’s speech to give the Box a chance to respond, I hope.
Viscount Camrose (Con)
Researchers must also comply with the required safeguards to protect individuals’ privacy. All organisations conducting scientific research, including those with commercial interests, must also meet all the safeguards for research laid out in the UK GDPR and comply with the legislation’s core principles, such as fairness and transparency. Clause 26 sets out several safeguards that research organisations must comply with when processing personal data for research purposes. The ICO will update its non-statutory guidance to reflect many of the changes introduced by this Bill.
Scientific research currently holds a privileged place in the data protection framework because, by its nature, it is already viewed as generally being in the public interest. As has been observed, the Bill already applies a public interest test to processing for the purpose of public health studies in order to provide greater assurance for research that is particularly sensitive. Again, this reflects recital 159.
In response to the noble Baroness, Lady Jones, on why public health research is being singled out, as she stated, this part of the legislation just adds an additional safeguard to studies into public health ensuring that they must be in the public interest. This does not limit the scope for other research unrelated to public health. Studies in the area of public health will usually be in the public interest. For the rare, exceptional times that a study is not, this requirement provides an additional safeguard to help prevent misuse of the various exemptions and privileges for researchers in the UK GDPR. “Public interest” is not defined in the legislation, so the controller needs to make a case-by-case assessment based on its purposes.
On the point made by the noble Lord, Lord Clement-Jones, about recitals and ICO guidance, although we of course respect and welcome ICO guidance, it does not have legislative effect and does not provide the certainty that legislation does. That is why we have done so via this Bill.
Amendment 7 to Clause 3 would undermine the broader consent concept for scientific research. Clause 3 places the existing concept of “broad consent” currently found in recital 33 to the UK GDPR on a statutory footing with the intention of improving awareness and confidence for researchers. This clause applies only to scientific research processing that is reliant on consent. It already contains various safeguards. For example, broad consent can be used only where it is not possible to identify at the outset the full purposes for which personal data might be processed. Additionally, to give individuals greater agency, where possible individuals will have the option to consent to only part of the processing and can withdraw their consent at any time.
Clause 3 clarifies an existing concept of broad consent which outlines how the conditions for consent will be met in certain circumstances when processing for scientific research purposes. This will enable consent to be obtained for an area of scientific research when researchers cannot at the outset identify fully the purposes for which they are collecting the data. For example, the initial aim may be the study of cancer, but it later becomes the study of a particular cancer type.
Furthermore, as part of the reforms around the reuse of personal data, we have further clarified that when personal data is originally collected on the basis of consent, a controller would need to get fresh consent to reuse that data for a new purpose unless a public interest exemption applied and it is unreasonable to expect the controller to obtain that consent. A controller cannot generally reuse personal data originally collected on the basis of consent for research purposes.
Turning to Amendments 132 and 133 to Clause 26, the general rule described in Article 13(3) of the UK GDPR is that controllers must inform data subjects about a change of purposes, which provides an opportunity to withdraw consent or object to the proposed processing where relevant. There are existing exceptions to the right to object, such as Article 21(6) of the UK GDPR, where processing is necessary for research in the public interest, and in Schedule 2 to the Data Protection Act 2018, when applying the right would prevent or seriously impair the research. Removing these exemptions could undermine life-saving research and compromise long-term studies so that they are not able to continue.
Regarding Amendment 134, new Article 84B of the UK GDPR already sets out the requirement that personal data should be anonymised for research, archiving and statistical—RAS—purposes unless doing so would mean the research could not be carried through. Anonymisation is not always possible as personal data can be at the heart of valuable research, archiving and statistical activities, for example, in genetic research for the monitoring of new treatments of diseases. That is why new Article 84C of the UK GDPR also sets out protective measures for personal data that is used for RAS purposes, such as ensuring respect for the principle of data minimisation through pseudonymisation.
The stand part notice in this group seeks to remove Clause 6 and, consequentially, Schedule 2. In the Government’s consultation on data reform, Data: A New Direction, we heard that the current provisions in the UK GDPR on personal data reuse are difficult for controllers and individuals to navigate. This has led to uncertainty about when controllers can reuse personal data, causing delays for researchers and obstructing innovation. Clause 6 and Schedule 2 address the existing uncertainty around reusing personal data by setting out clearly the conditions in which the reuse of personal data for a new purpose is permitted. Clause 6 and Schedule 2 must therefore remain to give controllers legal certainty and individuals greater transparency.
Amendment 22 seeks to remove the power to add to or vary the conditions set out in Schedule 2. These conditions currently constitute a list of specific public interest purposes, such as safeguarding vulnerable individuals, for which an organisation is permitted to reuse data without needing consent or to identify a specific law elsewhere in legislation. Since this list is strictly limited and exhaustive, a power is needed to ensure that it is kept up to date with future developments in how personal data is used for important public interest purposes.
Baroness Kidron (CB)
I am interested that the safeguarding requirement is already in the Bill, so, in terms of children, which I believe the Minister is going to come to, the onward processing is not a question of safeguarding. Is that correct? As the Minister has just indicated, that is already a provision.
Viscount Camrose (Con)
Just before we broke, I was on the verge of attempting to answer the question from the noble Baroness, Lady Kidron; I hope my coming words will do that, but she can intervene again if she needs to.
I turn to the amendments that concern the use of children’s data in research and reuse. Amendment 8 would also amend Clause 3; the noble Baroness suggests that the measure should not apply to children’s data, but this would potentially prevent children, or their parents or guardians, from agreeing to participate in broad areas of pioneering research that could have a positive impact on children, such as on the causes of childhood diseases.
On the point about safeguarding, the provisions on recognised legitimate interests and further processing are required for safeguarding children for compliance with, respectively, the lawfulness and purpose limitation principles. The purpose limitation provision in this clause is meant for situations where the original processing purpose was not safeguarding and the controller then realises that there is a need to further process it for safeguarding.
Research organisations are already required to comply with the data protection principles, including on fairness and transparency, so that research participants can make informed decisions about how their data is used; and, where consent is the lawful basis for processing, children, or their parents or guardians, are free to choose not to provide their consent, or, if they do consent, they can withdraw it at any time. In addition, the further safeguards that are set out in Clause 26, which I mentioned earlier, will protect all personal data, whether it relates to children or adults.
Amendment 21 would require data controllers to have specific regard to the fact that children’s data requires a higher standard of protection for children when deciding whether reuse of their data is compatible with the original purpose for which it was collected. This is unnecessary because the situations in which personal data could be reused are limited to public interest purposes designed largely to protect the public and children, in so far as they are relevant to them. Controllers must also consider the possible consequences for data subjects and the relationship between the controller and the data subject. This includes taking into account that the data subject is a child, in addition to the need to generally consider the interests of children.
Amendment 23 seeks to limit use of the purpose limitation exemptions in Schedule 2 in relation to children’s data. This amendment is unnecessary because these provisions permit further processing only in a narrow range of circumstances and can be expanded only to serve important purposes of public interest. Furthermore, it may inadvertently be harmful to children. Current objectives include safeguarding children or vulnerable people, preventing crime or responding to emergencies. In seeking to limit the use of these provisions, there is a risk that the noble Baroness’s amendments might make data controllers more hesitant to reuse or disclose data for public interest purposes and undermine provisions in place to protect children. These amendments could also obstruct important research that could have a demonstrable positive impact on children, such as research into children’s diseases.
Amendment 145 would require the ICO to publish a statutory code on the use of children’s data in scientific research and technology development. Although the Government recognise the value that ICO codes can play in promoting good practice and improving compliance, we do not consider that it would be appropriate to add these provisions to the Bill without further detailed consultation with the ICO and the organisations likely to be affected by the new codes. Clause 33 of the Bill already includes a measure that would allow the Secretary of State to request the ICO to publish a code on any matter that it sees fit, so this is an issue that we could return to in the future if the evidence supports it.
Baroness Kidron (CB)
I will read Hansard very carefully, because I am not sure that I absolutely followed the Minister, but we will undoubtedly come back to this. I will ask two questions. Earlier, before we had a break, in response to some of the early amendments in the name of the noble Lord, Lord Clement-Jones, the Minister suggested that several things were being taken out of the recital to give them solidity in the Bill; so I am using this opportunity to suggest that recital 38, which is the special consideration of children’s data, might usefully be treated in a similar way and that we could then have a schedule that is the age-appropriate design code in the Bill. Perhaps I can leave that with the Minister, and perhaps he can undertake to have some further consultation with the ICO on Amendment 145 specifically.
Viscount Camrose (Con)
With respect to recital 38, that sounds like a really interesting idea. Yes, let us both have a look and see what the consultation involves and what the timing might look like. I confess to the Committee that I do not know what recital 38 says, off the top of my head. For the reasons I have set out, I am not able to accept these amendments. I hope that noble Lords will therefore not press them.
Returning to the questions by the noble Lord, Lord Clement-Jones, on the contents of recital 159, the current UK GDPR and EU GDPR are silent on the specific definition of scientific research. It does not preclude commercial organisations performing scientific research; indeed, the ICO’s own guidance on research and its interpretation of recital 159 already mention commercial activities. Scientific research can be done by commercial organisations—for example, much of the research done into vaccines, and the research into AI referenced by the noble Baroness, Lady Harding. The recital itself does not mention it but, as the ICO’s guidance is clear on this already, the Government feel that it is appropriate to put this on a statutory footing.
Lord Clement-Jones (LD)
My Lords, that was intriguing. I thank the Minister for his response. It sounds as though, again, guidance would have been absolutely fine, but what is there not to like about the ICO bringing clarity? It was quite interesting that the Minister used the phrase “uncertainty in the sector” on numerous occasions and that is becoming a bit of a mantra as the Bill goes on. We cannot create uncertainty in the sector, so the poor old ICO has been labouring in the vineyard for the last few years to no purpose at all. Clearly there has been uncertainty in the sector of a major description, and all its guidance and all the work that it has put in over the years have been wholly fruitless, really. It is only this Government that have grabbed the agenda with this splendid 300-page data protection Bill that will clarify this for business. I do not know how much they will have to pay to get new compliance officers or whatever it happens to be, but the one thing that the Bill will absolutely not create is greater clarity.
I am a huge fan of making sure that we understand what the recitals have to say, and it is very interesting that the Minister is saying that the recital is silent but the ICO’s guidance is pretty clear on this. I am hugely attracted by the idea of including recital 38 in the Bill. It is another lightbulb moment from the noble Baroness, Lady Kidron, who has these moments, rather like with the age-appropriate design code, which was a huge one.
We are back to the concern, whether in the ICO guidance, the Bill or wherever, that scientific research needs to be in the public interest to qualify and not have all the consents that are normally required for the use of personal data. The Minister said, “Well, of course we think that scientific research is in the public interest; that is its very definition”. So why does only public health research need that public interest test and not the other aspects? Is it because, for instance, the opt-out was a bit of a disaster and 3 million people opted out of allowing their health data to be shared or accessed by GPs? Yes, it probably is.
Do the Government want a similar kind of disaster to happen, in which people get really excited about Meta or other commercial organisations getting hold of their data, a public outcry ensues and they therefore have to introduce a public interest test on that? What is sauce for the goose is sauce for the gander. I do not think that personal data should be treated in a particularly different way in terms of its public interest, just because it is in healthcare. I very much hope that the Minister will consider that.
Baroness Kidron
““Data community”In this Act, a “data community” means an entity established to facilitate the collective activation of data subjects’ data rights in Chapters III and VIII of the UK GDPR and members of a data community assign specific data rights to a nominated entity to exercise those rights on their behalf.”Member’s explanatory statement
This amendment provides a definition of “data community”. It is one of a series of amendments that would establish the ability to assign data rights to a third party.
Baroness Kidron (CB)
My Lords, I hope this is another lightbulb moment, as the noble Lord, Lord Clement-Jones, suggested. As well as Amendment 10, I will speak to Amendments 35, 147 and 148 in my name and the names of the noble Baroness, Lady Jones, and the noble Lord, Lord Clement-Jones. I thank them both. The purpose of these amendments is to move the Bill away from nibbling around the edges of GDPR in pursuit of post-Brexit opportunities and to actually deliver a post-Brexit opportunity.
These amendments would put the UK on an enhanced path of data sophistication while not challenging equivalence, which we will undoubtedly discuss during the Committee. I echo the voice of the noble Lord, Lord Allan, who at Second Reading expressed deep concern that equivalence was not a question of an arrangement between the Government and the EU but would be a question picked up by data activists taking strategic litigation to the courts.
Data protection as conceived by GDPR and in this Bill is primarily seen as an arrangement between an individual and an entity that processes that data—most often a commercial company. But, as evidenced by the last 20 years, the real power lies in holding either vast swathes of general data, such as those used by LLMs, or large groups of specialist data such as medical scans. In short, the value—in all forms, not simply financial—lies in big data.
As the value of data became clear, ideas such as “data is the new oil” and data as currency emerged, alongside the notion of data fiduciaries or data trusts, where you can place your data collectively. One early proponent of such ideas was Jaron Lanier, inventor of virtual reality; I remember discussing it with him more than a decade ago. However, these ideas have not found widespread practical application, possibly because they are normally based around ideas of micropayments as the primary value—and very probably because they rely on data subjects gathering their data, so they are for the boffins.
During the passage of the DPA 2018, one noble Lord counted the number of times the Minister said the words “complex” and “complicated” while referring to the Bill. Data law is complex, and the complicated waterfall of its concepts and provisions eludes most non-experts. That is why I propose the four amendments in this group, which would give UK citizens access to data experts for matters that concern them deeply.
Amendment 10 would define the term “data community”, and Amendment 35 would give a data subject the power to assign their data rights to a data community for specific purposes and for a specific time period. Amendment 147 would require the ICO to set out a code of conduct for data communities, including guidance on establishing, operating and joining a data community, as well as guidance for data controllers and data processors on responding to requests made by data communities. Amendment 148 would require the ICO to keep a register of data communities, to make it publicly available and to ensure proper oversight. Together, they would provide a mechanism for non-experts—that is, any UK citizen—to assign their data rights to a community run by representatives that would benefit the entire group.
Data communities diverge from previous attempts to create big data for the benefit of users, in that they are not predicated on financial payments and neither does each data subject need to access their own data via the complex rules and often obstructive interactions with individual companies. They put rights holders together with experts who do it on their behalf, by allowing data subjects to assign their rights so that an expert can gather the data and crunch it.
This concept is based on a piece of work done by a colleague of mine at the University of Oxford, Dr Reuben Binns, an associate professor in human-centred computing, in association with the Worker Info Exchange. Since 2016, individual Uber drivers, with help from their trade unions and the WIE, asked Uber for their data that showed their jobs, earnings, movements, waiting times and so on. It took many months of negotiation, conducted via data protection lawyers, as each driver individually asked for successive pieces of information that Uber, at first, resisted giving them and then, after litigation, provided.
After a period of time, a new cohort of drivers was recruited, and it was only when several hundred drivers were poised to ask the same set of questions that a formal arrangement was made between Uber and WIE, so that they could be treated as a single group and all the data would be provided about all the drivers. This practical decision allowed Dr Binns to look at the data en masse. While an individual driver knew what they earned and where they were, what became visible when looking across several hundred drivers is how the algorithm reacted to those who refused a poorly paid job, who was assigned the lucrative airport runs, whether where you started impacted on your daily earnings, whether those who worked short hours were given less lucrative jobs, and so on.
This research project continues after several years and benefits from a bespoke arrangement that could, by means of these amendments, be strengthened and made an industry-wide standard with the involvement of the ICO. If it were routine, it would provide opportunity equally for challenger businesses, community groups and research projects. Imagine if a group of elderly people who spend a lot of time at home were able to use a data community to negotiate cheap group insurance, or imagine a research project where I might assign my data rights for the sole purpose of looking at gender inequality. A data community would allow any group of people to assign their rights, rights that are more powerful together than apart. This is doable—I have explained how it has been done. With these amendments, it would be routinely available, contractual, time-limited and subject to a code of conduct.
As it stands, the Bill is regressive for personal data rights and does not deliver the promised Brexit dividends. But there are great possibilities, without threatening adequacy, that could open markets, support innovation in the UK and make data more available to groups in society that rarely benefit from data law. I beg to move.
Lord Clement-Jones (LD)
My Lords, I think this is a lightbulb moment—it is inspired, and this suite of amendments fits together really well. I entirely agree with the noble Baroness, Lady Kidron, that this is a positive aspect. If the Bill contained these four amendments, I might have to alter my opinion of it—how about that for an incentive?
This is an important subject. It is a positive aspect of data rights. We have not got this right yet in this country. We still have great suspicion about sharing and access to personal data. There is almost a conspiracy theory around the use of data, the use of external contractors in the health service and so on, which is extremely unhelpful. If individuals were able to share their data with a trusted hub—a trusted community—that would make all the difference.
Like the noble Baroness, Lady Kidron, I have come across a number of influences over the years. I think the first time many of us came across the idea of data trusts or data institutions was in the Hall-Pesenti review carried out by Dame Wendy Hall and Jérôme Pesenti in 2017. They made a strong recommendation to the Government that they should start thinking about how to operationalise data trusts. Subsequently, organisations such as the Open Data Institute did some valuable research into how data trusts and data institutions could be used in a variety of ways, including in local government. Then the Ada Lovelace Institute did some very good work on the possible legal basis for data trusts and data institutions. Professor Irene Ng was heavily engaged in setting up what was called the “hub of all things”. I was not quite convinced by how it was going to work legally in terms of data sharing and so on, but in a sense we have now got to that point. I give all credit to the academic whom the noble Baroness mentioned. If he has helped us to get to this point, that is helpful. It is not that complicated, but we need full government backing for the ICO and the instruments that the noble Baroness put in her amendments, including regulatory oversight, because it will not be enough simply to have codes that apply. We have to have regulatory oversight.
Baroness Jones of Whitchurch (Lab)
My Lords, I am also pleased to support these amendments in the name of the noble Baroness, Lady Kidron, to which I have added my name. I am hugely enthusiastic about them, too, and think that this has been a lightbulb moment from the noble Baroness. I very much thank her for doing all of this background work because she has identified the current weakness in the data protection landscape: it is currently predicated on an arrangement between an individual and the organisation that holds their data.
That is an inherently unbalanced power construct. As the noble Baroness said, as tech companies become larger and more powerful, it is not surprising that many individuals feel overwhelmed by the task of questioning or challenging those that are processing their personal information. It assumes a degree of knowledge about their rights and a degree of digital literacy, which we know many people do not possess.
In the very good debate that we had on digital exclusion a few weeks ago, it was highlighted that around 2.4 million people are unable to complete a single basic task to get online, such as opening an internet browser, and that more than 5 million employed adults cannot complete essential digital work tasks. These individuals cannot be expected to access their digital data on their own; they need the safety of a larger group to do so. We need to protect the interests of an entire group that would otherwise be locked out of the system.
The noble Baroness referred to the example of Uber drivers who were helped by their trade union to access their data, sharing patterns of exploitation and subsequently strengthening their employment package, but this does not have to be about just union membership; it could be about the interests of a group of public sector service users who want to make sure that they are not being discriminated against, a community group that wants its bid for a local grant to be treated fairly, and so on. We can all imagine examples of where this would work in a group’s interest. As the noble Baroness said, these proposals would allow any group of people to assign their rights—rights that are more powerful together than apart.
There could be other benefits; if data controllers are concerned about the number of individual requests that they are receiving for data information—and a lot of this Bill is supposed to address that extra work—group requests, on behalf of a data community, could provide economies of scale and make the whole system more efficient.
Like the noble Baroness, I can see great advantages from this proposal; it could lay the foundation for other forms of data innovation and help to build trust with many citizens who currently see digitalisation as something to fear—this could allay those fears. Like the noble Lord, Lord Clement-Jones, I hope the Minister can provide some reassurance that the Government welcome this proposal, take it seriously and will be prepared to work with the noble Baroness and others to make it a reality, because there is the essence of a very good initiative here.
Viscount Camrose (Con)
I thank the noble Baroness, Lady Kidron, for raising this interesting and compelling set of ideas. I turn first to Amendments 10 and 35 relating to data communities. The Government recognise that individuals need to have the appropriate tools and mechanisms to easily exercise their rights under the data protection legislation. It is worth pointing out that current legislation does not prevent data subjects authorising third parties to exercise certain rights. Article 80 of the UK GDPR also explicitly gives data subjects the right to appoint not-for-profit bodies to exercise certain rights, including their right to bring a complaint to the ICO, to appeal against a decision of the ICO or to bring legal proceedings against a controller or processor and the right to receive compensation.
The concept of data communities exercising certain data subject rights is closely linked with the wider concept of data intermediaries. The Government recognise the existing and potential benefits of data intermediaries and are committed to supporting them. However, given that data intermediaries are new, we need to be careful not to distort the sector at such an early stage of development. As in many areas of the economy, officials are in regular contact with businesses, and the data intermediary sector is no different. One such engagement is the DBT’s Smart Data Council, which includes a number of intermediary businesses that advise the Government on the direction of smart data policy. The Government would welcome further and continued engagement with intermediary businesses to inform how data policy is developed.
Lord Clement-Jones (LD)
I am sorry, but the Minister used a pretty pejorative word: “distort” the sector. What does he have in mind?
Viscount Camrose (Con)
I did not mean to be pejorative; I merely point out that before embarking on quite a far-reaching policy—as noble Lords have pointed out—we would not want to jump the gun prior to consultation and researching the area properly. I certainly do not wish to paint a negative portrait.
Viscount Camrose (Con)
It is a moment at which I cannot set a firm date for a firm set of actions, but on the other hand I am not attempting to punt it into the long grass either. The Government do not want to introduce a prescriptive framework without assessing potential risks, strengthening the evidence base and assessing the appropriate regulatory response. For these reasons, I hope that for the time being the noble Baroness will not press these amendments.
The noble Baroness has also proposed Amendments 147 and 148 relating to the role of the Information Commissioner’s Office. Given my response just now to the wider proposals, these amendments are no longer necessary and would complicate the statute book. We note that Clause 35 already includes a measure that will allow the Secretary of State to request the Information Commissioner’s Office to publish a code on any matter that she or he sees fit, so this is an issue we could return to in future if such a code were deemed necessary.
Lord Clement-Jones (LD)
My Lords, I am sorry to keep interrupting the Minister. Can he give us a bit of a picture of what he has in mind? He said that he did not want to distort things at the moment, that there were intermediaries out there and so on. That is all very well, but is he assuming that a market will be developed or is developing? What overview of this does he have? In a sense, we have a very clear proposition here, which the Government should respond to. I am assuming that this is not a question just of letting a thousand flowers bloom. What is the government policy towards this? If you look at the Hall-Pesenti review and read pretty much every government response—including to our AI Select Committee, where we talked about data trusts and picked up the Hall-Pesenti review recommendations —you see that the Government have been pretty much positive over time when they have talked about data trusts. The trouble is that they have not done anything.
Viscount Camrose (Con)
Overall, as I say and as many have said in this brief debate, this is a potentially far-reaching and powerful idea with an enormous number of benefits. But the fact that it is far-reaching implies that we need to look at it further. I am afraid that I am not briefed on long-standing—
Lord Clement-Jones (LD)
May I suggest that the Minister writes? On the one hand, he is saying that we will be distorting something—that something is happening out there—but, on the other hand, he is saying that he is not briefed on what is out there or what the intentions are. A letter unpacking all that would be enormously helpful.
Viscount Camrose (Con)
I am very happy to write on this. I will just say that I am not briefed on previous government policy towards it, dating back many years before my time in the role.
Viscount Camrose (Con)
It was even further. Yes, I am very happy to write on that. For the reasons I have set out, I am not able to accept these amendments for now. I therefore hope that the noble Baroness will withdraw her amendment.
Baroness Kidron (CB)
My Lords, I thank the co-signatories of my amendments for their enthusiasm. I will make three very quick points. First, the certain rights that the Minister referred to are complaints after the event when something has gone wrong, not positive rights. The second point of contention I have is whether these are so far-reaching. We are talking about people’s existing rights, and these amendments do not introduce any other right apart from access to put them together. It is very worrying that the Government would see these as a threat when data subjects put together their rights but not when commercial companies put together their data.
Finally, what is the Bill for? If it is not for creating a new and vibrant data protection system for the UK, I am concerned that it undermines a lot of existing rights and will not allow for a flourishing of uses of data. This is the new world: the world of data and AI. We have to have something to offer UK citizens. I would like the Minister to say that he will discuss this further, because it is not quite adequate to nay-say it. I beg leave to withdraw.
House of Lords
Royal Assent
Wednesday 20th March 2024
(9 months ago)
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Free Childcare Scheme
(9 months ago)
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Baroness Twycross
To ask His Majesty’s Government what assessment they have made of the availability of additional funded childcare provision, ahead of the expansion of the free childcare scheme in April.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, we are delivering the largest expansion of childcare in England’s history. Latest projections show that more than 150,000 new funded places will be secured by April. We expect that number to grow, collectively saving parents more than £500 million in costs. We continue to support the sector’s expansion, with £400 million of additional funding to uplift hourly rates next year and a guarantee that rates will increase in line with cost pressures for two years after that.
