Grand Committee

Wednesday 17th April 2024 Grand Committee

Wednesday 17 April 2024

Arrangement of Business

Wednesday 17th April 2024 Grand Committee

Announcement

16:15

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Data Protection and Digital Information Bill

Committee stage
Wednesday 17th April 2024 Grand Committee

Committee (5th Day)

Scottish, Welsh and Northern Ireland Legislative Consent sought.

16:15

Clause 44: Complaints to controllers

Debate on whether Clause 44 should stand part of the Bill.

[Lord Clement-Jones (LD)]

My Lords, I start today with probably the most innocuous of the amendments, which is that Clause 44 should not stand part. Others are more significant, but its purpose, if one can describe it as such, is as a probing clause stand part, to see whether the Minister can explain the real motive and impact of new Section 164A, which is inserted by Clause 44. As the explanatory statement says, it appears to hinder

“data subjects’ right to lodge complaints, and extends the scope of orders under Section 166 of the Data Protection Act to the appropriateness of the Commissioner’s response to a complaint.”

I am looking to the Minister to see whether he can unpack the reasons for that and what the impact is on data subjects’ rights.

More fundamental is Amendment 153, which relates to Clause 45. This provision inserts new Section 165A into the Data Protection Act, according to which the commissioner would have the discretion to refuse to act on a complaint if the complainant did not try to resolve the infringement of their rights with the relevant organisation and at least 45 days have passed since then. The right to an effective remedy constitutes a core element of data protection—most individuals will not pursue cases before a court, because of the lengthy, time- consuming and costly nature of judicial proceedings—and acts as a deterrent against data protection violations, in so far as victims can obtain meaningful redress. Administrative remedies are particularly useful, because they focus on addressing malpractice and obtaining meaningful changes in how personal data is handled in practice.

However, the ICO indicates that in 2021-22 it did not serve a single GDPR enforcement notice, secured no criminal convictions and issued only four GDPR fines, totalling just £633,000, despite the fact that it received over 40,000 data subject complaints. Moreover, avenues to challenge ICO inaction are extremely limited. Scrutiny of the information tribunal has been restricted to a purely procedural as opposed to a substantive nature. It was narrowed even further by the Administrative Court decision, which found that the ICO was not obliged to investigate each and every complaint.

Amendment 153 would remove Clause 45. The ICO already enjoys a wide margin of discretion and little accountability for how it handles complaints. In light of its poor performance, it does not seem appropriate to expand the discretion of the new information commission even further. It would also extend the scope of orders under Section 166 of the Data Protection Act to the appropriateness of the commissioner’s response to a complaint. This would allow individuals to promote judicial scrutiny over decisions that have a fundamental impact into how laws are enforced in practice and it would increase the overall accountability of the new information commission.

We have signed Amendment 154, in the name of the noble Baroness, Lady Jones, and I look forward to hearing what she says on that. I apologise for the late tabling of Amendments 154A to 154F, which are all related to Amendments 155 and 175. Clause 47 sets out changes in procedure in the courts, in relation to the right of information of a data subject under the 2018 Act, but there are other issues that need resolving around the jurisdiction of the courts and the Upper Tribunal in data protection cases. That is the reason for tabling these amendments.

The High Court’s judgment in the Delo v ICO case held that part of the reasoning in Killock and Veale about the relative jurisdiction of the courts and tribunals was wrong. The Court of Appeal’s decision in the Delo case underlines concerns, but does not properly address the jurisdictions’ limits in Sections 166 and 167 of the 2018 Act, regarding the distinction between determining procedural failings or the merits of decisions by the ICO. Surely jurisdiction under these sections should be in either the courts or the tribunals, not both. In the view of many, including me, it should be in the tribunals. That is what these amendments seek.

It is clear from these two judgments that there was disagreement on the extent of the jurisdiction of tribunals and courts, notably between Mrs Justice Farbey and Mr Justice Mostyn. The commissioner submitted very different submissions to the Upper Tribunal, the High Court and the Court of Appeal, in relation to the extent and limits of Sections 166 and 167. It is not at all clear what Parliament’s intentions were, when passing the 2018 Act, on the extents and limits of the powers in these sections and whether the appropriate source of redress is a court or tribunal.

This has resulted in jurisdictional confusion. A large number of claims have been brought in either the courts or the tribunals, under either Section 166 or Section 167, and the respective court or tribunal has frequently ruled that the claim should have been made under the other section and it therefore does not have jurisdiction, so that the claim is struck out. The Bill offers a prime opportunity to resolve this issue.

Clause 45(5), which creates new Section 166A, would only blur the lines even more and fortify the reasoning for the claim to be put into the tribunals, rather than the courts. These amendments would give certainty to the courts and tribunals as to their powers and would be much less confusing for litigants in person, most of whom do not have the luxury of paying hundreds of thousands in court fees. This itself is another reason for this to remain in the tribunals, which do not charge fees to issue proceedings.

The proposed new clause inserted by Amendment 287 would require the Secretary of State to exercise powers under Section 190 of the 2018 Act to allow public interest organisations to raise data protection complaints on behalf of individuals generally, without the need to obtain the authorisation of each individual being represented. It would therefore implement Article 80(2) of the GDPR, which provides:

“Member States may provide that any body, organisation or association referred to in paragraph 1 of this Article, independently of a data subject’s mandate, has the right to lodge, in that Member State, a complaint with the supervisory authority which is competent pursuant to Article 77 and to exercise the rights referred to in Articles 78 and 79 if it considers that the rights of a data subject under this Regulation have been infringed as a result of the processing”.


The intention behind Article 80(2) is to allow appropriately constituted organisations to bring proceedings concerning infringements of the data protection regulations in the absence of the data subject. That is to ensure that proceedings may be brought in response to an infringement, rather than on the specific facts of an individual’s case. As a result, data subjects are, in theory, offered greater and more effective protection of their rights. Actions under Article 80(2) could address systemic infringements that arise by design, rather than requiring an individual to evidence the breaches and the specific effects to them.

At present, an affected individual—a data subject—is always required to bring a claim or complaint to a supervisory authority. Whether through direct action or under Section 187 of the 2018 Act, a data subject will have to be named and engaged. In practice, a data subject is not always identifiable or willing to bring action to address even the most egregious conduct.

Article 80(2) would fill a gap that Article 80(1) and Section 187 of the Data Protection Act are not intended to fill. Individuals can be unwilling to seek justice, exercise their rights and lodge data protection complaints on their own, either for fear of retaliation from a powerful organisation or because of the stigma that may be associated with the matter where a data protection violation occurred. Even a motivated data subject may be unwilling to take action due to the risks involved. For instance, it would be reasonable for that data subject not to want to become involved in a lengthy, costly legal process that may be disproportionate to the loss suffered or remedy available. This is particularly pressing where the infringement concerns systemic concerns rather than where an individual has suffered material or non-material damage as a result of the infringement.

Civil society organisations have long helped complainants navigate justice systems in seeking remedies in the data protection area, providing a valuable addition to the enactment of UK data protection laws. My Amendment 287 would allow public interest organisations to lodge representative complaints, even without the mandate of data subjects, to encourage the filing of well-argued, strategically important cases with the potential to improve significantly the data subject landscape as a whole. This Bill is the ideal opportunity for the Government to implement fully Article 80(2) of the GDPR from international law and plug a significant gap in the protection of UK citizens’ privacy.

In effect, this is unfinished business from our debates on the 2018 Act, when we made several attempts to persuade the Government of the merits of introducing the rights under Article 80(2). I hope that the Government will think again. These are extremely important rights and are available in many other countries governed by a similar GDPR. I beg to move.

[Baroness Kidron (CB)]

My Lords, as a veteran of the 2018 arguments on Article 80(2), I rise in support of Amendment 287, which would see its implementation.

Understanding and exercising personal data rights is not straightforward. Even when the rights are being infringed, it is rare that an individual data subject has the time, knowledge or ability to make a complaint to the ICO. This is particularly true for vulnerable groups, including children and the elderly, disadvantaged groups and other groups of people, such as domestic abuse survivors or members of the LGBTQ community, who may have specific reasons for not identifying themselves in relation to a complaint. It is a principle in law that a right that cannot be activated is not fully given.

A data subject’s ability to claim protection is constrained by a range of factors, none of which relates to the validity of their complaint or the level of harm experienced. Rather, the vast majority are prevented from making a complaint by a lack of expertise, capacity, time and money; by the fact that they are not aware that they have data rights; or by the fact that they understand neither that their rights have been infringed nor how to make a complaint about them.

I have considerable experience of this. I remind the Committee that I am chair of the 5Rights Foundation, which has raised important and systemic issues of non-compliance with the AADC. It has done this primarily by raising concerns with the ICO, which has then undertaken around 40 investigations based on detailed submissions. However, because the information is not part of a formalised process, the ICO has no obligation to respond to the 5Rights Foundation team, the three-month time limit for complaints does not apply and, even though forensic work by the 5Rights Foundation identified the problem, its team is not consulted or updated on progress or the outcome—all of which would be possible had it submitted the information as a formal complaint. I remind the Committee that in these cases we are talking about complaints involving children.

16:30

Article 80(2) has important implications for the ability of a small, highly specialised civil society organisation to take action. The challenge and resource intensity to manage appropriately a child and their family or guardian through what is generally a long and drawn-out process is a major barrier to justice. Rightly, safeguarding and ensuring the privacy and well-being of a child is the paramount issue, but the issue raised is almost always relevant to all children, or a wide group of them—not just to a single child who has been forced into the position of poster child for a particular issue.

Giving a highly specialised civil society organisation the right to act on behalf of all children would provide a much simpler and more effective way to raise and resolve systemic risk, and this is obviously the case for other user groups. A formal relationship with the regulator would allow for better use of both the regulator and the NGO’s resources as the action and the learning would be transparent. The costs and evidentiary burden to show the nature of data protection infraction would lie with the complainant organisation, so there would still be a high bar of quality in the complaints process. Indeed, expert organisations are better placed to describe non-compliance, and it would prevent revictimising or overburdening a child if the law enabled expert groups to act on behalf of all children, or indeed any identified group being let down.

The noble Lord, Lord Clement-Jones, made an excellent case and, for the reasons given, I support his amendment.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I listened carefully to the explanation given by the noble Lord, Lord Clement-Jones, for his stand part notice on Clause 44. I will have to read Hansard, as I may have missed something, but I am not sure I am convinced by his arguments against Clause 44 standing part. He described his stand part notice as “innocuous”, but I am concerned that if the clause were removed it would have a slightly wider implication than that.

We feel that there are some advantages to how Clause 44 is currently worded. As it stands, it simply makes it clear that data subjects have to use the internal processes to make complaints to controllers first, and then the controller has the obligation to respond without undue delay. Although this could place an extra burden on businesses to manage and reply to complaints in a timely manner, I would have thought that this was a positive step to be welcomed. It would require controllers to have clear processes in place for handling complaints; I hope that that in itself would be an incentive against their conducting the kind of unlawful processing that prompts complaints in the first place. This seems the best practice, which would apply anyway in most organisations and complaint and arbitration systems, including, perhaps, ombudsmen, which I know the noble Lord knows more about than I do these days. There should be a requirement to use the internal processes first.

The clause makes it clear that the data subject has a right to complain directly to the controller and it makes clear that the controller has an obligation to respond. Clause 45 then goes on to make a different point, which is that the commissioner has a right to refuse to act on certain complaints. We touched on this in an earlier debate. Clearly, to be in line with Clause 44, the controller would have to have finished handling the case within the allotted time. We agree with that process. However, an alternative reason for the commissioner to refuse is when the complaint is “vexatious or excessive”. We have rehearsed our arguments about the interpretation of those words in previous debates on the application of subject access requests. I do not intend to repeat them here, but our concern about that wording rightly remains. What is important here is that the ICO should not be able to reject complaints simply because the complainant is distressed or angry. It is helpful that the clause states that in these circumstances,

“the Commissioner must inform the complainant”

of the reasons it is considered vexatious or excessive. It is also helpful that the clause states that this

“does not prevent the complainant from making it a complaint again”,

presumably in a way more compliant with the rules. Unlike the noble Lord, Lord Clement Jones—as I said, I will look at what he said in more detail—on balance, we are content with the wording as it stands.

On a slightly different tack, we have added our name to Amendment 154, in the name of the noble Lord, Lord Clement-Jones, and we support Amendment 287 on a similar subject. This touches on a similar principle to our previous debate on the right of data communities to raise data-breach complaints on behalf of individuals. In these amendments, we are proposing that there should be a collective right for organisations to raise data-breach complaints for individuals or groups of individuals who do not necessarily feel sufficiently empowered or confident to raise the complaints on their own behalf. There are many reasons why this reticence might occur, not least that the individuals may feel that making a complaint would put their employment on the line or that they would suffer discrimination at work in the future. We therefore believe that these amendments are important to widen people’s access to work with others to raise these complaints.

Since these amendments were tabled, we have received the letter from the Minister that addresses our earlier debate on data communities. I am pleased to see the general support for data intermediaries that he set out in his letter. We argue that a data community is a separate distinct collective body, which is different from the wider concept of data intermediaries. This seems to be an area in which the ICO could take a lead in clarifying rights and set standards. Our Amendment 154 would therefore set a deadline for the ICO to do that work and for those rights to be enacted.

The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, made a good case for broadening these rights in the Bill and, on that basis, I hope the Minister will agree to follow this up, and follow up his letter so that we can make further progress on this issue.

The noble Lord, Lord Clement-Jones, has tabled a number of amendments that modify the courts and tribunals functions. I was hoping that when I stood here and listened to him, I would understand a bit more about the issues. I hope he will forgive me for not responding in detail to these arguments. I do not feel that I know enough about the legal background to the concerns but he seems to have made a clear case in clarifying whether the courts or tribunals should have jurisdiction in data protection issues.

On that basis, I hope that the Minister will also provide some clarification on these issues and I look forward to his response.

[The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for tabling these amendments to Clauses 44 and 45, which would reform the framework for data protection complaints to the Information Commissioner.

The noble Lord, Lord Clement-Jones, has given notice of his intention to oppose Clause 44 standing part of the Bill. That would remove new provisions from the Bill that have been carefully designed to provide a more direct route to resolution for data subjects’ complaints. I should stress that these measures do not limit rights for data subjects to bring complaints forward, but instead provide a more direct route to resolution with the relevant data controller. The measures formalise current best practice, requiring the complainant to approach the relevant data controller, where appropriate, to attempt to resolve the issue prior to regulatory involvement.

The Bill creates a requirement for data controllers to facilitate the making of complaints and look into what may have gone wrong. This should, in most cases, result in a much quicker resolution of data protection-related complaints. The provisions will also have the impact of enabling the Information Commissioner to redeploy resources away from handling premature complaints where such complaints may be dealt with more effectively, in the first instance, by controllers and towards value-added regulatory activity, supporting businesses to use data lawfully and in innovative ways.

The noble Lord’s Amendment 153 seeks, in effect, to expand the scope of the Information Commissioner’s duty to investigate complaints under Section 165 of the Data Protection Act. However, that Section of the Act already provides robust redress routes, requiring the commissioner to take appropriate steps to respond to complaints and offer an outcome or conclude an investigation within a specified period.

The noble Lord raised the enforcement of the UK’s data protection framework. I can provide more context on the ICO’s approach, although noble Lords will be aware that it is enforced independently of government by the ICO; it would of course be inappropriate for me to comment on how the ICO exercises its enforcement powers. The ICO aims to be fair, proportionate and effective, focusing on areas with the highest risk and most harm, but this does not mean that it will enforce every case that crosses its books.

The Government have introduced a new requirement on the ICO—Clause 43—to publish an annual report on how it has exercised its enforcement powers, the number and nature of investigations, the enforcement powers used, how long investigations took and the outcome of the investigations that ended in that period. This will provide greater transparency and accountability in the ICO’s exercise of its enforcement powers. For these reasons, I am not able to accept these amendments.

I also thank the noble Baroness and the noble Lord for their Amendments 154 and 287 concerning Section 190 of the Data Protection Act. These amendments would require the Secretary of State to legislate to give effect to Article 80(2) of the UK GDPR to enable relevant non-profit organisations to make claims against data controllers for alleged data breaches on behalf of data subjects, without those data subjects having requested or agreeing to the claim being brought. Currently, such non-profit organisations can already pursue such actions on behalf of individuals who have granted them specific authorisation, as outlined in Article 80(1).

In 2021, following consultation, the Government concluded that there was insufficient evidence to justify implementing Article 80(2) to allow non-profit organisations to bring data protection claims without the authorisation of the people affected. The Government’s response to the consultation noted that the regulator can and does investigate complaints raised by civil society groups, even when they are not made on behalf of named individuals. The ICO’s investigations into the use of live facial recognition technology at King’s Cross station and in some supermarkets in southern England are examples of this.

I also thank the noble Baroness, Lady Kidron, for raising her concerns about the protection of children throughout the debate—indeed, throughout all the days in Committee. The existing regime already allows civil society groups to make complaints to the ICO about data-processing activities that affect children and vulnerable people. The ICO has a range of powers to investigate systemic data breaches under the current framework and is already capable of forcing data controllers to take decisive action to address non-compliance. We are strengthening its powers in this Bill. I note that only a few member states of the EU have allowed non-governmental organisations to launch actions without a mandate, in line with the possibility provided by the GDPR.

I turn now to Amendments 154A, 154B—

[Lord Bassam of Brighton (Lab)]

Before the noble Lord gets there and we move too far from Amendment 154, where does the Government’s thinking leave us regarding a group of class actions? Trade unions take up causes on behalf of their membership at large. I guess, in the issue of the Post Office and Mr Bates, not every sub-postmaster or sub-postmistress would have signed up to that class action, even though they may have ended up being beneficiaries of its effects. So where does it leave people with regard to data protection and the way that the data protection scheme operates where there might be a class action?

16:45

[Viscount Camrose (Con)]

If the action is raised on behalf of named individuals, those named individuals have to have given consent for that. If the action is for a general class of people, those people would not have to give their explicit consent, because they are not named in the action. Article 80(2) of the GDPR said that going that further step was optional for all member states. I do not know which member states have taken it up, but a great many have not, just because of the complexities to which it gives rise.

[Lord Clement-Jones (LD)]

My Lords, just so that the Minister might get a little note, I will ask a question. He has explained what is possible—what can be done—but not why the Government still resist putting Article 80(2) into effect. What is the reason for not adopting that article?

[Viscount Camrose (Con)]

The reason was that an extensive consultation was undertaken in 2021 by the Government, and the Government concluded at that time that there was insufficient evidence to take what would necessarily be a complex step. That was largely on the grounds that class actions of this type can go forward either as long as they have the consent of any named individuals in the class action or on behalf of a group of individuals who are unnamed and not specifically raised by name within the investigation itself.

[Lord Clement-Jones (LD)]

Perhaps the Minister could in due course say what evidence would help to persuade the Government to adopt the article.

[Lord Bassam of Brighton (Lab)]

I want to help the Minister. Perhaps he could give us some more detail on the nature of that consultation and the number of responses and what people said in it. It strikes me as rather important.

[Viscount Camrose (Con)]

Fair enough. Maybe for the time being, it will satisfy the Committee if I share a copy of that consultation and what evidence was considered, if that would work.

I will turn now to Amendments 154A to 155 and Amendment 175, which propose sweeping modifications to the jurisdiction of the court and tribunal for proceedings under the Data Protection Act 2018. These amendments would have the effect of making the First-tier Tribunal and Upper Tribunal responsible for all data protection cases, transferring both ongoing and future cases out of the court system and to the relevant tribunals.

The Government of course want to ensure that proceedings for enforcement of data protection rules, including redress routes available to data subjects, are appropriate for the nature of the complaint. As the Committee will be well aware, at present there is a mixture of jurisdiction for tribunals and courts under data protection legislation, depending on the precise nature of the proceedings in question. Tribunals are indeed the appropriate venue for some data protection proceedings, and the legislation already recognises that—for example, for application by data subjects for an order requiring the ICO to progress their complaint. However, courts are generally the more appropriate venue for cases involving claims for compensation and successful parties can usually recover their costs. Courts also apply stricter rules of procedure and evidence than tribunals. That is because some cases are appropriate to fall under the jurisdiction of the tribunal, while others are more appropriate for court jurisdiction. For example, claims by individuals against organisations for breaches of legal requirements can result in awards of compensatory damages for the individuals and financial and reputational damage for the organisations. It is appropriate that such cases are handled by a court in accordance with its strict procedural and evidential rules, where the data subject may recover their costs if successful.

As such, the Government are confident that the current system is balanced and proportionate and provides clear and effective administrative and judicial redress routes for data subjects seeking to exercise their rights.

[Lord Clement-Jones (LD)]

My Lords, is the Minister saying that there is absolutely no confusion between the jurisdiction of the tribunals and the courts? That is, no court has come to a different conclusion about jurisdiction—for example, as to whether procedural matters are for tribunals and merits are for courts or vice versa. Is he saying that everything is hunky-dory and clear and that we do not need to concern ourselves with this crossover of jurisdiction?

[Viscount Camrose (Con)]

No, as I was about to say, we need to take these issues seriously. The noble Lord raised a number of specific cases. I was unfamiliar with them at the start of the debate—

[Lord Clement-Jones (LD)]

So was I.

[Viscount Camrose (Con)]

I will go away and look at those; I look forward to learning more about them. There are obvious implications in what the noble Lord said as to the most effective ways of distributing cases between courts and other channels.

For these reasons, I hope that the noble Lord will withdraw his amendment.

[Lord Bassam of Brighton (Lab)]

I am intrigued by the balance between what goes to a tribunal and what goes to the courts. I took the spirit behind the stand-part notice in the name of the noble Lord, Lord Clement-Jones, as being about finding the right place for the right case and ensuring that the wheels of justice are much more accessible. I am not entirely persuaded by what the Minister has said. It would probably help the Committee if we had a better understanding of where the cases go, how they are distributed and on what basis.

[Viscount Camrose (Con)]

I thank the noble Lord; that is an important point. The question is: how does the Sorting Hat operate to distribute cases between the various tribunals and the court system? We believe that the courts have an important role to play in this but it is about how, in the early stages of a complaint, the case is allocated to a tribunal or a court. I can see that more detail is needed there; I would be happy to write to noble Lords.

[Baroness Kidron (CB)]

Before we come to the end of this debate, I just want to raise something. I am grateful to the Minister for offering to bring forward the 2021 consultation on Article 80(2)—that will be interesting—but I wonder whether, as we look at the consultation and seek to understand the objections, the Government would be willing to listen to our experiences over the past two or three years. I know I said this on our previous day in Committee but there is, I hope, some point in ironing out some of the problems of the data regime that we are experiencing in action. I could bring forward a number of colleagues on that issue and on why it is a blind spot for both the ICO and the specialist organisations that are trying to bring systemic issues to its attention. It is very resource-heavy. I want a bit of goose and gander here: if we are trying to sort out some of the resourcing and administrative nightmares in dealing with the data regime, from a user perspective, perhaps a bit of kindness could be shown to that problem as well as to the problem of business.

[Viscount Camrose (Con)]

I would be very happy to participate in that discussion, absolutely.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response. I have surprised myself: I have taken something positive away from the Bill.

The noble Baroness, Lady Jones, was quite right to be more positive about Clause 44 than I was. The Minister unpacked its relationship with Clause 45 well and satisfactorily. Obviously, we will read Hansard before we jump to too positive a conclusion.

On Article 80(2), I am grateful to the Minister for agreeing both to go back to the consultation and to look at the kinds of evidence that were brought forward, because this is a really important aspect for many civil society organisations. He underestimates the difficulties faced when bringing complaints of this nature. I would very much like this conversation to go forward because this issue has been quite a bone of contention; the noble Baroness, Lady Kidron, remembers that only too well. We may even have had ping-pong on the matter back in 2017. There is an appetite to keep on the case so, the more we can discuss this matter—between Committee and Report in particular—the better, because there is quite a head of steam behind it.

As far as the jurisdiction point is concerned, I think this may be the first time I have heard a Minister talk about the Sorting Hat. I was impressed: I have often compared this place to Hogwarts but the concept of using the Sorting Hat to decide whether a case goes to a tribunal or a court is a wonderful one. You would probably need artificial intelligence to do that kind of thing nowadays; that in itself is a bit of an issue because, after all, these may be elaborate amendments but, as the noble Lord, Lord Bassam, said, the case being made here is about the possibility of there being confusion and things not being clear in terms of where jurisdiction lies. It is really important that we determine whether the courts and tribunals themselves understand this and, perhaps more appropriately, whether they have differing views about it.

We need to get to grips with this; the more the Minister can dig into it, and into Delo, Killock and so on, the better. We are all in the foothills here but I am certainly not going to try to unpack those two judgments and the differences between Mrs Justice Farbey and Mr Justice Mostyn, which are well beyond my competency. I thank the Minister.

Clause 44 agreed.

Clause 45: Power of the Commissioner to refuse to act on certain complaints

Amendment 152

Moved by

[Viscount Camrose]

152: Clause 45, page 79, line 30, leave out “with the day” and insert “when”
Member's explanatory statement
This amendment adjusts the language of new section 165A(3) of the Data Protection Act 2018 to ensure that Article 3 of Regulation No 1182/71 (rules of interpretation regarding periods of time etc) will apply to it.

Amendment 152 agreed.

Amendment 153 not moved.

Clause 45, as amended, agreed.

Clause 46 agreed.

Amendment 154 not moved.

Schedule 8 agreed.

Clause 47: Court procedure in connection with subject access requests

Amendments 154A to 154F not moved.

Clause 47 agreed.

Clause 48 agreed.

Amendment 155 not moved.

17:00

Clause 49: Protection of prohibitions, restrictions and data subject’s rights

Amendment 156

Moved by

[Viscount Camrose]

156: Clause 49, page 83, line 21, leave out “and (3)” and insert “to (3A)”
Member's explanatory statement
This amendment is consequential on the amendments in my name inserting additional subsections into this clause.

[Viscount Camrose (Con)]

My Lords, the UK has rightly moved away from the EU concept of supremacy, under which retained EU law would always take precedence over domestic law when they were in conflict. That is clearly unacceptable now that we have left the EU. However, we understand that the effective functioning of our data protection legislation is of critical importance and it is appropriate for us to specify the appropriate relationship between UK and EU-derived pieces of legislation following implementation of the Retained EU Law (Revocation and Reform) Act, or REUL. That is why I am introducing a number of specific government amendments to ensure that the hierarchy of legislation works in the data protection context. These are Amendments 156 to 164 and 297.

Noble Lords may be aware that Clause 49 originally sought to clarify the relationship between the UK’s data protection legislation, specifically the UK GDPR and EU-derived aspects of the Data Protection Act 2018, and future data processing provisions in other legislation, such as powers to share or duties to disclose personal data, as a result of some legal uncertainty created by the European Union (Withdrawal) Act 2018. To resolve this uncertainty, Clause 49 makes it clear that all new data processing provisions in legislation should be read consistently with the key requirements of the UK data protection legislation unless it is expressly indicated otherwise. Since its introduction, the interpretation of pre-EU exit legislation has been altered and there is a risk that this would produce the wrong effect in respect of the interpretation of existing data processing provisions that are silent about their relationship with the data protection legislation.

Amendment 159 will make it clear that the full removal of the principle of EU law supremacy and the creation of a reverse hierarchy in relation to assimilated direct legislation, as provided for in the REUL Act, do not change the relationship between the UK data protection legislation and existing legislation that is in force prior to commencement of Clause 49(2). Amendment 163 makes a technical amendment to the EU withdrawal Act, as amended, to support this amendment.

Amendment 162 is similar to the previous amendment but it concerns the relationship between provisions relating to certain obligations and rights under data protection legislation and on restrictions and prohibitions on the disclosure of information under other existing legislation. Existing Section 186 of the Data Protection Act 2018 governs this relationship. Amendment 162 makes it clear that the relationship between these two types of provision is not affected by the changes to the interpretation of legislation that I have already referred to made by the REUL Act. Additionally, it clarifies that, in relation to pre-commencement legislation, Section 186(1) may be disapplied expressly or impliedly.

Amendment 164 relates to the changes brought about by the REUL Act and sets out that the provisions detailed in earlier Amendments 159, 162 and 163 are to be treated as having come into force on 1 January 2024—in other words, at the same time as commencement of the relevant provisions of the REUL Act.

Amendment 297 provides a limited power to remove provisions that achieve the same effect as new Section 183A from legislation made or passed after this Bill receives Royal Assent, as their presence could cause confusion.

Finally, Amendments 156 and 157 are consequential. Amendments 158, 160 and 161 are minor drafting changes made for consistency, updating and consequential purposes.

Turning to the amendments introduced by the noble Lord, Lord Clement-Jones, I hope that he can see from the government amendments to Clause 49 that we have given a good deal of thought to the impact of the REUL Act 2023 on the UK’s data protection framework and have been prepared to take action on this where necessary. We have also considered whether some of the changes made by the REUL Act could cause confusion about how the UK GDPR and the Data Protection Act 2018 interrelate. Following careful analysis, we have concluded that they would largely continue to be read alongside each other in the intended way, with the rules of the REUL Act unlikely to interfere with this. Any new general rule such as that suggested by the noble Lord could create confusion and uncertainty.

Amendments 168 to 170, 174, 174A and 174B seek to reverse changes introduced by the REUL Act at the end of 2023, specifically the removal of EU general principles from the statute book. EU general principles and certain EU-derived rights had originally been retained by the European Union (Withdrawal) Act to ensure legal continuity at the end of the transition period, but this was constitutionally novel and inappropriate for the long term.

The Government’s position is that EU law concepts should not be used to interpret domestic legislation in perpetuity. The REUL Act provided a solution to this by repealing EU general principles from UK law and clarifying the approach to be taken domestically. The amendments tabled by the noble Lord, Lord Clement-Jones, would undo this important work by reintroducing to the statute book references to rights and principles which have not been clearly defined and are inappropriate now that we have left the EU.

The protection of personal data already forms part of the protection offered by the European Convention on Human Rights, under the Article 8 right to respect for private and family life, and is further protected by our data protection legislation. The UK GDPR and the Data Protection Act 2018 provide a comprehensive set of rules for organisations to follow and rights for people in relation to the use of their data. Seeking to apply an additional EU right to data protection in UK law would not significantly affect the way the data protection framework functions or enhance the protections it affords to individuals. Indeed, doing so may well add unnecessary uncertainty and complexity.

Amendments 171 to 173 pertain to exemptions to specified data subject rights and obligations on data controllers set out in Schedules 2 to 4 to the DPA 2018. The 36 exemptions apply only in specified circumstances and are subject to various safeguards. Before addressing the amendments the noble Lord has tabled, it is perhaps helpful to set out how these exemptions are used. Personal data must be processed according to the requirements set out in the UK GDPR and the DPA 2018. This includes the key principles of lawfulness, fairness and transparency, data minimisation and purpose limitation, among others. The decision to restrict data subjects’ rights, such as the right to be notified that their personal data is being processed, or limit obligations on the data controller, comes into effect only if and when the decision to apply an exemption is taken. In all cases, the use of the exemption must be both necessary and proportionate.

One of these exemptions, the immigration exemption, was recently amended in line with a court ruling that found it was incompatible with the requirements set out in Article 23. This exemption is used by the Home Office. The purpose of Amendments 171 to 173 is to extend the protections applied to the immigration exemption across the other exemptions subject to Article 23, apart from in Schedule 4, where the requirement to consider whether its application prejudices the relevant purposes is not considered relevant.

The other exemptions are each used in very different circumstances, by different data controllers—from government departments to SMEs—and work by applying different tests that function in a wholly different manner from the immigration exemption. This is important to bear in mind when considering these broad-brush amendments. A one-size-fits-all approach would not work across the exemption regime.

It is the Government’s position that any changes to these important exemptions should be made only after due consideration of the circumstances of that particular exemption. In many cases, these amendments seek to make changes that run counter to how the exemption functions. Making changes across the exemptions via this Bill, as the noble Lord’s amendments propose, has the potential to have significant negative impacts on the functioning of the exemptions regime. Any potential amendments to the other exemptions would require careful consideration. The Government note that there is a power to make changes to the exemptions in the DPA 2018, if deemed necessary.

For the reasons I have given, I look forward to hearing more from the noble Lord on his amendments, but I hope that he will not press them. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that very careful exposition. I feel that we are heavily into wet towel, if not painkiller, territory here, because this is a tricky area. As the Minister might imagine, I will not respond to his exposition in detail, at this point; I need to run away and get some external advice on the impact of what he said. He is really suggesting that the Government prefer a pick ‘n’ mix approach to what he regards as a one size fits all. I can boil it down to that. He is saying that you cannot just apply the rules, in the sense that we are trying to reverse some of the impacts of the previous legislation. I will set out my stall; no doubt the Minister and I, the Box and others, will read Hansard and draw our own conclusions at the end, because this is a complicated area.

Until the end of 2023, the Data Protection Act 2018 had to be read compatibly with the UK GDPR. In a conflict between the two instruments, the provisions of the UK GDPR would prevail. The reversing of the relationship between the 2018 Act and the UK GDPR, through the operation of the Retained EU Law (Revocation and Reform) Act—REUL, as the Minister described it—has had the effect of lowering data protection rights in the UK. The case of the Open Rights Group and the3million v the Secretary of State for the Home Office and the Secretary of State for Digital, Culture, Media and Sport was decided after the UK had left the EU, but before the end of 2023. The Court of Appeal held that exemptions from data subject rights in an immigration context, as set out in the Data Protection Act, were overly broad, contained insufficient safeguards and were incompatible with the UK GDPR. The court disapplied the exemptions and ordered the Home Office to redraft them to include the required safeguards. We debated the regulations the other day, and many noble Lords welcomed them on the basis that they had been revised for the second time.

This sort of challenge is now not possible, because the relationship between the DPA and the UK GDPR has been turned on its head. If the case were brought now, the overly broad exemptions in the DPA would take precedence over the requirement for safeguards set out in the UK GDPR. These points were raised by me in the debate of 12 December, when the Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023 were under consideration. In that debate, the noble Baroness, Lady Swinburne, stated that

“we acknowledge the importance of making sure that data processing provisions in wider legislation continue to be read consistently with the data protection principles in the UK GDPR … Replication of the effect of UK GDPR supremacy is a significant decision, and we consider that the use of primary legislation is the more appropriate way to achieve these effects, such as under Clause 49 where the Government consider it appropriate”.—[Official Report, 12/12/23; col. GC 203.]

This debate on Clause 49 therefore offers an opportunity to reinstate the previous relationship between the UK GDPR and the Data Protection Act. The amendment restores the hierarchy, so that it guarantees the same rights to individuals as existed before the end of 2023, and avoids unforeseen consequences by resetting the relationship between the UK GDPR and the DPA 2018 to what the parliamentary draftsmen intended when the Act was written. The provisions in Clause 49, as currently drafted, address the relationship between domestic law and data protection legislation as a whole, but the relationship between the UK GDPR and the DPA is left in its “reversed” state. This is confirmed in the Explanatory Notes to the Bill at paragraph 503.

The purpose of these amendments is to restore data protection rights in the UK to what they were before the end of 2023, prior to the coming into force of REUL. The amendments would restore the fundamental right to the protection of personal data in UK law; ensure that the UK GDPR and the DPA continue to be interpreted in accordance with the fundamental right to the protection of personal data; ensure that there is certainty that assimilated case law that references the fundamental right to the protection of personal data still applies; and apply the protections required in Article 23 of the UK GDPR to all the relevant exemptions in Schedule 2 to the Data Protection Act. This is crucial in avoiding diminishing trust in our data protection frameworks. If people do not trust that their data is protected, they will refuse to share it. Without this data, new technologies cannot be developed, because these technologies rely on personal data. By creating uncertainty and diminishing standards, the Government are undermining the very growth in new technologies that they want.

17:15

It is also worth pointing out that these amendments replicate what the Government have already taken powers to do through the vehicle of REUL. These are the powers on the statute book to recreate the effect of the principle of the supremacy of EU law and the general principles of EU law, and to ensure the continuing applicability of assimilated CJEU case law. The Government have rolled over all the EU’s adequacy decisions on a transitional basis and conferred data adequacy on the EU. They were intending to make independent adequacy assessments of all the jurisdictions listed in paragraph 4(5) of Schedule 21 to the DPA, but they have failed to do so. Instead, they are treating all these adequacy decisions as if they had been subject to proper scrutiny and putting them into primary legislation, which means that they cannot be quashed if they breach data subject rights. This is not the case in the EU, where the CJEU has twice quashed unlawful adequacy decisions. This is another example of the weaker rights of UK citizens in the context of the protection of their personal data as compared with their counterparts in the EU.

I am not going to go through the individual amendments. The Minister has done that effectively with regard to the impact of each amendment. But reinstating EU fundamental rights in this way has important advantages, including ensuring that the standard of data protection rights in the UK is the same as it was when the EU granted adequacy to the UK, thus confirming the essential equivalence of UK-EU standards. That is important in ensuring that a discrepancy in standards does not give rise to the loss of adequacy and the imposition of new barriers to UK-EU trade. I am sure that we will carry on with that discussion in a future group. Furthermore, it is important in ensuring that the case law that discusses data protection as a fundamental right is still applicable, thereby increasing legal certainty.

I do not expect the Minister to come back on the detail of this at this stage, but there is a really important discussion here about the importance of the fundamental guarantees to our data protection rights, which we really need to investigate in some detail.

[Lord Bassam of Brighton (Lab)]

My Lords, I have looked at the government amendments in this group and have listened very carefully to what the Minister has said—that it is largely about interpretation. There are no amendments that I wish to comment on, save to say that they seem to be about consistency of language and bringing in part EU positions into UK law. They seem also to be about consistency of meaning, and for the most part the intention seems to be to ensure that nothing in EU retained law undoes the pre-existing legal framework.

However, I would appreciate the Minister giving us a bit more detail on the operation of Amendment 164. Amendment 297 seems to deal with a duplication issue, so perhaps he can confirm for the Committee that this is the case. We have had swathes of government amendments of a minor and technical nature, largely about chasing out gremlins from the drafting process. Can he confirm that this is the case and assure the Committee that we will not be left with any nasty surprises in the drafting that need correction at a later date?

The amendments tabled in the name of the noble Lord, Lord Clement-Jones, are of course of a different order altogether. The first two—Amendments 165 and 166—would restore the relationship between the UK GDPR and the 2018 Act and the relevant provisions of the Retained EU Law (Revocation and Reform) Act 2023. Amendment 168 would ensure that assimilated case law referring to the European Charter of Fundamental Rights would still be relevant in interpreting the UK GDPR. It would give greater certainty in how the UK’s data protection framework is interpreted. Amendment 169 would ensure that the interpretation is carried over from the UK GDPR and 2018 legislation in accordance with the general principle of the protection of personal data.

The noble Lord’s Amendments 170 to 174B would bring back into law protections that existed previously when UK law was more closely aligned with EU law and regulation. There is also an extension of the EU data protection of personal data to the assimilated standard that existed by virtue of Section 4 of the European Union (Withdrawal) Act 2018. I can well understand the noble Lord’s desire to take the UK back to a position where we are broadly in the same place in terms of protections as our former EU partners. First, having—broadly speaking—protections that are common across multiple jurisdictions makes it easier and simpler for companies operating in those markets. Secondly, from the perspective of data subjects, it is much easier to comprehend common standards of data protection and to seek redress when required. The Government, for their part, will no doubt argue that there is some sort of big Brexit benefit in this, although I think that advisers and experts are divided on the degree of that benefit, and indeed who benefits.

Later, we will get to discuss data adequacy standards. Concern exists in some quarters as to whether we have this right and what this legislative opportunity might be missing to ensure that the UK meets those international standards that the EU requires. That is a debate for later, but we are broadly sympathetic to the desire of the noble Lord, Lord Clement-Jones, to find the highest level of protection for UK citizens. That is the primary motivation for many of the amendments and debates that we have had today. We do not want to weaken what were previously carefully crafted and aligned protections. I do not entirely buy the argument that the Minister made earlier about this group of amendments causing legal uncertainty. I believe it is the reverse of that: the noble Lord, Lord Clement-Jones, is trying to provide greater certainty and a degree of jurisdictional uniformity.

I hope that I have understood what the noble Lord is trying to achieve here. For those reasons, we will listen to the Minister’s concluding comments—and read Hansard—very carefully.

[Viscount Camrose (Con)]

I thank the noble Lords, Lord Clement-Jones and Lord Bassam, for their comments. As the noble Lord, Lord Clement-Jones, points out, it is a pretty complex and demanding area, but that in no way diminishes the importance of getting it right. I hope that in my remarks I can continue that work, but of course I am happy to discuss this: it is a very technical area and, as all speakers have pointed out, it is crucial for our purposes that it be executed correctly.

While the UK remains committed to strong protections for personal data through the UK GDPR and Data Protection Act, it is important that it is able to diverge from the EU legislation where this is appropriate for the UK. We have carefully assessed the effects of EU withdrawal legislation and the REUL Act and are making adjustments to ensure that the right effect is achieved. The government amendments are designed to ensure legal certainty and protect the coherence of the data protection framework following commencement of the REUL Act—for example, by maintaining the pre-REUL Act relationship in certain ways between key elements of the UK data protection legislation and other existing legislation.

The purpose of the REUL Act is to ensure that the UK has control over its laws. Resurrecting the principle of EU law supremacy in its entirety or continuing to apply case law principles is not consistent with the UK’s departure from the EU and taking back control over our own laws. These amendments make it clear that changes made to the application of the principle of EU law supremacy and new rules relating to the interpretation of direct assimilated legislation under the REUL Act do not have any impact on existing provisions that involve the processing of personal data.

The noble Lord, Lord Bassam, asked for more detail about Amendment 164. It relates to changes brought about by the REUL Act and sets out that the provisions detailed in Amendments 159, 162 and 163 are to be treated as having come into force on 1 January 2024—in other words, at the same time as commencement of the relevant provisions of the REUL Act. The retrospective effect of this provision addresses the gap between the commencement of the REUL Act 2023 and the Data Protection and Digital Information Bill.

On the immigration exemption case, I note that it was confined to the immigration exemption and did not rule on the other exemptions. The Government will continue to keep the exemptions under review and, should it be required, the Government have the power to amend the other exemptions using an existing power in the DPA 2018. Before doing so, of course the Government would want to ensure that due consideration is given to how the particular exemptions are used. Meanwhile, I thank noble Lords for what has been a fascinating, if demanding, debate.

Amendment 156 agreed.

Amendments 157 to 164

Moved by

[Viscount Camrose]

157: Clause 49, page 83, line 24, at end insert “: relevant enactments”
Member’s explanatory statement
This amendment is consequential on the amendment in my name inserting section 183B of the Data Protection Act 2018.

158: Clause 49, page 84, line 7, leave out “49” and insert “49(2)”
Member’s explanatory statement
This amendment changes a reference to the day on which clause 49 comes into force to a reference to the day on which subsection (2) of that clause comes into force.

159: Clause 49, page 84, line 19, at end insert—
“(2A) Before section 184 (and the italic heading before it) insert—“183B Protection of prohibitions and restrictions etc on processing: other enactments(1) This section is about the relationship between—(a) a pre-commencement enactment which imposes a duty, or confers a power, to process personal data, and(b) a provision of the main data protection legislation containing a requirement relating to the processing of personal data.(2) The relationship is not changed by section 5(A1) of the European Union (Withdrawal) Act 2018 (removal of the principle of supremacy of EU law) (or the repeal of section 5(1) to (3) of that Act). (3) Where the provision described in subsection (1)(b) is a provision of, or made under, the UK GDPR, section 5(A2) of the European Union (Withdrawal) Act 2018 (assimilated direct legislation subject to domestic enactments) does not apply to the relationship.(4) Nothing is to be implied about a relationship described in subsection (1) merely due to the fact that express provision with similar effect to section 183A(1) (or applying that provision) is made in connection with one such relationship but not another.(5) In this section—(a) “the main data protection legislation” and “requirement” have the same meaning as in section 183A, and(b) “pre-commencement enactment” means an enactment so far as passed or made before the day on which section 49(2) of the Data Protection and Digital Information Act 2024 comes into force.(6) Section 183A(5) applies for the purposes of subsection (1)(a) of this section as it applies for the purposes of section 183A(1).””Member’s explanatory statement
This amendment provides that certain changes made to the European Union (Withdrawal) Act 2018 by the Retained EU Law (Revocation and Reform) Act 2023 do not alter the relationship between requirements in the data protection legislation and duties or powers to process personal data under other existing legislation.

160: Clause 49, page 84, line 27, leave out “falling within” and insert “listed in”
Member’s explanatory statement
This amendment makes a minor change to new subsection (2A) of section 186 of the Data Protection Act 2018 for consistency with the wording of the existing subsection (1) of that section.

161: Clause 49, page 84, line 30, leave out “falling within subsection (2).” and insert “listed in subsection (2),
and see also section 186A.”Member’s explanatory statement
This amendment makes a minor change to new subsection (2A) of section 186 of the Data Protection Act 2018 for consistency with the wording of the existing subsection (1) of that section and inserts a cross-reference to new section 186A of that Act (inserted by an amendment of Clause 49 in my name).

162: Clause 49, page 84, line 34, at end insert—
“(3A) After section 186 insert—“186A Protection of data subject’s rights: further provision(1) This section is about the relationship between—(a) a pre-commencement enactment which prohibits or restricts the disclosure of information or authorises the withholding of information, and(b) a provision of the UK GDPR or this Act listed in section 186(2).(2) The relationship is not changed by section 5(A1) of the European Union (Withdrawal) Act 2018 (removal of the principle of supremacy of EU law) (or the repeal of section 5(1) to (3) of that Act).(3) Subsection (1) of section 186 does not apply to the relationship so far as there is a contrary intention, whether express or implied (taking account of, among other things, subsection (2) of this section).(4) Nothing is to be implied about a relationship described in subsection (1) merely due to the fact that express provision stating that section 186(1) applies (or with similar effect) is made in connection with one such relationship but not another.(5) In this section, “pre-commencement enactment” means an enactment passed or made before the day on which section 49(3) of the Data Protection and Digital Information Act 2024 comes into force.”” Member’s explanatory statement
This amendment provides that certain changes made to the European Union (Withdrawal) Act 2018 by the Retained EU Law (Revocation and Reform) Act 2023 do not alter the relationship between certain obligations and rights under the data protection legislation and restrictions on the disclosure of information under other existing legislation.

163: Clause 49, page 84, line 40, at end insert “, and
(c) at the end insert “(and see also section 183B(3) of that Act)”.”Member’s explanatory statement
This amendment inserts a cross-reference to section 183B(3) of the Data Protection Act 2018 (inserted by an amendment of Clause 49 in my name) into section 5(A3) of the European Union (Withdrawal) Act 2018 (exceptions from provision about the relationship between assimilated direct legislation and domestic enactments). Section 183B(3) creates such an exception.

164: Clause 49, page 84, line 40, at end insert—
“(5) Subsections (2A), (3A) and (4)(c) are to be treated as having come into force on 1 January 2024.”Member’s explanatory statement
This amendment provides for provision about the relationship between the data protection legislation and existing legislation— in particular, provision about the effect of changes made by the Retained EU Law (Revocation and Reform) Act 2023—to be treated as having come into force when those changes came into force.

Amendments 157 to 164 agreed.

Amendments 165 and 166 not moved.

Clause 49, as amended, agreed.

Clauses 50 and 51 agreed.

Amendments 167 to 175 not moved.

Schedule 9: Data protection: minor amendments

Amendment 176

Moved by

[Viscount Camrose]

176: Schedule 9, page 231, line 35, at end insert—
“2A After Article 4 insert—“Article 4APeriods of time1. References in this Regulation to a period expressed in hours, days, weeks, months or years are to be interpreted in accordance with Article 3 of the Periods of Time Regulation, except in—(a) Article 91A(8) and (9);(b) paragraphs 14, 15 and 16 of Annex 1.2. In this Article, “the Periods of Time Regulation” means Regulation (EEC, Euratom) No. 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits.””Member’s explanatory statement
This amendment provides for the rules of interpretation in Article 3 of Regulation No 1182/71 (rules of interpretation regarding periods of time etc) to apply to the UK GDPR, subject to some listed exceptions.

Amendment 176 agreed.

Schedule 9, as amended, agreed.

Clause 52 agreed.

Clause 53: DVS trust framework

Amendment 177

Moved by

[Baroness Jones of Whitchurch]

177: Clause 53, page 88, line 16, at end insert—
“(13) The DVS trust framework and any revision to it must be made by regulations subject to the affirmative resolution procedure.”Member’s explanatory statement
This amendment would require the document setting rules for providers of digital verification services (or any revisions to it) to be laid before, and approved by, both Houses of Parliament. It is intended to implement a recommendation of the Delegated Powers and Regulatory Reform Committee.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we now move on to Part 2 of the Bill, which concerns the provision of digital verification services. In moving Amendment 177, I will also speak to the amendments through to Amendment 195; apart from one, all of them are in my name and have the support of the noble Lord, Lord Clement-Jones, for which I am grateful.

17:30

The relevant clauses of the Bill establish a regulatory framework for the provision of online digital verification services in the UK though the creation of a trust framework, a register of providers, an information-sharing gateway and a trust mark. This new system will encourage the wider adoption of “reusable” digital identities, which can be used again and again for different interactions across organisations. Clause 52 helpfully clarifies that these services should be provided at the request of an individual and so are separate from any attempt to introduce universal or compulsory digital identities. As such, we support the idea in principle and accept that, in this increasingly digital-focused society, it should be easier for people to prove their identity online, whether they are, for example, opening a bank account, moving house, applying for a job and so on.

It is vital, however, that this new system has the absolute trust of those using it and proper controls and regulation for the verification providers. So far, we are a long way from achieving these objectives. A number of amendments to these clauses were added on Report in the Commons but, even so, many of the details necessary to provide a robust system are not yet available. These concerns are reflected in the recommendations of the Delegated Powers and Regulatory Reform Committee’s report; our amendments seek to enforce those recommendations.

The committee identified a number of Henry VIII powers given to the Secretary of State in this part of the Bill. Clause 53 requires the Secretary of State to publish a document setting out the rules for the provision of these new digital verification services; this is to be known as the main code and will underpin the new regime. Clause 63 requires the Secretary of State to maintain a register of verification providers who have been certified as being in compliance with the main code; these certified verification providers can then access information from public bodies, so this is a powerful new approval system.

However, as the provisions stand, there is no authority for the main code to be subject to parliamentary scrutiny. The Government have provided two main reasons for this: first, the need to make changes rapidly; and, secondly, the need to ensure that governance of these services can be transferred to a private sector body. The Delegated Powers Committee rejected this reasoning and recommended that the powers in Clause 53 to produce the main code should be subject to parliamentary scrutiny using the affirmative procedure. We support this recommendation, which is reflected in our amendments.

This particularly matters as there is so little information available as to what will be in the main code. First, there are no principles in the Bill to ensure both that services are designed and implemented around user needs and that they reflect the important privacy and data protection guarantees we have been debating elsewhere in the Bill. These types of principles are essential for building trust in the scheme, particularly as it is proposed that private providers will be at the heart of the verification service.

Secondly, there appear to be no assurances that people can opt out of digital verification and use offline methods of identification instead. This is particularly important for vulnerable and marginalised groups who might be excluded from the technology. We need to ensure that this new system does not become compulsory by default.

Thirdly, it is still not clear how the new office for digital identities and attributes, which will oversee the scheme from an office in DSIT, will be regulated to ensure proper independence and accountability.

Fourthly, it is not clear what the international implications of the scheme will be, given that many of the companies seeking compliance with the digital verification schemes will be global brands with headquarters elsewhere. Just to add a further concern, could the digital verification schemes themselves be international companies? Is there then an issue of UK domestic security being put at stake, given that they will have so much access to, for example, government data? These are some of the reasons why the details of this scheme should not be left to the Secretary of State but instead given full parliamentary scrutiny via affirmative resolution.

Finally, our Amendment 195 picks up another recommendation of the Delegated Powers and Regulatory Reform Committee, which relates to setting fees for people seeking entry or modifying details on the register of providers of verification services. The powers are given to the Secretary of State to set these fees with no reference to Parliament. The Delegated Powers Committee recommends that there should be parliamentary scrutiny using the negative procedure. We agree with this point and this is reflected in our amendment. I therefore beg to move Amendment 177.

[Lord Kamall (Con)]

My Lords, I speak in favour of Amendment 195ZA in my name and that of the noble Lords, Lord Vaux of Harrowden and Lord Clement-Jones, and Amendments 289 and 300 on digital identity theft. I am also very sympathetic to many of the points made by the noble Baroness, Lady Jones of Whitchurch, particularly about the most disadvantaged people in our society.

As many noble Lords know, I am a member of the Communications and Digital Committee of this House. A few months ago, we did a report on digital exclusion. We had to be quite clear about one of the issues that we found: even though some people may partly use digital—for example, they may have an email address—it does not make them digitally proficient or literate. We have to be very clear that, as more and more of our public and private services go online, it is obvious that companies and others will want to know which people are claiming to use these services. At the same time, a number of people will not be digitally literate or will not have this digital ID available. It is important that we offer them enough alternatives. It should be clear, and not beyond the wit of man or clever lawyers, that there are non-digital alternatives available for consumers and particularly, as was said by the noble Baroness, Lady Jones of Whitchurch, people from disadvantaged communities.

As we found in the report on our inquiry into digital exclusion, this does not concern only people from deprived areas. Sometimes people get by in life without much digital literacy. There are those who may be scared of it or who do not trust it, and they can come from all sorts of wealth brackets. This drives home the point that it is important to have an alternative. I cannot really say much more than the amendment itself; it does what it says on the tin. The amendment is quite clear and I am sure that the noble Lord, Lord Vaux, will speak to it as well.

I will briefly speak in favour of Amendments 289 and 300. Digital identity theft is clearly an issue and has been for a long time. Even before the digital days, identity theft was an issue and it is so much easier to hack someone’s ID these days. I have had bank accounts opened in my name. I received a letter claiming this but, fortunately, the bank was able to deal with it when I walked in and said, “This wasn’t me”. It is quite clear that this will happen more and more. Sometimes, it will simply be stealing data that has been leaked or because a system is not particularly secure; at other times, it will be because you have been careless. No matter why the crime is committed, it must be an offence in the terms suggested by the amendments of the noble Lord, Lord Clement-Jones. It is clear that we have to send a strong signal that digital identity theft is a crime and that people should be deterred from engaging in it.

[Lord Vaux of Harrowden (CB)]

My Lords, I have added my name to Amendment 195ZA—I will get to understand where these numbers come from, at some point—in the name of the noble Lord, Lord Kamall, who introduced it so eloquently. I will try to be brief in my support.

For many people, probably most, the use of online digital verification will be a real benefit. The Bill puts in place a framework to strengthen digital verification so, on the whole, I am supportive of what the Government are trying to do, although I think that the Minister should seriously consider the various amendments that the noble Baroness, Lady Jones of Whitchurch, has proposed to strengthen parliamentary scrutiny in this area.