Baroness Twycross (Lab)
My Lords, on these Benches we agree with the ambition of the policy, but delivery of the expansion of the free childcare scheme is falling short. With the charity Coram Family and Childcare finding that parents in some parts of the country are spending over 50% of their income on childcare, and with children needing to be registered for nurseries before they are born, what more are the Government doing to ensure that parents and children get the expansion of free childcare that they have been promised?
Baroness Barran (Con)
It is slightly curious to say that delivery is falling short when the new entitlements start in April of this year. The noble Baroness knows that we have made a significant investment in capital to support local authorities. We have made a number of innovations in relation to the workforce and the uptake of the scheme has been very encouraging. Most importantly—I think the Institute for Fiscal Studies has confirmed this—we have announced very generous funding rates, particularly for younger children.
Lord Storey (LD)
My Lords, I think we are surprised at the confidence of the Minister, given that we have seen a 50% increase in the number of nurseries that have closed in just the last year, that 40% of nurseries say they are undecided as to whether they will deliver the new funded offer for two year-olds, and that 20% say that they will but that places will be limited. Why is the Minister so confident about this scheme? We hope she is right, but can she give us more reassurance as to why she thinks it will definitely happen?
Baroness Barran (Con)
The first thing I would say is that the noble Baroness and the noble Lord are right that this is a very ambitious expansion of childcare. However, the really significant increase in capacity will be in September 2025, so we have some time to put in place what is needed to deliver on that. The noble Lord talked about the number of nurseries that have closed. I know he is also aware that the childcare workforce has gone up year on year, over 2022-23, and is up by 40,000 places—I mean that the number of places has increased in the past five years by 40,000, while there has been a 1% annual decline in nought to five year-olds.
Baroness Eaton (Con)
My Lords, I understand that there have been reports suggesting that the pressure on childcare places will cause special needs children to be squeezed out of the provision. Could my noble friend clarify the situation?
Baroness Barran (Con)
We are aware of the concerns to which my noble friend refers. The House knows that we are doing a great deal to create a fairer special needs system. One of the key things here is the phased implementation of the expansion to the 30-hours offer, to make sure that we develop and continue to monitor the capacity for children with special educational needs.
Lord Watts (Lab)
My Lords, why does it take a crisis before the Government act? Is there no forward planning in her department to identify need and do something before it becomes a crisis?
Baroness Barran (Con)
Some people might recognise that the Government are making a very substantial investment in this area. We have already spent more than £20 billion over the past five years to support families with the cost of childcare, and this next step will be another major one.
Baroness McIntosh of Hudnall (Lab)
I really do not think that the House would wish to cast aspersions on the intention of this policy. Most people would think that it was good and worth supporting. However, can the Minister say whether there is an accurate match between the funds that will be available to the sector from the Government to support this expansion and the need that they have identified for the funds in order to do it successfully? I think she will agree that there has been some doubt as to whether those two numbers match.
Baroness Barran (Con)
I genuinely thank the noble Baroness for her question, because it gives me the opportunity to set out a couple of things. One might want to look at funding rates for different ages of children to see whether there is sufficient funding. The funding for three to four year-olds is almost identical in the new scheme to previous rates. For two year-olds, the Government will pay £8.28 an hour, compared to £6.07 previously, and for those between nine months and two years, £11.22, compared to £6.05. I leave the noble Baroness to draw her own conclusions.
Lord Foulkes of Cumnock (Lab Co-op)
Could the Minister help me? She spoke about entitlement. Could she tell me what the difference is between entitlement and delivery?
Baroness Barran (Con)
The Government have committed to deliver the number of childcare places needed for those who are eligible and seek to take advantage of the opportunity that the Government offer.
Baroness O'Grady of Upper Holloway (Lab)
Does the Minister agree that many families up and down Britain are tearing their hair out over the cost and difficulty of accessing quality affordable childcare? Clearly, delivery is crucial. Would she also agree that childcare is one part of the jigsaw puzzle, and that many working families in Britain are also worried about security of employment and predictability of working hours and income in order to be able to access childcare? What we really need is a new deal for working people that delivers that security, as well as childcare provision.
Baroness Barran (Con)
I know the noble Baroness is well aware of the very substantial increases that we have made in the national minimum wage. To put it in context, the 30 hours of free childcare is equivalent to just under £7,000 per child, which I think she will agree is a substantial contribution to the average family income.
Lord Sahota (Lab)
My Lords, one of the best things we had under Tony Blair was Sure Start; it was all over the country and children benefited. Why can we not introduce full Sure Start again, like we had 20-odd years ago, so that children up and down the country can benefit?
Baroness Barran (Con)
I am not sure time permits me to go into everything regarding Sure Start, but I draw the noble Lord’s attention to the family hubs that the Government are rolling out around the country. The learning that we took from Sure Start and put into the family hubs was a focus on disadvantage and the length of time for which families can get support. Sure Start was, understandably, focused on very young children, but those of us who are parents know that one might need support with one’s children at different point as they grow up. That is one of the philosophies behind the family hubs.
Baroness Deech (CB)
Has the Minister looked at comparative data which shows that childcare is so much more expensive and the requirements so much more stringent here than in other countries around the world? It is also the case that calculations have been done in the States to show that, if all childcare was absolutely free, it would eventually be covered by the tax returns from women and other parents who would be freed up to go back to work.
Baroness Barran (Con)
That is exactly what the Government are delivering, and exactly those calculations were behind the Government’s decision to make such an increase. In 2027-28, we will be spending in excess of £8 billion on free childcare hours and early education. To make sure that the noble Baroness is aware, from September 2025 there will be 30 hours of free childcare from when a child is nine months old until they start school.
Children’s Cancer Services
(9 months ago)
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Baroness Bloomfield of Hinton Waldrist
To ask His Majesty’s Government whether a fully funded delivery plan has been agreed in relation to NHS England’s proposal to relocate children’s cancer services away from The Royal Marsden NHS Foundation Trust to other providers across London.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
NHS England has decided that Evelina London should be the future location of the principal treatment centre, following extensive engagement with a wide range of stakeholders across the south London/south-east region. A delivery plan has been assessed as affordable by NHS England, with capital funding in place, and remains subject to robust financial scrutiny. Ministers are considering next steps.
Baroness Bloomfield of Hinton Waldrist (Con)
I thank my noble friend the Minister for his Answer and draw attention to my entry in the register of interests. This is an extraordinary act of self-harm. NHS England, in a decision delegated to the London region, announced that it will be closing the world-leading paediatric cancer services of the Royal Marsden Hospital in Sutton and transferring these to the Evelina Hospital in central London. The Royal Marsden is the largest centre for clinical trials for new drugs for children with cancer in Europe. Its unique co-location with the ICR and the team developing new adult cancer drugs and researching how these can be used to help support childhood cancers means risking the loss of many of these trials and breakthroughs by breaking this bond. Will my noble friend undertake to ask the Secretary of State to call in this decision, as legislation allows her to?
Lord Markham (Con)
First, I thank my noble friend for the tireless work she does on behalf of the Royal Marsden, and convey the views of probably all noble Lords on the fantastic work the Royal Marsden does. The current situation, as I think noble Lords know, is that the NHS has reached a decision. The Secretary of State does have the power to call in exceptional cases, and as a result of that, Minister Stephenson is undertaking a fact-finding mission. I have set up a meeting with him to discuss this, and my noble friend is very welcome to join me at that meeting.
Earl Russell (LD)
My Lords, structural healthcare decisions are among the most challenging, and my worry is that there are greater risks now the Evelina has been chosen. It will be the only principal treatment centre in the UK where neurosurgery is not carried out on-site. St George’s has over 25 years’ experience in caring for children with cancer and a dedicated staff team of over 430 people, only four of whom will be moving to the Evelina. What actions will the Government be taking to monitor and ensure a continuing standard of cancer care for children?
Lord Markham (Con)
Ministers are on a fact-finding mission. I understand the points the noble Earl makes; the NHS made the point that it wants cancer treatment to be co-located alongside an intensive care unit. Following Professor Sir Mike Richards’ review, it believes that it is best to have those services co-located, which is why it has chosen the Evelina. There are pros and cons to every decision, and that is why Ministers are doing further fact-finding.
Lord Patel (CB)
My Lords, this decision is daft on many counts, some of which have already been expressed by the noble Baroness, Lady Bloomfield. I declare an interest in that I am an occasional contributor to the Royal Marsden Cancer Charity. As has already been mentioned, the Royal Marsden is a world-renowned centre for cancer research, including in children.
Going back to the decision, even if the Royal Marsden was closed down and all the children’s cancer services were shifted to the Evelina, it does not and will not have all the facilities to deliver medical oncology services to children. Compromised children with cancers will then have to be transferred out of the Evelina to other places where radiotherapy is available. Why shut down a centre which last year transferred to intensive care only three children out of 700—all of whom survived —and instead use another centre which does not have major radiotherapy facilities?
Lord Markham (Con)
The noble Lord makes some very good points. Following the NHS review and the evidence put forward, specific cancer treatments will take place at University College Hospital London, which has two particular benefits for patients: radiotherapy and proton beam technology. Ministers want to understand and make the points the noble Lord has made, and to see whether this is a decision we are comfortable with. As I said earlier, since January 2024 we have had the power to call in a decision in exceptional circumstances.
Baroness Chisholm of Owlpen (Non-Afl)
My Lords, we have heard a lot in this House about joined-up thinking, but this is not joined-up thinking. Instead, we are thinking of fragmenting a service which works very well. Co-location is important, in order to enable experts to talk, research and take decisions together. Can the Minister do everything he can to change the decision?
Lord Markham (Con)
I am happy to go through the facts. I hope noble Lords know me well enough to know that I like to look at all the evidence, and, clearly, we are at that stage. I saw an excellent example just the other day in Cambridge, where we are building a new centre to put research and treatment under one roof. That, of course, is what the Royal Marsden has for children’s cancer, so I am aware of the benefits and they will be at the front of my mind.
Lord Winston (Lab)
My Lords, I am sure the Minister understands that cancer cannot be seen as an isolated disease. One aspect of that is how you provide for children in their entirety during the treatment, which does not always involve just cancer but other organs and other parts of the child.
Lord Markham (Con)
Yes, and the Royal Marsden has a very good track record on that. As was explained to me on the Cambridge visit, having all those services together under one roof is a definite advantage. When the pros and cons are weighed up, that will definitely be a pro.
Lord Reid of Cardowan (Lab)
My Lords, the Minister will be aware by now that there is considerable doubt, controversy and concern around this decision. He has said—and we all take it in good faith—that the Secretary of State is calling this in at this stage for fact finding. When does he anticipate that such a review of the facts might be finished?
Lord Markham (Con)
It is only now that the facts are starting to come to us. On something as important as this, we definitely do not want to be hurried into it. Normally, I would be saying at this Dispatch Box that I want to “go, go, go”, but on something as profound as this I want to make sure that we are not hurrying into it. All noble Lords will agree that we have a very good service in operation. For instance, I looked at the Royal Marsden’s stats on speed of treatment and diagnosis, and they are excellent. I am afraid I cannot give a timetable because, quite deliberately, I want to make sure that we do not rush into any decision until we know all the facts.
Lord Fox (LD)
My Lords, there seem to be two issues here. One is the seemingly inexplicable nature of the decision, but also the process by which it was made. Can the Minister please talk to his colleague, not only on a fact-finding mission about this decision, but about how decisions such as this are taken within the NHS, what issues are being considered, and which are considered more important than others? It seems to me that there is an imbalance in the decision-making process. Perhaps that is also an issue that needs to be addressed.
Lord Markham (Con)
I want to be fair to the NHS here. It has done an extensive study, with a lot of professionals rating extensive criteria, and they really did believe that in certain areas, the Evelina scored higher than St. George’s and the Marsden. It is a balanced decision; all I can do is absolutely promise noble Lords that we will take all those factors into account.
Baroness Merron (Lab)
My Lords, I appreciate that the Minister is looking at all of this, but given the difficulties of achieving the number of clinical trials in the UK, what effect is anticipated on research because of the proposed relocation of paediatric cancer services? Is there an intention to factor into the final decision the need to expand research capacity for childhood and adult cancers?
Lord Markham (Con)
Among the criteria the NHS has taken into account are clinical services, the patient care experience and research, and it scored the Evelina higher on research. I want to understand that, because many noble Lords will be surprised by that finding. I assure the noble Baroness that research and the ability to do clinical trials, which is a vital component of our life sciences industry, is an important factor in this decision.
Teesworks Project: Audit
(9 months ago)
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Baroness Taylor of Stevenage
To ask His Majesty’s Government what assessment they have made of the audit arrangements for the Teesworks project, and of whether they are effective for the scale of the work being carried out.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Swinburne) (Con)
The public and private sector bodies engaged in the Teesworks project are responsible for ensuring that they comply with all relevant audit requirements. Additionally, the Government commissioned an independent review of the project, which we published in February. The Tees Valley Mayor is implementing its recommendations, including recommendations 27 and 28, relating to the internal and external audit functions.
Baroness Taylor of Stevenage (Lab)
My Lords, I thank the Minister for her Answer, but I honestly think that the people of Teesside deserve better than to be fobbed off like this. The independent review published in January said:
“Based on the evidence from the review the governance and financial management arrangements are not of themselves sufficiently robust or transparent to evidence value for money”.
We are told by Ministers that the NAO does not look at individual authorities, so we questioned on 30 January and 7 March just what the arrangements are for auditing this project, so local people can be reassured about the return their significant investment is giving them. We were promised an answer in writing, which has not appeared. In view of the parlous state of local government audit generally, and the nature of the 28 scathing recommendations set out in the review, an NAO financial investigation seems appropriate. Why are the Government still resisting that?
Baroness Swinburne (Con)
I thank the noble Baroness for her supplementary question. I assure her that the letter is on its way; I thought that it was already sent, so I apologise if she has not received it yet. As I outlined in my response to the debate on the regeneration of industrial areas on 7 March, it is not the NAO’s role to audit or examine individual local authorities, and its power would not normally be used for that purpose. I have since looked into this, and expanding its remit previously required the Chief Secretary to the Treasury to grant statutory powers. Therefore, given that we have had a thorough independent review, it is time that we learned from it and implemented those lessons rather than repeat it.
Lord Scriven (LD)
My Lords, two businessmen are making multi-millions of pounds of profits on the back of £0.5 billion-worth of taxpayers’ investment, without them putting any of their own cash at risk or taking any liabilities until they are negated against guaranteed income streams. The Tees Valley Review said that these generous contractual arrangements should be renegotiated, as the businessmen are making super-profits at the expense of local taxpayers. Do the Government agree with that finding and the suggested change that needs to be made?
Baroness Swinburne (Con)
I can assure this House that the mayor has accepted all the recommendations in that report and is enacting them now. We have asked for a report in six months’ time on how much progress has been made. We expect that there will be significant progress, including any renegotiation of those contracts.
Baroness Armstrong of Hill Top (Lab)
My Lords, I am disappointed by the Minister’s response. In the debate, I thought that we had established that the mayor was dealing with only a limited number of the recommendations, particularly on governance. There is a whole raft of others that he did not address in his letter. Neither we nor the public in Tees Valley have heard from the Government on what they will do to ensure that proper procedures, which have been undertaken by other local authorities for generations, are adhered to in Tees Valley. Can the Minister reassure us that there will now be a tendering and procurement process that is understandable in the public sector, even though this is a public/private arrangement? Will that take place, particularly given that the Secretary of State just last week transferred to two of the development corporations set up within the Tees Valley money from the local authorities without consulting them?
Baroness Swinburne (Con)
I assure the House that all procedures are being followed and, where necessary, they are being tightened as a result of the review. Therefore, where the recommendations need changes to be made, they will be made. Indeed, one of the recommendations affects DLUHC and another, more broadly, affects departments in central government. We are dealing with those now, including one for new systems of governance.
Lord Ravensdale (CB)
My Lords, this project relates to the Government’s wider levelling-up agenda. We heard last week that only 10% of the Government’s levelling-up funds have been spent. What assessment does the Minister make of that?
Baroness Swinburne (Con)
I thank the noble Lord for his question. I already have an outstanding question from one of his colleagues on his Benches from the debate last week. I am trying to find the exact numbers for how much is in progress, given that there is lag between the money being allocated and being spent. I am chasing that and will come back to the House as soon as I have the number.
Baroness Bennett of Manor Castle (GP)
My Lords, returning to the Teesworks project, in writing to the mayor—the noble Lord, Lord Houchen—the Secretary of State said:
“Improvement takes time, and where the recommendations related to cultural change especially it is important that sufficient time is given”.
But is it really right to leave a six-month hiatus? Should the Government not monitor what is happening much more regularly than that, given the level of concern expressed by the independent inquiry into what is happening at Teesworks?
Baroness Swinburne (Con)
Again, I can only give an assurance that this will not be waiting for six months. A number of these actions are required immediately and are therefore ongoing. We will be monitoring it both centrally and locally.
Lord Watts (Lab)
My Lords, many years ago when I was leader of a council, if I had acted in this way, I would have faced a surcharge. What sanctions are open against the mayor for the activities he has been involved in?
Baroness Swinburne (Con)
I need to be very clear that the review did not find any wrongdoing. Some governance issues need to be fixed; they are being fixed. On whether commissioners needed to be put in because there was wrongdoing, that is not the case in this instance. Therefore, time has being given to the combined authority to get its house in order. I am sure, as I have been assured, that it is doing so right now.
School Meals for Children
(9 months ago)
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Lord Brooke of Alverthorpe
To ask His Majesty’s Government what assessment they have made of recent remarks by a head teacher in Southampton criticising the quality of school meals for children.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, I am aware of the recent remarks from a Southampton head teacher. We cannot comment on individual catering arrangements, as arrangements with particular suppliers are made at a local level. Governors and trustees are responsible for ensuring compliance with the school food standards. We encourage local authorities and schools to work with their caterers to address any quality issues when they arise, to ensure that children receive nutritious meals in school.
Lord Brooke of Alverthorpe (Lab)
I am grateful to the Minister for her Answer. I am grateful too to Mr Ashley for raising this issue, and to the Times and the BBC for picking up on it last week. This is a topic of great concern to all of us. One in three children now leaving primary school is overweight or obese. This, in part, links back not only to what they are eating at home but to an area where the Government have some influence and control, which is school meals. It was 2014 when the regulations were last reviewed; it is time they were looked at again. Much has changed since then. Children are eating far too much sugar these days. We need to reduce it; we need to look after their health and stop abusing them in this way. Will the Government act on that?
Baroness Barran (Con)
The Government believe that the school food standards are very clear. Schools must ensure that they provide children with healthy food and drink options, that they get sufficient energy and nutrition across the school day, and they clearly restrict foods that are high in fat, salt and sugar.
The Earl of Effingham (Con)
My Lords, in 1825 the great politician Jean Brillat-Savarin coined the phrase “You are what you eat”. It is concerning that, according to research, ultra-processed food makes up 64% of the average UK school lunch. What is the Government’s strategy to both teach and empower children to make the right food choices?
Baroness Barran (Con)
Cooking and nutrition are firmly within the national curriculum: in design and technology they are compulsory between key stages 1 and 3, they aim to teach children how to cook and the principles of healthy eating and nutrition. It is also picked up in the science curriculum; indeed, through the Oak National Academy, we funded a module on cooking and nutrition that will equip children leaving school to be able to cook at least six predominantly savoury recipes that will support a healthy diet.
Lord Storey (LD)
My Lords, is not the problem that the tendering process for school meals is based on cost and not quality? Of course, there is another side to school meals, and that is the famous packed lunch. The experience of teachers and head teachers of packed lunches is that they are mainly filled with bags of crisps, chocolate biscuits, fruit drinks et cetera—not necessarily fruit drinks but canned drinks. Has the Minister any idea how we can ensure that packed lunches as well become a healthy nutritional meal?
Baroness Barran (Con)
The noble Lord touches on issues relating to how parents bring up their children, which is obviously delicate territory for the Government to pronounce too firmly on. Our messaging around the risks of obesity and on healthy lifestyles more broadly is obviously picked up by parents. Our family hubs also look at things such as nutrition. On the first part of his remarks, I should say that the department centrally offers a service called Get Help Buying for Schools that supports schools to negotiate high-quality and affordable catering arrangements.
Baroness Browning (Con)
I am very pleased to be a member of the committee sitting in this House at the moment looking at ultra-processed foods and obesity. From its evidence sessions that are in the public domain already, the diets of children in school meals, packed lunches and the food that they eat at home should worry everyone in this House. Given what my noble friend has replied today, can I gently suggest that her civil servants please follow the evidence being taken by the House?
Baroness Barran (Con)
I should clarify that I did not in any way want to diminish the importance of addressing ultra-processed foods, but the school food standards already restrict foods that are described as low-quality reformed or reconstituted foods, which include ultra-processed foods.
Lord Hampton (CB)
My Lords, I declare an interest as someone who has eaten more school meals than I care to mention, most of them very good, and as someone who rather unwillingly teaches food at school at the moment, where we do a lot about nutrition. However, the research from Northumbria University has found that a quarter-pint of milk a day has an enormously beneficial effect on children’s confidence and concentration and against obesity. What plans do the Government have to increase the free school milk programme?
Baroness Barran (Con)
We know that milk is, as the noble Lord says, excellent for children’s growth and development. As part of the school food standards, lower-fat milk or lactose-reduced milk must be made available for children who want it to drink at least once a day during school hours, and it must be provided free of charge to all pupils eligible for free school meals. Schools can offer milk as many times as they wish, but it must be free to infants and benefit-based free school meal pupils when offered as part of a school meal.
Baroness Ritchie of Downpatrick (Lab)
My Lords, like my noble friend Lord Brooke and the noble Baroness, Lady Browning, I am a member of the Food, Diet and Obesity Committee. There are many concerning issues, one being the influence of the food industry. Can the Minister have urgent discussions with the food industry so that it fully understands the impact of high-processed foods and the need for urgent reformulation, to reduce salt and sugar in those foods and to improve the health and well-being of all our young people?
Baroness Barran (Con)
I am more than happy to take that back to the department, for Ministers who are directly responsible for this area to talk to the food industry. The noble Baroness will be aware that there has been some success in reducing sugar in breakfast cereals, yoghurts, fromage frais and soft drinks. However, I share her concerns.
Lord Hamilton of Epsom (Con)
Can my noble friend tell us what effect exercise has on the health of school- children?
Baroness Barran (Con)
As my noble friend hints, exercise has a very positive impact on physical health and, crucially, on mental health.
Baroness Twycross (Lab)
My Lords, anyone who saw the pictures in the newspaper article to which the Question refers will be fairly appalled at the quality of the food offered to the children. The head teacher concerned asked how hard it was to bake a potato. Is the real problem that children do not learn how to cook any more and therefore do not see jobs in institutional catering as a viable career? What action is the DfE taking to ensure that the skills exist to meet government guidelines that state that school food should be nutritious, look good and taste delicious?
Baroness Barran (Con)
I am not sure whether I have to declare my interest as the mother of a chef. I think careers in hospitality are great, but I might be slightly biased. I have already responded on where food and healthy eating fit within the curriculum. We take this very seriously. The specific case that was alluded to in the media related to a PFI contract. Obviously, that gives greater constraints on the ability of a school to negotiate with, or potentially even change, suppliers.
The Earl of Devon (CB)
My Lords, does the Minister agree that the best source of food for schools is locally sourced, sustainably grown produce from identifiable farms that have an educational relationship with the school through which they teach children how and where their food is made? If so, will she encourage local procurement of school food?
Baroness Barran (Con)
I am more than happy to encourage that. Just to take it one stage further, I encourage schools that have the space to follow the example of some schools that I have visited that have their own allotments and grow some of their own food. Some of them keep chickens, for example, and eat their own eggs for breakfast. That is also a great approach.
Tertiary Education and Research (Wales) Act 2022 (Consequential Amendments) Order 2024
(9 months ago)
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Lord Harlech
That the draft Order laid before the House on 22 January be approved. Considered in Grand Committee on 19 March.
Single Source Contract (Amendment) Regulations 2024
(9 months ago)
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The Earl of Minto
That the draft Regulations laid before the House on 22 January be approved. Considered in Grand Committee on 19 March.
Strikes (Minimum Service Levels: Fire and Rescue Services) (England) Regulations 2024
(9 months ago)
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Lord Sharpe of Epsom
That the draft Regulations laid before the House on 8 February be approved.
Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 19 March.
Russia (Sanctions) (EU Exit) (Amendment) Regulations 2024
(9 months ago)
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Lord Ahmad of Wimbledon
That the Regulations laid before the House on 26 February be approved. Considered in Grand Committee on 19 March.
Safety of Rwanda (Asylum and Immigration) Bill
Wednesday 20th March 2024
(9 months ago)
Lords ChamberRead Full debate Safety of Rwanda (Asylum and Immigration) Act 2024 View all Safety of Rwanda (Asylum and Immigration) Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-I Marshalled list for Consideration of Commons Reasons - (19 Mar 2024)
16:38 - Division on Motion A1 (as an amendment to Motion A) - Ayes: 271 / Noes: 228 - Motion A1 agreed.
17:30 - Division on Motion B1 (as an amendment to Motion B) - Ayes: 285 / Noes: 230 - Motion B1 agreed.