However, not everyone will wish to use digital verification in all cases, perhaps because they are not sufficiently confident with technology or perhaps they simply do not trust it. We have already heard the debates around the advances of AI and computer-based decision-making. Digital identity verification could be seen to be another extension of this. There is a concern that Part 2 of the Bill appears to push people ever further towards decisions being taken by a computer.

I suspect that many of us will have done battle with some of the existing identity verification systems. In my own case, I can think of one bank where I gave up in deep frustration as it insisted on telling me that I was not the same person as my driving licence showed. I have also come up against systems used by estate agents when trying to provide a guarantee for my student son that was so intrusive that I, again, refused to use it.

Therefore, improving verification services is to be encouraged but there must be some element of choice, and if someone does not have the know-how, confidence, or trust in the systems, they should be able to do so through some non-digital alternative. They should not be barred from using relevant important services such as, in my examples, banking and renting a property because they cannot or would prefer not to use a digital verification service.

At the very least, even if the Minister is not minded to accept that amendment, I hope that he can make clear that the Government have no intention to make digital ID verification mandatory, as some have suggested that this Part 2 may be driving towards.

[Lord Clement-Jones (LD)]

My Lords, this is quite a disparate group of amendments. I support Amendment 195ZA, which I have signed. I thought that the noble Baroness, Lady Jones, and the noble Lords, Lord Kamall and Lord Vaux, have made clear the importance of having a provision such as this on the statute book. It is important that an individual can choose whether to use digital or non-digital means of verifying their identity. It is important for the liberty and equality of individuals as well as to cultivate trust in what are essentially growing digital identity systems. The use of the word “empower” in these circumstances is important. We need to empower people rather than push them into digital systems that they may not be able to access. Therefore, a move towards digitalisation is not a justification for compelling individuals to use systems that could compromise their privacy or rights more broadly. I very much support that amendment on that basis.

I also very much support the amendments of the noble Baroness, Lady Jones, which I have signed. The Delegated Powers and Regulatory Reform Committee could not have made its recommendations clearer. The Government are serial offenders in terms of skeleton Bills. We have known that from remarks made by the noble Lord, Lord Hodgson, on the Government Benches over a long period. I am going to be extremely interested in what the Government have to say. Quite often, to give them some credit, they listen to what the DPRRC has to say and I hope that on this occasion the Minister is going to give us some good news.

This is an extremely important new system being set up by the Government. We have been waiting for the enabling legislation for quite some time. It is pretty disappointing, after all the consultations that have taken place, just how skeletal it is. No underlying principles have been set out. There is a perfectly good set of principles set out by the independent Privacy and Consumer Advisory Group that advises the Government on how to provide a simple, trusted and secure means of accessing public services. But what assurance do we have that we are going to see those principles embedded in this new system?

Throughout, it is vital that the Secretary of State is obliged to uphold the kinds of concerns being raised in the development of this DVS trust framework to ensure that those services protect the people who use them. We need that kind of parliamentary debate and it has been made quite clear that we need nothing less than that. I therefore very much support what the noble Baroness, Lady Jones, had to say on that subject.

17:45

I turn now to Amendment 184A and the Clause 80 stand part notice. Amendment 184A is a probing amendment because, as we know, the Government are enthusiastic about their new One Login government identity scheme but many of us are not clear on how the two identity schemes will interact—that is, how the DVS trust framework will interact with One Login. I would like to hear what the Government have to say about that because, of course, there is an issue of public trust in terms of what the Government are doing around joining up digital identity right across every government department. This includes whether the DVS scheme will be part of that—that is, whether the Government will access information in that way or the One Login scheme will be totally stand-alone.

I come on to Amendments 289 and 300 on digital identity theft. It strikes me as rather extraordinary that we do not have an identity theft offence. This is the Metropolitan Police guidance for the public:

“Your identity is one of your most valuable assets. If your identity is stolen, you can lose money and may find it difficult to get loans, credit cards or a mortgage. Your name, address and date of birth provide enough information to create another ‘you’”.

It could not be clearer. It goes on:

“An identity thief can use a number of methods to find out your personal information and will then use it to open bank accounts, take out credit cards and apply for state benefits in your name”.

It then talks about the signs that you should look out for, saying:

“There are a number of signs to look out for that may mean you are or may become a victim of identity theft … If you think you are a victim of identity theft or fraud, act quickly to ensure you are not liable for any financial losses … Contact CIFAS (the UK’s Fraud Prevention Service) to apply for protective registration”.

However, there is no criminal offence.

Interestingly enough, I mentioned this to the noble Baroness, Lady Morgan; I am sad to say that I do not think she could be present today. Back in October 2022, her committee—the Fraud Act 2006 and Digital Fraud Committee—produced a really good report, Fighting Fraud: Breaking the Chain, which said:

“Identity theft is often a predicate action to the criminal offence of fraud, as well as other offences including organised crime and terrorism, but it is not a criminal offence. Cifas data shows that cases of identity fraud increased by 22% in 2021, accounting for 63% of all cases recorded to Cifas’ National Fraud Database”.

It goes on to talk about identity theft to some good effect but states:

“In February 2022, the Government confirmed that there were no plans to introduce a new criminal offence of identity theft as ‘existing legislation is in place to protect people’s personal data and prosecute those that commit crimes enabled by identity theft’”.

I do not think the committee agreed with that at all. It said:

“The Government should consult on the introduction of legislation to create a specific criminal offence of identity theft. Alternatively, the Sentencing Council should consider including identity theft as a serious aggravating factor in cases of fraud”.

The Government are certainly at odds with the Select Committee chaired by the noble Baroness, Lady Morgan. I am indebted to a creative performer called Bennett Arron, who raised this with me some years ago. He related with some pain how he took months to get back his digital identity. He said: “I eventually, on my own, tracked down the thief and gave his name and address to the police. Nothing was done. One of the reasons the police did nothing was because they didn’t know how to charge him with what he had done to me”. That is not a good state of affairs. Then we heard from Paul Davis, the head of fraud prevention at TSB. The headline of the piece in the Sunday Times was: “I’m head of fraud at a bank and my identity was still stolen”. He is top dog in this area, and he has been the subject of identity theft.

This seems an extraordinary situation, whereby the Government are sitting on their hands. There is a clear issue with identity theft, yet they are refusing—they have gone into print, in response to the committee chaired by the noble Baroness, Lady Morgan—and saying, “No, no, we don’t need anything like that; everything is absolutely fine”. I hope that the Minister can give a better answer this time around.

[Viscount Camrose (Con)]

I thank the noble Lord, Lord Clement-Jones, the noble Baroness, Lady Jones, and my noble friend Lord Kamall for their amendments. To address the elephant in the room first, I can reassure noble Lords that the use of digital identity will not be mandatory, and privacy will remain one of the guiding principles of the Government’s approach to digital identity. There are no plans to introduce a centralised, compulsory digital ID system for public services, and the Government’s position on physical ID cards remains unchanged. The Government are committed to realising the benefits of digital identity technologies without creating ID cards.

I shall speak now to Amendment 177, which would require the rules of the DVS trust framework to be set out in regulations subject to the affirmative resolution procedure. I recognise that this amendment, and others in this group, reflect recommendations from the DPRRC. Obviously, we take that committee very seriously, and we will respond to that report in due course, but ahead of Report.

Part 2 of the Bill will underpin the DVS trust framework, a document of auditable rules, which include technical standards. The trust framework refers to data protection legislation and ICO guidance. It has undergone four years of development, consultation and testing within the digital identity market. Organisations can choose to have their services certified against the trust framework to prove that they provide secure and trustworthy digital verification services. Certification is provided by independent conformity assessment bodies that have been accredited by the UK Accreditation Service. Annual reviews of the trust framework are subject to consultation with the ICO and other appropriate persons.

Requiring the trust framework to be set out in regulations would make it hard to introduce reactive changes. For example, if a new cybersecurity threat emerged which required the rapid deployment of a fix across the industry, the trust framework would need to be updated very quickly. Developments in this fast-growing industry require an agile approach to standards and rule-making. We cannot risk the document becoming outdated and losing credibility with industry. For these reasons, the Government feel that it is more appropriate for the Secretary of State to have the power to set the rules of the trust framework with appropriate consultation, rather than for the power to be exercised by regulations.

I turn to Amendments 178 to 195, which would require the fees that may be charged under this part of the Bill to be set out in regulations subject to the negative resolution procedure. The Government have committed to growing a market of secure and inclusive digital identities as an alternative to physical proofs of identity, for those that choose to use them. Fees will be introduced only once we are confident that doing so will not restrict the growth of this market, but the fee structure, when introduced, is likely to be complex and will need to flex to support growth in an evolving market.

There are built-in safeguards to this fee-charging power. First, there is a strong incentive for the Secretary of State to set fees that are competitive, fair and reasonable, because failing to do so would prevent the Government realising their commitment to grow this market. Secondly, these fee-raising powers have a well-defined purpose and limited scope. Thirdly, the Secretary of State will explain in advance what fees she intends to charge and when she intends to charge them, which will ensure the appropriate level of transparency.

The noble Baroness, Lady Jones, asked about the arrangements for the office for digital identities and attributes. It will not initially be independent, as it will be located within the Department for Science, Innovation and Technology. As we announced in the government response to our 2021 consultation, we intend for this to be an interim arrangement until a suitable long-term home for the governing body can be identified. Delegating the role of Ofdia—as I suppose we will call it—to a third party in the future, is subject to parliamentary scrutiny, as provided for by the clauses in the Bill. Initially placing Ofdia inside government will ensure that its oversight role could mature in the most effective way and that it supports the digital identity market in meeting the needs of individual users, relying parties and industry.

Digital verification services are independently certified against the trust framework rules by conformity assessment bodies. Conformity assessment bodies are themselves independently accredited by the UK Accreditation Service to ensure that they have the competence and impartiality to perform certification. The trust framework certification scheme will be accredited by the UK Accreditation Service to give confidence that the scheme can be efficiently and competently used to certify products, processes and services. All schemes will need to meet internationally agreed standards set out by the UK Accreditation Service. Ofdia, as the owner of the main code, will work with UKAS to ensure that schemes are robust, capable of certification and operated in line with the trust framework.

Amendment 184A proposes to exclude certified public bodies from registering to provide digital verification services. The term “public bodies” could include a wide range of public sector entities, including institutions such as universities, that receive any public funding. The Government take the view that this exclusion would be unnecessarily restrictive in the UK’s nascent digital identity market.

Amendment 195ZA seeks to mandate organisations to implement a non-digital form of verification in every instance where a digital method is required. The Bill enables the use of secure and inclusive digital identities across the economy. It does not force businesses or individuals to use them, nor does it insist that businesses which currently accept non-digital methods of verification must transition to digital methods. As Clause 52 makes clear, digital verification services are services that are provided at the request of the individual. The purpose of the Bill is to ensure that, when people want to use a digital verification service, they know which of the available products and services they can trust.

Some organisations operate only in the digital sphere, such as online-only banks and energy companies. To oblige such organisations to offer manual document checking would place obligations on them that would go beyond the Government’s commitment to do only what is necessary to enable the digital identity market to grow. In so far as this amendment would apply to public authorities, the Equality Act requires those organisations to consider how their services will affect people with protected characteristics, including those who, for various reasons, might not be able or might choose not to use a digital identity product.

[Lord Clement-Jones (LD)]

Is the Minister saying that, as a result of the Equality Act, there is an absolute right to that analogue—if you like—form of identification if, for instance, someone does not have access to digital services?

[Lord Kamall (Con)]

I understand that some services are purely digital, but some of those may well not have digital ID. We do not know what future services there might be, so they might want to show an analogue ID. Is my noble friend saying that that will not be possible because it will impose too much of a burden on those innovative digital companies? Could he clarify what he said?

18:00

[Viscount Camrose (Con)]

On this point, the argument that the Government are making is that, where consumers want to use a digital verification service, all the Bill does is to provide a mechanism for those DVSs to be certified and assured to be safe. It does not seek to require anything beyond that, other than creating a list of safe DVSs.

The Equality Act applies to the public sector space, where it needs to be followed to ensure that there is an absolute right to inclusive access to digital technologies.

[Lord Clement-Jones (LD)]

My Lords, in essence, the Minister is admitting that there is a gap when somebody who does not have access to digital services needs an identity to deal with the private sector. Is that right?

[Lord Vaux of Harrowden (CB)]

In the example I gave, I was not willing to use a digital system to provide a guarantee for my son’s accommodation in the private sector. I understand that that would not be protected and that, therefore, someone might not be able to rent a flat, for example, because they cannot provide physical ID.

[Viscount Camrose (Con)]

The Bill does not change the requirements in this sense. If any organisation chooses to provide its services on a digital basis only, that is up to that organisation, and it is up to consumers whether they choose to use it. It makes no changes to the requirements in that space.

I will now speak to the amendment that seeks to remove Clause 80. Clause 80 enables the Secretary of State to ask accredited conformity assessment bodies and registered DVS providers to provide information which is reasonably required to carry out her functions under Part 2 of the Bill. The Bill sets out a clear process that the Secretary of State must follow when requesting this information, as well as explicit safeguards for her use of the power. These safeguards will ensure that DVS providers and conformity assessment bodies have to provide only information necessary for the functioning of this part of the Bill.

[Lord Clement-Jones (LD)]

My Lords, the clause stand part amendment was clearly probing. Does the Minister have anything to say about the relationship with OneLogin? Is he saying that it is only information about systems, not individuals, which does not feed into the OneLogin identity system that the Government are setting up?

[Viscount Camrose (Con)]

It is very important that the OneLogin system is entirely separate and not considered a DVS. We considered whether it should be, but the view was that that comes close to mandating a digital identity system, which we absolutely want to avoid. Hence the two are treated entirely differently.

[Lord Clement-Jones (LD)]

That is a good reassurance, but if the Minister wants to unpack that further by correspondence, I would be very happy to have that.

[Viscount Camrose (Con)]

I am very happy to do so.

I turn finally to Amendments 289 and 300, which aim to introduce a criminal offence of digital identity theft. The Government are committed to tackling fraud and are confident that criminal offences already exist to cover the behaviour targeted by these amendments. Under the Fraud Act 2006, it is a criminal offence to make a gain from the use of another person’s identity or to cause or risk a loss by such use. Where accounts or databases are hacked into, the Computer Misuse Act 1990 criminalises the unauthorised access to a computer programme or data held on a computer.

Furthermore, the trust framework contains rules, standards and good practice requirements for fraud monitoring and responding to fraud. These rules will further defend systems and reduce opportunities for digital identity theft.

[Lord Clement-Jones (LD)]

My Lords, I am sorry, but this is a broad-ranging set of amendments, so I need to intervene on this one as well. When the Minister does his will write letter in response to today’s proceedings, could he tell us what guidance there is to the police on this? Because when the individual, Mr Arron, approached the police, they said, “Oh, sorry, there’s nothing we can do; identity theft is not a criminal offence”. The Minister seems to be saying, “No, it is fine; it is all encompassed within these provisions”. While he may be saying that, and I am sure he will be shouting it from the rooftops in the future, the question is whether the police have guidance; does the College of Policing have guidance and does the Home Office have guidance? The ordinary individual needs to know that it is exactly as the Minister says, and identity theft is covered by these other criminal offences. There is no point in having those offences if nobody knows about them.

[Viscount Camrose (Con)]

That is absolutely fair enough: I will of course write. Sadly, we are not joined today by ministerial colleagues from the Home Office, who have some other Bill going on.

[Lord Clement-Jones (LD)]

We always enjoy having input from the Home Office.

[Viscount Camrose (Con)]

I have no doubt that its contribution to the letter will be equally enjoyable. However, for all the reasons I set out above, I am not able to accept these amendments and respectfully encourage the noble Baroness and noble Lords not to press them.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I suppose I am meant to say that I thank the Minister for his response, but I cannot say that it was particularly optimistic or satisfying. On my amendments, the Minister said he would be responding to the DPRRC in due course, and obviously I am interested to see that response, but as the noble Lord, Lord Clement-Jones, said, the committee could not have been clearer and I thought made a very compelling case for why there should be some parliamentary oversight of this main code and, indeed, the fees arrangements.

I understand that it is a fast-moving sector, but the sort of things that the Delegated Powers Committee was talking about was that the main code should have some fundamental principles, some user rights and so on. We are not trying to spell out every sort of service that is going to be provided—as the Minister said, it is a fast-moving sector—but people need to have some trust in it and they need to know what this verification service is going to be about. Just saying that there is going to be a code, on such an important area, and that the Secretary of State will write it, is simply not acceptable in terms of basic parliamentary democracy. If it cannot be done through an affirmative procedure, the Government need to come up with another way to make sure that there is appropriate parliamentary input into what is being proposed here.

On the subject of the fees, the Delegated Powers Committee and our amendment was saying only that there should be a negative SI. I thought that was perfectly reasonable on its part and I am sorry that the Minister is not even prepared to accept that perfectly suggestion. All in all, I thought that the response on that element was very disappointing.

The response was equally disappointing on the whole issue that the noble Lords, Lord Kamall and Lord Vaux, raised about the right not to have to use the digital verification schemes but to do things on a non-digital basis. The arguments are well made about the numbers of people who are digitally excluded. I was in the debate that the noble Lord referred to, and I cannot remember the statistics now, but something like 17% of the population do not have proper digital access, so we are excluding a large number of people from a whole range of services. It could be applying for jobs, accessing bank accounts or applying to pay the rent for your son’s flat or whatever. We are creating a two-tier system here, for those who are involved and those who are on the margins who cannot use a lot of the services. I would have hoped that the Government would have been much more engaged in trying to find ways through that and providing some guarantees to people.

We know that we are taking a big leap, with so many different services going online. There is a lot of suspicion about how these services are going to work and people do not trust that computers are always as accurate as we would like them to be, so they would like to feel that there is another way of doing it if it all goes wrong. It worries me that the Minister is not able to give that commitment.

I have to say that I am rather concerned by what the Minister said about the private sector—in effect, that it can already have a requirement to have digital only. Surely, in this brave new world we are going towards, we do not want a digital-only service; this goes back to the point about a whole range of people being excluded. What is wrong with saying, even to people who collect people’s bank account details to pay their son’s rent, “There is an alternative way of doing this as well as you providing all the information digitally”? I am very worried about where all this is going, including who will be part of it and who will not. If the noble Lords, Lord Kamall and Lord Vaux, wish to pursue this at a later point, I would be sympathetic to their arguments.

On identity theft, the noble Lord, Lord Clement-Jones, made a compelling case. The briefing that he read out from the Metropolitan Police said that your data is one of your most valuable assets, which is absolutely right. He also rightly made the point that this is linked to organised crime. It does not happen by accident; some major people are farming our details and using them for all sorts of nefarious activities. There is a need to tighten up the regulation and laws on this. The Minister read out where he thinks this is already dealt with under existing legislation but we will all want to scrutinise that and see whether that really is the case. There are lots of examples of where the police have not been able to help people and do not know what their rights are, so we just need to know exactly what advice has been given to the police.

I feel that the Minister could have done more on this whole group to assure us that we are not moving towards a two-tier world. I will withdraw my amendment, obviously, but I have a feeling that we will come back to this issue; it may be something that we can talk to the Minister about before we get to Report.

Amendment 177 withdrawn.

Clause 53 agreed.

Clauses 54 to 59 agreed.

Clause 60: Fees for approval, re-approval and continued approval

Amendments 178 to 183 not moved.

Clause 60 agreed.

Clauses 61 and 62 agreed.

Clause 63: DVS register

Amendments 184 and 184A not moved.

Clause 63 agreed.

Clause 64: Registration of additional services

Amendment 185 not moved.

Clause 64 agreed.

Clause 65: Supplementary notes

Amendment 186 not moved.

Clause 65 agreed.

18:15

Clause 66: Addition of services to supplementary notes

Amendment 187 not moved.

Clause 66 agreed

Clause 67 agreed.

Clause 68: Fees for applications under sections 63 to 66

Amendments 188 to 195 not moved.

Clause 68 agreed.

Clauses 69 to 73 agreed.

Amendment 195ZA not moved.

Clauses 74 to 84 agreed.

Clause 85: Customer data and business data

Amendment 195A

Moved by

[Baroness Bennett of Manor Castle]

195A: Clause 85, page 108, line 38, at end insert—
“(v) the energy and carbon intensity of the goods, services or digital content),”Member’s explanatory statement
This adds carbon and energy intensity to the information that can be required to be provided as “business data”

[Baroness Bennett of Manor Castle (GP)]

My Lords, this is a very small and modest amendment, adding a fifth element to a list. Clause 85 is very long, so I will try to keep to its key elements. The clause

“confers powers on the Secretary of State and the Treasury to make provision in connection with access to customer data and business data”.

It is particularly focused on information about

“the supply or provision of goods, services and digital content”

by a business. The four elements are these. The first is where it is “supplied or provided”; the second is “prices or other terms; the third is “how they are used”; and the fourth is “performance or quality”. That fourth element does not cover the specific issue that my modest Amendment 195A proposes to add: the energy and carbon intensity of goods, services or digital content.

This might be seen as an attempt at future-proofing and including something which is a fast-growing area of great consumer concern—it should be of government concern too in the light of the Climate Change Act and the Government’s responsibilities. It would add a modest piece of possibility. I stress that, as the explanatory statement says, this can be required; it does not demand that it has to be required, but it provides the possibility that it can be.

There is a parallel here. When you go into a shop to think about buying white goods because you need to replace a fridge or washing machine, you expect, as a matter of standard, to see an energy performance certificate that will tell you how much electricity it will use, or, in the case of gas cookers, how much energy. We now expect that as standard, but of course, that is not focused on what is in the appliance but on what it will use.

The other obvious example is energy performance certificates in relation to housing. Again, that is something that could probably be considerably improved, but there has been some step towards thinking about issues around energy use rather than what is put in. In that context of building, we are seeing a great deal of focus—and, increasingly, a great deal of planning focus —on the issue of embodied carbon in buildings. This is taking that further, in terms of goods, services and digital provision.

Perhaps the obvious reason why a future Government might want to do this is that, if we think of the many areas of this so-called green rating in environmental standards, we have seen a profusion of different standards, labels and models. That has caused considerable confusion and uncertainty for consumers. If a Government were to say that this was the kind of step that would be used, it would give a standard to apply across the digital fields that would be clearly understood and not open to gaming by bad actors, by just creating their own standard, and so on.

Take, for example, the Mintel sustainability barometer —it is a global study but is reflective, I think, of what is happening in the UK. Consumers are increasingly demanding this information; they really want to know the environmental impact, including the impact of the production of whatever they are purchasing. This is information that consumers really want.

The other thing that I would point to in terms of this future-proofing approach is the OECD’s Inclusive Forum on Carbon Mitigation Approaches. That is rather a mouthful. In February, it put out a study entitled—another mouthful—Towards more accurate, timely, and granular product-level carbon intensity metrics: A Scoping Note. That makes it clear that we are talking here about something that is for the future; something that is being developed, but developed fast. If we think about the Government’s responsibilities within the Climate Change Act and the public desire, this modest addition, providing the legislative framework for future action, is a small positive step. I beg to move.

[Baroness Young of Old Scone (Lab)]

My Lords, I shall speak to Amendment 218, which is in my name and those of the right reverend Prelate the Bishop of Oxford and the noble Baroness, Lady Parminter. I thank them for their support.

I apologise to the Minister, because I think this amendment is typical of the increasing way in which we will see environmental and particularly climate change issues popping up in Bills that belong not to Defra, DESNZ or DLUHC but to other departments. Because there is the fundamental issue of many economic and other activities impacting on these issues, that will be a pattern for Bills. He is playing on unfamiliar turf on this one, I am sure, so I sympathise with him.

“This amendment would require Ministers and public authorities, such as regulators”


when they make significant announcements about policy change, to disclose any analysis they have done of the

“impact of announcements … on UK climate change mitigation targets, adaptation to climate impacts and nature targets”.

The sorts of announcements that this amendment refers to include the introduction of primary legislation, obviously; changes to the timing, level and scope of government targets; large public sector procurement contracts; big infrastructure spending commitments; and any other policies that have the potential to have significant impact on climate and nature targets and climate change adaptation.

I firmly believe, and I have the support of the clerks, that this accords with the provision in the Long Title of the Bill

“to make provision about the disclosure of information to improve public service delivery”

The information disclosed has to be accurate, timely and machine-readable. The Secretary of State would give guidance on the format of that disclosure following wide consultation with those involved, especially across all departments, because it will be an issue that involves all departments.

So why is the amendment needed? At the moment, the Government are required to publish a whole load of reports on environmental impacts but many of them are periodic, or possibly only annual and high level. For example, the Government are required to publish periodic high-level delivery plans on net zero under Sections 13 and 14 of the Climate Change Act. However, these leave unquantified many emissions savings and they are not revised at all when policies change.

The Government recently decided to delay the date of a ban on new fossil fuel cars and vans; to delay the proposed ban on further installation of oil, LPG and coal heating systems; and to delay the rollout of the clean heat market mechanism. The Government failed to report any greenhouse gas impacts from these measures, which were pretty substantial announcements. Indeed, the Secretary of State for DESNZ argued that it would not be appropriate, or a requirement, to update and publish a revised version of the carbon budget delivery plan every time that there was a change in policy. That is not what this amendment argues for; it reflects that one would think that, when such significant announcements were being made, the Government would have looked at what the impact on climate change issues would be.

The amendment would simply require the Government to publish any analysis that they have done on impact assessments or to publish the fact that they have not done any such analysis—one can draw one’s own conclusions from the fact that they have not done that. The Environmental Audit Committee in the other place, around the time of the announcements of which I gave examples, went so far as to challenge the Prime Minister to provide clarity on how the Government intended to fill the emission reduction gap caused by the proposed rollback of existing policies and did not get a satisfactory answer.

There are similar current arrangements for reports on adaptation and resilience to climate change. Section 56 and 58 of the Climate Change Act require, again, periodic reporting at a high level on adaptation to climate change. That legislation has not been updated when policies have changed. As far as the introduction of new legislation is concerned, Section 20 of the Environment Act requires a statement on environmental law by government when there is environmental content in any new Bill. However, we already know from bitter experience that the Government interpret “environmental content” rather tightly.

All but one of the 28 Bills considered by Parliament in this current Session stated that they did not contain environmental law at all, whereas we can see that several of them have a clear environmental impact. For example, the Economic Activity of Public Bodies (Overseas Matters) Bill—I should be talking now about an amendment on it across the way, as indeed, should the noble Baroness, Lady Bennett—could prevent public bodies from taking important environmental matters into account in their decision-making. However, at the time of that Bill being published, it was certified by Ministers as not containing any environmental law.

Currently, the Government publish impact assessments for new legislation, including environmental impact assessments where the proposals are expected to have an environmental impact. Again, this is interpreted very tightly by the Government. Of the 28 government Bills that we have considered in this Session, 24 reported negligible impact, zero impact or being not applicable in the greenhouse gas box of the appraisal form—or the whole box was left blank. No account was available of the evidence on which such ratings of not having any impact was based because we did not then get any environmental impact assessment. To give one example: the Offshore Petroleum Licensing Bill simply reported that impacts were not quantified, which is pretty staggering, bearing in mind the clear environmental implications of that Bill. One would think that licensing additional petroleum extraction from the North Sea has some environmental ramification.

We have talked about climate change impacts and adaptation impacts, and we have talked about legislation. With regard to public procurement, the Government and contracting authorities are not required to publish the greenhouse gas emissions associated with individual procurement contracts. We argued that one in the Procurement Bill and failed to get any movement. There is a procurement policy note guiding government departments to seek emission reductions plans from the firms that they are contracting with, but this is a non-statutory note—it is advice only—and it covers only the contracting companies’ own operations and not the impact emissions of the products of services being contracted for.