17:44 - Division on Motion B2 (as an amendment to Motion B) - Ayes: 276 / Noes: 226 - Motion B2 agreed.
18:01 - Division on Motion D1 (as an amendment to Motion D) - Ayes: 263 / Noes: 233 - Motion D1 agreed.
19:00 - Division on Motion E1 (as an amendment to Motion E) - Ayes: 249 / Noes: 219 - Motion E1 agreed.
19:12 - Division on Motion G1 (as an amendment to Motion G) - Ayes: 251 / Noes: 214 - Motion G1 agreed.
19:24 - Division on Motion H1 (as an amendment to Motion H) - Ayes: 248 / Noes: 209 - Motion H1 agreed.
Lord Stewart of Dirleton
That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I will speak also to Motions A1, C, D and D1. Motion A relates to Lords Amendment 1B, which adds to the Bill’s purpose, seeking to ensure that the eventual Act maintains full compliance with domestic and international law. As my noble friend has set out throughout the passage of the Bill, and as the Minister for Countering Illegal Migration made clear in the other place,
“the Government take our responsibilities and international obligations incredibly seriously. There is nothing in the Bill that requires any act or omission that conflicts with our international obligations”.—[Official Report, Commons, 18/3/24; col. 659.]
We are facing a global crisis of illegal migration, and it requires us to seek new, bold, innovative solutions to tackle the increasing numbers of people crossing our borders illegally through such dangerous means. Although we are making progress, and small boat arrivals were down by a third in 2023, we still need to do more. That is why we are increasing our partnership work and signing new deals with our European neighbours; we have a plan, of which this Bill forms part.
Although some of the provisions in the Bill are novel, the Bill strikes the appropriate balance of limiting unnecessary challenges that frustrate removal while maintaining the principle of access to the courts where an individual may be at real risk of serious and irreversible harm. As I will make reference to later, Clause 4 preserves the ability of individuals to challenge removal due to their particular individual circumstances if there is compelling evidence that Rwanda is not a safe country for them.
Taken as a whole, the limited availability of domestic remedies maintains the constitutional balance between Parliament being able to legislate as it sees necessary and the powers of our courts to hold the Government to account. Furthermore, the migration economic development partnership with the Government of Rwanda is one part of our wider programme of work to stop the boats. This partnership will act as a strong deterrent while also demonstrating that taking these perilous and unnecessary journeys to find safety, as promoted by smugglers, is simply not necessary. The Bill—and the partnership with the Government of Rwanda—is predicated on both Rwanda and the United Kingdom’s compliance with international law in the form of the internationally binding treaty, which itself reflects the international legal obligations of the United Kingdom and Rwanda.
Motion C relates to Amendments 4 and 5, which do significant damage to the core provisions and purpose provided for in the Bill. They seek to provide a statutory mechanism to qualify the Bill’s deeming provision and so enable decision-makers, including courts and tribunals, to decide that Rwanda is not a safe country if presented with credible evidence to that effect. The amendments remove the prohibitions on courts and tribunals reviewing decisions on the grounds that Rwanda is generally unsafe, as well as on the grounds of risk of refoulement or other non-compliance with the terms of the treaty.
It is the treaty and the published evidence pack that together demonstrate that Rwanda is safe for relocated individuals and that the Government’s approach is tough but fair and lawful. The Government are clear that we assess Rwanda to be a safe country and we have published detailed evidence that substantiates that assessment. This is a central feature of the Bill, and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic courts.
As my noble friend Lord Howard of Lympne set out on Report:
“All the Government are doing in the Bill is to reassert their responsibility, as traditionally understood by the principle of the separation of powers, for executive decision-making. There is a reason why it is the Government and not the courts who have that responsibility: because it is the Government and not the courts who are accountable. The courts are accountable to no one—they pride themselves on that—but accountability is at the heart of democracy. That is why the Government are fully entitled to bring forward the Bill and why much of the criticism directed at them for doing so is, for the reasons I have given, fundamentally misconceived”.—[Official Report, 4/3/24; col. 1330.]
I also remind the House that this is not the first time that legislation has been used to determine a country as a safe country. Again, I refer noble Lords to the point made by my noble friend Lord Lilley when we last debated this matter. In 2004, the Labour Government of Mr Blair introduced legislation which created an irrebuttable presumption that a number of listed countries were safe. It was subsequently tested in the courts and upheld.
Furthermore, the courts have not concluded that there is a general risk to the safety of relocated individuals in Rwanda. Rather, the Supreme Court’s findings were limited to perceived deficiencies in the Rwandan asylum system as it was and the resulting risk of refoulement should any lack of capacity or expertise lead to cases being wrongly decided. As we have set out repeatedly, the treaty responds to those key findings.
We cannot allow people to make such dangerous crossings, and we must do what we can to prevent any more lives being lost at sea; nor can we allow our asylum and legal systems to be overwhelmed, our public services to be stretched or the British taxpayer to continue to fund millions of pounds of hotel costs every day.
For the reasons I have set out for not accepting Amendments 4 and 5, the Government also cannot accept Motion D1, which relates to Amendment 6B. Lords Amendment 6B would omit Clause 4 and replace it with a clause that seeks to restore the ability of decision-makers to consider whether the Republic of Rwanda is a safe country and the jurisdiction of domestic courts and tribunals to grant interim relief. This amendment would strike out a key provision of the Bill and is simply not necessary. The court recognised that changes may be delivered in future that would address the issues it raised. These are those changes. We believe that these address the Supreme Court’s concerns, and we will now aim to move forward with the policy and help put an end to illegal migration.
Throughout all our debates on this matter, my noble friend Lord Sharpe of Epsom and I have made it clear that we cannot continue to allow relocations to Rwanda to be frustrated and delayed as a result of systemic challenges mounted on its general safety. In this context, the safety of a particular country is a matter for Parliament and one where Parliament’s view should be sovereign. The Bill reflects that Parliament is sovereign and can change domestic law as it sees fit, including, if that is Parliament’s judgment, requiring a state of affairs or facts to be recognised.
That said, there are suitable safeguards within the Bill that do allow decision-makers and the courts to consider claims that Rwanda is unsafe for an individual person because of their particular circumstances if there is compelling evidence to that effect, and to grant interim relief where removal would result in a real, imminent and foreseeable risk of serious and irreversible harm for the individual before their appeal was determined. The threshold for “serious and irreversible harm” is high, and the harm in question must be both imminent and permanent. This reflects the test applied by the European Court of Human Rights when granting interim measures and ensures an appropriately limited possibility of interim relief consistent with what is required by the ECHR.
Furthermore, the Government will ratify the treaty only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. We have assurances from the Government of Rwanda that the implementation of all measures in the treaty will be expedited, and we continue to work with the Rwandans on this. The legislation ratifying the treaty has passed both chambers and is awaiting presidential sign-off. The legislation implementing the new asylum system will be introduced to the Rwandan Parliament soon and passed at pace.
However, the Bill will preclude almost all grounds for individual challenge that could be used to suspend or frustrate removal where no risk exists. This means that illegal migrants will not be able to make an asylum claim in the United Kingdom, argue that they face a risk of refoulement in Rwanda, or make any other ill-founded human rights claims to frustrate removal. The Bill strikes the appropriate balance of limiting unnecessary challenges that frustrate removal while maintaining the principle of access to the courts where an individual may be at real risk of serious and irreversible harm.
On this basis, and in view of the votes in the other place to disagree with Lords Amendments 1, 4, 5 and 6, by strong majorities in each case, I hope the noble Lord will now feel able to support Motion A. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Coaker
At end insert “, and do propose Amendment 1B in lieu—
Lord Coaker (Lab)
My Lords, I thank the Minister for his introduction to this debate in your Lordships’ House. He mentioned that the amendments had been returned from the other place. I say to the Minister that, at some surprise to all of us, it has come back without a single word changed, not a single comma moved or a single full stop inserted—and the Government lecture us about constitutional convention. We have said all along, and I repeat here, that it is not our intention to block the Bill, but it is also part of constitutional convention that the other place reflects on what your Lordships have said and does not just carte blanche reject it, which is what has happened. Who is not respecting constitutional convention now?
Whatever anyone’s view, I do not believe that any of your Lordships, wherever they come from with respect to this debate, can be accused of the following, which a Conservative MP said on Monday:
“Their lordships clearly do not care about the people dying while trying to cross the channel”.—[Official Report, Commons, 18/3/24; col. 695.]
That is just not the case for any single Member of this Chamber. I believe that is not the view of any single Member of the other place or anybody who comments on it in the media. There are real differences between us about how we stop the boats. That is the debate we are having: not about whether one party or the other, or one side or the other, wishes to stop the boats but about the most appropriate way to do it.
Baroness Chakrabarti (Lab)
My Lords, in overturning our Amendment 6, which reinstated domestic courts’ jurisdiction, the Minister in the other place called it “unnecessary” and “wrecking”. Well, it cannot logically be both. Still, to assuage any genuine rather than confected concerns about delays in removal to the future hypothetically safe Rwanda, we now add the stipulation that any interim relief be for
“no longer than strictly necessary for the fair and expeditious determination of the case”.
This is a significant concession. Motion D1 effectively prioritises these cases above other vital work of relevant courts and tribunals; it is a genuine legislative olive branch to an Executive that have snapped all others in two. But when they go low, let your Lordships’ House go high. I shall, I hope, be pressing Motion D1 very soon.
Lord Carlile of Berriew (CB)
My Lords, we have some very difficult questions to answer here this afternoon, and there are many Members of this House who may not have quite made up their minds how to vote, if the opinion of the House is sought. I shall be brief. In a few moments, I shall ask a few questions of the noble and learned Lord the Minister, which may help us reach those decisions. But I hope that I speak for everyone in this House in saying that, although we may be viscerally concerned about the provisions of this Bill, we are not here just to obstruct it; we are here to make this a better Bill, in the way in which this House is set up to do.
I will reflect for a moment on the reference of the noble Lord, Lord Coaker, to the outrageous statement made by a Member of another place about compassion. If we look at this Bill and the previous related Bill together, what does this tell you about compassion? People who would, in some cases, have had a legitimate right to asylum—a legal right to asylum under UK and international law—have now been excluded from applying for asylum, even if they had been tortured in their home country, because they came here in a small boat. Compassion? Is that really compassion?
The fact they are forbidden to apply means they are deprived of all connection with the United Kingdom jurisdiction, which has an immense tradition of judicially reviewing administrative action to ensure that those who are affected by bad decision-making can, in certain restricted circumstances, obtain redress. Before I decide how to vote in these Divisions, I would like to hear the noble and learned Lord the Minister’s answer.
The Minister also referred to the cost of hotels. Well, as the noble Lord, Lord Coaker, said a few minutes ago, I think the figure is £592 million to keep 300 people in Rwanda for three years. That is £1.8-something million per head. I have not looked on the Ritz Paris website for some time—I may have had a meal there once at somebody else’s expense—but my recollection of looking at that website is that one could keep somebody in that hotel for three years, and have some money back, at the price that this process, as the National Audit Office says, will cost the country. Is this a fair and compassionate system, and is it a cost-effective one?
I turn to my second question. The Minister referred to the appropriate legislation to give effect to the treaty being already before the Rwandan Parliament—I think I cite him accurately. My understanding is that the Government accept that Rwanda is a democracy, so is the First Reading of a Bill, in our parlance, before the Rwandan Parliament, a guarantee of any kind that that legislation will be passed without amendment to give effect to the treaty? I do not see it that way. It certainly would be seen as an affront to both Houses of Parliament if Rwanda were to make that assumption about us.
My next question is this. What if our Government, contrary to their instincts, statements, wishes and insistence, find that Rwanda is, after all, as the Supreme Court found as a fact, not a safe country? Will the noble and learned Lord tell us what the Government would then do? How would they set about that problem? What would be the involvement of the monitoring committee? Who would decide that Rwanda was not a safe country after all? Would we simply have complacency, in which we just got on with the job of sending people, at £1.827 million per head, to Rwanda?
Lord Lipsey (Lab)
My Lords, the phrase “the elected House must prevail” is a meme around this place. We have certainly heard it from both the Government and the Opposition, and we heard it again from the noble Lord, Lord Coaker, this afternoon. Most of the time, it is completely right that we bow to the will of the House of Commons. But is it always right?
On the basis of the 25 years I have spent here, I would say that this House has three roles. There are two very obvious ones: one is amending Bills, at which we are jolly good; the other is setting up Select Committees, quite a number of which I have served on, and I would say that we are jolly good at that too. There is a third one, which very rarely comes into place, and that is this House as a backstop, challenging the Commons when it goes too far and flirts with breaking international law, usurping the role of the courts or behaving unconstitutionally in general. Does this Bill, without the amendments being put forward this afternoon, pass that threshold? I would say that it comes perilously near it.
There is also a matter of timing, which troubles me. Obviously, this was not in the Government’s election manifesto, so the Salisbury convention does not apply. How can the Government argue that they have a mandate to legislate for this policy now, forced through in the face of huge opposition in this House and elsewhere, when in six months’ time they will face the people of Britain in an election which will decide what their manifesto should be? Let them put the Rwanda Bill in their next manifesto—let them put it before the British people. The British people, who are much gentler and more sympathetic to people in the situation of those who are to be exported, will give their verdict. I may be wrong, and if the Government win the election they can bring back the Bill and it will sail through without any opposition, because it will be a manifesto pledge. To do this now, when there is more than a suspicion that it is just a device by No. 10 in a desperate attempt to pull a lost election out of the fire, cannot possibly be justified.
If the amendments are defeated today then that is the end of the story, but I hope they will not be. I dare to hope that the Commons will think again. If not, it will be for each individual Member of the House—guided, in our case, by the Whips—to decide whether or not to keep blocking the Bill.
Baroness Jones of Moulsecoomb (GP)
My Lords, what a pleasure to follow the noble Lord, Lord Lipsey, with whom I agree. I felt that the Minister’s opening remarks were so full of mistakes that I shall go through them tomorrow in Hansard with a red pen and pass them back to him, if that is all right, so he can see exactly where I think he went wrong.
It was expected that the other place would take out all our important amendments, but at the same time you have to say that it was not the move of a democratically minded Government but that of an authoritarian, tyrannical one. This Government are choosing tyranny over democracy in this instance. We now have the job of revising the Bill again. As the noble Lord, Lord Lipsey, said, the British public are actually kinder and more concerned than this Government. The Government do not represent the public any more, and it is time they went.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am not a fan of the Bill but I think it is time for it to pass.
I want to respond to the noble Lord, Lord Lipsey, who asked if it is always right that the elected House must prevail. The truth is that the elected House must prevail and that yes, that is always right. We are an unelected House. We have a job to do, but at some point it has to be the elected House that decides in a democratic society.
I want to comment on the remarks made about compassion. I too disapproved of Members of the other place who tried to suggest that anyone arguing against the Bill lacked compassion. That is a ridiculous accusation and does not hold. However, I also make the point that the inference in reply—that anyone who is trying to push the Bill at this point lacks compassion—is equally low politically. It is irritating to have a situation where people start to try to compete with each other in the kindness stakes. The big political issue is that this country has lost control of its border and the asylum system is not fit for purpose. This Bill—not one that I support—is trying to tackle that. No one is doing it because they are lacking in compassion.
There are double standards here. I have heard that anyone who supports this Bill must be verging not just on the right but on the far right, does not care about anyone crossing in the boats and is actually a racist. I have heard that said by people active in political life. I ask that, for the remainder of the discussion that we have, we take each other seriously enough not just to dole out insults but to say that, if we are genuinely committed to tackling the problem of border control, this is the Bill that is on the table now and has been accepted by the House of Commons a second time, and, even if we disagree with it, we have to go along with it.
As for the people who have argued that this was not in the manifesto, the suggestion that there is no public concern about control of the borders has no finger on the pulse of any public. However, it is true that there will be elections shortly. It seems to me that people who feel strongly that this is the worst piece of legislation ever passed will stand on that in their manifesto and will commit, here and now, to overturning the Bill once it goes through. Then we will see where the votes lie and, if the Opposition become the Government, whether they stick with that and tear up the Bill. Fair dos if they do.
Lord Murray of Blidworth (Con)
My Lords, I rise to answer one question posed by the noble Lord, Lord Carlile. He asked your Lordships to ponder the position of the Rwandan Parliament and said that we must not second guess what it may do. What he forgot to mention is that Rwanda has a monist system, so a treaty entered into by the Government of Rwanda is capable of being relied upon in their domestic courts. As I previously informed the House, the Chamber of Deputies of Rwanda has ratified the treaty, and we now learn from my noble and learned friend the Minister that the Senate of Rwanda has also ratified it. The only matter that remains is for the president to agree the ratification and when that happens, the safeguards in the treaty will apply.
Lord Carlile of Berriew (CB)
I am grateful to the noble Lord for giving way, but does his reference to the monist system and the guarantee that it goes through the courts not mean that there is no separation of powers between the political and judicial elements of Rwanda?
Lord Murray of Blidworth (Con)
No, that is simply not the case at all. What the noble Lord appears to suggest is that there is a confusion in the Rwandan constitution; I do not see that at all. The point is that they have agreed that treaties will have a kind of direct effect in domestic courts and once ratified, that is indeed the case. The concern by which he sought to encourage noble Lords to support the Motion before us today is, I suggest, simply not on a secure foundation.
Lord Green of Deddington (CB)
My Lords, I will speak only once in this debate and very briefly, as usual. I should just mention my interest as president of Migration Watch UK. We have been pressing the Government for three years to get a hold of asylum but, regrettably, the situation has deteriorated greatly. There is something missing from the discussion of this subject, and that is the public. There have been plenty of very interesting and capable legal arguments—I do not touch on any of those—but we must not forget that very substantial numbers in this country are concerned about what is happening now on our borders. The Government need to get a grip and if they do not succeed, the next Government will have to tackle it so let us not be too legalistic. Let us see if we can find a way through.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to all noble Lords for their contributions to this debate, as I am for their contributions throughout the progress of the Bill through your Lordships’ House, but these amendments do significant damage to the core purpose of the Bill. In relation to political language, I hear what the noble Lord, Lord Coaker, said from the Front Bench but on this subject, I wish to do no more than echo the wise and temperate words of the noble Baroness, Lady Fox of Buckley. Her observations, as she said, come from someone who is not a supporter of the Bill, but she spoke about the manner in which arguments should be conducted, and the manner in which this House should treat the views of the other place—not a tyrannical assembly, contrary to the view expressed by the noble Baroness, Lady Jones of Moulsecoomb, but elected Members representing their constituents.
In relation to Section 19(1)(b) of the Human Rights Act, which the noble Lord, Lord Coaker, addressed from the Front Bench, the matter is touched on in the response to the Constitution Committee which the Government have issued. The use of a Section 19(1)(b) statement does not mean that the Bill is incompatible with the European Convention on Human Rights. There is nothing improper or unprecedented in pursuing Bills with a Section 19(1)(b) statement; it does not mean that the Bill is unlawful or that the Government will necessarily lose any legal challenges on human rights grounds. Parliament intended Section 19(1)(b) to be used as it is included in the Human Rights Act 1998. All such a statement means is that the Home Secretary is not able to state now that the Bill’s provisions are more likely than not compatible with convention rights. A range of Bills has had Section 19 (1) (b) statements in the past. As we discussed at an earlier stage, that includes the Communications Act 2003, passed under the last Labour Government.
The noble Baroness, Lady Chakrabarti, extends an olive branch, as she puts it, and I think the noble Baroness, Lady Jones of Moulsecoomb, came back on that. But the other place saw these provisions, olive branch though they may be. I do not for a second seek to challenge the noble Baroness’s assertion that she is attempting to improve the Bill, but what the other place recognised was that these provisions are integral to the functioning of the Bill. Therein lies the deterrent effect by which the Government intend that illegal crossings of the channel should come down and be deterred altogether.
Lord Coaker (Lab)
My Lords, I thank everyone who has contributed on this group of amendments. I will say just one particular thing. This is not an argument between people who want to stop the boats and those who do not: it is an argument about how we do it. The Government need to listen to what has been said, rather than just set up these artificial targets. We of course want to deal with the boats as much as the Government do, but my amendment to Motion A, on which I will test the opinion of the House, seeks to do it in a way that is consistent with the traditions of our country and with the laws, both domestically and internationally. I wish to test the opinion of the Motion A1.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, before I call Motion B, it may assist the House if I say that Amendment 3B in the name of the noble and learned Lord, Lord Hope of Craighead, would be in lieu of Lords Amendment 2, and that his Amendment 3C would be in lieu of Lords Amendment 3.
Motion B
Lord Sharpe of Epsom
That this House do not insist on its Amendments 2 and 3, to which the Commons have disagreed for their Reason 3A.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, we set out in earlier debates, and this was re-emphasised by Members in the other place earlier this week, the fundamental purpose of the Bill: to firmly place with Parliament—rather than with decision-makers in individual cases or with courts reviewing those cases—the decision on whether Rwanda is a safe country to relocate people to. It asserts parliamentary sovereignty on an issue that this Government are committed to tackling: stopping the boats.
Motion B, as well as Amendments 3B and 3C in the name of the noble and learned Lord, Lord Hope, relate to the status of Rwanda as a safe country. Amendment 3B seeks to make Rwanda’s status as a safe country conditional on the treaty arrangements being fully implemented and continuing to be fully implemented.
The UK Government and the Government of Rwanda have agreed, and begun to implement, assurances and commitments to strengthen Rwanda’s asylum system. In advance of agreeing the treaty, we worked with the Government of Rwanda to respond to the findings of the courts by evidencing Rwanda’s existing asylum procedures and practice in standard operating procedures relating to and reflecting the current refugee status determination and appeals process.
The Government will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. The legislation required for Rwanda to ratify the treaty has now passed through both Chambers of the Rwandan Parliament—as my noble and learned friend mentioned earlier—and is awaiting presidential sign-off. The legislation implementing the new asylum system will be introduced to the Rwandan Parliament soon.
We have of course worked closely with the Government of Rwanda to ensure that there are safeguards in place to be able to continue to assert that Rwanda is safe. The implementation of provisions in the treaty will be kept under review by the independent monitoring committee, which will ensure that the obligations under the treaty are complied with in practice.
The monitoring committee will report to the joint committee, which is made up of both UK and Rwandan officials. As per Article 15(4c) of the treaty, the monitoring committee will make any recommendations to the joint committee that it sees fit to do.
As set out previously, the monitoring committee will undertake daily monitoring of the partnership for at least the first three months to ensure rapid identification of, and response to, any shortcomings. This enhanced phase will ensure that comprehensive monitoring and reporting take place in real time. During the period of enhanced monitoring, the monitoring committee will report to the joint committee in accordance with an agreed action plan to include weekly and bi-weekly reporting as required. Due to the structure of the monitoring committee, the Government cannot support Amendment 3C, which would require the Secretary of State to obtain and lay before Parliament a statement from the monitoring committee that the measures in Article 2 of the treaty had been secured.
The measures within Article 2 include, first, creating a mechanism for the relocation of individuals to Rwanda; secondly, providing a mechanism for an individual’s claim for protection to be determined in Rwanda or for alternative settlement in Rwanda; and, thirdly, providing those relocated to Rwanda with adequate tools to successfully integrate into Rwandan society. The amendment would create an imbalance in the independence and impartiality of the monitoring committee whereby the UK Secretary of State would be required to consult the committee directly. It is the joint committee, comprising both Rwandan and UK officials, that the monitoring committee reports to under the original MoU and under the terms of the treaty.
I remind the House of Rwanda’s track record in providing sanctuary to many refugees and how it has been internationally recognised for its general safety and stability, strong governance, low corruption, and gender equality. In doing so, I refer to the words of my noble friend Lord Hodgson of Astley Abbotts, who on Report quite rightly disagreed with
“the continued assertion underlying this group of amendments that somehow Rwanda as a country is untrustworthy unless every single ‘t’ is crossed and every ‘i’ is dotted”.
My noble friend referred this House to paragraphs 54 and 57 of the Government’s report on Rwanda dated 12 December 2023 and said:
“The Ibrahim Index of African Governance, an independent organisation, rates Rwanda 12th out of 54 African countries. The World Economic Forum Global Gender Gap Report makes Rwanda 12th—the UK, by the way, is 19th. The World Bank scored Rwanda at 16 out of a maximum score of 18 on the quality of its judicial processes. Lastly, the World Justice Project index on the rule of law ranked Rwanda first out of 34 sub-Saharan African countries” .—[Official Report, 4/3/24; col. 1351.]
To conclude, Clause 9(1) of this Bill is clear: the Bill’s provisions come into force on the day on which the treaty enters into force. The treaty enters into force when the parties have completed their internal procedures. I am grateful to the noble and learned Lord for the amendments in lieu, but they continue to confuse the process for implementing the treaty with what is required for the Bill’s provisions to come into force. I beg to move.
Motion B1 (as an amendment to Motion B)
Lord Hope of Craighead
At end insert “, and do propose Amendment 3B in lieu—
Lord Hope of Craighead (CB)
My Lords, with the leave of the House, I shall speak also to my Motion B2 and to Amendment 3C in lieu.
I asked for these amendments in lieu to be put down because I believe that Lords Amendments 2 and 3, to which I propose Amendments 3B and 3C in lieu, raise important issues to which further thought needs to be given by the other place. I should make it plain that it is my intention, if I do not receive a satisfactory reply, to test the opinion of the House on both amendments.
Clause 1(2) of the Bill states that
“this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.
That proposition lies at the very heart of this Bill; everything depends on it. Careful thought therefore has to be given to the use of the word “is” in that statement. What does it mean? What are its consequences and what does it lead to? I have been teased by some Members on these Benches behind me for picking on one of the shortest words in this entire Bill, but there is a really important point here. I am doing what lawyers tend to do and that is to look at words and ask what they really mean. That is why I suggest that we have to get that word right.
Lord Horam (Con)
The noble and learned Lord quite rightly quoted the views of Sir Jeremy Wright, Sir Bob Neill and Sir Robert Buckland from the debate in the Commons on Monday night. He could also, in fairness, quote the response from the Minister, Mr Tomlinson. His response, if I have it right, was that what the Government were looking for by compensation for whether the Bill was actually working in practice was that this was the role of the monitoring committee. There is a danger here of extending the law beyond what is reasonable. There comes a certain point where the law has to be left where it is and the people on the ground—namely the monitoring committee, which is an independent body—have to be the guardians of what happens. Surely that is the role of the monitoring committee, and if it always has to refer back to Parliament, surely there is something deficient with its set-up. I therefore ask the noble and learned Lord to consider that. I understand why he would want this to be referred back by this House, but there is a role for the monitoring committee that we should not ignore.
Lord Hope of Craighead (CB)
I am extremely grateful to the noble Lord for his point. I imagine that the monitoring committee was put there at the request of His Majesty’s Government because something needed to be done to keep an eye on what was going on in Rwanda. It is made up of people who are independently appointed, with no allegiance to either Government, so one can trust them as looking at the matter dispassionately, and therefore their advice can be trusted. That is why I have introduced the monitoring committee into my amendments as the best way of finding out whether the treaty is being properly implemented.
If I followed the noble Lord’s intervention correctly, I agree with what he is saying. However, on the other hand, I accept the point made by Sir Jeremy Wright that, in the end, Parliament has to have the final say based on the advice which it receives. There has to be some mechanism so Parliament can comment on it before the fact that Rwanda is safe is reversed. How that is to be done I simply do not know, which is why I am anxious that the Government should be able to have another look at it and decide how best to proceed. However, I thought it right that Parliament should have an opportunity to comment before the conclusion is reached that Rwanda is no longer safe. I hope that answers the noble Lord’s question.
The Minister in the other place said that my amendments should be resisted because they risk
“disturbing the independence and impartiality of the monitoring committee”.—[Official Report, Commons, 18/3/24; col. 663.]
I simply do not understand that, because the members are all independent and nothing in my amendments would in any way undermine their independence. I am very glad that the Minister here, when he was introducing this debate, did not put that point forward as a reason for resisting my amendments.
As for the Commons reasons set out in the Marshalled List, which I think the Minister here endorsed, they say that
“it is not appropriate … to legislate for Rwanda adhering to its obligations under the Treaty”,
as those obligations
“will be subject to the monitoring provisions set out in the Treaty”.
However, that fails to address the problem that is created by the use of “is”, especially should something go wrong and it is apparent to the monitoring committee that Rwanda is no longer safe. I think the Minister was suggesting that in some way it was wrong that the Government should enter into discussions with the monitoring committee, and that in a way that would undermine its independence. However, I am not asking for that. I am simply asking for it to receive advice—that is all. The advice is given; I am not suggesting that it needs to be discussed or indeed that there should be any sort of conversation, simply that it would be given.
I have probably said enough to make my points clear, and for the reasons I have given, I beg to move.
Lord Falconer of Thoroton (Lab)
My Lords, I will update the House on a further development in relation to the amendment in the name of the noble and learned Lord, Lord Hope. We had the privilege in the Constitution Committee this morning to have the Lord Chancellor give evidence to us. We spoke of the Rwanda Bill and raised specifically with him the question that the effect of the Bill is to say that Rwanda “is” a safe country, and that the Bill once passed means that for ever and ever it will be treated as a safe country. His response, unprompted, was that one of the great protections was the monitoring committee. He said that if the monitoring committee said that the provisions of the treaty were not being adhered to and that was made public—he envisaged that it would be made public —the consequence would be that it could lead to some sort of parliamentary debate or occasion. What he had in mind was not the automatic non-application of the Bill, as with the amendment of the noble and learned Lord. However, there is not much difference between what the noble and learned Lord proposes—namely, that if the monitoring committee says it is not being adhered to, it stops applying—and what the Lord Chancellor said: namely, that there would be the opportunity for a parliamentary occasion. Therefore, I strongly support what the noble and learned Lord said. An unanswerable part of his argument is that this must be sent back to the Commons so that it can express a view and we can hear more from the Lord Chancellor in relation to this.
On a completely separate point, I apologise for interrupting the noble Lord, Lord Sharpe, before the Question was put. He said that the Rwandan Government— I am not sure quite how it works—were going to put a Bill somehow to the Rwandan Parliament to implement the terms of the treaty. That is separate from the point that the noble Lord, Lord Murray, made. Could the noble Lord, Lord Sharpe, give an assurance to the House that the treaty will not be ratified and, therefore, that the Bill will not come into force until the Rwandan Bill has gone through its Parliament and been given effect to?
Lord Cromwell (CB)
My Lords, Rwanda is a safe country, Rwanda will always be a safe country. How can I say that? Because shortly we will have an Act that makes it legal fact. But, no matter how often I repeat it to myself, I just cannot make it stick. That is why I think these two amendments in lieu from the noble and learned Lord, Lord Hope, are so important. I refer to Amendments 3B and 3C, which will undoubtedly improve this Bill substantially.
I will mention one other factor. A few kilometres away, over the border in the Democratic Republic of the Congo, there is a war going on. More than 100 armed groups are involved in this conflict, and the M23 is in an escalating battle for Goma with the Democratic Republic of the Congo’s troops. This is just a few miles across the border. The situation was described by UNHCR as “catastrophic”. Hundreds of thousands of people have been displaced. This is just across the border from Rwanda. I am not going to get into arguments about whether Rwanda at this precise moment is safe, but surely we need to look at what is happening just over the border and put in the amendments the noble and learned Lord has suggested so that we can deal with the situation should it change.
Lord Green of Deddington (CB)
My Lords, I wonder whether we are making rather heavy weather of this. Surely, the objective is that, if the situation changes in Rwanda, we stop sending people there. Do we not have a thing called an embassy? Could it not tell us? Is it not going to be in touch with the people on the ground and the administrators of the scheme? It can advise the Government, and if the Government say it is going badly, out we go—pack it up. It is quite simple.
Lord Lilley (Con)
My Lords, I am puzzled by this amendment. For 18 years, between 2004 and 2022, we had on the statute book an Act of Parliament which said there was an irrebuttable presumption that certain countries on a list were and would always be safe. I do not recall any Member of this Chamber, or anyone in the other Chamber when I was there, demurring. We had on the statute book an Act of Parliament that had no provision for a monitoring committee, and I do not remember any Member of this Chamber or that Chamber complaining about that. For 18 years, we had provisions which had none of the safeguards that the noble and learned Lord, Lord Hope, wants to include—and I do not recall him or any other Member of this Chamber demurring.
As I understand it, the only difference was that we were required to have that list by our membership of the European Union and still would have that list now if we had not left the European Union—and I do not recall anybody in this House saying it was wrong that that situation should persist or using it as an argument for leaving the European Union, so that we could then get rid of it, as we did. So, I think we are now making a bit too much of the lack of provisions and safeguards around one black country when we had no concerns about a list of white countries.
Lord Howard of Lympne (Con)
Is it not the case that that legislation did not simply lack the controls advocated by the noble and learned Lord, Lord Hope? It did not have the controls that are in this Bill. There was no monitoring committee. It simply did not have these controls in that legislation.
Lord German (LD)
My Lords, I declare my interest as set out in the register that I am supported by RAMP. I am grateful for the history lesson, but, as the most reverend Primate the Archbishop of Canterbury told us, two wrongs do not make a right, and certainly it was without the history of my time in this House and beforehand. We are dealing with this issue, this country and a Bill about this country, and doing it in the right way.
These amendments seek to build on a view that this House has already taken. The fact is that the treaty is locked into the Bill and we are being asked to affirm that the treaty has made Rwanda a safe country. That is not the view of this House. This House made a determination that it should not ratify the Bill until such time as the conditions placed by the International Agreements Committee were put into operation.
This discussion has gone on through a variety of different parts of this House and its Select Committees, but the significant one was the Government’s response to the Joint Committee on Human Rights. I know Members hoped that the report would reach us before Third Reading, but in fact it did not. It was published the day after, so we did not have time to consider it at that point. What the Government said in response is something they have indicated in other statements:
“We will not ratify the treaty until the UK and Rwanda agree that all necessary measures in the treaty are in place”.
However, in subsequent discussions the Government could not tell us which measures were in place and which measures were about to be in place. The noble and learned Lord, Lord Stewart of Dirleton, said in one of his responses that we were “working towards” the country being safe. It is clear that the Government are asking Parliament not only to declare a fact contrary to a finding of fact by the highest court in the land but to believe in the effectiveness of measures set out by the Government to ensure safety that are not yet fully implemented.
For example, the Minister has already referred to the fact that domestic legislation has still to be passed in Rwanda, including and in particular laws on the processes for making immigration decisions and laws for dealing with appeals. These new laws are to be followed by appropriate training and guidance for practitioners before they can be put into operation.
We are also mindful that David Neal, the former Borders and Immigration inspector, gave evidence to a committee of this House yesterday. He told the committee there were pieces of work that the inspectorate did in relation to the safety of Rwanda that were not yet in the public domain. In particular, he referred to the Home Office’s Rwanda country information report, which was subject to Supreme Court scrutiny but, as we understand it, is complete but not yet published. Other material has also not been scrutinised by our independent inspector because there is no longer one in place.
We are told by the Government that we have sufficient material before us to judge that Rwanda is safe. Putting aside the question of whether Parliament is the right place for people to judge whether a country is safe—we think it might not be—we are being asked, with the Bill, to make that decision ourselves. That it is safe was not the view of this House, and the House made a decision on what it wanted to see before it could determine that it was indeed safe. Now the Government are intent on telling us to change our minds. That is what the Government have to convince us to do. This House has taken its view. That view is now before us and the Government are asking us to change our minds —without the exact evidence that the House required being provided.
These are all areas of concern that make it clear to us that the very basic safeguards that the Home Office has set out in the treaty need to be fully implemented before the Bill is passed. These amendments are crucial to making that happen because they would protect us both now and in the future. We on these Benches are pleased to support them.
Lord Coaker (Lab)
My Lords, we are very pleased to say that should the noble and learned Lord, Lord Hope, wish to test the opinion of the House with respect to Motions B1 and B2, we would be very supportive of them as well. I just say to the noble and learned Lord, Lord Hope, that the change he has made in Motion B1 from “is” to “will be” is a very significant change, and indeed goes to the heart of the problem that this House has considered on many occasions; namely, that the Government’s declaration in the Bill is that Rwanda is safe and in the treaty that it will be safe should the mechanisms contained within the treaty be put in place. I find it incredible that the Government cannot accept what is basically a very simple amendment, which in a sense puts into practice what the Government themselves have accepted.
I will just reinforce to the noble Lord, Lord Sharpe, the point that the noble and learned Lord, Lord Hope, made, that the Minister in the other place implied that there was something to think about here and that the Government needed to think about how they responded to Amendments 2 and 3—as they were then—that had gone to the other place. That is why it is really important. Again, it goes back to what I said in the initial part of this debate: when the other place just dismisses amendments, it also denies itself the opportunity to properly reflect on a Bill and how it might improve it. This debate that we are having very much proves the point that we need to pass the amendments of the noble and learned Lord, Lord Hope. The Government may wish to adapt part of it to make it more consistent with what they themselves think. None the less, it is a really important amendment. As I say, we would be happy to support the noble and learned Lord, Lord Hope, should he choose to test the opinion of the House.
Lord Sharpe of Epsom (Con)
My Lords, I am very grateful for the contributions of noble Lords to this debate. I am grateful in particular to the noble and learned Lord, Lord Hope, for the very gracious way he introduced his amendments, as ever.
It is unnecessary, however, to record on the face of the Bill the position the Bill already sets out in Clause 9. This Act comes into force on the day on which the Rwanda treaty enters into force. The treaty sets out the international legal commitments that the UK and Rwandan Governments have made, consistent with their shared standards associated with asylum and refugee protection. It also commits both Governments to deliver against key legal assurances in response to the UK Supreme Court’s conclusions.
I am very grateful to my noble friends Lord Howard, Lord Lilley and Lord Horam for pointing out, perhaps rather gently, that the noble and learned Lord, Lord Hope, is placing not much faith in the safeguards that the real-time monitoring committee will offer. We believe that this will be much more effective than any other form of scrutiny. My noble and learned friend went through the monitoring committee’s terms of reference in the last group, and I will not repeat those. I will say that the enhanced monitoring that has been discussed—the enhanced phase—will take place over the first three months on a daily basis. An enhanced phase will ensure that monitoring and reporting take place in real time, so that the independent monitoring committee can rapidly identify, address and respond to any shortcomings or failures to comply with the obligations in the treaty and identify areas for improvement, or indeed urgently escalate issues prior to any shortcomings or breaches placing a relocated individual at real risk of harm. That will include reporting to the joint committee co-chairs within 24 hours in emergency or urgent situations. I could go through the various minimum levels of assurance that have been agreed by the monitoring committee, but I fear I would lose the patience of your Lordships.
I have made it crystal clear that the Government will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. We have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited, and I am grateful for all the work that continues to be done by officials in the Government of Rwanda.
Just to conclude, again I agree with my noble friends Lord Lilley and Lord Howard, that the proper parliamentary response to any changes is of course to change the legislation, either by amendment or appeal. On that basis—
Viscount Hailsham (Con)
Before my noble friend sits down, he will have heard the noble and learned Lord, Lord Falconer, tell us what the Lord Chancellor said about a parliamentary occasion if the monitoring committee was to advise that Rwanda was not safe. Would my noble friend care to tell us what the parliamentary occasion would be?
Lord Sharpe of Epsom (Con)
Well, no. As I was not party to the comments of the Lord Chancellor, I think it would be very foolish of me to try to second-guess what he may have meant by that comment.
Lord Hope of Craighead (CB)
My Lords, I am very grateful to all noble Lords who have spoken in this debate, particularly the Minister, for the careful way in which he replied. There is only one thing I should say, and it is in response to the noble Lord, Lord Lilley: he is absolutely right that there was a list of safe countries in that legislation, and it certainly did not occur to me to question the proposition in that Bill.
But everything depends on the context, and we are dealing here with a Bill that has fenced around with barbed wire every possible occasion, as I said on an earlier occasion, to prevent anybody bringing any kind of court challenge whatever to protect their human rights and other rights in the event of their being faced with being sent to Rwanda. That context transforms the situation entirely from the measure the noble Lord was talking about. That is why, I suggest, it is so important to get the wording of that crucial sentence in Clause 1(2) of the Bill right. It is for that reason that I wish to test the opinion of the House.
Lord Hope of Craighead
At end insert “, and do propose Amendment 3C in lieu—
“(7) The Rwanda Treaty will have been fully implemented for the purposes of this Act when the Secretary of State has obtained and laid before Parliament a statement from the independent Monitoring Committee formed under Article 15 that the Objectives referred to in Article 2 of the Treaty have been secured by the creation of the mechanisms listed in that Article.
(8) The Rwanda Treaty will cease to be treated as fully implemented if Parliament decides, on the advice of the Monitoring Committee, that the provisions of the treaty are no longer being adhered to in practice.””
Lord Hope of Craighead (CB)
My Lords, I wish to test the opinion of the House.
Lord Sharpe of Epsom
That this House do not insist on its Amendments 4 and 5, to which the Commons have disagreed for their Reason 5A.
Lord Sharpe of Epsom (Con)
My Lords, my noble and learned friend has already spoken to Motion C, so I beg to move.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 6, to which the Commons have disagreed for their Reason 6A.
Lord Sharpe of Epsom (Con)
My Lords, again, my noble and learned friend has already spoken to Motion D, so I beg to move.
Motion D1 (as an amendment to Motion D)
“Decisions in individual claims
(1) Section 2 does not prevent—
(a) the Secretary of State or an immigration officer from deciding (under any applicable provision of, or made under, the Immigration Acts) whether the Republic of Rwanda is a safe country for the person in question or for a group of persons to which the person belongs,
(b) a court or tribunal considering a review of, or an appeal against, a relevant decision to the extent that the review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country for the person in question or for a group of persons to which that person belongs, or
(c) a decision-maker considering whether there is a real risk that the Republic of Rwanda will remove or send the person in question to another State in contravention of any of its international obligations.
(2) The court or tribunal may grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person to the Republic of Rwanda, providing such prevention or delay is for no longer than strictly necessary for the fair and expeditious determination of the case.
(3) Section 54 of the Illegal Migration Act 2023 is disapplied for the purposes of this Act.
(4) In this section—
“interim remedy” means any interim remedy or relief however described (including, in particular, an interim injunction or interdict);
“relevant decision” means a decision taking by the Secretary of State or an Immigration officer (under any applicable provision of, or made under, The Immigration Acts) that the Republic of Rwanda is a safe country for the person in question.””
Baroness Chakrabarti (Lab)
My Lords, I wish to test the opinion of the House on Motion D1.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 7, to which the Commons have disagreed for their Reason 7A.
Lord Sharpe of Epsom (Con)
My Lords, I will also speak to Motions E1, F, G, G1, H and H1.
We have now debated at length the individual provisions in the Bill. Far too many lives have been lost at sea as migrants have chosen to leave the safety of safe third countries, such as France, to make perilous journeys across the channel. It remains the Government’s priority to deter people from making dangerous and unnecessary journeys, but this deterrent will work only if we apply the same rules to everyone. Although I have no doubt these amendments are well intended, they will encourage more and more people to make spurious claims to avoid their relocation to Rwanda, as well as undermine legislation passed by Parliament in recent years.
Amendment 7B relates to Section 57 of the Illegal Migration Act 2023, “Decisions relating to a person’s age”, to amend the definition of a relevant authority for that section if a person is to be removed to the Republic of Rwanda. Section 57 applies to decisions on age made by a relevant authority on persons who meet the four conditions under Section 2 of the IMA. Section 57 disapplies the right of appeal for age-assessment decisions made under Section 50 or 51 of the Nationality and Borders Act 2022, prevents a judicial review challenge to a decision on age from suspending removal under the 2023 Act, and provides that the court can grant relief in that judicial review only on the basis that a decision is wrong in law and not because a decision is wrong as a matter of fact. A relevant authority is defined in Section 57(6) as the Secretary of State, an immigration officer, a designated person within the meaning of Part 4 of the 2022 Act and a local authority within the meaning of Part 4 of the 2022 Act.
If somebody is to be removed to Rwanda, this amendment changes the definition of a “relevant authority” in this scenario to mean only a local authority, as defined in the 2022 Act, that has conducted an age assessment under Section 50(3)(b) of the 2022 Act—that is, where the local authority has decided that it will conduct an age assessment itself and inform the Home Office of the result. Therefore, this amendment would result in Section 57 applying only to decisions on age made by local authorities under Section 50(3)(b) of the 2022 Act where the removal is to Rwanda. The amendment would prevent Section 57 of the 2023 Act from applying to decisions on age taken by the other listed decision-makers in Section 57(6) where the removal is to Rwanda—for example, decisions made by the National Age Assessment Board. This would result in treating differently those who are to be removed to Rwanda under the 2023 Act from those removed to another country.
The purpose of the IMA is to tackle illegal migration and create a scheme whereby anyone arriving illegally in the UK will be promptly removed to their home country, or a safe third country, to have any asylum or human rights claim processed. All cohorts who are removed under the Illegal Migration Act should therefore be treated the same for the purposes of Section 57.
On arrival, where an individual claims to be a child without any documentary evidence and where there is reason to doubt their claimed age, immigration officers are required to make an initial age decision to determine whether the individual should be treated as a child or as an adult. This is an important first step to prevent individuals who are clearly an adult or a child from being subjected unnecessarily to a more substantive age assessment, immediately routing them to the correct adult or child process for assessing their asylum or immigration claim.
Current guidance provides that immigration officers may treat that individual as an adult only where that individual has no credible and clear documentary evidence proving their age, and two members of Home Office staff assess that their physical appearance and demeanour very strongly suggest that the individual is significantly over 18. This approach to initial decisions on age has been considered by the Supreme Court in the 2021 case of R (on the application of BF (Eritrea) (Respondent) v Secretary of State for the Home Department, UKSC 38, and held to be lawful.
Where that threshold is not met but there remains doubt about the individual’s age, they will be treated as a child and transferred to a local authority for further consideration of their age. This often involves a further, more comprehensive Merton-compliant age assessment, if deemed necessary. This typically involves two qualified social workers undertaking a series of interviews with the young person, and taking into account any other information relevant to their age. The 2022 Act allows local authorities to refer age assessments to designated officials of the Home Office who form the National Age Assessment Board.
The National Age Assessment Board, which launched in March 2023, aims to achieve greater consistency in the quality of age assessments, reduce the incentives for adults to claim to be children, and reduce the financial and administrative burden on local authorities of undertaking assessments. The aim of achieving accurate age assessments is its primary consideration. The board consists of expert social workers whose task is to conduct full Merton-compliant age assessments on referral from a local authority or the Home Office. Local authorities also retain the ability to conduct age assessments themselves. The introduction of the board offers significant improvements to our processes for assessing age. It aims to create a greater consistency in age-assessment practices, improve quality and ensure that ages are correctly recorded for immigration purposes. It will also help to reduce the resource burden on local authorities: where the board conducts an age assessment, it also takes on the legal risk.
The National Age Assessment Board has shown that the social workers working within the Home Office can conduct age assessments to a high standard without political interference, or have their professional integrity as social workers and adherence to social work professional standards inhibited. Every assessment is conducted by two social workers on its own merits and reviewed by a team manager, and achieving accurate age assessment is the primary consideration. As I have set out before, assessing age is difficult, but it is important that the Government take decisive action to deter adults from knowingly claiming to be children. Given that unaccompanied children will be treated differently from adults under the IMA and the obvious safeguarding risks of adults purporting to be children being placed within the care system, it is important that we take steps to deter adults from claiming to be children and to avoid lengthy legal challenges to age-assessment decisions, preventing the removal of those who have been assessed to be adults.
We consider that these provisions within the IMA are entirely necessary to safeguard genuine children and guard against those who seek to game the system by purporting to be adults.
Between 2016 and September 2023, there were 11,977 asylum cases where age was disputed and subsequently resolved, of which nearly half—5,651 assessments—were found to be adults. We cannot allow this figure to rise, but by disapplying Section 57 of the IMA for removals to Rwanda, we will undoubtedly open up our systems to more abuse, given that adult males account for 75% of small boat arrivals. It is for that reason that the Government cannot support this amendment: it will simply open the floodgates for more abuse within the system and encourage adults to knowingly claim to be children to avoid being relocated to Rwanda, placing genuine children at risk of being disadvantaged.
Continuing our focus on the Illegal Migration Act, I now turn to Motion F and Lords Amendment 8. This amendment aims to secure a commitment from the Government to set out the process for how we will remove to Rwanda those who meet the four conditions of Section 2 of the Illegal Migration Act—the duty to make arrangements for removal—and who have arrived in the UK since 20 July 2023, the date of Royal Assent of the IMA. Specifically, it requires details on the numbers of asylum seekers impacted and a commitment to publishing a timetable for these removals. The Government cannot accept this amendment. As I have previously set out on Report, it is seeking information normally used only for internal government planning purposes, and this is not something that is normally shared, nor is it appropriate to legislate for such a commitment. We do, however, recognise the importance of having clear and coherent data.
The Home Office routinely publishes data on asylum, enforcement and irregular migration in the quarterly releases—the immigration system statistics quarterly release, and the irregular migration to the UK statistics. This includes information on people arriving irregularly to the UK; volumes and method of entry; information on cases being considered on inadmissibility grounds, including the number of cases who have received a notice of intent and who have been deemed inadmissible; the number of people returned, including breakdowns by destination; and initial decisions on asylum claims. Official statistics published by the Home Office are kept under review in line with the code of practice for statistics, taking into account a number of factors including user needs, as well as quality and availability of data.
This amendment is seeking information normally used for internal government planning only, and this is not something that is often shared, nor is it appropriate to legislate for such a commitment. The Government’s primary objective is ensuring flights can relocate people to Rwanda, and, once commenced, provisions in the Illegal Migration Act will support this objective.
Turning to Motion G, Amendment 9 would in effect prevent any removal to Rwanda for someone who has received a positive reasonable grounds decision in the national referral mechanism, irrespective of whether they had been disqualified from the NRM under the Illegal Migration Act, or, in relation to pre-IMA cases, by a decision in an individual case to make a public order disqualification based on criteria set out in the Nationality and Borders Act. Furthermore, confirmed victims with positive conclusive grounds decisions could not be removed from the UK without consideration of the specified factors and, if any of those factors apply, without the consent of the individual concerned.