18:30

All this paints a picture, I hope, and it is not one of rigorous and open reporting, which the Government’s own net-zero review called for. In March 2021, the Public Accounts Committee also highlighted that government was not clear on how net zero would be given adequate weight in the assessment of government policies and projects. This amendment and reporting requirement would help to fill a little of that gap. It does not require huge additional analysis by the Government simply to report what analysis has been done on the climate and other environmental impacts of the announcements. As I said previously, if that report simply is that no analysis has been done, that would be equally illuminating.

[Lord Vaux of Harrowden (CB)]

This is a slightly disparate group of amendments. I have added my name in support of Amendment 296, tabled by the noble Baroness, Lady Jones of Whitchurch, which once again probes the question of whether this Bill risks causing the loss of the data adequacy ruling from the EU. This was an issue raised by many, if not most, noble Lords during Second Reading, and it is an area in which the Government’s position feels a little complacent.

The data adequacy ruling from the EU is extremely important, as the impact assessment that accompanies the Bill makes clear. It says:

“Cross-border data transfers are a key facilitator of international trade, particularly for digitised services. Transfers underpin business transactions and financial flows. They also help streamline supply chain management and allow business to scale and trade globally”.


The impact assessment then goes on to estimate the costs of losing data adequacy, and indicates a net present value cost range of between £1.6 billion and £3.4 billion over the next 10 years. As an aside, I note that that is a pretty wide range, which perhaps indicates the extent to which the costs are really understood.

The impact assessment notes that these numbers are the impact on direct trade only and that the impact may be larger still when considering supply chain impacts, but it does not make any attempt to calculate that effect. There are big potential costs, however we look at it. It therefore seems extraordinary that the impact assessment, despite running to 240 pages, makes no attempt at all to quantify the probability that the EU might decide—and it is a unilateral EU decision—to withdraw the data adequacy ruling, which it can do at any time, even before the current ruling comes to an end in July 2025. I find it extraordinary that no attempt has been made to estimate the probability of that happening. You would think that, if the Government were as confident as they say they are, they should have some evidence as to the probability of it happening.

Noble Lords should be aware that this means that the potential cost of the loss of data adequacy is not included in the NPV analysis for the Bill. If that loss did occur, the net present value of the Bill would be largely wiped out, and if the lower end of the IA range is taken, the Bill’s overall financial impact becomes a net present cost to the tune of £2.1 billion. The retention of the EU data adequacy ruling is therefore key to retaining any real benefit from this Bill at all.

On Monday, the Minister said:

“We believe they are compatible with maintaining our data adequacy decisions from the EU. We have maintained a positive, ongoing dialogue with the EU to make sure that our reforms are understood. We will continue to engage with the European Commission at official and ministerial levels with a view to ensuring that our respective arrangements for the free flow of personal data can remain in place, which is in the best interests of both the UK and the EU”.—[Official Report, 15/4/24; col. GC 261.]


By “they”, he means the measures in the Bill. So far, so good. But your Lordships will remember that, at the time of Brexit, there was actually considerable doubt as to whether we would be granted a data adequacy ruling at that time, when our rules were almost entirely convergent. This Bill increases divergence, so the approach at the moment seems complacent at best.

I do not think it is any surprise at all that our European Affairs Committee recently launched an inquiry into this very subject. While the Minister has said how confident he is, noises being made in the EU are less encouraging. For example, the chair of the European Parliament’s Civil Liberties, Justice and Home Affairs Committee wrote in February to the European Commissioner for Justice outlining his concerns about this Bill and questioning whether it will meet the requirements of “essential equivalence”, which is the test that we have to meet. He highlighted, in particular, the lack of independence of the Information Commissioner’s Office, and the elimination of the Biometrics and Surveillance Camera Commissioner, something we will come on to a little later.

It does not seem to be a given that data adequacy will be retained, despite the frankly rather woolly assurances from the Minister about his confidence. Given the enormous importance of the data adequacy ruling, and the fact that the impact assessment makes no attempt at all to assess the probability of retaining or losing it—something one would think to be really fundamental when deciding the extent of divergence we wish to follow—it must make sense to introduce the assessment proposed in Amendment 296. In the absence of something much stronger than the assurances the Minister has given so far, I urge the noble Baroness, Lady Jones, to return to this matter on Report: it is really fundamental.

[Lord Bassam of Brighton (Lab)]

My Lords, this group has three amendments within it and, as the noble Lord, Lord Vaux, said, it is a disparate group. The first two seem wholly benign and entirely laudable, in that they seek to ensure that concerns about the environmental impacts related to data connected to business are shared and provided. The noble Baroness, Lady Bennett, said hers was a small and modest amendment: I agree entirely with that, but it is valuable nevertheless.

If I had to choose which amendment I prefer, it would be the second, in the name of my noble friend Lady Young, simply because it is more comprehensive and seems to be of practical value in pursuing policy objectives related to climate change mitigation. I cannot see why the disclosure of an impact analysis of current and future announcements, including legislation, changes in targets and large contracts, on UK climate change mitigation targets would be a problem. I thought my noble friend was very persuasive and her arguments about impact assessment were sound. The example of offshore petroleum legislation effectively not having an environmental impact assessment when its impacts are pretty clear was a very good one indeed. I am one of those who believes that environmental good practice should be written all the way through, a bit like a stick of Brighton rock, and I think that about legislation. It is important that we take on board that climate change is the most pressing issue that we face for the future.

The third amendment, in the name of my noble friend Lady Jones, is of a rather different nature, but is no less important, as it relates to the UK’s data adequacy and the EU’s decisions on it. We are grateful to the noble Lords, Lord Vaux of Harrowden and Lord Clement-Jones, for their support. Put simply, it would oblige the Secretary of State to complete an assessment, within six months of the Bill’s passing,

“of the likely impact of the Act on the EU’s data adequacy decisions relating to the UK”.

It would oblige the Secretary of State to lay a report on the assessment’s findings, and the report must cover data risk assessments and the impact on SMEs. It must also include an estimate of the legislation’s financial impact. The noble Lord, Lord Vaux, usefully underlined the importance of this, with its critical 2025 date. The amendment also probes

“whether the Government anticipate the provisions of the Bill conflicting with the requirements that need to be made by the UK to maintain a data adequacy decision by the EU”.

There is widespread and considerable concern about data adequacy and whether the UK legislative framework diverges too far from the standards that apply under the EU GDPR. The risk that the UK runs in attempting to reduce compliance costs for the free flow of personal data is that safeguards are removed to the point where businesses and trade become excessively concerned. In summary, many sectors including manufacturing, retail, health, information technology and particularly financial services are concerned that the free flow of data between us and the EU, with minimal disruption, will simply not be able to continue.

As the noble Lord, Lord Vaux, underlined, it is important that we in the UK have a relationship of trust with the European Commission on this, although ultimately data adequacy could be tested in the Court of Justice of the European Union. Data subjects in the EU can rely on the general principle of the protection of personal data to invalidate EU secondary and domestic law conflicting with that principle. Data subjects can also rely on the Charter of Fundamental Rights to bring challenges. Both these routes were closed off when the UK left the EU and the provisions were not saved in UK law, so it can be argued that data protection rights are already at a lower standard than across the European Union.

It is worth acknowledging that adequacy does not necessarily require equivalence. We can have different, and potentially lower, standards than the EU but, as long as those protections are deemed to meet whatever criteria the Commission chooses to apply, it is all to the good.

However, while divergence is possible, the concern that we and others have is that the Bill continues chipping away at standards in too many different ways. This chipping away is also taking place in statutory instruments, changes to guidance and so on. If His Majesty’s Government are satisfied that the overall picture remains that UK regulation is adequate, that is welcome, but it would be useful to know what mechanism DSIT and the Government generally intend using to measure where the tipping point might be achieved and how close these reforms take us to it.

The Committee will need considerable reassurance on the question of data adequacy, not least because of its impact on businesses and financial services in the longer term. At various times, the Minister has made the argument that a Brexit benefit is contained within this legislation. If he is ultimately confident of that case, what would be the impact on UK businesses if that assessment is wrong in relation to data adequacy decisions taken within the EU?

We are going to need more than warm words and a recitation that “We think it’s right and that we’re in the right place on data adequacy”. We are going to need some convincing. Whatever the Minister says today, we will have to return to this issue on Report. It is that important for businesses in this country and for the protection of data subjects.

[Lord Clement-Jones (LD)]

My Lords, these amendments have been spoken to so well that I do not need to spend a huge amount of time repeating those great arguments. Both Amendment 195A, put forward by the noble Baroness, Lady Bennett, and Amendment 218 have considerable merit. I do not think that they conflict; they are complementary, in many respects.

Awareness raising is important to this, especially in relation to Amendment 218. For instance, if regulators are going to have a growth duty, which looks like it is going to happen, why not have countervailing duties relating to climate change, as the noble Baroness, Lady Young, put forward so cogently as part of Amendment 218? Amendment 195A also has considerable merit in raising awareness in the private sector, in traders and so on. Both have considerable merit.

18:45

However, this is about data adequacy. We have come to the point—it is an interesting point in our discussions because we have been leading up to this—where we have mentioned data adequacy a number of times. We have said to the Government, “You’re watering down these data subject rights”, and they have said, “Oh no we aren’t”. We have gone back and forth for the past four days in Committee. This debate is really the culmination of our discussions about the risk, if you add everything together.

Data adequacy is crucial to data flows from the EU to the UK. The noble Lords, Lord Vaux and Lord Bassam, put the case forward absolutely. It is a big issue for business; it has been raised with all of us so many times in relation to this Bill. The free flow of data from the UK to the EU is also crucial—it is not just one-way traffic. It is the first question that business raises about this Bill. Of course, we all remember vividly the enormous uncertainty created when the CJEU invalidated the US’s adequacy decisions, most recently in the case of Schrems II in July 2020. Nobody wants to go back to that, so losing adequacy is a significant worry.

One has to look at the test that the European Commission applies when it does an adequacy assessment. It includes

“the rule of law, respect for human rights and fundamental freedoms, relevant legislation, both general and sectoral, including concerning public security, defence, national security and criminal law … the existence and effective functioning of one or more independent supervisory authorities in the third country … and … the international commitments the third country or international organisation concerned has entered into, or other obligations arising from legally binding conventions or instruments as well as from its participation in multilateral or regional systems, in particular in relation to the protection of personal data”.

So, there are quite a number of points of vulnerability here. The UK is at a disadvantage here, in fact. If its data protection law were completely different from that of the EU, it would be much more difficult to weigh up whether it was, in essence, equivalent. Where the UK is clearly dropping its standards, it is easy to distinguish that the UK does not have an essentially equivalent standard of protection.

If you look closely at the elements that make up the finding of essential equivalence for the UK, you will see that some of them have already been removed or run the risk of being removed; others will go through the operation of the Bill. I am not going into great detail but the noble Lord, Lord Bassam, talked about chipping away. We are not talking about little ice-picks: we are talking about sledgehammers being taken to some of those data subject rights, including lowering the standard of protection for data subjects; the deletion of the concept of EU fundamental rights with the potential loss of CJEU case law, which interprets data protection law; and eroding the ICO’s independence. The impact of the proposed UK rules on automated decision-making is one area where the UK is clearly dropping its standards. We have also talked today about having the ability to lower protections using secondary legislation.

The noble Lord, Lord Vaux, talked about the ruminations that are taking place in Brussels—and not just in the Parliament. On 8 February 2023, the European Commissioner for Justice, Didier Reynders, answered a question in an interesting way. He said:

“In the context of that obligation”—

on data adequacy—

“the Commission has been in regular contact with representatives of the UK government since the early stages of the UK’s reform of its data protection legislation. These contacts have been helpful for a better understanding of the content and scope of the amendments proposed in the Data Protection and Digital Information Bill. While a number of those amendments are aimed at clarifying the existing framework, some specific proposals would—if adopted—raise questions with respect to the level of protection. This is, for example, the case for the amendments that would affect the independence of the UK’s data protection authority, the Information Commissioner, as well as for the proposal to give to the Secretary of State the power to recognise in the future certain interests of the data controller as a legal basis for processing (so-called ‘legitimate interests’) without any limitation and without the need for a balancing against the rights and interests of the individual. The Commission has repeatedly raised these concerns with the UK government and will continue to closely monitor how the Bill evolves in the parliamentary process.”

So no pressure.

Adding that to what the noble Lord, Lord Vaux, talked about when he mentioned the chairman of the European Parliament’s Civil Liberties, Justice and Home Affairs Committee, the Government should not think that they can simply water down data subject rights and ramp up the Secretary of State’s rights without it being noticed across the water and without consequences. That is why they need to think carefully about this Bill and accept the amendment in the name of the noble Baroness, Lady Jones, which is the least we can do, quite apart from scrapping the Bill.

[Viscount Camrose (Con)]

My Lords, I thank the noble Baronesses, Lady Bennett, Lady Young of Old Scone and Lady Jones, for their proposed amendments on extending the definition of business data in smart data schemes, the disclosure of climate and nature information to improve public service delivery and the publication of an EU adequacy risk assessment.

On Amendment 195A, we consider that information about the carbon and energy intensity of goods, services or digital content already falls within the scope of “business data” as information about goods, services and digital content supplied or provided by a trader. Development of smart data schemes will, where relevant, be informed by—among other things—the Government’s Environmental Principles Policy Statement, under the Environment Act 2021.

With regard to Amendment 218, I thank the noble Baroness, Lady Young of Old Scone, for her sympathies; they are gratefully received. I will do my best in what she correctly pointed out is quite a new area for me. The powers to share information under Part 5 of the Digital Economy Act 2017—the DEA—are supplemented by statutory codes of practice. These require impact assessments to be carried out, particularly for significant changes or proposals that could have wide-ranging effects on various sectors or stakeholders. These impact assessments are crucial for understanding the implications of the Digital Economy Act and ensuring that it achieves its intended objectives, while minimising any negative consequences for individuals, businesses and society as a whole. As these assessments already cover economic, social and environmental impact, significant changes in approach are already likely to be accounted for. This is in addition to the duty placed on Ministers by the Environment Act 2021 to have due regard to the Environmental Principles Policy Statement.

Lastly, turning to Amendment 296, the Government are committed to maintaining their data adequacy decisions from the EU, which we absolutely recognise play a pivotal role in enabling trade and fighting crime. As noble Lords alluded to, we maintain regular engagement with the European Commission on the Bill to ensure that our reforms are understood.

The EU adequacy assessment of the UK is, of course, a unilateral, autonomous process for the EU to undertake. However, we remain confident that our reforms deliver against UK interests and are compatible with maintaining EU adequacy. As the European Commission itself has made clear, a third country—the noble Lord, Lord Clement-Jones, alluded to this point—is not required to have the same rules as the EU to be considered adequate. Indeed, 15 countries have EU adequacy, including Japan, Israel and the Republic of Korea. All these nations pursue independent and, often, more divergent approaches to data protection.

The Government will provide both written and oral evidence to the House of Lords European Affairs Committee inquiry on UK-EU data adequacy and respond to its final report, which is expected to be published in the summer. Many expert witnesses already provided evidence to the committee and have stated that they believe that the Bill is compatible with maintaining adequacy.

As noble Lords have noted, the Government have published a full impact assessment alongside the Bill, which sets out in more detail what both the costs and financial benefits of the Bill would be—including in the unlikely scenario of the EU revoking the UK’s adequacy decision. I also note that UK adequacy is good for the EU too: every EU company, from multinationals to start-ups, with customers, suppliers or operations in the UK relies on EU-UK data transfers. Leading European businesses and organisations have consistently emphasised the importance of maintaining these free flows of data to the UK.

For these reasons, I hope that the noble Baronesses will agree to withdraw or not move these amendments.

[Lord Bassam of Brighton (Lab)]

The Minister made the point at the end there that it is in the EU’s interest to agree to our data adequacy. That is an important point but is that what the Government are relying on—the fact that it is in the EU’s interest as much as ours to continue to agree to our data adequacy provisions? If so, what the Minister has said does not make me feel more reassured. If the Government are relying on just that, it is not a particularly strong argument.

[Lord Clement-Jones (LD)]

Before the Minister stands up, let me just say that I absolutely agree with what the noble Lord, Lord Bassam, said. Have the Government taken any independent advice? It is easy to get wrapped up in your own bubble. The Government seem incredibly blithe about this Bill. You only have to have gone through our days in this Committee to see the fundamental changes that are being made to data protection law, yet the Government, in this bubble, seem to think that everything is fine despite the warnings coming from Brussels. Are they taking expert advice from outside? Do they have any groups of academics, for instance, who know about this kind of thing? It is pretty worrying. The great benefit of this kind of amendment, put forward by the noble Baroness, Lady Jones, is that nothing would happen until we were sure that we were going to be data adequate. That seems a fantastic safeguard to me. If the Government are just flying blind on this, we are all in trouble, are we not?

[Lord Vaux of Harrowden (CB)]

My Lords, can I point out, on the interests of the EU, that it does not go just one way? There is a question around investment as well. For example, any large bank that is currently running a data-processing facility in this country that covers the whole of Europe may decide, if we lose data adequacy, to move it to Europe. Anyone considering setting up such a thing would probably go for Europe rather than here. There is therefore an investment draw for the EU here.

[Viscount Camrose (Con)]

I do not know what I could possibly have said to create the impression that the Government are flying blind on this matter. We continue to engage extensively with the EU at junior official, senior official and ministerial level in order to ensure that our proposed reforms are fully understood and that there are no surprises. We engage with multiple expert stakeholders from both the EU side and the UK side. Indeed, as I mentioned earlier, a number of experts have submitted evidence to the House’s inquiry on EU-UK data adequacy and have made clear their views that the DPDI reforms set out in this Bill are compatible with EU adequacy. We continue to engage with the EU throughout. I do not want to be glib or blithe about the risks; we recognise the risks but it is vital—

[Lord Bassam of Brighton (Lab)]

Could we have a list of the people the noble Lord is talking about?

[Viscount Camrose (Con)]

Yes. I would be happy to provide a list of the people we have spoken to about adequacy; it may be a long one. That concludes the remarks I wanted to make, I think.

[Lord Clement-Jones (LD)]

Perhaps the Minister could just tweak that a bit by listing not just the people who have made positive noises but those who have their doubts.

[Viscount Camrose (Con)]

Yes.

19:00

[Baroness Bennett of Manor Castle (GP)]

My Lords, I thank the Minister for his answer. This has been a fairly short but fruitful debate. We can perhaps commend the Minister for his resilience, although it feels like he was pounded back on the ropes a few times along the way.

I will briefly run through the amendments. I listened carefully to the Minister, although I will have to read it back in Hansard. I think he was trying to say that my Amendment 195A, which adds energy and carbon intensity to this list, is already covered. However, I really cannot see how that can be claimed to be the case. The one that appears to be closest is sub-paragraph (iv), which refers to “performance or quality”, but surely that does not include energy and carbon intensity. I will consider whether to come back to this issue.

The noble Baroness, Lady Young of Old Scone, presented a wonderfully clear explanation of why Amendment 218 is needed. I particularly welcome the comments from the noble Lord, Lord Bassam, expressing strong Labour support for this. Even if the Government do not see the light and include it in the Bill, I hope that the noble Lord’s support can be taken as a commitment that a future Labour Government intend to follow that practice in all their approaches.

[Lord Vaux of Harrowden (CB)]

Good try.

[Baroness Bennett of Manor Castle (GP)]

It was worth a try.

[Lord Bassam of Brighton (Lab)]

I hope that the noble Baroness does not get too carried away on that one.

[Baroness Bennett of Manor Castle (GP)]

I am sure that we will revisit this at some point in future. Perhaps the noble Lord will like the fact that I am saying that it is certain that we will revisit it from a different place.

These are all really serious amendments. This is a long Committee stage but, in the whole issue of data, having regard to data adequacy is absolutely crucial, as the degree of intervention on the Minister indicated. The Green Party’s position is that we want to be rejoin-ready: we want to remain as close as possible to EU standards so that we can rejoin the EU as soon as possible.

Even without taking that approach, this is a crucial issue as so many businesses are reliant on this adequacy ruling. I was taken by a comment from the Minister, who said that the UK is committed to data adequacy. The issue here is not what the UK is saying but convincing the EU, which is not in our hands or under our control, as numerous noble Lords said.

I have no doubt that we will return to data adequacy and I hope that we will return to the innovative and creative intervention from the noble Baroness, Lady Young of Old Scone. In the meantime, I beg leave to withdraw Amendment 195A.

Amendment 195A withdrawn.

Clause 85 agreed.

Clauses 86 to 95 agreed.

Clause 96: Levy

Amendment 196

Moved by

[Viscount Camrose]

196: Clause 96, page 123, line 42, after “holders” insert “, authorised persons or third party recipients”
Member's explanatory statement
This amendment provides that the restriction in clause 96(3) on the exercise of the regulation-making power in clause 96(1) (power to impose a levy) applies in connection with regulations imposing a levy on authorised persons or third party recipients as well as regulations imposing a levy on data holders.

Amendment 196 agreed.

Clause 96, as amended, agreed.

Clauses 97 to 102 agreed.

Clause 103: Regulations under this Part

Amendment 197

Moved by

[Viscount Camrose]

197: Clause 103, page 131, line 7, at end insert—
“(9A) The requirement in subsection (9) may be satisfied by consultation undertaken before the coming into force of this section.”Member's explanatory statement
This amendment makes clear that the requirement under clause 103(9) to consult before making regulations described in clause 103(7) may be satisfied by consultation carried out before clause 103 comes into force.

Amendment 197 agreed.

Clause 103, as amended, agreed.

[The Deputy Chairman of Committees (Viscount Stansgate) (Lab)]

My Lords, for the convenience of the Committee and in view of the forthcoming votes, I think it would be helpful to pause here and return after the two votes have taken place. Is that agreeable?

[Lord Lucas (Con)]

My Lords, I would much rather not. We are due to end at 8.15 pm and I should like to hold to that. We seem to have some while before anything is going to happen. Shall we not just make progress?

[The Deputy Chairman of Committees (Viscount Stansgate) (Lab)]

All right, we shall make as much progress as we can.

Amendment 197A

Moved by

[Lord Holmes of Richmond]

197A: After Clause 103, insert the following new Clause—
“Oversight of biometric technology use by the Information Commission(1) The Information Commission must establish a Biometrics Office.(2) The Biometrics Office is to be constituted by a committee of three appointed commissioners with relevant expertise.(3) It is the function of the Biometrics Office to—(a) establish and maintain a public register of relevant entities engaged in processing the biometric data of members of the public; (b) oversee and review the biometrics use of relevant entities;(c) produce a Code of Practice for the use of biometric technology by registered parties, which must include—(i) compulsory standards of accuracy and reliability for biometric technologies;(ii) a requirement for the proportionality of biometrics use to be assessed prior to use and annually thereafter, and a procedure for such assessment;(iii) a procedure for individual complaints about the use of biometrics by registered parties;(d) receive and publish annual reports from all relevant entities, which includes the relevant entity’s proportionality assessment of their biometrics use;(e) enforce registration and reporting by the issuing of enforcement notices and, where necessary, the imposition of fines for non-compliance with the registration and reporting requirements;(f) ensure lawfulness of biometrics use by relevant entities, including by issuing compliance and abatement notices where necessary.(4) The Secretary of State may by regulations add to the responsibilities of the Biometrics Office.(5) Regulations made under subsection (4) are subject to the affirmative resolution procedure.(6) For the purposes of this Part, “relevant entity” means any organisation or body corporate (whether public or private) which processes biometric data as defined in Article 9 GDPR, other than where the biometric processing undertaken by the organisation or body corporate is otherwise overseen by the Investigatory Powers Commissioner, because it is—(a) for the purposes of making or renewing a national security determination as defined by section 20(2) of the Protection of Freedoms Act 2012, or(b) for the purposes set out in section 20(6) of the Protection of Freedoms Act 2012.”

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to take part in today’s Committee proceedings. I declare my technology interests as an adviser to Boston Limited. It is self-evident that we have been talking about data but there could barely be a more significant piece of data than biometrics. In moving the amendment, I shall speak also to Amendments 197B and 197C, and give more than a nod to the other amendments in this group.

When we talk about data, it is always critical that we remember that it is largely our data. There could be no greater example of that than biometrics. More than data, they are parts and fragments of our very being. This is an opportune moment in the debate on the Bill to strengthen the approach to the treatment and the use of biometrics, not least because they are being increasingly used by private entities. That is what Amendments 197A to 197C are all about—the establishment of a biometrics office, a code of practice and oversight, and sanctions and fines to boot. This is of that level of significance. The Bill should have that strength when we are looking at such a significant part of our very human being and data protection.

Amendment 197B looks at reporting and regulatory requirements, and Amendment 197C at the case for entities that have already acted in the biometrics space prior to the passage of the Bill. In short, it is very simple. The amendments take principles that run through many elements of data protection and ensure that we have a clear statement on the use and deployment of biometrics in the Bill. There could be no more significant pieces of data. I look forward to the Minister’s response. I thank the Ada Lovelace Institute for its help in drafting the amendments, and I look forward to the debate on this group. I beg to move.

[Lord Vaux of Harrowden (CB)]

My Lords, I have added my name in support of the stand part notices of the noble Lord, Lord Clement-Jones, to Clauses 147, 148 and 149. These clauses would abolish the office of the Biometrics and Surveillance Camera Commissioner, along with the surveillance camera code of practice. I am going to speak mainly to the surveillance camera aspect, although I was taken by the speech of the noble Lord, Lord Holmes, who made some strong points.

The UK has become one of the most surveilled countries in the democratic world. There are estimated to be over 7 million CCTV cameras in operation. I give one example: the automated number plate recognition, ANPR, system records between 70 million and 80 million readings every day. Every car is recorded on average about three times a day. The data is held for two years. The previous Surveillance Camera Commissioner, Tony Porter, said about ANPR that it,

“must surely be one of the largest data gatherers of its citizens in the world. Mining of meta-data—overlaying against other databases can be far more intrusive than communication intercept”.

Professor Sampson, the previous commissioner, said about ANPR:

“There is no ANPR legislation or act, if you like. And similarly, there is no governance body to whom you can go to ask proper questions about the extent and its proliferation, about whether it should ever be expanded to include capture of other information such as telephone data being emitted by a vehicle or how it's going to deal with the arrival of automated autonomous vehicles”.


And when it came to independent oversight and accountability, he said:

“I’m the closest thing it’s got—and that’s nothing like enough”.


I am not against the use of surveillance cameras per se—it is unarguable that they are a valuable tool in the prevention and detection of crime—but there is clearly a balance to be found. If we chose to watch everything every person does all of the time, we could eliminate crime completely, but nobody is going to argue that to be desirable. We can clearly see how surveillance and biometrics can be misused by states that wish to control their populations—just look at China. So there is a balance to find between the protection of the public and intrusion into privacy.

Technology is moving incredibly rapidly, particularly with the ever-increasing capabilities of Al. As technology changes, so that balance between protection and privacy may also need to change. Yet Clause 148 will abolish the only real safeguards we have, and the only governance body that keeps an eye on that balance. This debate is not about where that balance ought to be; it is about making sure that there is some process to ensure that the balance is kept under independent review at a time when surveillance technologies and usage are developing incredibly rapidly.

I am sure that the Minister is going to argue that, as he said at Second Reading:

“Abolishing the Surveillance Camera Commissioner will not reduce data protection”.—[Official Report, 19/12/23; col. 2216.]


He is no doubt going to tell us that the roles of the commissioner will be adequately covered by the ICO. To be honest that completely misses the point. Surveillance is not just a question of data protection; it is a much wider question of privacy. Yes, the ICO may be able to manage the pure data protection matters, but it cannot possibly be the right body to keep the whole question of surveillance and privacy intrusion, and the related technologies, under independent review.