The Government cannot accept this amendment for reasons similar to those I set out in relation to Amendment 7. It undermines provisions in existing legislation—the Nationality and Borders Act and the Illegal Migration Act—which introduced the means to disqualify certain individuals from the NRM on grounds of public order before a conclusive ground is considered. The provision in the Illegal Migration Act was intended to deal with the immediate and pressing broader public order risk arising from the exceptional circumstances relating to illegal entry into the UK, including the pressure placed on public services by the large number of illegal entrants and the loss of life caused by illegal and dangerous journeys.
Where someone has entered the UK illegally and is identified as a potential victim of modern slavery, we will ensure they are returned home or to another safe country, away from those who have trafficked them. The UK Government are committed to supporting victims of modern slavery and will continue to do so through the national referral mechanism. However, it is vital that the Government take steps to reduce or remove incentives for individuals to enter the country illegally. These illegal practices pose an exceptional threat to public order, risk lives and place unprecedented pressure on public services. The protections that the NRM provides are open to misuse and could act as an incentive for those making dangerous journeys, particularly in light of other ways of staying in the UK being closed off through the Illegal Migration Act.
The UK has led the world in protecting victims of modern slavery and we will continue to identify and support those who have suffered intolerable abuse at the hands of criminals and traffickers. As I set out on Report, we remain committed to ensuring that where indicators that someone is a victim of modern slavery are identified by first responders, they continue to be referred into the NRM for consideration by the competent authorities. For all cases, steps will be taken to identify whether a person may be a victim of modern slavery. If a person is referred into the NRM, a reasonable grounds decision will be made.
Under the treaty, the Government of Rwanda will have regard to information provided by the UK relating to any special needs an individual may have that may arise as a result of them being a victim of modern slavery and human trafficking. Rwanda will take all necessary steps to ensure that these needs are accommodated. The Government of Rwanda have systems in place to safeguard relocated individuals with a range of vulnerabilities, including those concerning mental health and gender-based violence. Therefore, this amendment is unnecessary and would undermine the core purpose of the Bill, which is to create a deterrence—not to create exceptions and loopholes which will lead to further abuse of our immigration systems.
Turning to Motion H, Amendment 10, the Government greatly value the contribution of those who have supported us and our Armed Forces overseas, and that is why there are legal routes for them to come to the UK. Having said that, in response to the remarks of the noble Lord, Lord Browne, subsections (7) to (9) of Section 4 of the Illegal Migration Act, passed by Parliament last year, enable the Secretary of State by regulations to specify categories of persons to whom the duty to remove is not to apply, whether on a temporary or permanent basis.
We want to reassure Parliament that once the UKSF ARAP review, announced on 19 February, has concluded, the Government will consider and revisit how the IMA, and removal under existing immigration legislation, will apply to those who are determined ARAP eligible as a result of the review, ensuring that these people receive the attention they deserve. This Government recognise the commitment and responsibility that comes with combat veterans, whether our own or those who showed courage by serving alongside us. We will not let them down. I beg to move.
Motion E1 (as an amendment to Motion E)
Baroness Lister of Burtersett
At end insert “, and do propose Amendment 7B in lieu—
“Age assessment of unaccompanied children
In section 57 of the Illegal Migration Act 2023 (Decisions relating to a person’s age), insert after subsection (6)—
“(6A) If a person is to be removed to the Republic of Rwanda, subsection (6) does not apply and in this section “relevant authority” means a local authority, within the meaning of Part 4 (age assessments) of the Nationality and Borders Act 2022, which has conducted an age assessment of the person under section 50(3)(b) of that Act.”””
Baroness Lister of Burtersett (Lab)
My Lords, my starting point is the treaty, which makes it clear that it does not cover unaccompanied children, as emphasised by the Minister for Countering Illegal Migration on Monday. My sole purpose has been to ensure that, in so far as it is possible, this treaty intention is upheld: that no unaccompanied child is removed to Rwanda because they have been mistakenly assessed as an adult. Wrongful age assessment happens all too frequently, given that the only safeguard, referred to repeatedly by the Minister, is that two immigration officers independently determine age on the basis of a brief assessment of physical appearance and demeanour, which the Home Office itself concedes is notoriously unreliable.
The original amendment would have ensured the status quo ante: that no age-disputed child would be removed to Rwanda until any legal challenge through domestic courts and tribunals was exhausted, and it would have enabled such a challenge to be made on the basis of the facts, not just the law. This amendment in lieu is much more modest and in effect meets the Commons’ formal objection to the original amendment. It would permit an age-disputed child to be removed to Rwanda with a pending challenge on a limited basis, but only if a proper age assessment has first been carried out by a local authority. This would ensure that a Merton-compliant assessment is undertaken, and it is only at this point that so-called scientific methods would come into play.
It was clear that MPs including Dame Priti Patel and Mrs Elphicke, who argued against the original amendment by lauding scientific methods, did not understand that age-disputed children would be sent to Rwanda without any use of scientific methods, never mind the existing Merton-compliant methods. Yet as the Minister in the other place himself acknowledged on Monday,
“assessing age is inherently difficult”.—[Official Report, Commons, 18/3/24; col. 666.]
In this House, the Minister stated on Report that this is “a challenging task”, and that a
“combination … of … methods will deliver more accurate age assessments”.—[Official Report, 6/3/24; col. 1584.]
However, without this amendment, there could be no combination of methods, just a brief, visual assessment that belies the challenging and difficult nature of the task.
Lord Dubs (Lab)
My Lords, I warmly support Motion E1 moved by my noble friend Lady Lister. I will be very brief. This House has consistently supported the rights of children in relation to asylum. These are the most vulnerable people in the whole of the asylum system. If a mistake is made, the consequences would be out of all proportion to the damage done if a mistake is made in the other direction. That is to say, to send a child who is wrongly assessed as being an adult to Rwanda would be an appalling dereliction of our responsibilities to vulnerable young people. If the mistake is made the other way and one more person stays here, I honestly do not think that it will make much difference, because, in any case, the majority of asylum seekers will not be sent to Rwanda even if this legislation were to go through. It is such a modest proposal—almost too modest, if I may say that to my noble friend—but it would be in keeping with the traditions of this House to take a stand in supporting unaccompanied child refugees.
Baroness Neuberger (CB)
I support the noble Baroness, Lady Lister, and the noble Lord, Lord Dubs. It would be something of a disgrace if we did not take these measures to protect, to a very limited extent, unaccompanied asylum-seeking children.
Baroness Butler-Sloss (CB)
My Lords, I will speak to Motion G1. I declare an interest as co-chair of the parliamentary group on modern slavery and vice-chair of the Human Trafficking Foundation.
It is compassion that leads me to insist on the amendment that I put down on Report and bring back again now. We are talking about a group of people who are wholly different from any other group about which the Minister and others have spoken. They do not come here voluntarily, in the normal sense; they are brought here. Some of them are compelled to be here. They may think that they will not be victims, but that is why they are on a boat or in the back of a lorry. This group has no choice. It is not an issue of incentive—which the Minister speaks about—and how on earth can it be an issue of deterrence, since they are not in control?
In the past, the Government have offered evidence that the system of the national referral mechanism is subject to abuse. So far, I think that we have heard of only two cases of abuse out of the thousands of people who have gone through the national referral mechanism. The proposed arrangements in the Illegal Migration Act and the Nationality and Borders Act are absolutely inadequate. How on earth is it fair that someone in this group of people, many of whom will have gone through the traumatic experience of already being a victim, should be re-victimised by being sent to Rwanda? I ask the Members of this House to look at this most disadvantaged and vulnerable group of people, who are compelled to this country, and support my Motion.
Lord Browne of Ladyton (Lab)
My Lords, I will speak to Motion H1 and Amendment 10B in lieu. Having done so previously, I do not intend to rehearse the moral imperatives that underpin this amendment. In responding to the Minister, I will focus on the chasm that yawns between what the Minister in the other place said about what the Government might do post the current reviews of ARAP decisions of ineligibility and their unwillingness to accept this amendment that accomplishes their stated goal: to meet the debt of honour we owe to those who risked their lives in assisting the UK forces.
We are, once again, in a position where we are asked to deny the fruits of our reason and accept that black is white. First, we are asked to accept that, simply by legislative assertion, the Government can turn Rwanda into a safe country for all time, regardless of the facts. Secondly, having followed the somewhat convoluted logic-chopping of the Minister in the other place, we are told that men who braved death, courted injury and are forced into exile as a result of assisting our Armed Forces in fighting the Taliban are to be punished for arriving here by irregular routes—even where, owing to wrongful refusals on our part or possible malfeasance on the part of the Special Forces, they have been compelled to take these routes in the first place.
I will point out the inconsistencies in the reasoning of the Minister for Countering Illegal Migration, when he addressed the predecessor of my Amendment 10B on Monday. In outlining why he wished to refuse it, he said:
“Anyone who arrives here illegally should not be able to make the United Kingdom their home and eventually settle here. A person who chooses to come here illegally, particularly if they have a safe and legal route available to them, should be liable for removal to a safe country”.
What do the words “chooses” and “particularly” mean in that statement, when you are fleeing for your life, having endangered it because of service to this country, and then having been wrongly refused a relocation visa? What sort of choices are available? “Particularly” tacitly concedes the existence of such scenarios in which safe and legal routes are not available and have been wrongly closed off, but the statement determines that we will punish the victims of our own incompetence regardless.
There are two classes of person to whom this amendment applies. First, there are those in Afghanistan and Pakistan whom we are told are awaiting review of their previously determined applications. They should be determined as eligible and granted a visa, and will have no reason to take an irregular route. Secondly, and more importantly, a much smaller number whom this amendment seeks to protect are already here. These people, far from being deterred by this Government’s action, were compelled by it to seek irregular routes or face certain death or torture.
For the last year, the Independent, Lighthouse Reports and Sky have been exposing cases where, owing to the Home Office’s bureaucratic sclerosis and errors—in fact, I think that it is mostly the MoD’s sclerosis and errors—and alleged interference on the part of the Special Forces, Afghans who served either in the Triples or otherwise alongside our Armed Forces were wrongfully denied the ability to relocate and were forced to arrive here by other means. In Monday’s debate in the other place, the Minister for Countering Illegal Migration suggested—not promised—that regulations may be made under Section 4 of the Illegal Migration Act to ensure that these
“people receive the attention that they deserve”.—[Official Report, Commons, 18/3/24; cols. 667-68.]
If that is the intention, what has stopped the promulgation of these regulations before now? The Government have known for at least a year that these people existed and have been on notice for a year that the promulgation of these regulations would be necessary to accompany the Bill, if they had intended to use them to solve this problem.
Effectively, these people are being asked to trust the Ministry of Defence, the Home Office and, more broadly, the British Government—the same bodies that wrongfully refused their relocation visas in the first place, failed to protect them and have, in many cases, repeatedly threatened them with deportation to Rwanda. The idea that they would now repose their faith in the Home Office is absurd. In this context, trust is a currency whose value is now completely debased. Rather than wait for these regulations, why not, as the former Lord Chancellor, Sir Robert Buckland, suggested in Monday’s proceedings, simply accept this amendment, which precludes the need for their development?
Which offence do we believe to be more egregious? That of fleeing to a country that asked you to serve alongside its troops via an illegal route, having already been let down by that country’s administrative incompetence? Or having the power and means to pay a debt of honour to those we have exhorted to serve alongside us in our interests but refusing so to do? I believe the latter is shaming, and it is why I will be seeking, in moving my revised amendment, to test the opinion of this House and have the other place examine it, and the consciences of its Members, again.
Baroness Coussins (CB)
My Lords, I support all the amendments in this group, but I would like to underline how important it is to support Amendment H1 in the name of the noble Lord, Lord Browne of Ladyton. I remind noble Lords of the critical difference it would make, by applying an exemption to those who have been employed indirectly in support of the UK Government in Afghanistan, as well as those employed directly.
To illustrate, very briefly, how this makes a difference, I can tell noble Lords that, for the past few weeks, I have been in correspondence with a former Afghan interpreter who was employed by an international agency that had a contract to provide interpreting and translation services to DfID, other government departments and the Armed Forces. His application under ARAP for relocation to the UK was rejected, as was his appeal. My understanding is that this was because he was employed not directly by HMG but through a third party—the agency. In his words:
“I endangered my life and future working for the UK Government in Afghanistan. Everyone in Afghanistan knew I worked for the UK Government. Being rejected by ARAP is an insult to my faithful services to the UK Government”.
This individual has already faced so many threats in Afghanistan that he has fled to a third country, where sadly he still lives in hiding and in fear. Having had his ARAP appeal rejected, he has told me that his situation is now so urgent and unsafe that he feels he has no alternative but
“to take the dangerous route to the UK by land, and if I get killed on my way to the UK it will be better than the problems I am faced with right now”.
If he manages to get here in one piece, despite having no alternative but to come via an unofficial route, he really does not deserve to have his loyalty to the UK rewarded by being sent to Rwanda. This amendment would protect him and, potentially, others like him. I implore noble Lords on all sides of the House to support this amendment, which would acknowledge his faithful service and his willingness to risk his life for us in Afghanistan, by doing what morally is just the right thing to do.
Lord German (LD)
My Lords, the amendments in this group highlight the cruel reality of this policy for some of the most vulnerable people in the world. What we need is an asylum process that identifies risks and vulnerabilities and then makes a decision on them when people are here.
We know very well that there are people in this country, including Afghans, who are on a waiting list to have their cases heard. People whose age has yet to be determined should not be sent to Rwanda while they are yet to be confirmed as a child. The Government have agreed that it is wrong to send unaccompanied children to Rwanda. So, if that is the case, they need to be extremely careful that they do not do that inadvertently. Children are not cargo that can be shipped from one country to another if the Government later decide they have made a mistake and someone is in fact a child after all.
Data collected by the Helen Bamber Foundation in 2022 found that, of 1,386 children who were initially assessed as adults by the Home Office, 867—that is, 63%—ended up being assessed as children by local authorities. That is the size of the error range that we have to be careful about. The key here is not adults being wrongly assessed as children, but children being wrongly treated as adults and therefore not being safe- guarded appropriately.
Lord Coaker (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord German, and I very much agree with the remarks he made. The Government has got themselves into a right mess with respect to this flagship Bill—partly caused by the fact that they have simply not been listening to the very serious and constructive amendments that noble Lords have tabled to it.
I ask again, because I did not get an answer from the noble and learned Lord, Lord Stewart: what happened to the Government’s plan to discuss this Bill next Monday in the other place and then bring it back on a further round of ping-pong next Tuesday? What happened to that particular plan? The Government are delaying their own legislation and people keep asking me why they are doing it. I do not know, so I am asking the Minister. Why are the Government delaying it until after Easter, when they could have brought it back next Tuesday? Were the noble Lord, Lord Sharpe, and the noble and learned Lord, Lord Stewart, asked about it? Did they put their views forward or is it simply something that came out of the blue? I know that government Members were asked to be here next Tuesday and then it was stopped. I do not know the answer and people keep asking me. So, I am asking the Government again: what has happened with this flagship, emergency piece of legislation, such that the Government have delayed it themselves? The only defence they have is to turn around and blame us for blocking it, when we have said all along that we will not block it.
I ask again because I need to know the answer, since Conservative Members keep asking me and I say, “Well, ask your own Front Bench”—mind you, those here will not know the answer either. Somewhere along the line, there is a serious point to be made on why the Government are delaying their own Bill by not providing time next week.
I support the remarks of my noble friend Lady Lister on Motion E1 and her very serious points about age assessment. I welcome the anti-slavery amendment tabled by the noble and learned Baroness, Lady Butler-Sloss, in her Motion G1. I make no apologies for saying again that I am astonished that Conservative Members of Parliament in the other place, Conservative Peers and others are driving a coach and horses through the Modern Slavery Act, an Act that as a proud Labour Minister I call one of the proudest achievements of a Government who happened to be a Conservative Government. It was flagship legislation that has been copied all over the world, but, in Bill after Bill over the last couple of years, we have seen a gradual erosion of some of the fundamental principles that drive it. I will not repeat the points made by the noble and learned Baroness, Lady Butler-Sloss—I should say that I am a trustee of the Human Trafficking Foundation, as mentioned in the register of interests—but I find that incredible. I hope that noble Lords will take account of the further amendment that the noble and learned Baroness has tabled.
I congratulate my noble friend Lord Browne on his Motion H1. I am incredulous that the Government could not accept his amendment in the other place. I think it astonished not just this side of the House but all sides of the House that, even if they did not accept his amendment, they could not find a way when considering it a few days ago of ensuring that this country met its debt to those people who had fought with us when we needed them to. Many of them have been excluded from that support. That is a stain on our country and should have been resolved as soon as possible. The Government had it within their power to do that last week but, as with the other nine amendments, they turned it down. I simply do not understand that.
I accept the words of the Minister, which he will have said in good faith, that this will be revised, looked at and brought forward in due course, and that regulations and secondary legislation will be used. However, there is absolutely no excuse for the Government of the day not standing up in here—they did not do it in the other place—and saying, “We will honour those who honoured us by ensuring that they are protected, and to do that we will accept Lord Browne’s amendment”. They could have done that today, and it would have meant that we had it in the Bill.
Notwithstanding that the Government clearly will not do that, I hope that noble Lords in vast numbers will support my noble friend’s amendment so that when it goes back to the other place to be considered—whenever that will be—Members there will have the opportunity to honour the debt that we owe to those who fought with us in our time of need in the war in Afghanistan. We owe it to them. As the noble and gallant Lord, Lord Stirrup, who is not in his place, said, in other conflicts to come, when we need support and help, what are we to say to translators, lorry drivers, interpreters and those who are fighting with us? Do we say, “Don’t worry, this country will support you in the aftermath of it?” They will look back at what we have done in Afghanistan and wonder whether we can be true to our word. We should resolve this and support the amendment. I hope that we do so in vast numbers.
Lord Sharpe of Epsom (Con)
My Lords, I am very grateful once again to noble Lords for their contributions and acknowledge the points that have been made. However, the Government are unable to accept these amendments.
It is worth me starting by again reading into the record Article 3(4) of the treaty for the avoidance of further doubt. It states that:
“The Agreement does not cover unaccompanied children and the United Kingdom confirms that it shall not seek to relocate unaccompanied individuals who are deemed to be under the age of 18. Any unaccompanied individual who, subsequent to relocation, is deemed by a court or tribunal in the United Kingdom to either be under the age of 18 or to be treated temporarily as being under the age of 18, shall be returned to the United Kingdom in accordance with Article 11 of this Agreement”.
The noble Baroness, Lady Lister, acknowledged, as I have from this Dispatch Box, that assessing age is challenging. That is why the National Age Assessment Board, which I went into in some detail in my opening remarks, was launched in March 2023. I will repeat some of those remarks.
The board was launched to achieve greater consistency in quality of age assessments, to reduce the incentives for adults to claim to be children and to reduce the financial and administrative burden of undertaking assessment on local authorities. The aim of achieving accurate age assessment is its primary consideration. The NAAB consists of expert social workers whose task is to conduct full Merton-compliant age assessments upon referral from a local authority or the Home Office. Local authorities also retain the ability to conduct age assessments. This is not some perfunctory nod in the direction of those who are obviously in a difficult position; it is a very comprehensive age assessment process. Let me make it clear that if an age-disputed individual requires a Merton assessment, they will be relocated to Rwanda only if determined to be an adult after that Merton assessment.
In terms of numbers of people, it was suggested that there were not very many. I will go through those again as well. Between 2016 and September 2023, there were 11,977 asylum cases where age was disputed. Of those, 5,651 were found to be adults. That is over 800 per year. I argue to the noble Lord, Lord Dubs, that it would be a mistake to put those people into a system that is designed for children. I was quite surprised to hear the noble Lord, Lord German, suggesting the opposite. Those are the statistics that I recognise.
As I have previously set out, we cannot allow legislation to pass that would enable those who are to be removed to Rwanda to be treated differently from those removed to another country. The purpose of the IMA and this Bill is to ensure that anyone arriving illegally in the UK will be promptly removed to their home country or a safe third country to have any asylum or human rights claims processed. I will of course make sure that the comments of the noble Lords, Lord Browne and Lord Coaker, are carefully scrutinised over the coming weeks. I apologise to the noble Baroness, Lady Coussins, for being unable to comment on the individual case that she cited.
The Government of Rwanda have systems in place to safeguard relocated individuals with a range of vulnerabilities, including those concerning mental health and gender-based violence. Rwanda has a proven track record of working constructively with domestic and international partners including the UNHCR, the International Organization for Migration and other non-government organisations to process and support the asylum seeker and refugee population. By temporarily accommodating some of the most vulnerable refugee populations who have faced trauma, detentions and violence, Rwanda has showcased its willingness and ability to work collaboratively to provide solutions to refugee situations and crises.
We need to focus on getting flights off the ground to Rwanda to create the reality that everyone who enters the UK via a small boat will not be able to stay but will be swiftly removed. This will help us to continue to stop illegal immigrants from taking dangerous journeys across the channel and to save lives at sea.
Lord Coaker (Lab)
Can the Minister answer the question that I put to him and to the noble and learned Lord, Lord Stewart? What happened to the Government’s plans to do this next week? It was due to go to the other place on Monday and come back here on Tuesday. What happened to those plans and why have they been ditched?
Lord Sharpe of Epsom (Con)
My Lords, the noble Lord will not like my answer, but the scheduling of business is a matter for business managers.
Baroness Lister of Burtersett (Lab)
My Lords, I do not wish to intervene in this little local argument. I thank noble Lords who have supported my Motion E1 with very strong arguments. I thank the Minister for reading into the record Article 3(4). I did not do that because I wanted to save time, but he makes my case for me: the treaty makes it clear that we should not send underage or age-disputed unaccompanied children to Rwanda. That is what this amendment is about.
However, the Minister has shifted his ground, because in previous iterations, he talked just about the two independent immigration officers who were going to provide the assessment based on appearance and demeanour. Now, he is talking about social workers, but how many of those poor children get that far? I do not know whether he can answer that question; I suspect that he cannot. I have not heard anything from the Minister that undermines the case that I and others have made on behalf of these children. I therefore wish to press my Motion and seek the opinion of the House.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 8, to which the Commons have disagreed for their Reason 8A.
Lord Sharpe of Epsom (Con)
My Lords, I have already spoken to Motion F. I beg to move.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 9, to which the Commons have disagreed for their Reason 9A.
Lord Sharpe of Epsom (Con)
My Lords, I have already spoken to Motion G. I beg to move.
Motion G1 (as an amendment to Motion G)
Baroness Butler-Sloss
Leave out from “House” to end and insert “do insist on its Amendment 9.”
Baroness Butler-Sloss (CB)
My Lords, the Minister did not refer to my amendment at all in his summing up. However, I beg leave to test the opinion of the House.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 10, to which the Commons have disagreed for their Reason 10A.
Lord Browne of Ladyton
At end insert “, and do propose Amendment 10B in lieu—
“Exemption for agents, allies and employees of the UK Overseas
(1) Notwithstanding the Nationality and Borders Act 2022, the Illegal Migration Act 2023, any earlier Immigration Acts and the other provisions of this Act, the following categories of person may not be removed to the Republic of Rwanda—
(a) agents or allies who have supported His Majesty’s armed forces overseas in an exposed or meaningful manner that now affects their claim for protection;
(b) persons who have been employed by or indirectly contracted to provide services to the UK Government in an exposed or meaningful manner that now affects their claim for protection;
(c) the partners and dependent family members of persons referred to in (a) or (b) above;
(d) persons who were the partners or family members of persons referred to in (a) or (b) above in a manner that now affects their claim for protection.
(2) The exemption in (1) above includes but is not limited to persons eligible for entry to the UK under the Afghan Relocations and Assistance Policy (“ARAP”) and Afghan Citizens Resettlement Scheme (“ACRS”).
(3) A person seeking to rely upon the exemption in (1) above must give the Secretary of State notice as soon as reasonably practicable to allow prompt verification of available records as to allies, agents, employees, contractors and family members.””
Lord Browne of Ladyton (Lab)
My Lords, I beg to move Motion H1, and I wish to test the opinion of the House.
Economic Activity of Public Bodies (Overseas Matters) Bill
Wednesday 20th March 2024
(9 months ago)
Lords ChamberRead Full debate Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 View all Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 38-I(b) Amendment for Committee (Supplementary to the Marshalled List) - (20 Mar 2024)
Lord Wallace of Saltaire
Member’s explanatory statement
This amendment would clarify that political and moral disapproval must be seen to be a central factor and not a supplementary consideration in any relevant decision.
Lord Wallace of Saltaire (LD)
My Lords, as we are starting Committee, I will say a few things about how we should handle the Bill from now on. After Second Reading and the Commons stages, during which there were a large number of sharp criticisms from Conservatives, as well as others, about the quality of the drafting and the coverage of the Bill, I would have expected the Government, between Second Reading and Committee, to have produced a number of government amendments to clarify some of the many imprecisions in the Bill and perhaps to have arranged to meet some of us who had spoken at Second Reading. I am sorry that that has not happened, and I very much hope that, between Committee and Report, the Government will respond to some of the criticisms by bringing forward clarifying amendments, and that the Minister and the Bill team will be willing to meet with us to discuss some of the arrangements.
The lack of engagement is troubling, and the absence of government amendments at this stage is extremely worrying. I recognise that this is very much a Michael Gove Bill and that he, as Secretary of State, probably wishes to get it through, if possible, without amendment. But here we are in the amending House, and the Minister also has a duty, as a Lords Minister, to listen to and engage with the reasoned criticisms made of the many highly imprecise elements in this Bill, and to respond.
I have two amendments in this group. One raises the question of what is meant by “political or moral disapproval”, and whether the word “influenced” in the phrase
“influenced by political and moral disapproval”
is sufficient. The second, Amendment 6, refers to
“any person seeking to persuade the decision-maker”,
as well as the decision-maker.
As the Minister will know, environmental, social and corporate governance has a long history. It goes back to the Sullivan principles from the United States, which I am sure she will remember. They were formulated by Mr Sullivan, a director of General Motors, in the context of apartheid South Africa and set out a number of principles that companies and others should follow when dealing with investments and procurement. Those principles have since expanded into the whole ESG dimension, which we see actively discussed in Britain, the United States and a number of other market economy countries. The right wing in the United States is busily attacking them in favour of what one has to describe as an amoral capitalism, in which profit is the only thing you are ever allowed to think about. I recall that the first person who started attacking the Sullivan principles was Professor Milton Friedman, who strongly believed that companies have no other duties than to pursue the greatest profit possible for their shareholders.
We need to know what is meant by
“influenced by moral or political disapproval”.
My Amendment 1 suggests that it has to be very considerable in order to be a primary cause of the decision, not simply something that comes in as, or can be argued under Clause 5 to have been—we will get to that later in terms of judicial review—part of the reasons why the decision was taken.
One of our many worries about the Bill is the extent to which it opens the door to litigation through a great many of its imprecise terms. The question, therefore, is whether or not any indication of political or moral disapproval begins to get captured under the Bill, or whether this has to be the major reason why such a decision is taken.
I was very struck as I went through the impact assessment and the Explanatory Memorandum by the sheer lack of evidence that much of this has happened. We find a reference to a council that in 2014 discussed whether or not to, and that another council in 2016 discussed whether or not to. Neither of them actually did it, but they discussed it. “That is wrong and we should stop them doing things like that” seems to be a pretty thin basis on which to mount a Bill that has the sorts of penalties which this Bill begins to set out. That is very much part of our concerns.
Amendment 6 raises the question of whether it is not only the decision-maker who is going to be liable but
“any person seeking to persuade the decision-maker”.
Does that mean that the Guardian journalist who writes an editorial suggesting that this should be done is going to be caught by it? Does it mean that the lobby group that sends things to the decision-maker is going to be caught by it? Does it have to be a more direct approach? How do we identify that “any person”? This is the sort of drafting that should not appear in a Bill before this House. It has to be clarified or we shall do our utmost to remove it. I beg to move.
Lord Palmer of Childs Hill (LD)
I speak to exactly the same issue as did my noble friend. Mine is a simpler amendment. I work on the basis that the Bill will pass in some form or another and if one does a modest, sensible tweak to a Bill, it has a chance of being incorporated into the final version. My Amendment 2 —purely adds one word: “materially”. This would raise the threshold that needs to be met before a decision is deemed to be in breach of this prohibition. If it is not “materially”, things could be prohibited for something very minor. Having “materially” improves the Bill and makes it more logical—we are looking at things of substance, not things that are minor.
Lord Deben (Con)
My Lords, I rise merely to ask my noble friend the Minister to be very careful about her responses to this. I have a huge problem in that I cannot think of a speech that I have made in this House in which there has not been some moral content, because that is the way I think. I cannot help that. I am very concerned about the clarity with which the Bill is written. My noble friend and I go back a very long way. I have to say to her that when she was a civil servant working with me, she would not have produced a Bill like this. She would have been very angry if I had suggested that it should be as loose as all this. I am sorry to remind her of that fact. All I am interested in is that we do not unhappily and by accident cause a whole lot of legal cases that are unnecessary and which we never meant to.
I have some fundamental problems, not least with the specifics of this. I may wish at some later point to discuss the speech that was made at Second Reading by my noble friend Lord Wolfson, but the first point I want to make has nothing to do with the nature of the Bill itself or what it seeks to do. It is about precision. This is an imprecise Bill and it needs to be precise if it is not to be extremely malignant. All I ask is for my noble friend to try to understand that we need precision here, even those of us who in general do not come here with an antagonistic view. We just want to know what it is about, and you do not understand that if you merely read the Bill. I do not want this constantly to be in the courts. It would be much better to get it right now.
Lord Verdirame (Non-Afl)
My Lords, Amendments 3 to 5 are in my name. All the amendments in this group have the same objective, which is to find some ways of mitigating the rather unusual and perhaps slightly sinister language of
“political or moral disapproval of foreign state conduct”—
the language that gives the provision its title. Amendments 1 and 2 seek to achieve that objective by retaining that concept but raising the bar for its application. I agree that this approach may be sensible, and it is one that I encourage the Government to consider very seriously.
My amendments go a little further. I tried to think of ways in which the main provision of the Bill—Clause 1 —could operate without the novel concept of a prohibition on
“being influenced by political or moral disapproval of foreign state conduct”.
I note that this is not an attempt to frustrate the Bill. As the Minister will recall, I spoke in support of the Bill at Second Reading and I support the Government’s intentions. I am suggesting this different way forward because I am not really persuaded that the policy objectives require us to introduce this concept in our legislation. I urge the Government to test more proportionate and more focused ways to achieve those objectives.
As I understand those objectives, the core purpose is to ensure that public bodies, when taking procurement or investment decisions, do not impose a de facto sanctions regime or a de facto ban or boycott on a foreign state on the basis of their own judgments about a territorial dispute, the status of a foreign territory or the presence of a foreign Government in a particular territory. It seems to me that that objective can be achieved equally effectively by focusing the duty in Clause 1 on not having regard to territorial considerations, rather than in the current formulation of a duty not to be influenced by political or moral disapproval of foreign state conduct. Subject to the exceptions, it would still be the case that if a public authority were to have regard to a territorial consideration, it would probably do so because of disapproval of a moral or political kind of the foreign state’s conduct in the territory. But it would be better if we can get to the result that the Government are pursuing without that language of political or moral disapproval of foreign state conduct.
I accept that a criticism of the proposals may be that if we remove that expression “moral or political disapproval” from Clause 1, as my amendments would do, and focus instead on territorial considerations, the main provision of the Bill would not substantially improve on Section 17 of the Local Government Act 1988.
The Bill would supersede the Local Government Act in the part where it prohibits local authorities from considering non-commercial matters in relation to decisions about public supply or works contracts, including
“the country or territory of origin of supplies to, or the location in any country or territory of the business activities or interests of, contractors”.
This part of Section 17 of the Local Government Act would be omitted by the effect of a separate clause in the Bill. But Clause 1, even with the amendment I propose, would still go further than Section 17. In particular, the duty not to have regard to foreign state conduct in relation to territorial considerations, such as the existence of a territorial dispute, would still be able to capture indirect bans or boycotts, which I understand is the Government’s main concern.
I look forward to what the Government have to say. Again, I stress that my main concern is to encourage them to think of ways of tightening the language in Clause 1, and mitigating or perhaps altogether removing this notion of
“political or moral disapproval of foreign state conduct”.
Lord Leigh of Hurley (Con)
My Lords, I apologise for my not being able to speak at Second Reading, although if I had, I would have agreed with my noble friend Lord Wolfson on much of what he had to say. I also apologise for slightly jumping the gun on the noble Lord, Lord Verdirame, particularly as what he said was so interesting and informative.
I just wanted to question Amendment 1. If one is seeking clarity and certainty, introducing the idea of having a
“primary or sole factor in the decision”
seems extremely difficult to prove, whereas showing that the decision was “influenced” is much easier and, as I understand it, a recognised legal term.
Baroness Noakes (Con)
My Lords, I have problems with all the amendments in this group. Amendment 1 in the name of the noble Lord, Lord Wallace of Saltaire, would elevate “political or moral disapproval” to be the sole or main factor, and the noble Lord, Lord Palmer of Childs Hill, wants to introduce the concept of materiality into influence. Both these would just create huge loopholes, which would allow public bodies to conceal their boycott activities within other factors. Clever lawyers would find ways of writing papers which support decision-making in, say, local authorities or other bodies affected by the Bill, by reference to a whole load of other factors, to support the claim that they were not “materially” influenced by their disapproval of a foreign state, or that it was not the sole or main factor. I genuinely have a problem with the watering-down implied by Amendments 1 and 2.
I listened very carefully to what the noble Lord, Lord Verdirame, said about his amendments. I understand that he is trying to find a way through by removing the reference to “political or moral disapproval”, but I am not convinced that his amendments work either. In particular, I am not sure what the restriction to “that territory” in his Amendment 4 will do. Let us suppose that the territorial consideration is Ukraine, because it has to relate to a particular foreign territory by virtue of subsection (3). Does that mean that the decision-maker must have no regard to what is happening in Ukraine itself? It seems to me that “that territory” can be related only to the territorial consideration referenced in subsection (2). In that case, it would be Ukraine. If, say, Russia is the foreign state you have a problem with, it seems that you can take account of its activities only in Ukraine. You could not take account of activities that were not in Ukraine—for example, attacks from other places, such as the Black Sea, or whether it takes children from Ukraine back to Russia. If you thought that Russia was the territory—still restricting it to one territory—you have the problem the other way around; you could take activities only in Russia, but not in Ukraine, which is the fundamental problem. That creates an interpretive problem.
While these distinctions might not matter if we are talking about Russia and Ukraine, if you try and then relate it to a council or other public body trying to boycott Israel, and relate that to the complexities of the different parts of the territory around the State of Israel, you may end up finding some odd conclusions on how the reformulation might work in practice. I am aware that the noble Lord, Lord Verdirame, is a very clever lawyer and I am not, and I may well have completely misunderstood how his amendment is intended to work.
Baroness Fox of Buckley (Non-Afl)
My Lords, because this is the first group, I again state that I think that a lot of these amendments are trying to establish what is intended by the Bill, in a probing way. In that sense, they are very helpful for clarification on the language used. It was clear from Second Reading that most of the people who have since tabled these amendments and are speaking now are not in any way defending BDS; it was clear to me anyway. These boycott schemes are censorious and illiberal, and very often, as was stated at the time, the seeding ground for anti-Semitism in public life. In that sense, I oppose them; I am just not clear how the Bill will actually tackle them.
As we speak, just to use an example, the Rio Cinema in London has just cancelled its Eurovision party on the basis that it will not hold it while Israel still has somebody in the Eurovision Song Contest. I do not know whether this is self-declared BDS; it is a charity, and I am not quite sure how the Bill would apply. The point I kept trying to make at Second Reading was that, so often, I feel that the Bill will miss where a lot of the anti-Semitic censorship is occurring, around the periphery, rather than just in terms of divestment and investment, and so on.
I say that because those of us who are interested in tackling those issues need to have as much free speech as possible. I particularly support Amendment 6 from the noble Lord, Lord Wallace of Saltaire—although both his amendments are interesting—which makes the point about
“any person seeking to persuade the decision-maker”.
That is what politics is, is it not? Trying to persuade a decision-maker—lobbying and trying to have an influence on politics—is surely the job we are all in, even if we disapprove of, in this instance, what someone is trying to persuade about. I just get anxious about this being in a Bill; it sets a dangerous precedent.
Points have been made well by other noble Lords about the use of the language of political and moral disapproval; I want there to be far more political and moral disapproval in politics today than there is. It is an entirely good thing to make that clear. I wish there was a bit more “political and moral disapproval” leadership in general, even though many of us arguing that would disagree over what it should be. That is fair, but it is far better than a kind of technocratic approach. Also, if we are to win the hearts and minds of many of the young people who go along with BDS campaigns, we will have to show our political and moral disapproval, and win them over and seek to persuade them. Noble Lords get the point, but it is not clear how the language in the section to which these amendments refer will help us to tackle the problem that the Bill seeks to address.
Baroness Janke (LD)
My Lords, I also wish to speak in support of Amendments 1 and 6 in the name of my noble friend Lord Wallace. As a former councillor, I can imagine that former colleagues will be absolutely horrified at the scope of the Bill. We are talking about how moral and political disapproval cannot be used as the basis of a decision. Many councillors get into politics because they have moral and political views—they want to change the world and do something about things in their own area. I would welcome clarity, as others have asked for, on how it is to be established whether a decision-maker has been
“influenced by political or moral disapproval of foreign state conduct”.
What means might be used to actually determine this, in the event of needing to enforce action against it?
Lord Mann (Non-Afl)
My Lords, I have an entry in the register of interests. I seek clarity from the Minister. I may not need it, but I would like to tease it out, to see whether my interpretation of these clauses is correct. My question is about the word “decision”, and what the statutory understanding of that word is. My understanding is clarified by Clause 2(2), which says:
“A ‘procurement decision’ is a decision about a contract for the supply of goods, services or works to the decision-maker.”
That seems to me absolutely clear. I want to clarify if that is also the Minister’s understanding of what a decision in this context is.
I ask that because of an example from the University of Essex student union, which has a policy passed 15 or 16 years ago, described as a BDS policy, which is specifically targeted against the state of Israel. On the student union website that policy is deemed to be an educational policy to stimulate discussion and debate. But the student union, in applying the policy, has chosen specifically to address the purchasing of kosher food products, including those from Israel, in the student union shop.
In the context of the amendments, and in terms of how the general public might understand this, as well as those more directly impacted in the public sector and elsewhere, it would be helpful to know whether I am right in my understanding that the University of Essex student union policy, which has not been turned into a procurement decision, as defined in Clause 2(2), would not be covered by the Bill, because it is merely an educational policy, as opposed to a procurement and economic activity decision. To know that would be helpful in understanding what the scope of the Bill is and is not, and what the legal situation will be when it is enacted, as I presume it will be.
Lord Wolfson of Tredegar (Con)
My Lords, I spoke on Second Reading, and I am grateful to my noble friend Lord Deben for taking the trouble to read my speech. I wait with anticipation to find out the, no doubt very few, points on which we disagree. That will perhaps be for another day, but I look forward to it.
On these amendments I can be brief, because the central point has already been made: that the proposed amendments, especially those in the name of the noble Lord, Lord Wallace of Saltaire, would add complexity and increase the likelihood of litigation; I declare the obvious interest in that respect. The amendments would therefore make the Bill not more precise but less.
I say that for three reasons. First, introducing words such as “primary or sole” is an invitation to litigation. My second short point—forgive the legal geekiness, but we are in Committee—is that a quick search of legislation.gov.uk indicates that that phrase does not appear anywhere else in legislation. “Sole or primary” does, so in case we go forward with this, I would invite the noble Lord to flip it round, so that we put the more general word “sole” first, followed by the word “primary”. That is not my main point, but as we are in Committee, which is the place for geeky legal points, I may have just made one.
Another amendment introduces the word “material”. That is a really problematic word in law, as are words such as “significant”, because we always have the debate about what the opposite of “material” is. Is it immaterial—that is, de minimis? In that case, that is not really, as I understand it, the force of the amendment. “Material” here really means “of substance”, and it is, I suggest, not a good word to use if one is seeking to get that point across.
However, my main point is that this part of the Bill is drafted clearly and that whether we add “primary or sole” or “material”, that would add complexity and invite more litigation.
Lord Collins of Highbury (Lab)
I was going to intervene on the noble Lord, but he finished his speech before I could. Maybe we will have an opportunity when the Minister responds to the debate, because the idea that the words “moral” and “political” are not vague stuns me. Who is to define “moral”? That is very difficult.
This is one of the rare occasions in the House when I can honestly agree with practically all the words of the noble Baroness, Lady Fox. I also agree with the words of the noble Lord, Lord Deben. I want to stress that with the amendments, especially those to Clause 1, it is necessary to probe what the words mean, and get a better understanding of them. Even if I do not personally feel committed to the amendments, it is important to use this stage to elicit from the Minister a better understanding of the intent of Clause 1.
I do not want to repeat what the noble Baroness said, but this is not about how we address BDS strategies. The impact of the clause is far wider and encompasses a whole host of things that the Government may not have really intended. Who knows? Clause 1 does not define “political” or “moral”. It is extremely wide-ranging and could cover any decision or consideration that suggests a negative view of an existing, previous or potential policy action or inaction, or other behaviour associated with a Government or any public authority in another country.
As the noble Lord, Lord Palmer of Childs Hill, said, the reasonable observer of the decision-making process test sets an extremely low bar for considering whether a decision was influenced by political or moral disapproval. It does not distinguish between minor or significant influence, and it does not clearly define a reasonable observer. I hope we can use the amendments in this group to probe substantially on these issues.
I say to the noble Baroness, Lady Noakes, that the consideration of financial, reputational, legal, environmental, social, governance and other risks in procurement and investment decisions are often complex and overlapping, and some considerations may be confidential. How are we going to sort all those things out if the Bill becomes law?
The legislation does not require the reasonable person to be someone who is familiar with the subject matter and decision-making processes. Clause 1(4) and 1(6) do not define a public authority in a foreign territory, so it could include state-run companies in some countries. This could result in additional uncertainty where the conduct of a public authority differs from the official policy of a foreign state, and that is a threat to actions in support of persecuted people across the world.
The sweeping approach to Clause 1 will undoubtedly have a chilling effect on public bodies being able to make ethical procurement and investment decisions and take actions that support upholding international law, democracy and human rights. I know I have an amendment later on, so I will not go into too much detail now.
As I mentioned at Second Reading, the Bill is incoherent and it waters down the Procurement Act 2023. That Act sets key objectives covered by procurement, including supporting public benefit, in Clause 12(1)(b), and acting and being seen to act with integrity, in Clause 12(1)(d). The Act also gave a mandate to commissioning authorities to award contracts based on the “most advantageous tender” submitted. That change of words moves away from the previous priority of the “most economically advantageous tender” under which the previous procurement regime existed. What was the intent of that change in language? The intent was to enable contracting authorities to give more weight to award criteria such as decent work and wider social values. Again, we are coming to other amendments, particularly about the environment.
This wide definition, which is covered in Clause 1, is the fundamental problem with the Bill. The Explanatory Notes state:
“Clause 1 prohibits relevant public authorities from having regard to a territorial consideration in a way that indicates moral or political disapproval of a country or territory’s foreign state conduct, when making decisions … This clause is designed to catch both open participation in boycotts”,
which the noble Baroness, Lady Fox, talked about,
“or divestment campaigns, and more subtle ways of singling out countries or territories that could produce similar results”.
As I say, this sweeping approach will have a chilling effect and will impact on public authorities in upholding international law.
A point I want to focus on is that the UK Government have committed to implementing international standards, including the UN guiding principles on business and human rights—the UNGPs—as well as the commitment made in terms of the environment in the Paris agreement. Carrying out effective due diligence is central to public bodies, as state institutions, being able to fulfil their human rights obligations, implement UNGPs and make ethical procurement and investment decisions. However, because the terminology, such as “political and moral disapproval”, is undefined, this will create problems for public authorities when carrying out their due diligence. That is what will be needed in the due diligence process to avoid falling foul of this legislation, when clarity is so lacking.
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
My Lords, I thank all noble Lords for their amendments and for their contributions to the debate. I look forward to scrutinising the Bill and these proposed changes in detail during the four Committee days that we have set aside—although this one has been a little truncated. I remain open to listening to noble Lords’ views from all sides, and I hope we can use these sessions to put forward the best possible version of this legislation.
Clarity on all sides is important, and I look forward to further meetings with the noble Lord, Lord Wallace of Saltaire, as the Bill progresses. He knows I enjoy meetings with him on the Bills that we have done together. Probing amendments are also important, as the noble Lord, Lord Collins of Highbury, has just said. We were of course both involved with the Procurement Act and I look forward to discussing how the two pieces of legislation interact and how human rights considerations are respected—as they are.
I hope that, in responding to these six amendments, I can assure the House that Clause 1 as currently drafted is the most proportionate and clear way of fulfilling the manifesto commitment of banning public bodies from imposing their own boycott and divestment campaigns.
Clause 1 sets out three tests that must be met to trigger the ban. First, the ban is narrow. It applies only to procurement or investment decisions. Secondly, the public body must have considered a specific territory or country as part of making its decision. Thirdly, that consideration must reflect political or moral disapproval of the conduct of a foreign state.
I turn first, if I may, to Amendments 3, 4 and 5, tabled by the noble Lord, Lord Verdirame. I am grateful for his general support. However, together, his amendments would alter the scope of the clause. Amendments 3 and 5 would prohibit public authorities from being influenced in any way by foreign state conduct. This would widen the prohibition in Clause 1 to include considerations that relate specifically or mainly to a country or territory in a way that is influenced by approval of foreign state conduct. The current drafting prohibits only disapproval of foreign state conduct, and the inclusion of moral and political disapproval is necessary to ensure that the Bill does not capture legitimate territorial considerations that are not about boycotts and divestment campaigns and would take the Bill beyond the manifesto commitment. An example of this would include encouraging trade with important trading partners. These amendments would therefore prohibit a public authority from favouring goods or services from a particular country or territory, based on approval of that country’s conduct. It therefore captures a broader range of decisions that are not relevant to boycotts and divestment campaigns.
Amendment 4, on the other hand, would narrow the prohibition so that it applied only in the case of disapproval of a foreign state’s conduct within its own territory. It would not apply in the case of disapproval of a foreign state’s conduct outside its territory. I agree with the comments made by my noble friend Lady Noakes: this would effectively allow public authorities to boycott countries whose foreign policy they disapproved of. This could leave a significant loophole—a word I think she used—in the ban and undermine the manifesto commitment.
I will now address Clause 1(7) in response to Amendment 6 by the noble Lord, Lord Wallace of Saltaire, and the concerns raised by the noble Baroness, Lady Janke. This amendment would permit public authorities to engage in boycotts and divestment campaigns as long as they were only a result of pressure from a third party, such as a student union, rather than a result of the public authority’s own moral or political disapproval. Subsection (7) is a necessary element of the Bill, as public authorities such as universities and local authorities are frequently pressured to engage in boycotts or divestment campaigns. For example, student unions at Warwick University and Sussex University have passed motions calling for their universities to divest from Israeli companies. If a university conducted a boycott or divestment campaign because of such pressure, rather than because of its own view of a foreign state, we would want that campaign to be caught. Subsection (7) extends to any person seeking to persuade the public authority. However, for there to be a breach of the ban, an enforcement authority must be satisfied that there is enough evidence that a third party influenced the public authority.
I will address the comments of the noble Baroness, Lady Janke, on decision-making, if she would agree, on group 2 because we are going to be discussing the meaning of a decision-maker for the purposes of the Bill.
Finally, and most importantly, I turn to Amendments 1 and 2, tabled by the noble Lords, Lord Wallace of Saltaire and Lord Palmer of Childs Hill. Amendment 1 would narrow the scope of the prohibition in Clause 1 so that it prohibited public authorities from taking account of territorial considerations only where moral or political disapproval of foreign state conduct is the “primary or sole” factor in the decision. My noble friend Lord Leigh of Hurley asked a question which made this point, while my noble friend Lord Wolfson of Tredegar was concerned that it would increase uncertainty and lead to legal disputes.
Similarly, Amendment 2, tabled by the noble Lord, Lord Palmer, would narrow the prohibition to decisions “materially” influenced by moral or political disapproval of foreign state conduct. Like my noble friend Lord Wolfson, I do not agree with weakening the effect of the Bill in this way. Public authorities buying goods or services, or making investments, should not be influenced by moral or political disapproval of foreign state conduct to any degree, unless—and this is important—one of the exemptions, such as environmental or labour misconduct, applies.
I reassure the Committee that Clause 1 will not capture fleeting and inconsequential remarks made during the procurement or investment decision-making process. The Bill prohibits only considerations that a reasonable observer of the decision-making process would consider a contributing factor to a decision.
Lord Collins of Highbury (Lab)
It is precisely that point I want to better understand, because many decisions are going to be complex. While the Minister mentioned the exclusion of things, there could be a combination of issues which would influence the final decision. Somebody might be able to say, “Actually, that combination has become a moral and political thing”. That is what really concerns me. The Minister is very confident that certain things will not be captured, but I do not see that. I would like her to explain in a little more detail that final point she made.
Baroness Neville-Rolfe (Con)
We will try to do that. I am also happy to discuss this further, because it is obviously an important point in relation to the Bill and, as we agreed at the beginning, we need to try to find a way that does not create a lot of uncertainty.
The noble Lord, Lord Wallace of Saltaire, commented on the perceived lack of evidence for the Bill, but boycotts have been attempted by several public authorities in recent years. In 2014, Leicester City Council passed a motion boycotting goods from Israeli settlements, as far as the law allows. Several other local authorities have passed boycotting or condemnatory motions, including Swansea Council, Gwynedd Council—
Lord Collins of Highbury (Lab)
I am sorry to interrupt, but on that point can the Minister tell us what the FCDO’s advice and the United Nations decisions are in relation to the Occupied Territories?
Baroness Neville-Rolfe (Con)
I am certainly very happy to come back to that on a later group of amendments.