It is also not true that all the roles of the commissioner are being transferred to other bodies. The report by the Centre for Research into Surveillance and Privacy, or CRISP, commissioned by the outgoing commissioner, is very clear that a number of important areas will be lost, particularly reviewing the police handling of DNA samples, DNA profiles and fingerprints; maintaining an up-to-date surveillance camera code of practice with standards and guidance for practitioners and encouraging compliance with that code; setting out technical and governance matters for most public body surveillance systems, including how to approach evolving technology, such as Al-driven systems including facial recognition technology; and providing guidance on technical and procurement matters to ensure that future surveillance systems are of the right standard and purchased from reliable suppliers. It is worth noting that it was the Surveillance Camera Commissioner who raised the issues around the use of Hikvision cameras, for example—not something that the ICO is likely to be able to do. Finally, we will also lose the commissioner providing reports to the Home Secretary and Parliament about public surveillance and biometrics matters.

Professor Sampson said, before he ended his time in office as commissioner:

“The lack of attention being paid to these important matters at such a crucial time is shocking, and the destruction of the surveillance camera code that we’ve all been using successfully for over a decade is tantamount to vandalism”.


He went on to say:

“It is the only legal instrument we have in this country that specifically governs public space surveillance. It is widely respected by the police, local authorities and the surveillance industry in general … It seems absolutely senseless to destroy it now”.


The security industry does not want to see these changes either, as it sees the benefits of having a clear code. The Security Systems and Alarms Inspection Board, said:

“Without the Surveillance Camera Commissioner you will go back to the old days when it was like the ‘wild west’, which means you can do anything with surveillance cameras so long as you don’t annoy the Information Commissioner … so, there will not be anyone looking at new emerging technologies, looking at their technical requirements or impacts, no one thinking about ethical implications for emerging technologies like face-recognition, it will be a free-for-all”.


The British Security Industry Association said:

“We are both disappointed and concerned about the proposed abolition of the B&SCC. Given the prolific emergence of biometric technologies associated with video surveillance, now is a crucial time for government, industry, and the independent commissioner(s) to work close together to ensure video surveillance is used appropriately, proportionately, and most important, ethically”.


I do not think I can put it better than that.

While there may be better ways to achieve the appropriate safeguards than the current commissioner arrangement, this Bill simply abolishes everything that we have now and replaces the safeguards only partially, and only from a data protection perspective. I am open to discussion about how we might fill the gaps, but the abolition currently proposed by the Bill is a massively retrograde and even dangerous step, removing the only safeguards we have against the uncontrolled creep towards ever more intrusive surveillance of innocent people. As technology increases the scope for surveillance, this must be the time for greater safeguards and more independent oversight, not less. The abolition of the commissioner and code should not happen unless there are clear, better, safeguards established to replace it, and this Bill simply does not do that.

19:15

[Baroness Harding of Winscombe (Con)]

My Lords, I want to speak briefly in support of, first, the amendments in the name of my noble friend Lord Holmes, which would recreate the office of the Biometrics and Surveillance Camera Commissioner.

As I have done on a number of occasions, I shall tell a short story; it is about the Human Fertilisation and Embryology Authority. Noble Lords may wonder why I am starting there. I remember very clearly one of the first debates that I participated in when I was at university—far too long ago. It was at the Oxford Union, and Dame Mary Warnock came to speak about what was then a highly contentious use of new technology. In this country, we had that debate early; we established an authority to oversee what are very complex scientific and ethical issues. It has remained a settled issue in this country that has enabled many families to bear children, bringing life and joy to people in a settled and safe way.

This data issue is quite similar, I think. Other countries did not have that early debate, which I remember as a teenager, and did not establish a regulator in the form of the HFEA. I point to the US, which was torn apart by those very issues. As the noble Lord, Lord Vaux, has just set out, the public are very concerned about the use of biometric data. This is an issue that many sci-fi novels and films have been made about, because it preys on our deepest fears. I think that technology can be hugely valuable to society, but only if we build and maintain trust in it. In order to do that, you need consistent, long-standing, expert regulation.

Like the noble Lord, Lord Vaux, I do not understand why the changes that this Bill brings will make things better. It narrows the scope of protection to data protection only when, actually, the issues are much broader, much subtler and much more sophisticated. For that reason and that reason alone, I think that we need to remove these clauses and reinstate the regulator that exists today.

[Viscount Stansgate (Lab)]

My Lords, I find myself in a fortunate position: we have made progress fast enough to enable me to go from one end of the Room to the other and play a modest part in this debate. I do so because, at an earlier stage, I identified the amendments tabled by the noble Lord, Lord Holmes, and I very much wish to say a few words in support of them.

Reference has already been made to the briefing that we have had from CRISP. I pay tribute to the authors of that report—I do not need to read long chunks of it into the record—and am tempted to follow the noble Lord in referring to both of them. I sometimes wonder whether, had their report been officially available before the Government drafted the Bill, we would find ourselves in the position we are now in. I would like to think that that would have had an effect on the Government’s thinking.

When I first read about the Government’s intention to abolish the post of the Biometrics and Surveillance Camera Commissioner, I was concerned, but I am not technically adept to know enough about it in detail. I am grateful for the advice that I have had from CRISP and from Professor Michael Zander, a distinguished and eminent lawyer who is a Professor Emeritus at LSE. I am grateful to him for contacting me about this issue. I want to make a few points on his and its behalf.

In the short time available to me, this is the main thing I want to say. The Government argue that abolishing these joint roles will

“reduce duplication and simplify oversight of the police use of biometrics”.

Making that simpler and rationalising it is at the heart of the Government’s argument. It sounds as if this is merely a tidying-up exercise, but I believe that that is far from the case. It is fair to accept that the current arrangements for the oversight of public surveillance and biometric techniques are complex, but a report published on 30 October, to which noble Lords’ attention has already been drawn, makes a powerful case that what the Government intend to do will result in losses that are a great deal more significant than the problems caused by the complexity of the present arrangements. That is the paper’s argument.

The report’s authors, who produced a briefing for Members’ use today, have presented a mass of evidence and provided an impressively detailed analysis of the issues. The research underpinning the report includes a review of relevant literature, interviews with leading experts and regulators—

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, there is a Division in the Chamber. There are two votes back to back so the Committee will just come back as and when.

19:20

Sitting suspended for a Division in the House.

19:45

[Viscount Stansgate (Lab)]

I do not have the benefit of seeing a Hansard update to know after which word I was interrupted and we had to leave to vote, so I will just repeat, I hope not unduly, the main point I was making at the time of the Division. This was that the central conclusion of the CRISP report is that the Government’s policy

“generates significant gaps in the formal oversight of biometrics and surveillance practices in addition to erasing many positive developments aimed at raising standards and constructive engagement with technology developers, surveillance users and the public”.

The reason I am very glad to support the noble Lord, Lord Holmes, in these amendments is that the complexities of the current regulatory landscape and the protections offered by the BSCC in an era of increasingly intensive advanced and intrusive surveillance mean that the abolition of the BSCC leaves these oversight gaps while creating additional regulatory complexity. I will be interested to see how the Minister defends the fact that this abolition is supposed to improve the situation.

I do not want to detain the Committee for very long, but I shall just read this one passage from the report into the record, because it is relevant to the debate we are having. We should not remove

“a mechanism for assuring Parliament and the public of appropriate surveillance use, affecting public trust and legitimacy at a critical moment concerning public trust in institutions, particularly law enforcement. As drafted, the Bill reduces public visibility and accountability of related police activities. The lack of independent oversight becomes amplified by other sections of the Bill that reduce the independence of the current Information Commissioner role”.

In short, I think it would be a mistake to abolish the biometrics commissioner, and on that basis, I support these amendments.

[Lord Clement-Jones (LD)]

My Lords, it has been a pleasure to listen to noble Lords’ speeches in this debate. We are all very much on the same page and have very much the same considerations in mind. Both the protection of biometric data itself and also the means by which we regulate its use and have oversight over how it is used have been mentioned by everyone. We may have slightly different paths to making sure we have that protection and oversight, but we all have the same intentions.

The noble Lord, Lord Holmes, pointed to the considerable attractions of, in a sense, starting afresh, but I have chosen a rather different path. I think it was the noble Lord, Lord Vaux, who mentioned Fraser Sampson, the former Biometrics and Surveillance Camera Commissioner. I must admit that I have very high regard for the work he did, and also for the work of such people as Professor Peter Fussey of Essex University. Of course, a number of noble Lords have mentioned the work of CRISP in all this, which kept us very well briefed on the consequence of these clauses.

No one has yet spoken to the stand part notices on Clauses 130 to 132; I will come on to those on Clauses 147 to 149 shortly. The Bill would drastically change the way UK law enforcement agencies can handle biometric personal data. Clauses 130 to 132 would allow for data received from overseas law enforcement agencies to be stored in a pseudonymised, traceable format indefinitely.

For instance, Clause 130 would allow UK law enforcement agencies to hold biometric data received from overseas law enforcement agencies in a pseudonymised format. In cases where the authority ceases to hold the material pseudonymously and the individual has no previous convictions or only one exempt conviction, the data may be retained in a non-pseudonymous format for up to three years. Therefore, the general rule is indefinite retention with continuous pseudonymisation, except for a specific circumstance where non-pseudonymised retention is permitted for a fixed period. I forgive noble Lords if they have to read Hansard to make total sense of that.

This is a major change in the way personal data can be handled. Permitting storage of pseudonymised or non-pseudonymised data will facilitate a vast biometric database that can be traced back to individuals. Although this does not apply to data linked to offences committed in the UK, it sets a concerning precedent for reshaping how law enforcement agencies hold data in a traceable and identifiable way. It seems that there is nothing to stop a law enforcement agency pseudonymising data just to reattach the identifying information, which they would be permitted to hold for three years.

The clauses do not explicitly define the steps that must be taken to achieve pseudonymisation. This leaves a broad scope for interpretation and variation in practice. The only requirement is that the data be pseudonymised

“as soon as reasonably practicable”,

which is a totally subjective threshold. The collective impact of these clauses, which were a late addition to the Bill on Report in the Commons, is deeply concerning. We believe that these powers should be withdrawn to prevent a dangerous precedent being set for police retention of vast amounts of traceable biometric data.

The stand part notices on Clauses 147 to 149 have been spoken to extremely cogently by the noble Lord, Lord Vaux, the noble Viscount, Lord Stansgate, and the noble Baroness, Lady Harding. I will not repeat a great deal of what they said but what the noble Baroness, Lady Harding, said about the Human Fertilisation and Embryology Authority really struck a chord with me. When we had our Select Committee on Artificial Intelligence, we looked at models for regulation and how to gain public trust for new technologies and concepts. The report that Baroness Warnock did into fertilisation and embryology was an absolute classic and an example of how to gain public trust. As the noble Baroness, Lady Harding, said, it has stood the test of time. As far as I am concerned, gaining that kind of trust is the goal for all of us.

What we are doing here risks precisely the reverse by abolishing the office of the Biometrics and Surveillance Camera Commissioner. This was set up under the Protection of Freedoms Act 2012, which required a surveillance camera commissioner to be appointed and a surveillance camera code of practice to be published. Other functions of the Biometrics and Surveillance Camera Commissioner are in essence both judicial and non-judicial. They include developing and encouraging compliance with the surveillance camera code of practice; raising standards for surveillance camera developers, suppliers and users; public engagement; building legitimacy; reporting annually to Parliament via the Home Secretary; convening expertise to support these functions; and reviewing all national security determinations and other powers by which the police can retain biometric data. The Bill proposes to erase all but one—I stress that—of these activities.

The noble Lord, Lord Vaux, quoted CRISP. I will not repeat the quotes he gave but its report, which the noble Viscount, Lord Stansgate, also cited, warns that

“plans to abolish and not replace existing safeguards in this crucial area will leave the UK without proper oversight just when advances in artificial intelligence (AI) and other technologies mean they are needed more than ever”.

The Bill’s reduction of surveillance-related considerations to data protection compares unfavourably to regulatory approaches in other jurisdictions. Many have started from data protection and extended it to cover the wider rights-based implications of surveillance. Here, the Bill proposes a move in precisely the opposite direction. I am afraid this is yet another example of the Bill going entirely in the wrong direction.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to what has been an excellent debate on this issue. We have all been united in raising our concerns about whether the offices of the biometrics commissioner and the surveillance camera commissioner should be abolished. We all feel the need for more independent oversight, not less, as is being proposed here.

As we know, the original plan was for the work of the biometrics commissioner to be transferred to the Information Commissioner, but when he raised concerns that this would result in the work receiving less attention, it was decided to transfer it to the Investigatory Powers Commissioner instead. Meanwhile, the office of the surveillance camera commissioner is abolished on the basis that these responsibilities are already covered elsewhere. However, like other noble Lords, we remain concerned that the transfer of this increasingly important work from both commissioners will mean that it does not retain the same level of expertise and resources as it enjoys under the current regime.

These changes have caused some alarm among civic society groups such as the Ada Lovelace Institute and the Centre for Research into Information Surveillance and Privacy, to which noble Lords have referred. They argue that we are experiencing a huge expansion in the reach of surveillance and biometric technology. The data being captured, whether faces, fingerprints, walking style, voice or the shape of the human body, are uniquely personal and part of our individual identity. The data being captured can enhance public safety but can also raise critical ethical concerns around privacy, free expression, bias and discrimination. As the noble Lord, Lord Vaux, said, we need a careful balance of those issues between protection and privacy.

The noble Baroness, Lady Harding, quite rightly said that there is increasing public mistrust in the use of these techniques, and that is why there is an urgent need to take people on the journey. The example the noble Baroness gave was vivid. We need a robust legal framework to underpin the use of these techniques, whether it is by the police, the wider public sector or private institutions. As it stands, the changes in the Bill do not achieve that reassurance, and we have a lot of lessons to learn.

Rather than strengthening the current powers to respond to the huge growth and reach of surveillance techniques, the Bill essentially waters down the protections. Transferring the powers from the BSCC to the new Information Commissioner brings the issue down to data protection when the issues of intrusion and the misuse of biometrics and surveillance are much wider than that. Meanwhile, the impact of Al will herald a growth of new techniques such as facial emotional appraisal and video manipulation, leading to such things as deep fakes. All these techniques threaten to undermine our sense of self and our control of our own personal privacy.

The amendment in the name of the noble Lord, Lord Holmes, takes up the suggestion, also made by the Ada Lovelace Institute, to establish a biometrics office within the ICO, overseen by three experienced commissioners. The functions would provide general oversight of biometric techniques, keep a register of biometric users and set up a process for considering complaints. Importantly, it would require all entities processing biometric data to register with the ICO prior to any use.

We believe that these amendments are a really helpful contribution to the discussion. They would place the oversight of biometric techniques in a more effective setting where the full impacts of these techniques can be properly monitored, measured and reported on. We would need more details of the types of work to be undertaken by these commissioners, and the cost implications but, in principle, we support these amendments because they seem to be an answer to our concerns. We thank the noble Lord for tabling them and very much hope the Minister will give the proposals serious consideration.

20:00

My Amendments 238 and 286 address another concern about the limitation of the current regime. This relates to how biometric techniques can sometimes be used or misused to classify people. The current definition of biometric data is limited to unique identification, such as photographs or fingerprints. Far more worrying is the application of these techniques to classify people, and put them in a particular box, without them knowing, in ways that could have long-lasting detriment on their lives. AI and large language models pose a particular threat in this regard. For example, apart from classifying the obvious physical traits, it could affect people’s access to jobs, and they could be targeted unfairly by the police or be subjected to persistent messaging and advertising over which they have no control.

When this was debated in the Commons, the Minister, John Whittingdale, argued that this was already covered by the GDPR, but I am not sure that is the case. The GDPR specifically focuses on individual data rights. Our amendment would amend the UK GDPR to extend the biometric data protections currently in place from simply identifying an individual to also identifying the classification applied to them. I therefore hope that the Minister can see the sense in these amendments, and I look forward to his response.

Finally, I am grateful to the noble Lord, Lord Clement-Jones, for his amendments and his contribution. I think that we are all on the same page here, sharing a concern about the abolition of the office of the Biometrics and Surveillance Camera Commissioner, and trying to find the best way to replace and enhance those protections. I thought that the noble Lord made a very strong case for his amendments in that regard.

I think that we are all in agreement, although we do not have the same wording. I think that with a little effort we could find that wording. These are important issues. I hope that the Minister can give a more positive response than to the last debate that I spoke in. We are going to carry on working on it, even if he does not want to—so I hope that we are able to make some progress on this issue.

[Viscount Camrose (Con)]

I thank my noble friend Lord Holmes, the noble Baroness, Lady Jones, and the noble Lord, Lord Clement-Jones, as well as other co-signatories for detailed examination of the Bill through these amendments.

I begin by addressing Amendments 197A, 197B and 197C tabled by my noble friend Lord Holmes, which seek to establish a biometrics office responsible for overseeing biometric data use, and place new obligations on organisations processing such data. The Information Commissioner already has responsibility for monitoring and enforcing the processing of biometric data, and these functions will continue to sit with the new information commission, once established. For example, in March 2023 it investigated the use of live facial recognition in a retail security setting by Facewatch. In February 2024, it took action against Serco Leisure in relation to its use of biometric data to monitor attendance of leisure centre employees.

Schedule 15 to this Bill will also enable the information commission to establish committees of external experts with skills in any number of specialist areas, including biometrics, to provide specialist advice to the commission. Given that the Information Commissioner already has responsibility for monitoring and enforcing the processing of biometric data, the Government are therefore of the firm view that the information commission is best placed to continue to oversee the processing of biometric data. The Bill also allows the new information commission to establish specialist committees and require them to provide the commission with specialist advice. The committees may include specialists from outside the organisation, with key skills and expertise in specific areas, including biometrics.

The processing of biometric data for the purpose of uniquely identifying an individual is also subject to heightened safeguards, and organisations can process such data only if they meet one of the conditions of Article 9 of UK GDPR—for example, where processing is necessary to comply with employment law provisions, or for reasons of substantial public interest. Without a lawful basis and compliance with relevant conditions, such processing of biometric data is prohibited.

Amendments 197B and 197C in the name of my noble friend Lord Holmes would also impose new, prescriptive requirements on organisations processing, and intending to process, biometric data and setting unlimited fines for non-compliance. We consider that such amendments would have significant unintended consequences. There are many everyday uses of biometrics data, such as using your thumbprint to access your phone. If every organisation that launched a new product had to comply with the proposed requirements, it would introduce significant and unnecessary new burdens and would discourage innovation, undermining the aims of this Bill. For these reasons, I respectfully ask my noble friend not to move these amendments.

The Government deem Amendment 238 unnecessary, as using biometric data—

[Baroness Jones of Whitchurch (Lab)]

I am sorry, but I am wondering whether the Minister is going to say any more on the amendment in the name of the noble Lord, Lord Holmes. Can I be clear? The Minister said that the ICO is the best place to oversee these issues, but the noble Lord’s amendment recognises that; it just says that there should be a dedicated biometrics unit with specialists, et cetera, underneath it. I am looking towards the noble Lord—yes, he is nodding in agreement. I do not know that the Minister dismissed that idea, but I think that this would be a good compromise in terms of assuaging our concerns on this issue.

[Viscount Camrose (Con)]

I apologise if I have misunderstood. It sounds like it would be a unit within the ICO responsible for that matter. Let me take that away if I have misunderstood—I understood it to be a separate organisation altogether.

The Government deem Amendment 238 unnecessary, as using biometric data to categorise or make inferences about people, whether using algorithms or otherwise, is already subject to the general data protection principles and the high data protection standards of the UK’s data protection framework as personal data. In line with ICO guidance, where the processing of biometric data is intended to make an inference linked to one of the special categories of data—for example, race or ethnic origin—or the biometric data is processed for the intention of treating someone differently on the basis of inferred information linked to one of the special categories of data, organisations should treat this as special category data. These protections ensure that this data, which is not used for identification purposes, is sufficiently protected.

Similarly, Amendment 286 intends to widen the scope of the Forensic Information Databases Service—FINDS—strategy board beyond oversight of biometrics databases for the purpose of identification to include “classification” purposes as well. The FINDS strategy board currently provides oversight of the national DNA database and the national fingerprint database. The Bill puts oversight of the fingerprint database on the same statutory footing as that of the DNA database and provides the flexibility to add oversight of new biometric databases, where appropriate, to provide more consistent oversight in future. The delegated power could be used in the medium term to expand the scope of the board to include a national custody image database, but no decisions have yet been taken. Of course, this will be kept under review, and other biometric databases could be added to the board’s remit in future should these be created and should this be appropriate. For the reasons I have set out, I hope that the noble Baroness, Lady Jones of Whitchurch, will therefore agree not to move Amendments 238 and 286.

Responses to the data reform public consultation in 2021 supported the simplification of the complex oversight framework for police use of biometrics and surveillance cameras. Clauses 147 and 148 of the Bill reflect that by abolishing the Biometrics and Surveillance Camera Commissioner’s roles while transferring the commissioner’s casework functions to the Investigatory Powers Commissioner’s Office.

Noble Lords referred to the CRISP report, which was commissioned by Fraser Sampson—the previous commissioner—and directly contradicts the outcome of the public consultation on data reform in 2021, including on the simplification of the oversight of biometrics and surveillance cameras. The Government took account of all the responses, including from the former commissioner, in developing the policies set out in the DPDI Bill.

There will not be a gap in the oversight of surveillance as it will remain within the statutory regulatory remit of other organisations, such as the Information Commissioner’s Office, the Equality and Human Rights Commission, the Forensic Science Regulator and the Forensic Information Databases Service strategy board.

[Lord Clement-Jones (LD)]

One of the crucial aspects has been the reporting of the Biometrics and Surveillance Camera Commissioner. Where is there going to be and who is going to have a comprehensive report relating to the use of surveillance cameras and the biometric data contained within them? Why have the Government decided that they are going to separate out the oversight of biometrics from, in essence, the surveillance aspects? Are not the two irretrievably brought together by things such as live facial recognition?

[Viscount Camrose (Con)]

Yes. There are indeed a number of different elements of surveillance camera oversight; those are reflected in the range of different bodies doing that it. As to the mechanics of the production of the report, I am afraid that I do not know the answer.

[Lord Clement-Jones (LD)]

Does the Minister accept that the police are one of the key agencies that will be using surveillance cameras? He now seems to be saying, “No, it’s fine. We don’t have one single oversight body; we had four at the last count”. He probably has more to say on this subject but is that not highly confusing for the police when they have so many different bodies that they need to look at in terms of oversight? Is it any wonder that people think the Bill is watering down the oversight of surveillance camera use?

[Viscount Camrose (Con)]

No. I was saying that there was extensive consultation, including with the police, and that that has resulted in these new arrangements. As to the actual mechanics of the production of an overall report, I am afraid that I do not know but I will find out and advise noble Lords.

His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services also inspects, monitors and reports on the efficiency and effectiveness of the police, including their use of surveillance cameras. All of these bodies have statutory powers to take the necessary action when required. The ICO will continue to regulate all organisations’ use of these technologies, including being able to take action against those not complying with data protection law, and a wide range of other bodies will continue to operate in this space.

On the first point made by the noble Lord, Lord Vaux, where any of the privacy concerns he raises concern information that relates to an identified or identifiable living individual, I can assure him that this information is covered by the UK’s data protection regime. This also includes another issue raised by the noble Lord—where the ANPR captures a number-plate that can be linked to an identifiable living individual—as this would be the processing of personal data and thus governed by the UK’s data protection regime and regulated by the ICO.

For the reasons I have set out, I maintain that these clauses should stand part of the Bill. I therefore hope that the noble Lord, Lord Clement-Jones, will withdraw his stand part notices on Clauses 147 and 148.

Clause 149 does not affect the office of the Biometrics and Surveillance Camera Commissioner, which the noble Lord seeks to maintain through his amendment. The clause’s purpose is to update the name of the national DNA database board and update its scope to include the national fingerprint database within its remit. It will allow the board to produce codes of practice and introduce a new delegated power to add or remove biometric databases from its remit in future via the affirmative procedure. I therefore maintain that this clause should stand part of the Bill and hope that the noble Lord will withdraw his stand part notice.

Clauses 147 and 148 will improve consistency in the guidance and oversight of biometrics and surveillance cameras by simplifying the framework. This follows public consultation, makes the most of the available expertise, improves organisational resilience, and ends confusing and inefficient duplication. The Government feel that a review, as proposed, so quickly after the Bill is enacted is unnecessary. It is for these reasons that I cannot accept Amendment 292 in the name of the noble Lord, Lord Clement-Jones.

I turn now to the amendments tabled by the noble Lord, Lord Clement-Jones, which seek to remove Clauses 130 to 132. These clauses make changes to the Counter-Terrorism Act 2008, which provides the retention regime for biometric data held on national security grounds. The changes have been made only following a formal request from Counter Terrorism Policing to the Home Office. The exploitation of biometric material, including from international partners, is a valuable tool in maintaining the UK’s national security, particularly for ensuring that there is effective tripwire coverage at the UK border. For example, where a foreign national applies for a visa to enter the UK, or enters the UK via a small boat, their biometrics can be checked against Counter Terrorism Policing’s holdings and appropriate action to mitigate risk can be taken, if needed.

20:15

The existing retention rules in the Counter-Terrorism Act present several operational challenges for Counter Terrorism Policing in relation to international biometric exchange. These clauses make proportionate changes to mitigate these issues, so that the police are not forced to delete critical data. In the case of Clause 132, which makes changes to the way biometrics from Interpol can be retained, this change was recommended by the Independent Reviewer of Terrorism Legislation, who highlighted the pressing operational need for these biometrics to be exempt from the national security determination regime and an alternative regime to be put in place.

Overall, these clauses will support the police to retain biometric data from international partners, including Interpol, ensuring that biometrics are retained in a proportionate way, while protecting the public from national security-related risks, such as terrorism. Given the positive impact these changes will have on national security—changes which, in part, have the support of the relevant independent reviewers and which are being pursued only following a formal request from policing—I cannot support the noble Lord’s opposition to Clauses 130, 131 and 132 standing part of the Bill, and I hope that he will not press it.

[Lord Vaux of Harrowden (CB)]

My Lords, to go back to some of the surveillance points, one of the issues is the speed at which technology is changing, with artificial intelligence and all the other things we are seeing. One of the roles of the commissioner has been to keep an eye on how technology is changing and to make recommendations as to what we do about the impacts of that. I cannot hear, in anything the noble Viscount is saying, how that role is replicated in what is being proposed. Can he enlighten me?

[Viscount Camrose (Con)]

Yes, indeed. In many ways, this is advantageous. The Information Commissioner obviously has a focus on data privacy, whereas the various other organisations, particularly BSCC, EHRC and the FINDS Board, have subject-specific areas of expertise on which they will be better placed to horizon-scan and identify new emerging risks from technologies most relevant to their area.

[Lord Vaux of Harrowden (CB)]

Is the noble Viscount saying that splitting it all up into multiple different places is more effective than having a single dedicated office to consider these things? I must say, I find that very hard to understand.

[Viscount Camrose (Con)]

I do not think we are moving from a simple position. We are moving from a very complex position to a less complex position.

[Viscount Stansgate (Lab)]

Can the Minister reassure the Committee that, under the Government’s proposals, there will be sufficient reporting to Parliament, every year, from all the various bodies to which he has already referred, so that Parliament can have ample opportunity to review the operation of this legislation as the Bill stands at the moment?

[Viscount Camrose (Con)]

Yes, indeed. The information commission will be accountable to Parliament. It is required to produce transparency and other reports annually. For the other groups, I am afraid that many of them are quite new to me, as this is normally a Home Office area, but I will establish what their accountability is specifically to Parliament, for BSSC and the—

[Viscount Stansgate (Lab)]

Will the Minister write to the Committee, having taken advice from his Home Office colleagues?