Lord Collins of Highbury (Lab)
But it is material to what the Minister has just said.
Baroness Neville-Rolfe (Con)
I will see if I can come back to it before we finish. I was trying to give the examples that the noble Lord, Lord Wallace of Saltaire, had asked for. There was West Dunbartonshire Council and Stirling Council, and in 2021 Lancaster City Council passed a motion in support of the wider BDS movement.
Lord Collins of Highbury (Lab)
I come back to the first point that the Minister made. It is really important that we are clear about this, because one concern we have mentioned—I am not going to make a Second Reading speech—is the impact that this Bill has on the United Kingdom’s foreign policy. If there is a discussion about goods from and investments in the Occupied Territories, she needs to explain why she has evidenced that and how it is supported by the FCDO’s own advice and the Government’s support for United Nations resolutions on that subject.
Baroness Neville-Rolfe (Con)
I can certainly provide more detail of the boycotts, if that is helpful.
Lord Collins of Highbury (Lab)
No, that is not what I am asking. The first example that the Minister gave was in relation to the Occupied Territories. I really think it is important that we understand why she has referenced that.
Baroness Neville-Rolfe (Con)
I was giving a list and I will certainly come back on that question. We have a group relating to the Occupied Territories later on, when we can go into this in more detail. If the noble Lord can give me a bit of slack, I will see if I can get fuller information and come back to that at the end.
I was trying to answer the question on evidence. If I may, I should also like to cite, from September 2023, Islington Council passing a motion in opposition to this Bill, expressing its support for BDS campaigns—which everybody has said that they are very unhappy about—and resolving to:
“Continue to ensure that our own ethical procurement strategy doesn’t include procuring goods and services produced by oppressive regimes”.
I have not covered all the BDS activity in public bodies, but I hope that this demonstrates to the noble Lord that there is a considerable evidence base.
Separately, I note the points made by the noble Lord, Lord Mann, about student unions and the provision of kosher foods in universities. We are going to discuss that point. The noble Lord has tabled some interesting amendments on it in group 3.
Lord Mann (Non-Afl)
My point was not in relation to the amendment; it was in relation to the fact that a significant number of people in the Jewish community have said to me that they anticipate one of the key benefits of this Bill being that student unions will not be able to debate and pass BDS resolutions. My understanding of how the Bill is written and how it has been framed is that what the University of Essex student union has done, whereby it deemed its policy to be an educational tool rather than a procurement decision, explicitly would not be covered by the Bill. That is important, because the expectation is coming from multiple sources within the Jewish community that that is what would happen. Can the Minister clarify whether I am wrong on this, because my reading of the Bill suggests that I am right that—whether one calls it a good thing or a loophole—it would not be covered by the Bill?
Baroness Neville-Rolfe (Con)
The noble Lord is right—student unions are not covered, and I think that I made that clear at Second Reading. It is private activity. Clearly, what matters is the influence on public bodies, which is what we are discussing today.
To come back on the Occupied Palestinian Territories, obviously the Government recognise the risks associated with economic and financial activities in those settlements. We do not support boycotts of the Occupied Palestinian Territories. Such boycotts are inherently divisive and could lead inadvertently to negative effects on Palestinians as well as undermining the aim of this Bill, which is to ensure that the UK speaks with one voice internationally. That does not change existing government guidance on doing business in those territories. The Government do not recognise the settlements as part of Israel, as the noble Lord knows, and we have already moved to ban those responsible for violence in the West Bank from the UK—there have been some recent sanctions.
I have tried to answer the probing amendments. I hope that this provides noble Lords with clarification and a rationale for the scope of Clause 1, and I ask the noble Lord to withdraw his amendment.
Lord Wallace of Saltaire (LD)
My Lords, I am slightly better informed. We have many difficulties with this Bill. I must say that it would be much easier if it were simply a Bill about boycott of Israel and mainly about sanctions. It would be narrower, and we would know what we were talking about. But it is a Bill that is supposed to apply to every single foreign state in the world except for Ireland, which raises very large questions.
I disapprove strongly of the Rwandan Government’s support for M23 in the Congo civil war, and I disapprove very strongly of Myanmar’s behaviour towards the Rohingya, et cetera. Clause 1 is entitled “Disapproval of foreign state conduct prohibited”, which is itself a very uneasy label and not the sort of thing that ought to appear in legislation. I believed that I lived in a liberal democracy in which government’s reach was limited and free speech, as Conservative Peers are always telling us, is entrenched, and one is allowed to dissent. This appears to be extending the reach of government.
I appreciate that this is a DLUHC Bill that is aimed primarily at local authorities, although it is extended to include universities—and whether it includes student unions we will investigate further. As it happens, I had the current president of the Cambridge Students’ Union here last Wednesday, and I showed him a copy of the Bill—and he was convinced that it would apply to student unions; it is quite clear that some people would like it to do so.
There is a great deal more that we need to find out about all this. The closing down of public debate that the Bill implies is something that worries all of us a great deal. I am happy to withdraw my amendment for a moment, but we shall return to all these questions extensively as we move from one imprecise clause to another.
Lord Palmer of Childs Hill
Member's explanatory statement
The inclusion of the word “materially” would raise the threshold that would need to be met before a decision was deemed to be in breach of this prohibition.
Lord Palmer of Childs Hill (LD)
My amendment was of a probing nature. I am grateful to the Minister for giving more detail. As we go forward with the Bill, I shall be particularly interested to see how “materially”—the word that I tried to add—is looked at in terms of local authority pension funds. That worries me, because they make their investment decisions. There needs to be a material point, otherwise those investment decisions can be upset very easily by the Bill.
Lord Verdirame
Member's explanatory statement
This amendment, along with two other amendments in my name, seeks to focus the prohibition in Section 1 on territorial considerations in connection with foreign state conduct, rather than political or moral approval of foreign state conduct, as this is a more proportionate way of achieving the policy objective.
Lord Verdirame (Non-Afl)
I too shall not move my amendment, but I reiterate the point that it would be quite helpful if the Government gave some thought to that language that makes so many of us across the political spectrum, given the level of support for Bill, uncomfortable. Do we really need political or moral disapproval of foreign state conduct as a central concept in Clause 1? I would be grateful if further thought could be given to that question.
Member’s explanatory statement
This amendment is to seek clarity on when an individual is considered to be the decision maker for the purposes of this bill.
Baroness Chapman of Darlington (Lab)
My Lords, it might be helpful to explain that most, if not all, the amendments we have tabled reflect the fact that we find this quite a difficult Bill to amend in a way that would make it work because, as many noble Lords have already said, it is very wide-ranging and quite vague in many of its terms. Our amendments are mostly intended to elicit not a response from the Minister to the amendments as such, but an explanation of the Bill’s intention, so that we are clear, or as clear as we can be, about exactly how the Bill is intended to be interpreted. This group of amendments is more about who the Government wish to catch with the measures in the Bill, and how it will work. Through these amendments, we want to tease out how the Government will decide who will be subject to enforcement action.
Amendment 7 would remove lines 20 to 22 in Clause 1:
“and those references to the decision-maker include, in a case where the decision-maker is not an individual”—
I assume that that means a local authority, a university or some other public body—
“the individuals who in fact make the decision for the decision-maker”.
I am not sure whether the Government want, in Clause 1, to include members of a governing body or councillors serving on a particular committee—we will come on later to definitions of public bodies. Often, people serve in these capacities as volunteers or as inexpert lay members. Are the Government really trying to say that they want those individuals to be held to account in a way that, in other parts of the Bill, they seem to be suggesting the body itself is to be affected? We need to be clear in our own minds which it is.
We would like to understand in what circumstances individuals will be given notices and then fines. I know we will come on to this later, but we do not know the extent of these fines. Will the fines be applied differently to individuals, compared to a council or a university? Pragmatically, we would expect them to be, but how will they be treated differently if they are to be subject to enforcement action? How will the enforcement agency decide? Is there to be discretion as to whether it is holding an individual responsible as the decision-maker, or is the organisation the decision-maker? How will it assess that? Will it look at the individual behaviour of particularly influential senior managers, members of staff or elected representatives? Would the chancellor of a university, for example, be held to account, or the wider organisation; and how will that judgment be made? The Explanatory Notes do not help us with this question in relation to Clause 1. That is why we have also tabled Amendment 55, which asks the Secretary of State to publish guidance on the circumstances in which an individual is the decision-maker under the Bill, and the circumstances in which they are not.
I am not a lawyer, so perhaps the noble Lord, Lord Wolfson, would like to help us out here. When does this corporate liability, if I can put it that way, become an individual liability? The LGA has helpfully given examples of this question arising. I do not know whether noble Lords have had a chance to look at the pre-legislative scrutiny that took place in the Commons. The LGA was very clear about lots of things in its oral evidence, including that some councillors who serve on pensions committees are not particularly expert in managing these funds, but they are very well supported and advised by their officers, and they take their duties very seriously. Even where, say, a newly elected councillor arrives with some grand intention or attempts to argue for some kind of divestment decision, actually, their fiduciary duties, it is pointed out to them, override such concerns, and that does tend to become the view of the committee.
The LGA, because of its experience of how these things work in practice, said in its evidence that any enforcement action should be directed towards the administering authority and not the individual councillors. Can the Minister explain how an enforcement authority will decide whether individual or corporate responsibility applies for a particular decision? The LGA talks about this in relation to judicial review as well, which we will come on to later. The LGA feels that the subject of the judicial review should not be the decision-making authority but rather the enforcement authority, so that it is its decision that is challenged. If it decides not to issue a notice, that can be challenged, but the risk does not reside with the individual councillors.
Lord Wallace of Saltaire (LD)
My Lords, I am an academic and, in the course of my career, I have been an associated member of three colleges in Oxford and Cambridge. One has a governing body in the mid-30s; the second has one of around 50; and the third has one of nearly 100—much too large, I quite agree. The chilling effect of this clause on those three colleges would be considerable, precisely because it is not entirely clear what it means by the individuals who make the decision for the decision-maker. That requires a great deal more clarification; at the very least, it ought to be in the Explanatory Notes. This is another attempt to ask the Government to come back with something which is a great deal clearer.
In my career, I have also been a historian and an analyst of foreign policy. It is an area in which we spend an awful lot of time defining, discussing and describing decision-making. We very often disagree sharply with each other because it is very difficult to define, for example, exactly who took the crucial decision that started the First World War. Baroness Henig, sadly no longer with us, wrote several books on the subject. The noble Lord, Lord Roberts of Belgravia, has written several books entirely disagreeing with what other historians have said about various crucial decisions.
That is, again, part of our problem: when a complicated decision is taken, who takes it? How many people are complicit? If you are a member of the council committee which takes the decision and you abstain on the vote—or vote against it—are you also part of the decision-making or not? There is, to say the least, a cloud of uncertainty around this phrase. Perhaps the noble Lord, Lord Wolfson of Tredegar, understands it; I must say that I do not.
Lord Johnson of Marylebone (Con)
My Lords, I would also like to probe a little more on the meaning of “decision-maker” in a higher education context, following on from the excellent speech by the noble Lord, Lord Wallace.
Universities are often very decentralised in their structures, and power can be distributed quite far and wide. It is not always concentrated in the vice-chancellor’s office; nor is the governance of universities often as clear- cut as it might be. I would appreciate some clarity as the Bill proceeds on who exactly is going to be identified as the decision-maker in particular situations. Do we mean specifically decisions taken by the executive management team of an institution, principally the vice-chancellor? Do we mean, for example, student unions?
I noted that in my noble friend the Minister’s response to the noble Lord, Lord Mann, that student unions were—if I heard her correctly—out of scope, because they are private bodies. This confuses me a little, because I thought the whole purpose of the Bill, from a political point of view, was to address precisely this issue: student unions getting on their soapboxes and making statements about BDS, and all the rest of it. If they are out of scope of the Bill, I really wonder why universities as a whole are still in scope. It is not the vice-chancellors, academics or heads of department who are making these kinds of noises; it is the student unions. If I understood my noble friend the Minister correctly, they are not even covered. I really question why universities are still in scope at all, but that is a question we will come to later in Committee.
The final point on which I would like some clarity from my noble friend the Minister is whether a decision-maker will also be deemed to be an individual academic, who may manage a research budget. Will the use of that research budget by the individual academic be part of the decision-making process captured by the Bill? If so, how will that be squared with the legal duties on the OfS, among others, to promote academic freedom and freedom of speech in our higher education institutions?
Baroness Noakes (Con)
My Lords, it seems to me that there is a bit of confusion going on. Amendment 7, which takes out the words in Clause 1(7), relates only to who is carrying out the disapproval. It is just amplifying those people whose disapproval is taken into account, to see whether or not the clause is engaged. It is not trying to add different categories of decision-maker, because the reference to decision-maker is clear in Clause 2, which we will come on to in another group. It is that definition that then drives enforcement, et cetera.
I was interested in Amendment 55 of the noble Baroness, Lady Chapman—although I think it is actually the wrong amendment asking for regulations—because it highlights that decision-makers might be individuals under the Bill, which they can be. As I understand it, the definition of “decision-maker” in Clause 2 encompasses some individuals being the decision-maker from whom all these consequences might flow. That was a complete surprise to me because the Bill is titled the Economic Activity of Public Bodies (Overseas Matters) Bill—a manifesto commitment related to public bodies. I was completely amazed to find that individuals might be public authorities within the terms of Clause 2, and therefore decision-makers.
I was interested in the noble Baroness’s probing amendment, because I hoped that she would be using that to ask the Minister what kinds of individuals could be decision-makers under the definition that we are using—the Human Rights Act definition. The limited research I have done produced the example of a doctor. When a doctor is carrying out his NHS work, he could be a public authority for that purpose, but when carrying out his private work, he could not be. I did not find much more than that, and I am rather hoping that the Minister will be able to explain to us in rather more detail precisely which individuals are decision-makers within Clause 2.
Lord Hannay of Chiswick (CB)
My Lords, I, too, will speak to this amendment and do so, like the noble Lords, Lord Wallace and Lord Johnson, in relation to universities and higher education. I had some experience of that: I was on two university councils—those of Birmingham and Kent—and I chaired the Birmingham council for five or six years in the early part of this century.
I have to say to the Minister that, as a result of a lot of extremely desirable reforms, the decision-making at universities was concentrated quite heavily on the council. The council did not micromanage every decision, but it was responsible for every decision taken at the university. That responsibility was clearly focused on a much-reduced size of council, down from the 30s or 40s to the 20s, and it meant that a quite a lot of responsibility came on to its members, who were a combination of academics and lay persons—with a majority, on the whole, of lay persons. The lay persons on the council were volunteers and were not paid a penny. Now, if the vagueness in this bit of the legislation is retained, I would not like to be out there trying to recruit new members to university councils, if they thought they were going to be liable for any of the sorts of problems that could arise under this legislation.
I suspect that this is just one of many pieces of this legislation that reinforce the case for simply taking higher education and universities completely out of it. I think that is what we will come to when we get to Report. This is just the first illustration that it will have a remarkably chilling effect on the conduct of councils and the way in which people are prepared to serve—for nothing and as volunteers—on university councils, giving up many hundreds of hours of their lives to making sure that the university is properly administered and decisions properly taken.
Baroness Randerson (LD)
My Lords, I preface my remarks by declaring an interest as chancellor of Cardiff University. I apologise that my duties at Cardiff University prevented me attending the whole of Second Reading—so I could not speak, although I attended a significant part of it.
Before I was chancellor of Cardiff University, I was a member of the council of Cardiff Metropolitan University, so I have a background in both executive and non-executive roles at universities. What I have to say very much follows neatly from the noble Lord. My experience is that university councils—and other bodies doing the same job but sometimes with different names—are very highly regulated already. They involve a great deal of training and responsibility and absolutely no financial reward—but there is great satisfaction for those who participate.
In both universities I have mentioned, our problem is always trying to get the suitable range of highly skilled, highly experienced people to participate. If you add another unnecessary layer of responsibility on to those people, you will deter very worthwhile recruits and you will make life more difficult again for our higher education sector. So can the Minister give us examples of universities—and individuals within universities—that have made these inappropriate decisions, so that we can see why universities are included? Otherwise, if there are no examples at the Minister’s fingertips, could the Government give further thought to whether they should be included at all?
Baroness Fox of Buckley (Non-Afl)
My Lords, I want to return, very briefly, to something the noble Lord, Lord Mann, raised earlier. I can understand in the broader sense why universities have been included, because very often it has been universities that have been at the cutting edge of popularising boycotts. They have taken a wide range of forms—and not just in terms of what is sold or invested in. As the noble Lord, Lord Johnson, pointed out, it could be denying people research, not letting Israeli academics come over to speak or whatever. There are all sorts of ways that this happens. So, I understand why the university sector is in scope. My problem is that it is not clear to me how a Bill like this can do anything other than attack academic freedom, which I am interested in defending. I think we have to deal with what is happening on university campuses in a different way.
Regardless of that, the reason it is frustrating—and why I am referring to what the noble Lord, Lord Mann, said—is that, if you have a conversation with anyone outside this Chamber, if they are like me, they are worried about BDS and anti-Semitic campaigns against Israeli academics. Something has just happened at King’s College London in fact, where an event has been called off, and there is a University of Leeds chaplain in hiding —all these things are going on. Ironically, if anything, this Bill is too narrow to deal with what is really happening. The point that the noble Lord, Lord Mann, made was that the way wording happens, there are ways around it that this Bill will not deal with. He and I might differ about how we would deal with that—I think we probably would. None the less, given what a public authority is, it is understandable why universities are in here—but, as people have said, which bit of the university?
For the Minister to say “Oh, no, it wouldn’t count, student unions”, would be utterly ludicrous. From the Government’s point of view, even if I go with you, why would it not be student unions? That would be mad. They are part of what the public authority of the university is about, along with research councils and everyone else. I am not trying to encourage the Government to wipe up every part of a university to bring them in scope, but to keep saying that they are not in scope makes no sense from the point of view of the public justification for this Bill by Michael Gove when he has argued for it, and anyone else who supports it. So we do need some clarity here.
Lord Davies of Brixton (Lab)
My Lords, this debate has referred consistently to universities, but I do not want the point to get lost that there is an equivalent problem with local government pension schemes, where a succession of bodies take part in the decisions that are reached. Every fund has advisers, in particular advisers on ESG. The trustees are responsible for the decision, but they are under a legal obligation to give due regard to their advisers’ views. Now, because of the encouragement by the Government, the individual funds are not actually investing the money; the money is passed on to a pooled fund that equally has its advisers and its decision-makers. Somewhere in that thread of control, someone is a decision-maker, but I defy the Minister to tell us precisely, in the terms of this Bill, who it is.
Lord Verdirame (Non-Afl)
My Lords, I have just a few points and questions, following the discussion we have just had. The first point is to seek clarity on whether my understanding of the last three lines of Clause 1(7) is correct. I understand those three lines simply to be saying that, where the decision-maker is a collegiate body, the duty to have regard applies to the individuals within that collegiate body who are taking the decision. That is how I read those three lines, but I may be missing something.
The second point arises from the comment that the noble Lord, Lord Johnson of Marylebone, made about universities. I suppose it is a point that comes up both under these amendments but also under the next amendments and in particular Amendment 8. Paragraph 20 of the Explanatory Notes, which speaks to Clause 1, states:
“The ban in Clause 1 is not intended to prohibit a higher education institution from deciding to terminate a collaboration with a foreign university on the grounds of academic freedom”.
I read that as implying that, other than on those grounds, the ban would apply to a decision to terminate a collaboration with a foreign academic institution. I would like some clarity on this, because I was a bit surprised to see that my reading of the definition of “procurement decision” would not necessarily have included a collaboration with a foreign academic institution as a procurement decision. It certainly is not an investment decision, but is a collaboration with a foreign academic institution in scope of the ban potentially? That is what I would like to understand. If so, it raises the question that the noble Lord, Lord Johnson, raised, of whether the individual grant holder who has, for example, a research collaboration with a foreign institution, is within scope of Clause 1. That is not clear to me.
Lord Wallace of Saltaire (LD)
My Lords, I have had advice from a professor of law at Cambridge University that it is not within scope where the research funding is not public. It is then a private act, not a public act.
Baroness Janke (LD)
My Lords, very many points have been made about how the decision-maker is established. From the point of view of local government, in local councils there are very many ways of taking decisions that can be individual or corporate. The tiers of responsibility and the trails that decisions make throughout a large organisation would need to be explored if enforcement action was to be taken.
In addition, councillors, committees or even pension committees, as we heard earlier, are advised by experts and independent advisers, so it is not clear where the line of accountability is and who is responsible, who is to be identified for enforcement action. The public authority, as has been identified earlier, is the body that is talked about in relation to Clause 4, but it is not in the Bill and does not relate to any other part of decision-making. I add my plea for further clarification as to how the decision-maker is to be identified and how enforcement is to be pursued in light of that.
As far as pension funds are concerned, as a former member I know that expert advisers do take account of political situations in their evaluation of risk. Again, that may be intimidating for councillors or advisers and inhibit the quality of advice that is given.
Baroness Neville-Rolfe (Con)
My Lords, Amendment 7, tabled by the noble Lord, Lord Collins of Highbury, and Amendment 55, tabled by the noble Baroness, Lady Chapman, seek clarity on whether an individual is considered a decision-maker for the purposes of this Bill. It was helpful to hear the introduction from the noble Baroness and her wish for general elucidation. As she implied, it is an important part of the Bill’s provisions. I will try to confine my points mainly to decision-makers, which are the purpose of this group.
A public authority will generally delegate responsibility for decision-making on procurement and investment decisions to individuals within the public authority. The individuals who make the decision on behalf of the public authority will do so in accordance with the public authority’s internal policies and structures. To address the noble Baroness’s question on enforcement, even when an individual is making decisions or speaking on behalf of a public authority, the ban applies only to the public authority itself. There is no personal liability for the individual. Individuals will therefore not personally be responsible for any fines that may be imposed on public authorities for a breach of the ban in Clauses 1 or 4.
On the noble Baroness’s question on pensions—this is something I know about because I have served as a pension trustee, admittedly in the private sector—this is something we can come back to in more detail when we discuss Clause 12, but I will also look at the Local Government Association material that she referenced, which I am sure will be helpful and interesting.
My noble friend Lady Noakes made the point that there are some limited cases where individuals are the public authority in their own right. She asked for examples, so I suppose that examples would be UK Government Ministers, Ministers from devolved Administrations and police and crime commissioners. They could also be individuals such as mayors if they exercise public functions in their own right. Any individual who is a public authority in their own right is already subject to far-reaching and fundamental duties under the Human Rights Act 1998. They could be subject to court action if they restrict others’ human rights, and the duties in the Human Rights Act are much more wide-ranging than the prohibitions in this Bill. It would not be appropriate for these individuals to be pursuing policies that are not in line with the official foreign policy, which is, of course, set by the UK Government. To be clear, local authority councillors and university leaders are not public authorities in their own right.
Amendment 55 would require the Secretary of State to publish guidance to clarify in what circumstances an individual is a decision-maker before the Bill commences. We do not believe that it would be appropriate to publish guidance on this matter, as every public authority is structured differently and has different policies on how its internal decision-making process operates. As it happens, as the noble Baroness, Lady Janke, said, structures vary a lot, and that is the case.
To give the House an example, in the case of local authorities, they will have a scheme of delegations in place, with, for example, a commissioning board, which will indicate who takes procurement decisions. While the decision is made by the individuals on the board, they have been empowered to take those decisions via the scheme of delegations, and it is therefore the local authority that is the legal decision-maker in the context of the ban. This is made clear in Clause 2(1) of the Bill. Even when an individual is making decisions or speaking on behalf of a public authority, the ban applies only to the public authority itself and there is no personal liability for the individual. Therefore, individuals will not personally be responsible for any fines that may be imposed on public authorities for a breach of the ban. The concerns on this issue—
Baroness Chapman of Darlington (Lab)
What the Minister is saying is genuinely quite helpful, but I am just trying to apply this to my experience of the real world. If a councillor, say, were to make a statement or cause something to happen at a conference or something like that, the council would be held responsible as a public authority for the actions of that individual. The trouble with that, in a way, is that that would then influence the advice, guidance and training that is given to elected individuals, and then you would get the chilling effect that we are all so concerned about. Just to make sure, have I actually understood that correctly? Is that what the Minister was explaining to us?
Baroness Neville-Rolfe (Con)
I think that sounds right but, if I may, I will clarify if I got that wrong. To some extent, it is important in Committee that we actually understand what is happening. That is what, in the spirit of the noble Baroness’s question, I am trying to do. Even if a decision were delegated to individuals in a public authority, such as a commissioning board in a local authority, I think it is clear that the fine would be imposed on the public authority, not the individual.
I should briefly address why universities need to be in the scope of the legislation in response to my noble friend Lord Johnson, the noble Lord, Lord Hannay, and the noble Baroness, Lady Fox. We will come back to this on later amendments. It is an area of particular interest to a lot of noble Lords, not least because of the huge contributions people in this House make to the university sector.
However, the fact is that universities are a frequent target of the BDS movement, and some student unions —to come back to that point—have passed motions pressurising their universities to divest from Israeli companies. The Bill will ensure that universities cannot implement such policies in response to pressure from their student unions, as that would be divisive and could potentially contribute to rising anti-Semitism on university campuses, which is a concern.