[Viscount Camrose (Con)]

Yes, indeed.

[Lord Holmes of Richmond (Con)]

My Lords, I thank all noble Lords who participated in the excellent debate on this set of amendments. I also thank my noble friend the Minister for part of his response; he furiously agreed with at least a substantial part of my amendments, even though he may not have appreciated it at the time. I look forward to some fruitful and positive discussions on some of those elements between Committee and Report.

When a Bill passes into statute, a Minister and the Government may wish for a number of things in terms of how it is seen and described. One thing that I do not imagine is on the list is for it to be said that this statute generates significant gaps—those words were put perfectly by the noble Viscount, Lord Stansgate. That it generates significant gaps is certainly the current position. I hope that we have conversations between Committee and Report to address at least some of those gaps and restate some of the positions that exist, before the Bill passes. That would be positive for individuals, citizens and the whole of the country. For the moment, I beg leave to withdraw my amendment and look forward to those subsequent conversations.

Amendment 197A withdrawn.

Amendments 197B and 197C not moved.

Clauses 104 to 108 agreed.

Amendment 198

Moved by

[Viscount Camrose]

198: After Clause 108, insert the following new Clause—
“Interpretation of the PEC RegulationsIn regulation 2 of the PEC Regulations (interpretation)—(a) in paragraph (4) omit “, without prejudice to paragraph (3),”, and(b) at the end insert—“(5) References in these regulations to a period expressed in hours, days, weeks, months or years are to be interpreted in accordance with Article 3 of the Periods of Time Regulation, except that Article 3(4) of that Regulation does not apply to the interpretation of a reference to a period in regulation 16A.(6) In paragraph (5), “the Periods of Time Regulation” means Regulation (EEC, Euratom) No. 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits.””Member's explanatory statement
This amendment provides for the rules of interpretation in Article 3 of Regulation No 1182/71 (rules of interpretation regarding periods of time etc) to apply to the Privacy and Electronic Communications (EC Directive) Regulations 2003, with an exception for regulation 16A. It also removes a superfluous cross-reference.

Amendment 198 agreed.

Committee adjourned at 8.21 pm.

House of Lords

Wednesday 17th April 2024 Lords Chamber

Wednesday 17 April 2024

15:00

Prayers—read by the Lord Bishop of Newcastle.

EU Borders: Hand and Face Scanning

Wednesday 17th April 2024 Lords Chamber

Question

15:06

Asked by

[Lord Berkeley]

To ask His Majesty’s Government what steps they are taking to minimise delays at borders with the European Union caused by the proposed introduction of hand and face scanning.

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

My Lords, the European entry/exit system—EES—is ultimately for EU member states to implement, but, to minimise delays for British citizens, the Government have engaged on it regularly with the European Commission and the French Government. We are supporting ports and carriers to ensure that they are prepared for implementation and planning communications for passengers travelling to and from the UK so that they will know what to do and can plan accordingly.

[Lord Berkeley (Lab)]

My Lords, I am grateful to the Minister for that Answer, and I am pleased that the Government are in discussion with the European Union. Can he confirm that all passengers travelling between the EU and the UK, by air, sea, rail or road, will have to submit to scans of both hands and a retina scan before they cross into or out of the EU? I am told that they will have to do this in little booths which have to be erected at every terminal. Can he confirm that and perhaps advise the House how long the queues will be while this is implemented?

[Lord Sharpe of Epsom (Con)]

The EES replaces passport stamping: it registers the time and place of entry and exit of third-country nationals to the Schengen area and digitally records biodata—as the noble Lord has observed—and the travel document, fingerprints and photo. It tracks compliance with the 90-in-180 day maximum stay duration. It will take place in booths— I apologise, as I should have said that—although there are works on various technical solutions to mitigate that going forward. I am told that the amount of time it will take is not particularly onerous.

[Noble Lords]

Oh!

[Baroness McIntosh of Pickering (Con)]

My Lords, given that airports have failed to meet the deadline that the Government suggested for introducing the rule about being able to carry liquids on board, and that there are long delays at Dover every possible bank holiday weekend, how confident is my noble friend that this deadline will be reached? What will happen if the delays are insufferable? Will additional staff be in place to assist passengers in this regard?

[Lord Sharpe of Epsom (Con)]

My Lords, considerable investment is going into the queues at Dover. Noble Lords may be aware that the Department for Transport has provisionally awarded £45 million of levelling-up fund money to Kent County Council for the Dover border improvement project, which aims to substantially reduce outbound queues at the port. Ferry operators have previously been very pragmatic about allowing vehicles on to ferries if crossings are missed due to disruption, but we recognise the impact of disruption. The Kent Resilience Forum has a package of well-tested traffic management plans to manage disruption to keep passengers and freight traffic flowing.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, the Minister will recall that I have raised with him the major mistake we made in abandoning the opportunity of having an identity facility. In fact, he said that I had a good point. Can he tell me whether he has taken it back to his department and whether they will act on it now and reverse the stupid decision taken by the coalition Government?

[Lord Sharpe of Epsom (Con)]

I think I agreed with the noble Lord, Lord West, only last week, that that is a good point. I have taken it back to the department and have no answer for him.

[Baroness Coussins (CB)]

My Lords, will the hand and face scanning procedure apply also to coachloads of schoolchildren going on educational visits to European Union countries? They already face long and stressful delays at the borders because they are no longer on group travel passports, and the individual passport of every child has to be separately checked. Can the Minister say whether the group passport system could be reintroduced, or whether, at the very least, those groups will be excused from hand and face scanning?

[Lord Sharpe of Epsom (Con)]

As I have said, I am afraid that this is a system being applied by the EU. It is not for us to say how it is applied; it is for it. However, coaches have already been dealt with as far as the new arrangements at Dover are concerned, and, as far as I am aware, this will not be particularly onerous.

[Baroness Randerson (LD)]

The Minister referred to freight traffic. Since Brexit, we have had phytosanitary certificates, plant passports, import licences and export health certificates. On 30 April, we will suffer Brexit-related import checks on meat and plants, leading to payment of common user charges of up to £145 per consignment, estimated to add 10% to the cost of those imports. Can the Minister tell us why the Government gave only 27 days’ notice of the size of this charge and the date of its implementation? What discussions have they had with small businesses in particular about the impact this will have?

[Lord Sharpe of Epsom (Con)]

The noble Baroness will appreciate that, as a Home Office Minister, I am not party to those discussions, but I will go back to the relevant department and find out, and make sure that she is made aware of the discussions and their substance.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords—

[Lord Forsyth of Drumlean (Con)]

My Lords, I think it is this side.

[Lord Ponsonby of Shulbrede (Lab)]

I do not think so. The Minister will note that there is an air of scepticism in the House about the implementation of these new procedures. Will transitional measures be in place to enable the new system to bed in while the existing system carries on working?

[Lord Sharpe of Epsom (Con)]

No, I do not believe that there will. As I say, this system is being operated and introduced by the European Union, so we have limited say in whether there should be transitional arrangements. Having said that, I do not think that the start date has been made public yet. I know there is a target start date, but I would imagine that there is no obligation to start on the date that has already been published if things are not yet ready.

[Lord Forsyth of Drumlean (Con)]

My Lords, I apologise to the noble Lord; I did think this was Back-Bench and not Front-Bench Questions.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean (Con)]

Well, it is Back-Bench Questions. Could I say to my noble friend how much I sympathise with him? Not only has he had to deal with the Rwanda legislation but he is now being held to account by Opposition Members for foolish decisions taken by the European Union.

[Lord Sharpe of Epsom (Con)]

I thank my noble friend.

[Lord Dubs (Lab)]

My Lords, I hope the Minister’s optimism will be proved accurate in the event, but I am bound to say that those of us who serve on the Justice and Home Affairs Committee that is currently looking at this are not so happy. There is probably a car crash on the way in Dover, I fear. What about the situation in Northern Ireland, where it will not be at all clear whether people coming from the EU or third countries can travel north from Dublin to Belfast if they choose to do so.

[Lord Sharpe of Epsom (Con)]

My Lords, I am not entirely sure what the noble Lord would like me to say. As I have repeatedly said, this is an EU system being rolled out by the EU. I am neither optimistic nor not optimistic; I am relying on the information I have received as to the EU’s plans.

[Lord Watts (Lab)]

My Lords, can the Minister tell us how the people of Dover will benefit from the money being invested? It is supposed to be levelling up, to make those communities more enterprising. How will that work with this money being used in Dover?

[Lord Sharpe of Epsom (Con)]

The first thing it will do will be to ease traffic. I imagine that will be of enormous benefit to the people of Dover.

[Baroness Manzoor (Con)]

My Lords, on something that is in our control, and being very much an optimist, I was delighted just recently when I applied for my new passport. I expected it to take weeks or months and that there would be lots of delays. I was pleasantly surprised that I could do it electronically. I turned up to the Passport Office and got the passport in five minutes. That is a tremendous accolade to the Passport Office. I just want to put that on record.

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that. That is a long-overdue compliment to the passport service, which has been operating extraordinarily efficiently now for quite some time. I remember there was a lot of disquiet on Opposition Benches post Covid about how long it took to square off the backlog. I have not heard any commendations for its recent very strong performance.

[Viscount Goschen (Con)]

My Lords, can my noble friend give an indication of the comparison that has been made between the efficacy and performance of the systems planned to be introduced on the other side of the channel and those systems that are in place at the UK end of passport control and immigration? Is he satisfied that our technology deployed in the UK is at least of equivalent complexity and competency?

[Lord Sharpe of Epsom (Con)]

I cannot say whether it is of the same complexity, but I can say that the ETA system, which, as noble Lords will be aware, began to be rolled out last year, is working very efficiently, so I am very optimistic about our end of the bargain.

[Lord Dubs (Lab)]

My Lords, could I just refer the Minister to what he said? Why are we blaming the EU for the consequences of a decision that this Government made in leaving the EU?

[Lord Sharpe of Epsom (Con)]

I am not blaming the EU for anything. The EU has a perfect right to control its own borders—I wish noble Lords in certain parties would afford the same right to us in this country. I would also like to say that the British Government did not leave the EU; the people of Great Britain voted to leave the EU.

Russia: War Crimes in Ukraine

Wednesday 17th April 2024 Lords Chamber

Question

15:17

Asked by

[Lord Alton of Liverpool]

To ask His Majesty’s Government what progress has been made in creating an ad hoc international tribunal, and in repurposing Russian assets, in response to Russian war crimes in Ukraine.

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

My Lords, the United Kingdom continues to push for accountability for Russian war crimes in Ukraine, including via active participation in the core group established by Ukraine to explore options for a tribunal for the crime of aggression. We are clear that Russia must pay for the damage it has caused to Ukraine and we are working closely with allies to explore all lawful routes by which immobilised Russian sovereign assets can be used to support Ukraine.

[Lord Alton of Liverpool (CB)]

My Lords, I thank the Minister for that reply. Has he seen the latest economic estimates, beyond the suffering, chronic injuries and fatalities in Ukraine, that the costs are likely to come to some £1 trillion to rebuild Ukraine? To facilitate some of that rebuilding, yesterday the House heard the Foreign Secretary say that he is eager to see the £44 billion of Russian assets frozen in the UK, along with the EU’s €260 billion of frozen assets, repurposed to help Ukraine, including the £2.5 billion sale of Chelsea Football Club. Could the Minister outline to the House the obstacles placed in the way of the repurposing of assets, the creation of a special tribunal, which he referred to, to prosecute the mother of all crimes—the crime of aggression—and the circumvention of sanctions? Will he commit to chairing a regular private meeting here in the House with Members of your Lordships’ House until the obstacles and disagreements are ironed out and progress is made in bringing to justice and to account those responsible for the terrible deprivations and suffering that Ukraine has experienced?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s last point, I and my noble friend Lord Cameron will of course keep the House updated on progress on this issue. I know that my noble friend has made the issue of the seizure of assets a key priority. Noble Lords would have heard directly what the Foreign Secretary said. He was in Israel today, but he is travelling to the G7, where I know Ukraine will be discussed in terms of accountability, sanctions and the leveraging of the sanctions imposed on these assets. We have previously discussed the EU and the steps it is taking. As my noble friend said yesterday—it is a point I have made several times from the Dispatch Box—we want to work in unison with our G7 partners and, importantly, with our partners in the EU, in particular regarding the assets currently held in Belgium, to ensure there is a real implication. So far, just the sanctions have meant that we have denied Russia $400 billion that would have been used for the Russian war machine.

[Lord Pickles (Con)]

My Lords, one of the war crimes that Russia has committed in Ukraine is the forcible abduction of 20,000 children from their parents. This morning on Válasz Online, we got an indication of what that means in reality from a young Ukrainian called Denis, who suffers from diabetes. He went to tell the Russian authorities that he was running low, and he was told, “We do not supply insulin to pro-Ukrainians, so become pro-Russian or die”. What kind of regime is that?

[Lord Ahmad of Wimbledon (Con)]

My Lords, first, I recognise my noble friend consistently raising the abhorrent crime of taking children from Ukraine to Russia. I know I speak for every Member of your Lordships’ House when I say that this abhorrent practice must stop immediately. We are working with key agencies, including the UN, to ensure the rapid return of these children. It is regularly raised at G7 level and bilaterally as well. On the final point, it is another appalling example of what Russia is doing not just to the Ukrainian people but to the future of Ukraine as well.

[Lord Purvis of Tweed (LD)]

My Lords, in addition to the totality of the consequences of the aggression on Ukraine, as the noble Lord, Lord Alton, said, there are hundreds of thousands of individual victims who are being recorded on the Ukrainian register for damages. Does the Minister agree that the tribunal has a good opportunity of being the basis upon which repatriation and support for individual victims can be operated? Does the Minister also agree that there is nothing preventing the UK instituting a windfall tax on the asset values now, rather than seizing assets, so that we can start to provide support for individual victims, especially women who have been the victims of sexual aggression?

[Lord Ahmad of Wimbledon (Con)]

On the noble Lord’s final point, he will know that, as the Prime Minister’s Special Representative on Preventing Sexual Violence in Conflict, I am very much seized of this and we are working with the first lady of Ukraine on the issue. The register is an important element; that is why the UK has been a strong advocate—indeed, at a previous meeting with our European partners, I signed that register on behalf of the United Kingdom. On the accountability mechanism, we are working with key partners, including the US, to ensure that we get the right mechanism to ensure that it is legally based, internationally founded and applied and ultimately provides accountability and support to the tragic victims and survivors of the crimes to which the noble Lord alludes.

[Baroness Meacher (CB)]

My Lords, I fully support the Question asked by the noble Lord, Lord Alton, but can the Minister assure the House that the penalties dished out to Mr Putin and his cronies will be limited to those people responsible for the war crimes in Ukraine? I lived and worked in Russia for several years, and I know a lot of senior Russians who are utterly decent and who would never support the war crimes committed in Ukraine. I appeal to the Minister to assure us that care will be taken in punishing only those responsible.

[Lord Ahmad of Wimbledon (Con)]

I can assure the noble Baroness. On a personal anecdote, the noble Baroness talks about Russians. Our fight is not with the Russian people. I know of a child who is at my son’s school whose mother is half-Russian and half-Spanish, and he is not going back to Russia to see his grandparents because of the fear of what consequences may face a young child who has just started off in life.

[Baroness Kennedy of The Shaws (Lab)]

My Lords—

[Lord Austin of Dudley (Non-Afl)]

My Lords—

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I do not think that the Labour Benches have yet had a chance, so if I may.

As we are talking about war criminals and crimes committed by the Russians, there is a matter of concern that the International Criminal Court Act 2001 confines prosecutions of war criminals coming into this country to people who are nationals or who have residency here. I wonder whether we are making any progress on amending that legislation so that we can prosecute people who come through here, often coming to look at schools or universities for their children or to shop at Harrods. Can we do something about providing the ability to arrest those people?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Baroness will be aware that we work very closely with international agencies, most notably with the ICC on the warrants that have been issued against key Russians, including the President of Russia. Of course those would apply. I know the noble Baroness has raised this issue with me directly as well, and I think that we need to look at what mechanisms can be applied but ultimately—as we have heard from the Cross Benches as well—those responsible for these abhorrent crimes should be held accountable.

[Lord Swire (Con)]

My Lords, can I return to the issue of Chelsea Football Club? We heard from my noble friend the Foreign Secretary yesterday and sensed his frustration. This is £2.5 billion which is effectively frozen, we are told, because of disagreement between ourselves and others in Europe. Surely, this is completely unacceptable. Can the noble friend—I mean my noble friend—the Minister reassure this House that across government we are working very hard to release this money? It has been sitting for far too long, and it should be spent where it was meant to be spent on alleviating the suffering of the Ukrainian people.

[Lord Ahmad of Wimbledon (Con)]

First, on a lighter note, I am charmed that my noble friend referred to me as “the noble friend” and I take that on board. Equally, on his more serious point, I agree with him, and the Foreign Secretary is also seized with this matter.

[Lord Collins of Highbury (Lab)]

My Lords, can I push the Minister on how we hold to account the President of Russia for the act of aggression? We have had discussions in the G7 since April 2023 on establishing a special tribunal so we can actually prosecute the people responsible. Can he update us on the discussions in G7 so we can move this matter forward speedily so we can be guaranteed that we hold these people to account?

[Lord Ahmad of Wimbledon (Con)]

I have already alluded to the fact that my noble friend the Foreign Secretary will be meeting G7 partners in Italy during the course of this week and this is one of the points that will be raised. There are various options on the table. We are working very closely with the ICC—the ICC prosecutor has particular views on this—but equally we are aware of the independent tribunal the Ukrainians have asked for and there are some other variations on that. I assure the noble Lord that, as these progress, we are very much prioritising this. We want to see accountability but in a manner which can be applied consistently with all key partners.

School Inspections: Funding

Wednesday 17th April 2024 Lords Chamber

Question

15:27

Asked by

[Lord Watson of Invergowrie]

To ask His Majesty’s Government what assessment they have made of the concerns expressed by the board of Ofsted, at its meeting on 20 September 2023, that the reliability of school inspections will be compromised if funding is further constrained.

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

My Lords, Ofsted, like all public services, is expected to operate efficiently and effectively to provide the best value for money for taxpayers and use its resources to best effect in providing high-quality inspection. Sir Martyn Oliver is very much focused on that, and I understand that he has already taken action internally to prioritise Ofsted’s resource on inspection activity. We will continue to work closely with Ofsted to ensure that it continues to deliver effectively in future.

[Lord Watson of Invergowrie (Lab)]

I thank the Minister for that response. Sir Martyn Oliver has become the new chief inspector, but the Ofsted chair, who voiced the concerns mentioned in my Question, is still in her post, so there is continuity at the top of the organisation and that concern remains. In its response to the Education Committee’s report on Ofsted last month, Ofsted highlighted that it has taken on considerably expanded roles and responsibilities and yet its funding is now some 30% lower in real terms than it was in 2010. How do the Government expect Ofsted to adequately carry out its primary responsibility of school inspections without sufficient resources? The organisation itself clearly believes that to be the case.

[Baroness Barran (Con)]

As I said in my initial response, Ofsted, like any well-run organisation, has looked at where it is spending its budget and has refocused that. The Government have given it additional funding for the uplift, particularly in school inspections, that has been expected. Obviously we work very closely with Ofsted, and I cannot comment on any future spending review.

[Lord Baker of Dorking (Con)]

My Lords, as I am responsible for 44 university technical colleges, I have received lots of Ofsted inspections, and I am glad to say that 85% resulted in good or outstanding ratings but 15% were rated as failing. I do not resent it; I do not object. Ofsted has told us what we have to do better. Any education system in the world requires an independent inspectorate. That is what Ofsted is, and it should be supported.

[Baroness Barran (Con)]

I thank my noble friend for his remarks. I agree that we have a system in this country with high autonomy in our schools. We trust our school and trust leaders to deliver for our children, but with that autonomy goes high accountability.

[Lord Addington (LD)]

My Lords, there is a principle that what gets inspected gets done. Can the Government say whether, if inspections are not done properly, we might be doing things badly? We have got to ensure that there are enough resources if we have a system of stick and carrot.

[Baroness Barran (Con)]

I take the noble Lord’s point, but there is not a lot of evidence to suggest overall that inspection is not done well. There is significant quality assurance of inspections, and, during 2022-23, an overall judgment was changed in only 0.6% of state-funded school inspections.

[Lord Hampton (CB)]

My Lords, I declare an interest in that I, like the noble Lord, Lord Baker, have been “Ofsteded”. Moving on from his question, while I feel that Ofsted’s methods and judgments need changing, because it does a vital job it is vitally important that it is valued and that the people who work for it are made to feel valued.

[Baroness Barran (Con)]

Again, I can only agree with the noble Lord. I was reflecting on the new verb that has entered the lexicon of being “Ofsteded”—we will leave that. This is important. The work that Ofsted is doing with the Big Listen, in talking to parents, teachers, school leaders and children, will, I hope, go a long way to ensure that trust and confidence is achieved—and that therefore, at the end of it, the institution and those who work for it are valued.

[Baroness Berridge (Con)]

My Lords, one of the key functions of an Ofsted inspection is to make sure that no one is employed who has a criminal record relating to harming children. Sadly, there are over 80,000 adults currently barred from working with children. When Ofsted discovers that a head teacher and senior leadership team are not doing proper employment checks, what resources are then available, either from Ofsted or elsewhere, to ensure that that senior leadership team is immediately retrained to ensure they do those vital employment checks?

[Baroness Barran (Con)]

It would be up to the trust, in relation to an academy, or the local authority to address those specific weaknesses. The department has led on the development of a framework of professional qualifications: leadership qualifications for heads, executive leaders and senior leaders. All those frameworks are clear about the role of leaders in complying with the law in relation to safeguarding and statutory guidance. As my noble friend knows very well, that statutory guidance, Keeping Children Safe in Education, is extremely clear on recruitment practices, DBS and wider appointment checks, but also on referrals back to the Disclosure and Barring Service if someone is dismissed or removed.

[Baroness Wilcox of Newport (Lab)]

Ofsted reports have seen a sevenfold increase in references to sexual assault since 2017. Mentions of safeguarding issues have doubled and mentions of sexual harassment have risen from zero to 106. How are the Government ensuring that the regulator is able to identify where safeguarding problems exist on a regular basis if further funding is constrained?

[Baroness Barran (Con)]

The fact that Ofsted is identifying more issues of this type reflects a few different things. Clearly, as in society more broadly, sadly, we do not know whether some of these issues are increasing in volume or whether we are just getting better at identifying them. For the safety of children, it is crucial that Ofsted identifies them, but it is even more important that the schools identify them, and do so early, because Ofsted inspections are periodic and children need to be safe every day.

[Baroness Garden of Frognal (LD)]

My Lords, the old HMIs used to be viewed by schools as critical friends and were welcomed. Teachers facing an Ofsted inspection now do so with dread, because they fear that they will be criticised above all else. Is there any chance that Ofsted could go back to being friendly in its inspections?

[Baroness Barran (Con)]

I think we have to be a little careful with that kind of generalisation. Like with any inspection, one may well be apprehensive or nervous ahead of it, but 90% of our schools are now good or outstanding, so the outcome for the vast majority of schools is a very good result. I remind the noble Baroness that Ofsted inspectors are almost all either former or serving teachers, head teachers and senior leaders.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to associate myself with the remarks of the noble Baroness, Lady Garden. I do not think that “Ofsteded” becoming a verb is cause for mirth; it is cause for great concern. I do not recognise in the comments of the Minister the statistics from the survey by the National Education Union, in which 62% of teachers said that Ofsted had affected their mental health. To quote Nick Wigmore, a primary school teacher from Rochdale:

“Ofsted turns up every four to five years to provide one-word judgements … It’s a system that doesn’t work”.


Given that there are huge problems with teacher retention and mental health issues, do the Government acknowledge that this is something they need to consider very seriously? I should declare an interest, in that it is long-term Green Party policy to abolish Ofsted.

[Baroness Barran (Con)]

I think the noble Baroness has heard from other noble Lords who are much more expert than I am of the value of Ofsted. In relation to one-word judgments, it is extremely important that parents have a simple and clear understanding—the noble Baroness rolls her eyes, but it is true. Parents value it. I commend to her the research on parent opinions about the value of Ofsted reports; they value those judgments, and it is important that parents are recognised in this.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, does the Minister agree that there are certain areas in which we need more regulation within schools? I particularly draw to her attention the fact that we now have more obese children than when the Labour Government were in power, with very little review taking place of the regulations that govern school meals. When will we see any possible change in that area?

[Baroness Barran (Con)]

Sadly, in most of the developed world there are more obese children. I am not sure there is a direct correlation with who is in power. As he knows—I thank the noble Lord for taking the time to meet the other day—this is work in progress.

Middle East: Deployment of British Armed Forces

Wednesday 17th April 2024 Lords Chamber

Question

15:38

Asked by

[Viscount Stansgate]

To ask His Majesty’s Government how they intend to consult Parliament on the deployment of British armed forces in the Middle East.

[The Minister of State, Ministry of Defence (The Earl of Minto) (Con)]

My Lords, the Prime Minister and Government Ministers have consistently provided updates to Parliament through Written and Oral Statements, and through Oral and Topical Questions. However, publishing operational activity to Parliament in advance could undermine the effectiveness of an operation and potentially risk the lives of Armed Forces personnel involved. While the deployment of the Armed Forces is a prerogative power and the Government are under no legal obligation to seek parliamentary approval, we will continue to update the House as fully as appropriate.

[Viscount Stansgate (Lab)]

My Lords, I thank the Minister for that Answer. He is quite right that the Government have kept the House updated and given the Opposition the opportunity to continue to express their full support. Just over a decade ago, the then Foreign Secretary, now the noble Lord, Lord Hague of Richmond, speaking in the context of the Middle East, said that

“wherever possible, Parliament should have the opportunity to debate, in advance, the commitment of UK forces to military action overseas, unless there is an emergency where such action would not be appropriate”.

I think the whole House would agree that last Saturday night was such an exception.

With the news today that Israel has apparently decided to retaliate for that attack, the House will know that the situation is very serious. Does the Minister not agree that this would be a good time to clarify the role of Parliament in relation to the use of military force overseas? Does he think, on behalf of the Government, that some form of consultation should be enshrined in law? If so, will he bring forward a draft resolution for discussion and debate in both Houses?

[The Earl of Minto (Con)]

My Lords, the noble Viscount makes a very good point, and it is something that I will talk to my colleagues about. I do not believe that the situation has changed. We have said before that when these irregular, single-point actions—which are limited, proportionate, necessary and legal—are required, we will continue to take action to protect lives, particularly in self-defence, as we did over the weekend. If that situation should change, we will certainly review the situation; we will keep the House fully involved.

[Lord Lee of Trafford (LD)]

My Lords, we are very fortunate to have the Foreign Secretary in our House. Indeed, it is probably the best decision that the Prime Minister has taken. It is an excellent idea that we have the Foreign Secretary here, and I hope this may be the norm in future. I hope the Labour Benches are focusing on this.

In a more serious vein, the Middle East situation is extremely serious. British forces have been involved. Surely we should now be having a major, full-day debate in this House on the Middle East, as a matter of urgency and priority, and regular debates as long as the situation continues.

[The Earl of Minto (Con)]

My Lords, that is something for the parliamentary scheduling people. A major debate at this point would be very useful but may take up far too much parliamentary time.

[Lord Hannan of Kingsclere (Con)]

My Lords, will my noble friend the Minister take this opportunity to thank and congratulate the RAF pilots who prevented needless loss of life in Israel over the weekend? Will he take the opportunity to reaffirm our country’s long-standing relationship with the Hashemite Kingdom of Jordan—a relationship that goes back more than 100 years —which was brave and correct in defending its own territorial integrity over the weekend? That is exactly the kind of relationship that should in general be assumed, without needing to come back to Parliament for preauthorisation every time we stand by our old allies.

[The Earl of Minto (Con)]

My Lords, I entirely agree with my noble friend. I also place on the record my admiration, and that of the Government, for all our Armed Forces in what must be an extremely difficult situation. Operation Shader, which has been in place since 2014, has been a remarkable success, and very active. I did not realise that since it was put in place, the RAF has flown 8,700 sorties and released 4,300 precision weapons.

[Lord Stirrup (CB)]

My Lords, the Minister may recall me saying in the context of a previous Question put to the Leader that the Armed Forces place enormous importance on the support of the British public for the difficult and dangerous things that they do, not least as expressed by the will of Parliament. At the same time, they have to rely, crucially, upon the principles of security and surprise, on which their effectiveness and safety depend. Is it not difficult to see how a piece of legislation brought before Parliament could balance those difficult, competing issues?

[The Earl of Minto (Con)]

The noble and gallant Lord makes a very good point, and it is certainly something that I will talk about. I could not agree with him more that operational security and force protection are at the very heart of what we are trying to do here, and must never be compromised.

[Baroness Anderson of Stoke-on-Trent (Lab)]

My Lords, I remind the House of my registered interests, and specifically my association with the Royal Navy.

Our dedicated and professional service personnel are now deployed on several fronts in the Middle East, stabilising the region in the face of co-ordinated efforts by Iran and her proxies. Iran’s senseless aerial attack on Israel at the weekend undermined international airspace. Iran’s proxies in Yemen continue to undermine freedom of navigation in the Red Sea, and last week Iran seized the “MSC Aries” in the Strait of Hormuz, again threatening global maritime efforts. What additional capabilities are we planning to deploy to counter these threats?

[The Earl of Minto (Con)]

My Lords, as the noble Baroness and most of the House are aware, we do not discuss these things in advance, for fairly obvious reasons. However, an enormous amount of diplomatic effort is being put into trying to calm matters and get a more stable situation out there. As I am sure people are aware, my noble friend the Foreign Secretary is out in Israel today, trying to ensure that any further escalation of what is potentially an extremely dangerous situation across the entire region is canned.

[Lord Green of Deddington (CB)]

My Lords, perhaps it is time that we learned from experience. In recent years British and western forces have been involved in Afghanistan, Iraq and Libya, and none of them has turned out well. I pay tribute to the forces concerned—it was a question of the strategy and the political view that was taken—but we really need to be careful about this and not cause any more chaos in any more countries.

[The Earl of Minto (Con)]

My Lords, there are some fundamental rights and justifications that we as a responsible military power need to be prepared to step up and protect. I believe that these decisions are not taken lightly; they are taken extremely seriously. An enormous amount of thought and activity goes into each decision to take action, and that level of thinking should continue.

[Lord Woodley (Lab)]

Will the Minister confirm that it was three British-supplied drones that killed three British aid workers last week in Gaza?

[The Earl of Minto (Con)]

My Lords, we do not comment on comments like that.

[Lord Tugendhat (Con)]

My Lords, thanks to our armed services are all very well, but they are now being very much stretched. It would be good to hear something from the Government about increasing the defence budget rather than the taxes that can be lowered.

[The Earl of Minto (Con)]

My Lords, I am sure that most of the House is fully aware of where I sit on this. We have a finite amount of resource within this country, and it is a question of where that gets allocated. We are spending more this year on defence than we have ever spent before; it looks as if it is going to be about 2.3% or £55.6 billion. It would be fantastic to be able to buy more ships and planes and employ a whole lot more people, but the capability and ability of our Armed Forces protect this country extremely well.

[Lord West of Spithead (Lab)]

My Lords, the last time that tensions rose in the Middle East, which sadly ended up with fighting going on, we had deployed in the north Arabian Sea an aircraft carrier, two nuclear submarines and eight destroyers and frigates. Does the Minister believe that what we have deployed there now, even with allied forces as well, is capable of protecting the two major maritime choke points that are so important to the world’s and our economy, or does he believe that we should have more there? Of course, that relates directly to cost and expenditure.

[The Earl of Minto (Con)]

The noble Lord is right. We are part of a substantial international force within both the Gulf and the Red Sea. Together, there is a significant amount of power there, hopefully to deter any further aggression by malign influences.

Arrangement of Business

Wednesday 17th April 2024 Lords Chamber

Announcement

15:48

[Baroness Williams of Trafford (Con)]

My Lords, it might assist the House if I set out the arrangements for business today. The safety of Rwanda Bill will arrive from the Commons this afternoon. Once the Bill reaches this House, noble Lords have an hour to table amendments or Motions. We will announce the precise deadline on the annunciator.

After the deadline, as noble Lords will be aware, at least an hour is needed to ensure that all the paperwork, including the briefs for the Deputy Speakers, is prepared. We will not start the Rwanda Bill before 6 pm. The precise timing of the start depends on how long business takes in the Commons, so that might change.

After Oral Questions we will take three Urgent Questions from the Commons, after which we will start the Committee stage of the economic activities Bill at around 4.15 pm. Once we are ready to start Rwanda ping-pong, we will adjourn Committee and notify all noble Lords via the usual channels and the annunciator. Once ping-pong is completed we will take questions on the Statement about the Cass review, and then we will return to the economic activities Bill Committee until the rise of the House. If further ping- pong is needed on the Rwanda Bill, I do not expect the House to do that this evening.

Rail Manufacturing: Job Losses

Wednesday 17th April 2024 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Tuesday 16 April.

“I thank the honourable Lady for her Urgent Question. I am responding on behalf of the Secretary of State, who will shortly be meeting the Alstom group chairman and chief executive to discuss a potential way forward. The Secretary of State will come to the House and make a Statement at the appropriate time, noting the fact that they are sensitive commercial discussions.

As set out in the comprehensive open letter from the Secretary of State to the honourable Lady on 29 March, the Government are well aware that companies such as Alstom and Hitachi face short-term gaps in their order books. The letter set out clearly that these are complex problems to which there are not simple solutions, but the Government have been doing everything they can to support the workforce over many months, and continue to do so.

While Alstom is currently consulting its unions and employees on possible job losses, this must be a commercial decision for Alstom. The Government have been working with the company to explore options to enable it to continue manufacturing at its Derby site. We have convened a cross-Whitehall group to advise on how to support continued production at Derby and how best to support those workers who are at risk of redundancy. We have held similar discussions with Hitachi, both in correspondence and face to face. We remain keen to work with Hitachi as it looks for commercial solutions to guarantee the long-term sustainable future of its Newton Aycliffe site. Hitachi is not currently consulting on any changes to its workforce.

The fact remains that the market for passenger trains is a competitive one. The department cannot guarantee orders for individual manufacturers. Trains are major assets with a lifetime of 35 to 40 years, so there will naturally be peaks and troughs in the procurement cycle. Nevertheless, we expect substantial continued demand for new trains. In recent months, London North Eastern Railway confirmed an order of 10 new tri-mode trains for the east coast main line. A tender for new trains for TransPennine Express was launched in December 2023.

In January this year, I wrote to train manufacturers to outline the pipeline of current and expected orders for new trains. That included details of current competitions for Northern, Southeastern, Chiltern and TransPennine Express, and an expected procurement by Great Western Railway. The contracts are worth an estimated £3.6 billion, with more than 2,000 vehicles to be procured over the coming years. In the meantime, we will continue to work with UK manufacturers, including Alstom and Hitachi, to ensure that there is a strong and sustainable future for the rail industry”.

15:50

[Lord Liddle (Lab)]

My Lords, I would first like to pay tribute to my noble friend Lord Rosser, who, sadly, passed away last week. In the context of this Question, he was an exemplar of the very finest in railway trade unionism.

In the other place, the much-respected rail Minister Huw Merriman said that the Government were working on a short-term solution to bring forward orders at the Alstom plant in Derby. Can the Minister confirm that, as reported in today’s Telegraph, this involves new trains for the Elizabeth line? Before Covid there was considerable investment in new rolling stock, but does he accept that, as the Treasury’s grip on railway finances has strengthened, his department has displayed, in the last couple of years, what can only be described as powerless drift and delay? This is no way to treat workers’ lives, and no way to conduct policy in a vital industrial sector. Where is the plan? Where is the promised guiding mind that will end the railways’ chaotic fragmentation?

[The Parliamentary Under-Secretary of State, Department for Transport (Lord Davies of Gower) (Con)]

My Lords, I too pay my respects and offer my condolences to Lord Rosser’s family.

Several train operators are in the market for new trains, which will provide significant commercial opportunities for UK rolling stock manufacturers. Alstom will have the opportunity to take part in competitions for future contracts. Rolling stock owners are also continuing to support the supply chain by investing heavily in their fleets. Several major upgrades are under way, including for Govia Thameslink Railway’s Porterbrook-owned Electrostar fleet, and for Avanti West Coast’s Angel Pendolino fleet refurbishment.

[Baroness Randerson (LD)]

My Lords, I would also like to pay tribute to the noble Lord, Lord Rosser, who I regarded as a friend and whose contribution to this House I greatly respected.

The Government have a feast-and-famine approach to ordering rolling stock. Between 2012 and 2019, 8,000 vehicles were ordered, but between 2019 and 2023, 100 vehicles were ordered. It also seems to take the Department for Transport an absurdly excessive time to move through the procurement process: from invitation to tender to the delivery of the first vehicle takes over six years. Are the Government, as some suspect, on a deliberate go-slow in order to reduce expenditure? In view of the news about the desperate last-minute attempts to conjure up some orders for Elizabeth line trains, does the Minister accept that, with thousands of jobs at risk in Alstom and Hitachi, this reveals a desperate gap—a black hole—at the heart of the Government’s industrial policy?

[Lord Davies of Gower (Con)]

No, I do not agree that the Government have a gap in their industrial policy. Rail manufacturing plays a very important role in growing the UK economy and there is a strong pipeline of future orders for UK rail manufacturers, including upcoming procurements in the market being run by Northern, Chiltern, TransPennine and South- eastern. That competition process is open for all manufacturers to bid, including of course Alstom. The department is also working with His Majesty’s Treasury to set out a pipeline for expected rolling stock orders, to provide the sector with further clarity over the near term.

[Lord Grocott (Lab)]

My Lords, I think it was significant that there was no reference at all in the Minister’s Statement in the Commons to what I consider to be the inevitable consequences of the cancellation of the Crewe and Manchester sections of HS2: it is obvious that that was significant in terms of job losses. We already know about the losses that have occurred from money spent on both those projects that is now wasted because the line is not being built. What is the Government’s estimate of the loss of jobs in construction and manufacturing—which the Minister has focused on so far—as a direct result of the cancellation of those legs of HS2?

[Lord Davies of Gower (Con)]

I cannot comment on the construction side, but Alstom is part a contract with Hitachi to design, build and maintain the HS2 trains for phase 1 only—that is 54 trains. Phase 1 of HS2, between Birmingham and London, will continue, with, as I have said before, a rescoped Euston station. HS2 Ltd has written to the joint venture confirming that the original order for those 54 trains for phase 1 remains unchanged.

[Lord Sikka (Lab)]

My Lords, the managing director of Alstom has said:

“We have worked constructively with the Government on securing a sustainable future for Derby Litchurch Lane, but after 10 months of discussions we have run out of time, and the production lines have stopped”.


Can the Minister explain what exactly were the stumbling points in those 10 months and what efforts the Government have made to overcome them?

[Lord Davies of Gower (Con)]

Yes, I can. The Transport Secretary had a constructive meeting yesterday with Alstom’s chairman and chief executive officer and its UK and Ireland director. We are now in a period of intense discussion with the company on potential options to secure a sustainable future for Alstom’s Litchurch Lane factory. While it would not be appropriate for me to go into the details of those discussions at this stage, I know that the Transport Secretary plans to update both Houses at the appropriate time.

[Lord Berkeley (Lab)]

My Lords, the potential Alstom order from the Government for extra trains on the Elizabeth line is, allegedly, to cope with more passengers who will come off HS2 and want to go somewhere else on the Elizabeth line. Can the Government confirm that the new trains—it may be up to 10—will have toilets? In a recent incident on the Great Western, there were people stuck on trains for something like 10 hours without access to a toilet—and then they got criticised for jumping on to the track. Surely, in this day and age, the minimum should be to have at least one or two working toilets on such trains, which possibly go for two-hour or three-hour journeys.

[Lord Davies of Gower (Con)]

The noble Lord makes a very serious point. I am not able to confirm that now, but I will certainly look it up and write to him.

[Baroness Chapman of Darlington (Lab)]

My Lords, many of us here have campaigned hard to get the Hitachi factory in Newton Aycliffe. Hundreds of local people have had good jobs there for many years now. Is it not true that the Government have just not delivered the anticipated orders for trains that the factory was expecting? There are many young people who have taken career choices and studied at the university technical college there associated with Hitachi. It will be devastating for Newton Aycliffe, Darlington and the Tees Valley if anything happens to jeopardise the future of the factory. What message does the Minister have for that community, and what will he do to make sure that we keep those much-needed jobs?

[Lord Davies of Gower (Con)]

I can only repeat what I have just said. The Government are working very hard to make sure the company remains at the location. New competitions have recently commenced for rolling stock on Northern, Southeastern, TransPennine and Chiltern railway lines, as well as procurements for fleet upgrades on East Midlands, Chiltern and CrossCountry. Alstom is very capable, and able to compete for this work.

[Lord Grocott (Lab)]

Perhaps I could ask for a specific answer on this. The Minister referred to the rolling stock that has already been ordered in respect of London to Birmingham, but he cannot give an estimate of job losses following the cancellation. There clearly must be consequences for rolling stock when you do not build a railway to Crewe and Manchester that you planned to build. So can the Minister at least tell us how much rolling stock in total is not now going to be required and constructed as a result of the closure of the new railway?

[Lord Davies of Gower (Con)]

I cannot give the noble Lord that figure at the moment, but I will certainly look into it and come back to him.

Gaza: Humanitarian Situation

Wednesday 17th April 2024 Lords Chamber

Commons Urgent Question

16:00

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

My Lords, with the House’s indulgence, I will begin with a personal reflection. I have just heard the tragic news of the passing of Lord Rosser. Richard was well known to me; indeed, he was my oppo when I was a Transport Minister. He was always precise, courteous and forensic in his examination. He will be missed by us all.

I shall now repeat in the form of a Statement an Answer given by my honourable friend the Minister for the Americas, Caribbean and the Overseas Territories in the other place on the humanitarian situation in Gaza. The Statement is as follows:

“Earlier this month, we passed a grim milestone: six months since Hamas’s horrific terrorist attack on Israel. The United Kingdom Government have been working with partners across the region to secure the release of hostages.

Palestinian civilians have spent these months suffering, with conditions worsening by the day. The humanitarian situation in Gaza is dire. The Iran attack and our support for Israel have not changed our focus on ensuring that Israel meets its commitments to enable at least 500 aid trucks a day to enter Gaza; to open Ashdod port for aid deliveries; to expand the Jordan land corridor to at least 100 trucks a day; to open a crossing into northern Gaza; and to extend opening hours at Kerem Shalom and Nitzana. We are pushing as hard as we can to get aid to Palestinian civilians. As this House knows, we have been urging Israel at the highest levels to take immediate action on the bottlenecks holding up humanitarian relief. We have recently seen a small increase in the number of aid trucks being allowed to enter Gaza, but not all of them are full, and numbers are not yet close to reaching the levels required given the severity of the humanitarian situation we now see.

We will continue to press Israel to take immediate action to open Ashdod fully for humanitarian aid. Meanwhile, we recently announced new support for a life-saving aid corridor by sea to Gaza, including the deployment of a Royal Navy ship, which has now arrived in the Mediterranean and is ready to integrate with the US pier and provide a command and control platform.

We are also committing up to £9.7 million for aid deliveries through that corridor, as well as providing logistical expertise and equipment. In recent weeks, the Royal Air Force has conducted seven air drops along the Gazan coast, delivering more than 58 tonnes of food. The UK-Med field hospital, funded by the United Kingdom, is now up and running in Gaza and has already treated more than 8,000 people, a high proportion of them children. We need to see the operating environment in Gaza improve, so that more aid gets in and can be distributed quickly, safely and effectively. Israel must ensure that the UN has the access, equipment and staff that it needs to do that.

We were horrified by the attack on the World Central Kitchen convoy, which killed seven aid workers, including three British nationals. Israel must do more to protect aid workers, including guaranteed deconfliction for aid convoys and other humanitarian work to ensure that they can operate safely. The findings of Israel’s investigation must be published in full, and followed up with a wholly independent review, to ensure the utmost transparency and accountability.

Six months on, however much we might wish otherwise, the fighting has not yet come to an end. We cannot not stand by. The Foreign Secretary is in the region, pressing again for further action”.

16:04

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating the Statement. What we heard this morning in the other place was a description of an incredibly dire situation. Famine is imminent, and perhaps even taking place now.

Sarah Champion, the IDC chair, reminded us this morning that her committee published a report in early March, asking for the Government to push for 500 trucks a day, but the weekly average is just over 1,100. Will the Foreign Secretary, while he is speaking to the Israeli Government today, ensure and demand that they abide by international humanitarian law?

The Minister also said that before resuming funding for UNRWA, the main vehicle for delivering aid, that we will be awaiting the final report of Catherine Colonna, yet we are the only major donor—apart from the US—not to resume funding. Can the Minister explain why? Surely we should be following our allies in terms of delivering aid?

The final point is that the Minister in the other place was asked exactly what the Foreign Secretary was going to demand in terms of avoiding a catastrophe if any action took place against Rafah. Can the Minister reassure us that we are making that clear to the Israeli Government?

[Lord Ahmad of Wimbledon (Con)]

My Lords, taking each question in turn but starting with the last one, yes, I assure the noble Lord that the issue of Rafah has been raised directly. The noble Lord will have seen the extensive engagement by my noble friend the Foreign Secretary in Israel. On his earlier point about Israel’s obligations and the need to open up more corridors and demand this, this has been something that we have consistently raised. We raised it on visits inwards as well. When Minister Gantz visited here, I joined that meeting, and I know my noble friend has raised these issues quite specifically, as have other Foreign Ministers.

On the issue of UNRWA support, we have always been clear, and indeed there is a statement today at the UN Security Council on UNRWA. We have been following the reports very closely. There have been some private briefings, including to our ambassador. The final report, as the noble Lord knows, is due on 20 April. He, like me, was appalled by the allegations which were made against UNRWA staff. It is important that we look at those allegations fully and ensure that they are being addressed and mitigations are in place. The report, I am sure, will also focus in on that. We remain very much committed to the humanitarian effort in Gaza, and that is reflected in the fact that our support in Gaza now stands at over £100 million.

[Lord Purvis of Tweed (LD)]

My Lords, the Minister is aware that starvation in conflict is expressly prohibited under customary international humanitarian law. Given the evidence that Samantha Power, the head of USAID, gave to Congress last week that famine is now setting in, this is a truly shocking revelation, especially in the context of the concerns of the Foreign Secretary that there are unnecessary blocks to food and supplies being brought into north Gaza in particular.

The Minister will also be aware of the concerns that defensive military equipment is being used to level civilian residential areas to render them uninhabitable in the future, which is also a breach of international law. Have His Majesty’s Government satisfied themselves that any equipment that the UK has supplied over the last number of years is not being used, either in the blockage of aid going into Gaza or indeed in the levelling of civilian areas? Does the Minister not agree that under the principle of proportionality, it would be right to pause export licences now until a full review has been carried out, so that we can satisfy ourselves that international humanitarian law is being adhered to?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s last point, I am sure he has followed the Statements both in the other House and, importantly, of my noble friend the Foreign Secretary, who has now reviewed the most recent advice about the situation in Gaza. Based on that, as the Foreign Secretary said, the UK position in regard to export licences is unchanged. We have robust checks and balances in place.

Of course, we are acutely seized of the situation in Gaza, particularly northern Gaza. That is why we are pressing for the opening up of the Erez crossing, and indeed other crossings to the north. There are other crossings that we are looking at, such as the Karni crossing, north of the Gaza wadi—the valley—to ensure that access also. That is where our priority is, and those are the exact messages which my noble friend has delivered directly to the Prime Minister and others in Israel today.

[Baroness Fall (Con)]

My Lords, I thank the Minister for his work. I also thank the Foreign Secretary, who is in Israel today. Does the Minister not agree that the recent, very worrying escalation by Iran last weekend is likely, just at this moment, to deprioritise the aid and humanitarian issue? As other noble Lords have said, Gaza is on the verge of famine, if it is not already there. I urge the Minister to make sure that this issue is not deprioritised. What has happened to the temporary ceasefire negotiations, which seem to have broken down?

[Lord Ahmad of Wimbledon (Con)]

I assure my noble friend that, together with my noble friend the Foreign Secretary—whom my noble friend also knows very well—I will leave no stone unturned with vigour, rigour and passion to ensure that this happens. I speak for all noble Lords of whatever perspective. We want to ensure that we do our utmost to save the life of every single innocent civilian. We were all rightly seized with the shocking nature of what happened in Israel. Right now, we are focused on getting more aid in. This is the message that is being delivered, notwithstanding the awful nature of the Iranian attack. It is important that we look at that in the full mix of things and not lose sight of the humanitarian issue. We want to avert famine at all costs.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I listened carefully to the Minister’s reference to the terrible event of 1 April when the humanitarian aid workers from World Central Kitchen were targeted by drones and killed. I know that an investigation by the IDF is taking place. I have also read that Australia is going to conduct an investigation because one of those killed was Australian. Three of those killed were British citizens: a man of 57, another of 47 and a young man in his 30s. They were all hugely experienced humanitarian aid workers. It is shocking to see that the loss of so many people working in this field is not getting the coverage it deserves. Are any steps being taken here in Britain to investigate this matter with the great military and legal expertise that we could apply? I understand that Poland is now considering having an inquiry for the Polish citizen who was killed. Should there not be unification and collaboration between the nations which have lost humanitarian aid workers in this series of strikes on their convoy? Should there not be a joint investigation?

[Lord Ahmad of Wimbledon (Con)]

I assure the noble Baroness that the WCK aid workers only intensified our concerns and momentum in addressing the humanitarian situation, particularly where aid workers in Gaza are putting themselves at risk. More than 200 aid workers have now been killed in this conflict. We need to ensure their protection. The IDF has completed its initial inquiry. There have been some consequences for those who were involved in the strike. As my noble friend is doing again today, we are not just reviewing it, we are asking for it to be followed up with a full, independent report on what happened. The noble Baroness has put forward a practical suggestion, which I will certainly take back. Co-ordination is good. Perhaps we can discuss this outside the Chamber to see how it can be progressed.

[Lord Sterling of Plaistow (Con)]

My Lords, it was announced about a week ago that the great container port of Ashdod is opening up. I know it extremely well. It is by far the biggest container port in the area. It can deliver 20 times more than any of the convoys. Most importantly, is the huge amount of goods that turns up getting through, as everybody wants to see? So much of it gets into the hands of Hamas.

[Lord Ahmad of Wimbledon (Con)]

My noble friend makes an important point about Ashdod. We are focused on this and, equally, on ensuring that the aid sent to Gaza reaches the victims and those who are suffering. They need it most.

[Baroness Sheehan (LD)]

My Lords, can the Minister say why there are no independent observers or journalists in Gaza, such as from the BBC, Sky News, CBS and CNN? I could go on—the list is very long. Do we not need those independent observers on the ground so that we can stop these constant contradictions about why aid convoys are being attacked and why aid is not reaching people? This is very distressing. At the end of the day, we have people suffering from famine, and we really cannot let this go on. We need to stop this toing and froing about who is responsible for it and just get on and do it.

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Baroness raises an important point about journalists and their protection. But equally, this is a conflict zone, and we need to ensure in a responsible manner that journalists, like aid workers, who we have just been talking about, are also protected. As the noble Baroness will know, many have lost their lives. We want to see objective reporting, and Israel has always prided itself on being a pluralist, open democracy. However, we are in a conflict zone. It is important that the protection of journalists is fully afforded, but we all welcome the openness of objective reporting, wherever it may be in the world.

Afghan Refugees

Wednesday 17th April 2024 Lords Chamber

Commons Urgent Question

16:15

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

My Lords, the United Kingdom has long-standing and close relations with Pakistan. We engage regularly with the Government of Pakistan to advance key priorities and interests, including on human rights and adherence to international law. We are closely monitoring Pakistan’s policy on the deportation of Afghans from Pakistan, and we are working with the UNHCR and the IOM to ensure Pakistan adheres to its international human rights obligations with respect to those affected.

We understand that the recently elected Government of Pakistan intend to resume their programme of deportations from mid-April following a winter pause, although this has not been announced formally. While we respect Pakistan’s sovereign right to control its borders, the United Kingdom, alongside international and donor community and other partners, is urging Pakistan to do so in accordance with its international obligations.

The UK has committed £18.5 million to the International Organization for Migration in Afghanistan to support vulnerable undocumented returnees from Pakistan and Iran. As part of this work, we have been engaging closely with the Government of Pakistan on these measures and they have assured us of their support in relation to preventing the deportation of Afghans eligible for resettlement in the UK under the Afghan relocations and assistance policy—ARAP—or the Afghan citizens resettlement scheme, ACRS. Since the formation of the new Pakistani cabinet, the Foreign Secretary and the British High Commissioner have received assurances from Foreign Minister Dar, during discussions on 25 and 28 March respectively, that the Ministry of Foreign Affairs will continue to support our relocations work.

We continue to work closely with the UNHCR and the IOM to ensure that all Afghans who have been found eligible, including eligible family members, for resettlement in the UK under the Afghan relocations and assistance policy or the Afghan citizens resettlement scheme have been provided with the necessary documentation to verify this and to prevent their deportation.

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating that answer. Of course, we owe a deep debt of gratitude to the Afghans who fought with the United Kingdom, and it is a disgrace that those who fought with us are not afforded the support they should expect and deserve.

Oliver Heald, a Conservative MP, raised a question in the other place about individuals who, in travelling to Pakistan, became undocumented or were unable to maintain those papers. The Minister in the other place responded, talking about commitments relating to the High Commission, but did not explicitly address the need for that documentation and how they can then fit in to the schemes or apply under them.

Finally, why did the Government last night oppose my noble friend Lord Browne’s amendment, which would offer the sort of guarantees that these people so rightly deserve? I hope the Minister can answer that question.

[Lord Ahmad of Wimbledon (Con)]

My Lords, first, on supporting those who supported the British effort, the noble Lord will know that we have prioritised those in Chevening—the British Council—as well as GardaWorld, and we have made good progress. Since October 2023, the UK has completed a series of about 24 charter flights and relocated over 5,500 individuals from Pakistan under the UK’s ongoing Afghan relocation programme.

I have taken up the issue of undocumented individuals directly with the previous administration. I met with Foreign Minister Dar, and yesterday I had a call with the new Law and Human Rights Minister of Pakistan, during which these issues were discussed. There has been no formal announcement by the Government of Pakistan. I would also add that a sizeable number of those who returned to Afghanistan more recently did so voluntarily, but some people have been forced to return. On those who have qualified to come to the United Kingdom, we are working directly with the Government of Pakistan through our High Commission and ensuring through direct engagement that their position can be normalised.

I know that noble Lords have been very much seized of the issue of those who served. The noble Lord talked about the vote last night, and I am sure we will be discussing that later this afternoon. Through the ARAP scheme, we continue to support many of the people who supported our military work, and we continue to work with our colleagues in the Ministry of Defence to make sure that passports and documents can be issued as soon as possible for those who are eligible to come to the UK, and that they can be facilitated to do so.