Baroness Chapman of Darlington (Lab)
The Minister raised it—can she give us one example of where a university has ever succumbed to such pressure from its student union?
Baroness Neville-Rolfe (Con)
We will come back to this amendment; as the noble Baroness knows, this is an area of investigation for me, and I am trying to make sure that we have all the answers that we need and can provide the sorts of examples that she and I are used to exchanging in trying to move forward legislation in a constructive way.
On student unions, I will add a point that perhaps I should have made earlier. Student unions are usually charities and can undertake political activity only if it can be shown to support their charitable purposes, in line with Charity Commission guidance. Any questions as to whether political activity was appropriate would be considered in line with the Charity Commission’s normal processes. However, I confirm what I said earlier, that the Bill is narrow, applying to public bodies and, obviously, to investment and procurement. I hope that that addresses the concerns of noble Lords.
Lord Davies of Brixton (Lab)
The Minister used the word “pressurised”. Did she do so advisedly—“pressurised” as opposed to “called on” or “suggested”? Is “pressurised” defined in the Bill?
Baroness Neville-Rolfe (Con)
I think I used the word “pressure”. Certainly, I was reading “pressure”, but perhaps I blurred the wording and said “pressurised”. I could equally have used “influenced” or some other word. I was trying to explain what we were getting at on the education side of things.
I have a couple of examples of student union pressure, which I mentioned earlier. Warwick student union held an all-student vote in 2020 to pressure the University of Warwick to fully divest from all unethical industries and release all investments. That included divesting from companies in support of a boycott of Israel, and divesting from international companies that are complicit in violations of Palestinian rights. There was also the example of Sussex University, which I mentioned a little earlier.
Baroness Chapman of Darlington (Lab)
The thing is, though, as we are teasing out, is it not right that the Bill would not stop Warwick University student union from passing a motion in that regard? It would stop the university from acting on it, but no university has ever acted on these things. That is why we are all scratching our heads a little about what we are going to get from the Bill. It was a manifesto commitment—we understand that—but it is not our fault if the Government cannot turn their manifesto commitment into a usable piece of legislation.
Baroness Fox of Buckley (Non-Afl)
On the Warwick University point, for clarification, the other important thing that happened there was that Warwick University academics refused to sit on a panel discussing the issue of Israel, and so on. That was led by academics. It would not be affected by the Bill. The Minister can say, “Oh, that’s okay, it won’t be affected by this Bill” but that has had a much more damaging impact on the debate around Israel in Warwick University than anything that a few people at the student union did and that the university authorities did not act upon. What the university did not do was support those Jewish students and the organisation that organised that debate, and it let the academics carry on. The question of what the Bill will and will not do, and who will be held responsible, is what we are trying to clarify in this Committee.
Baroness Deech (CB)
My Lords, I did not come prepared with examples about universities—my memory is not that good. However, there have been very many occasions where violence used by anti-Israel students has forced the university to cancel speakers or to charge Israeli and Jewish societies for their own security when an Israeli or a pro-Israeli speaker comes. There are manifold examples of this, and I have dealt with it over the years. If noble Lords do not know about this, they really should.
The comments that have been made by the noble Lords, Lord Mann and Lord Wallace, and the noble Baroness, Lady Fox, take us to the heart of the Bill and why the drafting is so difficult. What the Bill really means to do is clamp down on anti-Semitism in local authorities and universities, but it cannot say so in direct terms; therefore, it goes much more broadly than it needs to, because it is academically dancing around the subject. If I could rip it up and start again, I would have a couple of clauses saying that anti-Israel activity—anti-Zionist activity, if you want to call it that, or anti-Semitic activity—is prohibited in universities and public authorities, because there are no examples of universities and public authorities acting against Australia, to give a fanciful example. Is anyone banning Australian wine because of what happened to the Aborigines? Is anyone banning New Zealand lamb because of the way the Māoris were treated? Is anyone, anywhere, ceasing to use Chinese products? I need hardly go on.
Lord Leigh of Hurley (Con)
My Lords, I will add to this element of the debate, if I may, because I think it is relevant. The noble Lord, Lord Willetts, mentioned at Second Reading that he was on the council of Southampton University. I too am an alumnus of Southampton University.
In March 2015, the university procured the services of a speaker to host a debate questioning the right of Israel to exist. I do not know whether that would be caught by the Bill. I would hope that it is, but I suspect that it is not. I wrote to the vice-chancellor at the time—I had been a very modest donor to the university—and asked, going to the point made by the noble Baroness, Lady Deech, whether there had been any conference at Southampton University questioning the right to exist of any other country. He wrote back and said there had not. Eventually, the conference was cancelled—it received reprobation from the Communities Secretary at the time, now my noble friend Lord Pickles —only because the university claimed it could not go ahead on health and safety grounds. But that was a very thin excuse, and for a university to host a conference dedicated to questioning the right of the State of Israel to exist, and to procure the services of people to run it, is, I hope noble Lords would agree, what we should be addressing.
Lord Johnson of Marylebone (Con)
My Lords, my noble friend the Minister was asking whether I was reassured. I appreciate that that was largely a rhetorical question, but I have to say I am not yet totally reassured. But I would be if she were able to furnish us with examples of higher education institutions succumbing to pressure from student unions to undertake BDS-style actions in relation to their investment and procurement decisions. That is really important for us as we make progress with the Bill.
Baroness Neville-Rolfe (Con)
I thank all noble Lords, including the noble Baroness, Lady Deech, for their interventions. I observe that, obviously, the Bill will make this boycotting activity by student unions almost pointless. But I say to the speakers that this is a group about decision-makers, and we are ranging widely into the debate about the exact involvement of universities, although that has been helpful in informing the next stage of this Committee.
Returning to decision-makers, perhaps I could just say in conclusion that I trust that this addresses some of the concerns of noble Lords and the noble Baroness. My officials will provide further clarification in the Bill’s Explanatory Notes, as requested by the noble Lord, Lord Wallace of Saltaire. I hope, in the light of the explanations I have given, the noble Baroness will feel able to withdraw her amendment.
Baroness Chapman of Darlington (Lab)
My Lords, that was probably a bit more helpful than I had anticipated, in that it fleshed out some of our really quite fundamental concerns. The noble Baroness, Lady Deech, made a very powerful case for why action is needed to prevent some of the antagonism and fear, and those activities that have happened on campuses and elsewhere that we all want to prevent. But this Bill does not do it: it deals only with boycott and divestment decisions. It probably brings into scope people and decision-makers that the Government did not have in mind.
The idea that people who want to campaign on these issues will suddenly stop doing so as a consequence of the legislation is fanciful because, as the noble Lord, Lord Mann, said in his Second Reading speech, they will just change the target from public authorities to others. It will not deal with some of the unpleasantness and the atmosphere on campus. That will not be assisted in any way, and the way the Bill is drafted might actually make things worse. It will not deal with campaigns to prevent certain events or not to have certain speakers. Those things are completely outside the scope of the Bill. We are focusing on universities to make this point, but similar things could be said about local government.
I am very happy to withdraw my amendment, but I think we are going to end up with this discussion on most of the groups, because the Bill is so unsatisfactory and does not actually fulfil the aims that the Government say they wish to achieve. I beg leave to withdraw my amendment.
“(9) A decision under subsection (2) may include a decision by a university or research institution based in the United Kingdom to enter into a commercial partnership with another university or research institution in a foreign state.”
Lord Mann (Non-Afl)
I again reference my entry in the Register of Lords’ Interests. I should specify, as others have, that I am an unpaid adviser to His Majesty’s Government on anti-Semitism, and that previously in the other House I was, for 14 years, the chair of the all-party group on combating anti-Semitism.
In that time and over recent years, I visited virtually every university in the country, looking at and discussing anti-Semitism. I have a very detailed report that was published last year with a lot of recommendations on what should be done in higher education in this country on this issue. In introducing my amendment, I can let the noble Lord, Lord Johnson, and others know that there were no examples from that time of when a student union was capable of influencing a university in terms of BDS campaigns. I think I described it at Second Reading as the most unsuccessful political campaign in my lifetime, and that was partly why I used that language.
My amendment gets to the nub of the issue—what the problem that led to the Conservative Party’s manifesto commitment at the last election for a BDS Bill is actually about. The fundamental issue and problem that has been raised consistently is attempts at academic boycotts. In the last six months, there has without question been a growth in the pressure in universities and on academics not to carry out co-operation or research work that links directly into Israeli universities. That is a fact. How it manifests is not so much complex as complex to legislate on, because the most common way is peer group pressure. How does a university department determine what its research priorities should be? How does it determine which of the myriad universities around the world it should co-operate with?
Sometimes it is explicit; the arguments and the language are explicit. It seems to me that here there is potential scope for legislation, hence this amendment. Sometimes it is not. It is unspoken; it simply happened. Clearly, for us as legislators, that is very intangible. However, the purpose of this amendment would be to give not just a message but a specific legislative tool that would prohibit the explicit refusal to an individual academic of any status, including postgraduates, for example, specifically to work with a university that somebody did not like for political or whatever reasons.
These cases are about Israeli universities. It is widespread across Israeli universities in terms of people saying, “That should not happen”, “We don’t do that here” or “You should not do that. Your research should not include that”. That puts immense pressure on individuals. Imagine that you are a postgraduate student and you are told by your supervisor, “No, I don’t think you should be researching into what is happening in Israel in relation to the specific subject of your postgraduate studies”. That is exactly the pressure that has happened. Or, “We as a university are not going to have a relationship”. The excuse given might be, “We don’t have the budget for this particular university” —Haifa university, let us say—“but we do have a budget for another university somewhere else in the world”. That is precisely how it manifests.
Where it could be demonstrated that that is done for racist reasons, when the academic has a specific interest, a particular desire, a particular motivation to work with an Israeli university or with an Israeli academic, that becomes the problem that we should be dealing with. That is the real problem of anti-Semitism having a pernicious impact in our universities and in our university life. Thankfully, it is not widespread in terms of how it happens, but it is there, it is more common, there are many examples of it over the years and there are increasing examples now.
So having something in the Bill that addresses that specific problem is far more relevant than the theoretics of investment decisions elsewhere, where the evidence base does not say that is the nub of the problem. If the Government wish to manage expectations in the Jewish community, that is rather fundamental. The people who have said, “Yes, we welcome this Bill”, expect it to be about student unions and student union debates. There is no ambiguity in what people have said and what they have called for. It does not serve the interests of Government or Parliament to build up a false expectation of what a piece of legislation would do— indeed, it is dangerous to do so, in my view. So I put it to the Government and the Committee that this amendment would be helpful in putting some meat into the issue for this Bill to progress.
My second amendment, Amendment 9, is equally important but for a different reason. My stance on BDS protests and campaigns is that, frankly, if anyone here chooses to buy this or that product, it is perfectly valid. If one decides not to buy Jaffa oranges because one does not like Israel or the Israeli Government, that is a choice one is free to make and should be free to make. If someone chooses particularly to buy Jaffa oranges, that is a perfectly valid case. If, like me, one is partial to both Palestinian dates and Jaffa oranges, one can say that that is a healthy choice to make on both counts, and perhaps even a little bit politically balanced—I am doing so because the food is rather good. If one chooses, as I do, not to buy Ben & Jerry’s, perhaps one might observe that that is doing me some good. Whether one calls that a political or moral decision, or an absurd decision, it does not matter; that is my free choice.
However, if one then stops a shop—let us say, in a student union or university, or in a local authority—stocking Jaffa oranges, that means that people who wish to buy them cannot do so. It is particularly invidious, when a religion, and there are several, has specific dietary rules and laws—in the case of Judaism, it is kosher food—specifically to isolate the ability of individuals to choose to follow religious norms and rules on diet and ban their right to do so. That is much more invidious, because it is impacting one’s way of life. Therefore, the principle is far greater. Having additional legislation that specifically makes that illegal has a much more powerful impact, because it is affecting a way of life. With the so-called BDS campaign, we are seeing increasingly Jewish kosher foods, which may be Israeli or not, being specifically targeted by racists, whether in supermarkets or Jewish-owned stores, inhibiting the rights of those who choose to be kosher-adherent to be so. That fundamental freedom is being restricted. That is why Amendment 9 has a validity to it.
There are great legal brains here who will work through whether the amendments I am proposing would work; they appear to me to do so. Certainly, in terms of the expectation out there of what this Bill is about, people are interested in precisely this kind of thing, because these are the big issues impacting on how people live their lives and on their freedoms; that is, their academic freedoms to do what they wish as academics—which, I put it to the Committee, is fundamental to what we are as a country—and their freedoms to be themselves in what they choose to eat, which is fundamental to the concept of individual and collective rights, and what we are in this country. I recommend these two amendments to the Government and the Committee. I beg to move.
Lord Pickles (Con)
My Lords, I apologise for not speaking at Second Reading, and I draw attention to my entry in the register. I am not entirely sure that what the noble Lord, Lord Mann, said is entirely within the scope of the Bill, but it should be, because it raises a very important point. Before I go on, I crave your Lordships’ indulgence for 30 seconds, because I want to say how indebted this country is to the noble Lord for his work in universities and higher education, and also in sport. He has made a considerable difference, and this House should be grateful to him,
What the noble Lord said illustrates that this is not just about who is in charge, or about the comfort of people attending universities and speaking in student union debates; it is about who is welcome and who is not. It is about how comfortable people feel when politics from another country spills over and affects the domestic life of this country. It is about how we underpin, and celebrate, a multicultural society, while ensuring that we can also celebrate our common Britishness.
The noble Lord, Lord Mann, has done a lot of work on getting the International Holocaust Remembrance Alliance definition of anti-Semitism adopted in universities. It is a non-legally binding definition, and is there as a marker for discussions. As with all such things, there is a bit of a fashion, and people go around and adopt things. The question that the noble Lord asked, and that I ask, is: “Congratulations on adopting it, but what have you done with it?”
The very minimum we would expect, in a university, say, is the creation of a safe space for Jewish students to be able to study. But this also means creating a safe space to do the sorts of things that would keep their parents up at night worrying about them—to be able to enjoy being at university, to enjoy life and to be able to go around the campus with signs of their Jewishness, without fear that they will be picked on. The point that the noble Lord, Lord Mann, is making is that we should not seek to do things that exclude people. If people have a particular view of the kind of food they can eat, that should be available. Student shops on campuses should not remove kosher food, because that excludes people.
I speak from practical experience of this. In the late 1980s and early 1990s I was the leader of Bradford Council, and, with the co-operation of the Labour Party, we introduced halal meat into school meals. That does not sound all that exciting—we see it all the time—but we were the first council in the country to do it. There was an enormous backlash from the population, and from the animal rights people, because of the nature of religious-compliant slaughter.
Why was that important? We had a large number of Muslims in Bradford, many of them on very low incomes, and it was one guaranteed way of ensuring that once a day, the children got a hot, nutritious meal that met their needs. We were also saying something really important to the population of Bradford, which was, as we say in Bradford, “You’re ratepayers—so you’re entitled to get back what you’re putting in. You’re entitled to receive respect”. When we try to get people to work together as a wider community, we should not seek to exclude them because they cannot come to receptions or parties or other social events because we do not provide things that they can enjoy. We should also ensure that if people want to pray, that should be available, because this is about bringing people together.
I am not sure whether the Bill covers that, but there is a debate coming in this country that may be the flip side of the definition of extremism, which is about how we bind people together—how we work together and make people feel British without them losing their identity. The noble Lord, Lord Mann, has given considerable service to this House by raising this because it is an issue that over the coming years and decades we have to get right.
Lord Wallace of Saltaire (LD)
My Lords, I shall speak to Amendment 8. I declare an interest: I have two children, both scientists, working in universities. My son runs a microbiology laboratory at Edinburgh University that has a number of international research partnerships, including with Israeli academics. I am unaware, from everything my children have told me, that anyone is boycotting contact with Israel in microbiology. There are some highly regarded Israeli scholars who take part in a whole range of things.
There are course problems in some research partnerships with Chinese academics, sometimes now with Russian academics and sometimes with academics from particular Middle Eastern countries. One has to leave it to those who are running laboratories, which are highly international—I think my son currently has people from four different countries in his—because these matters require delicate arrangements. When it comes to the social sciences, particularly if you are teaching international relations and have a lot of research students, as I used to, and you are sending them out to study Saudi, Egyptian or above all Chinese issues, you are in really delicate areas.
I emphasise that any of those are private acts of a university—commercial partnerships most of all. When that gets into the question of how far we want the Government to interfere in the autonomy of universities, we do not always get it right. There have been research students and young scholars who have been imprisoned in the Emirates or imprisoned and killed in prison, as in Egypt. On one occasion I had to approach one of the intelligence agencies about some of our students at the LSE, immediately after 9/11, because some people had lost confidence in the people with whom they were dealing. That has to be left to the judgment of universities. I do not think there is a problem there, and I am therefore unhappy about the idea that Amendment 8 should be included within the scope of this Bill.
Lord Johnson of Marylebone (Con)
My Lords, while I am sympathetic to the intentions of Amendment 8, tabled by the noble Lord, Lord Mann, I wonder if it is ultimately going to be necessary, given that the Higher Education and Research Act 2017 gives the Office for Students powers to take action whenever an institution is in breach of the public interest principles it is required to uphold.
One of those principles relates specifically to academic freedom and the issues to which the noble Lord was referring with respect to Israel. All academic staff at an English higher education provider have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing the jobs or privileges they may have at that provider. I think that essentially covers the points he was making in respect of academics being prevented from pursuing partnerships or research with universities in Israel or with Israeli academics. We have these provisions in law and the Office for Students has all the powers at its disposal to enforce them. So I am not sure that Amendment 8 is entirely necessary, although I understand why he tabled it.
Lord Wolfson of Tredegar (Con)
My Lords, I associate myself with the words of my noble friend Lord Pickles about the work done over many years by the noble Lord, Lord Mann, for the Government in an unpaid capacity. That work is well regarded and very much appreciated in the Jewish community and, I am sure, well beyond it too.
Turning to Amendment 9, while I understand its focus and purpose, I am not sure that it is necessary in the Bill. In particular, although this is not my area of law, I wonder whether the thrust of the amendment would not actually be covered by existing provisions under the Equality Act. I do not know whether the Minister or her department has thought of that, but, if this were to go forward, that might be another way of dealing with this issue.
On a narrower point, the amendment is also widely drawn. It would seem to cover, for example, a decision to use one halal supplier or one kosher supplier rather than a different halal or kosher supplier. I think that cannot be within the intention of the amendment, although I think it would be caught by it.
I am conscious of the time, but I will end on a slightly different point. The focus of this amendment is that food is sometimes used to drive a wedge between communities. This might be a strange thing for me to say, but I want to pay tribute to Zarah Sultana MP, with whom I probably agree on absolutely nothing but who, with Charlotte Nichols MP, ran a long-standing campaign in Parliament to have kosher and halal food available here. They found a supplier called 1070, which has both kosher and halal certification to provide that food. As a result, I have had conversations over food with people who I might not otherwise have had those conversations with and I found those discussions extremely helpful. I use this, probably very wrongly, to suggest to the authorities that this kosher and halal food be continued, so that we can not only eat together but discuss and speak together as well.
Lord Collins of Highbury (Lab)
My Lords, I too associate myself with the comments of the noble Lord, Lord Pickles, because the noble Lord, Lord Mann, has done incredibly important work in tackling anti-Semitism and ensuring that we remove it from all of our civil life. I pay tribute to him.
I will not delay the House too long, but the important thing with these two amendments is expectations. This is the problem with the Bill. While I want to avoid going back, we have made a plea—my noble friend Lady Chapman made it at Second Reading—that we want to co-operate with the Government to implement their manifesto commitment. I am afraid that this Bill goes well beyond that and brings into question other issues.
The noble Lord, Lord Mann, is absolutely right to put these sorts of amendments down, because they address the concerns of the community. People often think when we are talking about this Bill that we are talking about consumer boycotts and consumer choice. No, we are not. It is about decisions over investment and procurement, but those decisions can involve the sorts of things that the noble Lord, Lord Mann, is talking about—and we heard an example from the noble Lord just now.
How we manage expectations is really important. I suspect that, when we go into other groups, we will hear lots of concerns about issues that go well beyond the scope of the Bill. So I hope the Minister understands why the noble Lord, Lord Mann, has put these amendments in. They are to probe, but also to say that there is a problem, there is an issue and the Bill does not solve it.
Baroness Neville-Rolfe (Con)
My Lords, I thank the noble Lord, Lord Mann, for drawing the House’s attention to two important issues with his Amendments 8 and 9. Like my noble friend Lord Pickles, who it is a real pleasure to welcome to our debate, my noble friend Lord Wolfson of Tredegar and the noble Lord, Lord Collins of Highbury, I am really grateful for all the work that the noble Lord, Lord Mann, has done.
My noble friend Lord Pickles and I worked together in my retail days, when he was a leading influence in local government and I worked to have kosher and halal food in many of the Tescos that were spreading across the country. So there were lots of conversations over food. A focus on community concerns is what much of the probing has been about this evening—but that is for another group.
I remain of the view that we need to apply this Bill to universities as we are doing, and I am committed to having a comprehensive debate and discussion on the impact of the Bill on universities at the appropriate moment later in Committee.
As we have heard, the two amendments in this group would add two stipulations to Clause 1. Amendment 8 intends to ensure that the prohibition applies to a decision made by a university to enter into a commercial partnership with another university or research university in a foreign state. The prohibition in the Bill already covers higher education providers in their public functions, including when their procurement and investment decisions form part of a research collaboration. Decisions relating to a commercial partnership are, however, likely to constitute a private function—for example, a decision relating to a research partnership to develop a new product funded by a pharmaceutical company. The ban applies only to public authorities’ public functions, as we have heard, and private decisions are rightly out of scope of the Bill. I note what the noble Lord, Lord Mann, says, but it would be inappropriate to apply the ban to private functions, and it would take the Bill beyond the manifesto commitment.
We have been clear in the Explanatory Notes that Clause 1 is not intended to prevent a higher education provider deciding to terminate a collaboration with a foreign university on the grounds of academic freedom, if they deem it necessary in line with their statutory duties in Part A1 of the Higher Education and Research Act 2017 or other legislation. The Bill is about ensuring that universities and higher education institutions do not have a corporate view on a particular matter of foreign policy when making their investment and procurement decisions. It is right that the Bill does not stray into decisions that could threaten academic freedom, as helpfully highlighted by the noble Lord, Lord Stevens of Birmingham, who spoke at Second Reading. I am sympathetic to the points that the noble Lord, Lord Mann, is making, and the Government do not support academic boycotts, but this Bill rightly does not interfere with academic freedom or private activity.
I turn to the points made by the noble Lord, Lord Mann, about the Jewish community’s support for this Bill. The Jewish community in the UK is widely supportive of the Bill as drafted. Russell Langer, head of policy at the Jewish Leadership Council, provided the following statement in support of the Bill’s restriction on universities’ economic activities:
“Higher education institutions continue to come under pressure to adopt BDS policies ... This legislation will be a valuable tool in assisting our higher education in rejecting this effort”.
The Bill will sit alongside other measures that the Government are taking to protect academic freedom. The Higher Education (Freedom of Speech) Act 2023 will ensure that freedom of speech is protected and promoted within higher education in England, and it will strengthen existing freedom of speech duties and directly address gaps in the existing law. Without action to counter attempts to discourage or even silence unpopular views, intellectual life on campus for staff and students may be unfairly narrowed or diminished, which is why there was a commitment in the 2019 manifesto to strengthen this.
Lord Wallace of Saltaire (LD)
The Minister has just said that we need legislation to silence unpopular views. I have to say that, as a liberal, I find that one of the most illiberal things that we could consider doing. Did she mis-speak?
Baroness Neville-Rolfe (Con)
I am not sure that I said exactly that. However, there obviously is a problem in campuses and elsewhere with BDS, and that is what this Bill is about. I shall move on to Amendment 9.
Baroness Deech (CB)
If I can help the Minister, what we need to silence is hate speech. The law is reasonably clear. It is not wholly clear—there is a blur between unpopular views and hate speech—but it has been settled for a long time that hate speech is not allowed. My test for this is when you hear something and it uses the word “Zionist” or “Jew”, if you remove that word and replace it with, let us say, “black” or “Asian”, it is then usually pretty clear that what you are dealing with is hate speech or racist speech.
Baroness Neville-Rolfe (Con)
I thank the noble Baroness for her intervention. These are difficult issues.
I turn briefly to Amendment 9, which would ensure that the prohibition in Clause 1 applied to decisions relating to the procurement of food prepared in line with religious practices, such as kosher and halal foods. The ban established by the Bill applies to all procurement decisions, including the procurement of food where this is part of a public function. Therefore, if a public authority made a decision not to procure kosher food and that decision was influenced by moral or political disapproval of the conduct of the State of Israel, the Bill would already prohibit this. However, I reassure noble Lords that nothing in the Bill would stop a public authority providing food that accommodated the religious beliefs of its employees or its service users. For example, it would not stop a public authority specifying in a tender that it was procuring halal products. For these reasons, I ask the noble Lord to withdraw his amendment.