[Lord Purvis of Tweed (LD)]

My Lords, the Minister knows that I respect him greatly, but he must understand that it is completely jarring to say that we are working with the UNHCR and the IOM to ensure that Pakistan adheres to its international obligations on migration, especially since those organisations themselves have singled out the United Kingdom as being in breach of those very commitments. Indeed, the Pakistan interim Prime Minister, writing in the Telegraph on 8 December last year, cited the Rwanda Bill as support for what they are doing. Can the Minister be clear and precise: what are the concerns about potential breaches of the commitments under international obligations for Pakistan that the Government consider are at risk, and how many individuals who could be eligible for support in the UK are currently in limbo and are potentially going to be repatriated to Afghanistan?

[Lord Ahmad of Wimbledon (Con)]

My Lords, we have made sizeable progress with those people who are eligible, and we have had changes in Pakistan. As I said to the noble Lord, Lord Collins, we have worked across the different Governments to ensure that those who have a legitimate claim to travel to the United Kingdom and seek protection here are facilitated. On the ACRS scheme, which the noble Lord and others were seized with, we are seeing some really good progress. I get weekly updates on the progress made under those schemes, and we work very closely with the UNHCR and the IOM. As far as the United Kingdom’s standing in world goes in support of these international agencies, we remain a very strong supporter and indeed funder of the vital work they do.

[Baroness D'Souza (CB)]

My Lords, I wonder if the noble Lord has any further information from the IOM or other sources about the refugees who are being deported by the Pakistan authorities? Are they, for instance, predominantly Shia? Are those who are being deported being sent back to their home ethnic areas? Are there any unaccompanied children among them that the Government know of?

[Lord Ahmad of Wimbledon (Con)]

My Lords, we have certainly made the case to Pakistan consistently about the importance of ensuring that those who are most vulnerable are protected. I know that in the region of 130,000 children have been returned. I do not have the breakdown, but I can see what information we have and share it with the noble Baroness.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I declare my interest having served in Afghanistan as a soldier. I have many friends who are eligible under the ARAP scheme. I simply underline the concerns of others regarding the challenges associated with documentation, much of which has been lost. I also commend the Government for their efforts in recent months, but I ask the Minister to maintain an open mind as to the length of time this scheme remains open for reasons of lost documentation.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I was there in 2021, working through the night on a lot of the Afghans who arrived here in the initial batch of over 21,000, so I can give my noble friend that assurance. We need to ensure that those who are entitled to come to the United Kingdom do so, through the processes we have in place, including normalisation of their documentation. We want to have a very open and constructive relationship with the Government of Pakistan, in particular, to enable this to happen.

[Lord Browne of Ladyton (Lab)]

As the Minister has said, among the Afghan refugees in Pakistan are a significant number of former Afghan Special Forces, known as the Triples, many of whom are there only because they were wrongly judged to be ineligible for resettlement here under the ARAP scheme. They face certain death if they are forcibly removed to Afghanistan, as do their families. Am I to infer from the Minister’s earlier references to the review, which was set up to look at their cases again, that some of these people are being allowed visas to come to this country? I am not aware of that.

Nor do I agree with the noble Lord, Lord Sharpe, with whom I have been persistently debating the issue of the review. In the Safety of Rwanda (Asylum and Immigration) Bill debate yesterday, he said the following regarding the much smaller number of people here in the United Kingdom who I am trying to get this Bill amended to cover:

“I reassure Parliament that, once the UKSF ARAP review has concluded”,—[Official Report, 16/4/24; col. 901.]

and went on to say what the Government would do. If these people in Pakistan have to wait for that, there is no hope for them. Time is of the essence. This review needs to be completed as quickly as possible. If it is being incrementally concluded for individuals, perhaps the Minister could tell the House.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I am focused on that, and I know that the Ministry of Defence are leading on it. As to these cases, we are not waiting for the end of the review to process those who are eligible for that scheme. As they become eligible, they will be processed appropriately.

[Lord Jackson of Peterborough (Con)]

My Lords, notwithstanding the question from the noble Lord, Lord Purvis of Tweed, we should not give the Pakistani Government a free pass. The third goal of the UK- Pakistan development partnership is support for a more open society, including the rights of minorities. My noble friend will know, of course, that Pakistan is the number one recipient of foreign direct investment from the UK. Nevertheless, Christian persecution continues, and persecution among Muslims for apostasy is also a major problem in Pakistan. When are we going to make tangible progress on leveraging our soft power to address these very important civil rights and human rights issues?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I assure my noble friend that this is a personal priority. The issue of freedom of religion or belief around the world is something I have been focused on. I was instrumental in setting up the envoy’s role; indeed, I served as the first envoy as well. With reference to Pakistan specifically, the issue of Christian persecution is not just regularly raised but followed up in practical terms. I pay tribute to a number of noble Lords. The noble Lord, Lord Alton, is not in his place, but he has been very much focused on that. We engage directly with the All-Party Group on Pakistan Minorities on specific cases. Being from a Muslim minority myself—I am an Ahmadi Muslim— I am all too aware of the challenges that minority communities face in Pakistan. We need to be robust in challenging those to ensure that, irrespective of faith or religion, everyone in Pakistan is treated equally as a citizen of the country.

Economic Activity of Public Bodies (Overseas Matters) Bill

Committee stage
Wednesday 17th April 2024 Lords Chamber

Committee (2nd Day)

Scottish and Welsh Legislative Consent withheld; Northern Ireland Legislative Consent sought.

16:28

Clause 2: Application to procurement and investment decisions

Amendment 10

Moved by

[Lord Wallace of Saltaire]

10: Clause 2, page 2, line 3, leave out from “decision-maker” to end of line 4 and insert “is acting on behalf of a public body.”
Member’s explanatory statement
This, alongside another to Clause 2 in the name of Lord Wallace of Saltaire, is a probing amendment to clarify the distinction between a public body and a public authority.

[Lord Wallace of Saltaire (LD)]

My Lords, in moving Amendment 10 I will also speak to Amendment 13 and the others in the group. I would particularly like to say how helpful I thought the amendments from the noble Baroness, Lady Noakes, were in helping us to clarify these very broad terms: public bodies and public authorities. I have just been looking back at some of the debates on the Human Rights Act 1998, during which then Home Secretary Jack Straw said that this was an extremely difficult area on which to find an exact definition; he decided to leave it to the courts for further definition.

One of the things we have to consider while discussing this is how much we do want to leave it to the courts, or to ensure that what it says in the legislation is a little tighter than what we have so far. The drafting of the Bill in so many areas is extraordinarily and dangerously loose. I thank the Minister for the letter she has sent me and no doubt others on the question of individual responsibility and personal liability. I am not sure that I entirely understood it; I showed it to one or two legal acquaintances, and they are not sure that they are much clearer than they were before. That perhaps shows some of the difficulties in which we are engaged.

When I first read this Bill, I noticed that it declared in its title that it was about public bodies, and that in Clause 2 it says it is about public authorities. As it happens, I got into the lift with another Member of this House, with whom I worked when he was a Conservative Cabinet Minister during the coalition Government. I asked him casually: “Tell me, do you think that a public body and a public authority are the same thing?”. He said: “Oh no, of course not. The definition of a public body is far narrower than that of a public authority”.

A Bill that starts by having one of these terms in its title, and then goes on to use the other term in the text, raises a number of questions. This morning I reread the impact assessment, which uses the terms interchangeably, by and large preferring “public body” to “public authority”. I worry about how clear those who drafted the Bill are about what they are doing. We then go into “hybrid public bodies”, which the impact assessment talks about, or hybrid public authorities. When I began to read through Lexis and try to understand some of the case law—in which a number of noble and learned Members of this House emerge as those who have made judgments on this—I discovered that functional public authorities and hybrid public authorities raise many of the questions with which we would have to deal, if and when this became an Act. The line between public and private functions for public authorities that are partly public and partly private is a very delicate one, and one on which litigation leaves much room.

We all know what core public authorities are, but hybrid public authorities are a very loose and broad entity. The Minister said on a previous occasion, in another context, that there were well over 100,000 public authorities. No doubt the definition, after a while, becomes extremely unclear. After all, Section 6(3) of the Human Rights Act 1998 talks about

“any person certain of whose functions are functions of a public nature”.

The question of how many functions need to be of a public nature, and how much that affects how they behave in other areas, has been contested in the courts on many occasions. Court cases have ruled that a privatised railway company, for example, is not a public authority, but that a privatised water company and, in a different case, a private provider of social housing are, for certain purposes, public authorities. Rulings have differed on whether private care providers to local authorities are public authorities.

The impact assessment and the ministerial letter refer to “cultural institutions” as coming within this. In the letter that came to us before Second Reading, the Minister talks about museums and galleries that receive significant amounts of public money. Amendment 13 is intended to probe what is meant by significant amounts of public money. I have suggested in that amendment that the bar should be put at 50%, as opposed to whether this was largely public or largely private with public aspects. A court case in 1999 found that the University of Cambridge—

[Lord Grocott (Lab)]

The noble Lord mentioned at one stage whether railway companies are public bodies. A train operating company, for example, is clearly not a public body when it is a private company, but if it goes bankrupt or has difficulties it gets taken over by the Government. If the Government then get it right in due course, it goes back to the private sector. Can bodies oscillate between the two categories? Is that a further complication?

[Lord Wallace of Saltaire (LD)]

I defer to my noble friends on that. Part of my concern about this law is that there will be a great deal of employment for my learned friends to be found in it, if it were to go through.

Indeed, that is one of the things which appears in the delegated powers memorandum, which says at paragraph 4:

“It is intended that the measures will be widely construed”.


Paragraph 12 says:

“The prohibition will apply to ‘public authorities’ in accordance with section 6 HRA 1998; however, interpretations of section 6 HRA 1998 can create uncertainty which means that the Bill may, including as case law evolves, capture a range of bodies that it was not necessarily intended to apply to. It may be necessary to put beyond doubt that certain bodies (that are outside the scope of the intention to ban public bodies from boycotts and divestments) fall outside the definition of ‘public authority’ for the purpose of the Bill”.


I hope that the lack of clarity of that is clear.

The impact assessment does refer to hybrid public bodies and suggests that it is concerned to prevent them pursuing political and foreign policy agendas, “including with public money”. I interpret that as meaning that such hybrid public authorities may perhaps not be allowed to pursue such agendas, including when they are using private money. That is a question that will concern a great many people, in particular the university sector, from which we have received further correspondence on this precise area.

The Minister has not told us enough about the broad last category, cultural institutions, and whether this includes theatres and orchestras on foreign tours, as well as museums and galleries—and why on earth museums and galleries are in there. That is another area where I suspect that sector would prefer a little more certainty.

Universities have been particularly concerned about the impact on their international partnerships, which are, I am assured by my university friends, part of their private functions. Some of these are education partnerships, some are transnational research partnerships —I declare an interest, in that my son is actively engaged in this—and some are with foreign companies and donors. They can be very sensitive and can raise reputational problems, as some universities, including the one I used to work for, have learned to their cost. Again, it would be helpful if we had more detailed guidance on that.

At several points in the impact assessment, and in the memoranda to the Delegated Powers Committee and others, the Government emphasise the importance of ensuring the coherence of British foreign policy, and that it should not allow others to conduct their own foreign policy agendas. I notice the Express reported the other week that the Government have signed immensely valuable trade deals with Washington state and Texas. It seems an interesting contradiction for the British Government to insist that subordinate entities within the UK state should not be allowed to engage in any sort of deal with other countries while they actively attempt to get past Washington to deal with American states. I am not sure whether these are significant trade deals or not; I have the memorandum of understanding with the state of Washington and it seems rather less substantial than the Daily Express suggests.

The Minister may be thinking that precision does not matter so much in the Bill because it is intended to be largely performative and not to lead, in practice, to any serious enforcement. After all, the impact assessment notes how little boycott activity there has so far been beyond discussion, and the Bill is unlikely to be implemented before the coming election. However, we should not be in the business of permitting the Government to put badly drafted law on to the statute book for show. We need much greater clarity, and I look forward to what the noble Baroness, Lady Noakes, will say about the need for clarity in this area. The Minister shares with the House the responsibility to ensure that the Bill does not become an Act without much greater clarity about its terminology and the extent of its reach over the UK’s public and private bodies. I beg to move.

[Baroness Noakes (Con)]

My Lords, I share many of the concerns explained by the noble Lord, Lord Wallace of Saltaire. That is why I tabled Amendments 11 and 12, which are in this group. Like the noble Lord, I thought this Bill was about public bodies, because that is what appears in the title. He read out the definition that we are invited to use in Clause 2, which is the definition in Section 6(3) of the Human Rights Act. It is clear from that that it can capture private sector bodies, which is why I first got interested in this topic. I tabled Amendment 12 in order to probe the extent to which private sector bodies are going to be dragged within the ambit of the Bill.

I have done more research on that since Second Reading. Like the noble Lord, Lord Wallace, I have been ploughing through some of the legal cases on the definition in the Human Rights Act. It is clear that private sector bodies can be captured, but it is also probably fair to say that the courts have been tending to give a fairly narrow interpretation of that, so that private sector companies have been caught only in relation to where they are very clearly involved in delivering or exercising public functions.

Amendment 14, tabled by the noble Lord, Lord Collins, seeks to ensure that bodies caught within the definition in respect of public functions are captured only for the extent of public functions. It seems to me that that is unnecessary because of Section 6(5) of the Human Rights Act, which says much the same thing in a slightly different way. I would go further and suggest that private sector bodies, and private sector companies in particular, should not be within the ambit of the Bill.

When I was carrying out some research, the one thing that I did learn was that the definition of public authority is not clear. In fact, probably the only clear thing is that if any body is in doubt, it has to take its own legal advice. The noble Baroness, Lady Grey-Thompson, referred to this problem in her Second Reading speech, as did the right reverend Prelate the Bishop of Southwark. I shall make a plea on behalf of SMEs, which I know are very close to the heart of my noble friend the Minister: they find uncertainty very hard to bear, so having a definition which is uncertain seems to be a problem.

16:45

The Government were almost rather proud of the fact that the definition in the Human Rights Act was broad and capable of interpretation by the courts to meet whatever came up in the day. They made a virtue of that when the Bill was first taken through Parliament and again when they responded to a report from the Joint Committee on Human Rights. But that was in the context of it being a Human Rights Act and therefore as broad a definition as possible was regarded as a positive and good thing because the aim was to ensure that private citizens were not affected by the overbearing acts of the state, however perpetrated and by whom. We ought to examine whether what is right for the Human Rights Act is right for this Act. I am not convinced that a broad definition, especially one which carries such a high degree of uncertainty, is a satisfactory foundation on to which to build the purpose of this Bill which is quite separate—the prohibition of boycotts and divestment activities.

The alternative approach, which I suggest is a better one, is to use a more certain definition. The noble Baroness, Lady Chapman, in her Amendment 54—which will be debated in the next group—has proposed that a list of the bodies covered by the Bill should be drawn up before the Bill is brought into effect. That may be all right on the day the list is tabled, but it is not future- proofed and will not cope with the changing landscape of what a public body is.

My Amendment 11 offers a different approach: to take the source of the definition not from the Human Rights Act but from the Freedom of Information Act. That Act provides a comprehensive definition of the public authorities which are covered—including a very extensive listing in Schedule 1—and, as anybody who has done any legislation which creates or changes public bodies knows, it is constantly updated as new bodies are created, transformed or die. The Freedom of Information Act also includes a power within it to add specific bodies so that it provides a very certain source of who is covered by the Act. I suggest that it potentially is capable of being used in the context of this Act.

If my noble friend the Minister is not happy with the amendments I have tabled in this group, I hope that she will consider alternative ways of providing certainty, because certainty is very important; I echo what the noble Lord, Lord Wallace of Saltaire, said on that. Also, I hope that she will look at excluding private sector companies from the ambit of this Bill because I do not believe that they were intended to be covered when the manifesto commitment was made.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Noakes, for their amendments in this group. They are incredibly helpful. What we are trying to do here, as the noble Baroness, Lady Noakes, has just said, is elicit some certainty from the Government on behalf of those organisations which might find themselves drawn into the scope of this Bill. Even though they may not consider themselves to be public bodies ordinarily, they might find that they are when it comes to this Bill. We will come later to an argument about whether universities should be treated as public bodies and we feel, as we said at earlier stages, they should clearly not be. But that is not the only area where we feel that the Government have not thought sufficiently about what they are trying to do.

Amendment 11 from the noble Baroness, Lady Noakes, would, as she explained, apply the definition in the Freedom of Information Act. That would settle this to a large extent, in that we are clear about who is and who is not subject to that Act. It would be interesting to hear whether the Government are minded to welcome that suggestion because, from what the Minister has said on previous occasions, all the instances that she has referred to as justifying the need for the Bill would probably be covered. I am not sure why the Government do not just welcome that, to be honest; it does not answer all of our problems, but it would go some way towards that.

The introductory speech of the noble Lord, Lord Wallace, was incredibly helpful and his amendments likewise. He concluded by saying he suspects that the Bill is actually performative in nature and worries that the operability is not at the forefront of anybody’s mind in government. I have no idea how true that is, but I share his concern that it is the job of this House to make sure that we do not pass legislation that is unworkable and just causes confusion.

Our Amendment 14 is probing and I accept what the noble Baroness, Lady Noakes, had to say about it. But we are just trying various ways in this group—and in the next, too—to work out which organisations will be subject to these new rules. The example that has been helpfully provided to me by Universities UK was the one that led to the tabling of our Amendment 14.

If the Government get their way and universities are to be treated as public bodies for the purposes of this Bill, although I very much hope not for any other purpose, their activities that we could argue are clearly outside their publicly funded responsibilities—those conducted, perhaps, with private money or are contracted to private companies—would in no way be subject to the rules within the Bill. There is a reference that makes this clear in the Explanatory Notes, but the amendment that we have suggested would put that explanation into the Bill. As I said, it is to probe exactly what the situation would be because, at the moment, universities are not clear about that and it is important that we give them that certainty.

An example was suggested to me by Universities UK. It is hypothetical but not so outlandish that this situation is not happening very frequently. I declare an interest as chancellor of Teesside University. Here is the hypothetical example: university A is considering a proposal to set up a transnational education partnership in country X. This could involve a partnership with a commercial or state entity in country X and the university board must consider a range of proposals. According to the Higher Education Code of Governance, governing bodies should

“conduct their affairs in an open and transparent manner”.

It is a fundamental duty of university governing bodies to safeguard and promote the reputation of the institution. As the new partnership would involve a significant investment and carry both financial and reputational risks, the board of university A is therefore asked to take a decision on the proposals.

To support its deliberations, the board would receive a paper covering the following: the potential financial exposure and opportunity of each proposal; underlying social, demographic and economic data that underpins a market assessment; due diligence on potential partners, including reputational factors; and a summary of ethical and reputational concerns relating to country X. All aspects of the paper would be deliberated by the board. Following an extensive discussion of the financial and reputational impacts of the proposals, the board decides not to proceed with the partnership opportunity because, on balance, the risks are deemed to outweigh the opportunity.

Can the Minister explain whether, in this example, the transnational educational partnership described constitutes a private or public activity of a university? Would the fact that the board discussion included reference to reputational and ethical concerns of direct relevance to a higher education institution mean that members of the board could be subject to action under the provisions of the Bill?

How can boards fulfil their duty to safeguard and promote the reputation of their institution if they are not able to openly discuss and consider material facts that could impact on said reputation without fear of legal action, even if those considerations are not the sole basis for the eventual decision? How can boards fulfil their duty to conduct affairs in an open and transparent manner if the very fact of discussing issues of demonstrable and material relevance would be actionable under the provisions of the Bill?

I raise this example to tease out some of the grey areas that we might be forcing universities to consider and because I am worried about the chilling effect this may lead to. I do not think there is a situation in which a university would not consider the reputational impact of a partnership. But I can conceive of a situation where that consideration would not be as open and as widely shared as we have come to expect, in the way that we would like things to be done in this country.

In this group, we would like to understand the Minister’s response to the amendment from the noble Baroness, Lady Noakes, in particular, on whether there might be any other way of making clear who is subject to this. In relation to my Amendment 14, I would like to understand exactly how this will work for organisations—not just universities, but others as well—particularly in relation to the example I raised.

[The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)]

My Lords, I am grateful for the thoughtful contributions from across the Committee. On the first day of Committee, which also touched on the scope of this Bill, we heard from the noble Lords, Lord Collins and Lord Wallace, the noble Baroness, Lady Fox, and my noble friends Lady Noakes and Lord Johnson. We discussed the Bill’s application to hybrid public authorities. Today, we have heard in slightly different terms from the noble Lord, Lord Wallace, my noble friend Lady Noakes and, of course, from the noble Baroness, Lady Chapman. I will try and come back on her essay question if I can.

Obviously, we have carefully considered the points raised in these debates. I would like to expand on our view of the scope in relation to Amendments 10, 11, 12, 13 and 14. As noble Lords have said, the Bill will apply to public authorities, as defined in Section 6 of the Human Rights Act 1998. I would like to explain, in response to the concerns of the noble Lord, Lord Wallace of Saltaire, that “public body” is a general term with no single legal definition. The Bill’s Short Title provides a general indication of the subject matter of the Bill, and it is not unusual for the Short Title to use different terminology from the Bill’s substantive provisions.

[Lord Wallace of Saltaire (LD)]

My Lords, I apologise for interrupting. The Minister will be well aware that there is a particular use of the term “public body” by the Office for National Statistics, which means that debt incurred by a public body is counted as part of the national debt. That means that whether or not some of these hybrid public authorities are defined as public bodies matters a great deal to their financial planning. Again, the university sector is particularly concerned about this.

[Baroness Neville-Rolfe (Con)]

I thank the noble Lord for raising that point again. It has been raised before and I am aware of it. We are talking about quite marginal sums here, so it will not be definitive, but I am sure we will come back to that point.

Perhaps I should explain that we have used the HRA definition because it has three important advantages. First, it is one that has been on the UK statute book for over 25 years, as has been explained, and places public authorities under important fundamental obligations that they have to observe. Organisations should also already know how it applies to them. Secondly, over those 25 years, the courts have further clarified its scope and identified a number of relevant factors. These include, but are not limited to, the body receiving a significant amount of public funding, the body carrying out acts in exercise of statutory powers and the body providing a public service. Thirdly, the definition ensures that private activity remains out of scope of the Bill—private activity that is rightly protected by convention rights, including freedom of speech.

17:00

My noble friend Lady Noakes noted that the case law in this area was narrow. However, bodies should already be aware if they are bound by the Human Rights Act, as that Act places other wide-ranging obligations on them that go much further than this Bill—so we are using a formula that is in common use.

That leads me naturally on to Amendment 12, tabled by my noble friend Lady Noakes, and Amendment 14, tabled by the noble Lord, Lord Collins of Highbury, who is also in his place. These amendments would disapply the ban from hybrid public authorities. Such bodies have a mix of public and private functions, as defined by Section 6 of the Human Rights Act. An example of a hybrid public authority includes higher education providers, as we all agree. The ban will apply to these bodies only when they are delivering public functions. The Bill does not interfere with the private sphere.

For example, acts that a higher education provider will have to carry out as part and parcel of its functions providing higher education will be public functions, while commercial activity, such as providing conference facilities or maintaining office spaces by entering into cleaning contracts, may be private activity and outside of the scope of this Bill. It is important that the ban applies to hybrid public authorities, given the diverse nature of government functions and the variety of ways in which functions are discharged. It would not be appropriate for hybrid public authorities to misuse public money, or lose focus on their primary public purpose, effectively to pursue their own foreign policy agendas when delivering public functions.

This brings me to Amendment 11, tabled by my noble friend Lady Noakes, and Amendment 13, tabled by the noble Lord, Lord Wallace of Saltaire, which provide alternative definitions of public bodies to which the Bill should apply, and which we have of course looked at. Amendment 11 would instead apply the ban to bodies subject to the Freedom of Information Act 2000. Broadly, the categories of public authorities covered by that Act mirror those captured by the Human Rights Act 1998 definition. Using the alternative definition would broaden the ban to private bodies and decisions not currently in scope of the Bill, such as the board of the Pension Protection Fund. This definition would also encapsulate all functions of bodies in scope of the Freedom of Information Act 2000, including private functions. It would therefore extend the ban to the decisions of bodies such as universities protected by ECHR rights, perhaps providing more certainty but a broader reach.

Amendments 10 and 13, tabled by the noble Lord, Lord Wallace, would apply the ban to any public body that

“receives 50 per cent or more of its funding from government, and whose functions are clearly of an official nature”.

This would establish a new definition of public body and could also broaden the ban to apply to private decisions protected by ECHR rights. Judges have already acknowledged that public funding alone does not mean that a body is a public body or exercises public functions. It would be inappropriate to apply the ban to bodies when they are not performing public functions. Additionally, imposing a new definition would, I suggest, create confusion and legal uncertainty, which noble Lords are concerned about.

I thank the noble Lord, Lord Wallace of Saltaire, for his research on the distinction between a public body and a public authority. I am unsure which definition of public bodies he was referring to. There are many, but I hope I have been able to explain that the alternative preferred definition of public bodies would broaden the Bill and take it into the private sphere—that is the dilemma.

[Baroness Chapman of Darlington (Lab)]

I am grateful to the Minister, but I am completely unclear about what a public body is after listening to that. Could she explain what a public function is? That might help us.

[Baroness Neville-Rolfe (Con)]

That is a good point and a good question. The noble Baroness also gave a good example. I suggest that I take away the distinction regarding the public function and have a look at it, and that I come back on the long example she raised, which she said had been given to her by Universities UK, on 7 May when we are due to debate the university amendment in Committee.

[Baroness Chapman of Darlington (Lab)]

I sort of accept that, but while my example referred to universities we could equally apply it to other organisations as well. I would not want to see that consideration narrowed just to the issue of universities.

[Baroness Neville-Rolfe (Con)]

I agree with the noble Baroness; that is an entirely fair point. We agree that the Bill is complex when it comes to understanding. I want to make sure that, when I answer questions on things such as public functions, I am giving good information that is thought through and thoughtful. I have tried to explain today why we are using the Human Rights Act. That has advantages, which is why the Government have gone down that road.

I should respond to the point about cultural institutions that the noble Lord, Lord Wallace, raised. Some of them are in scope of the Bill in their public functions only, and I set out earlier a number of factors that courts would consider in deciding whether an act was a public act. The noble Lord also pointed out that the Bill contains the power to exclude bodies in its scope from the ban via regulations. The Government do not currently foresee the need to exclude such bodies, but this power will allow the Bill to evolve in line with government policy.

For all these reasons, I have tried to explain why we have presented the Bill in the way that we have. There is a lot of comfort to be taken from using the Human Rights Act, but I look forward to returning to some of the questions that have been asked. In the meantime, I ask noble Lords not to press their amendments.

[Baroness Blackstone (Lab)]

If I may intervene, this definition debate is like walking through a giant sticky pudding. Most Members of the Committee are utterly confused about exactly what public bodies and public authorities are, and about which institutions will be in the scope of the Bill and which will not.

I shall raise a specific example. Could the Minister tell the House about housing associations? They undertake many public functions, which is another term that the Minister introduced but has not been properly defined. They deliver social housing, for example. They do so in partnership with local authorities, often managing the social housing that is owned by local authorities. Will they be in scope of the Bill or not?

[Baroness Neville-Rolfe (Con)]

The answer I must give in the short term is that it depends a lot on the courts. I will look at housing associations; I know they have come up in other Bills that we have discussed, including how they are treated in government finance. The point about using the Human Rights Act definition is that you get a 25-year history of interpretation.

[Baroness Randerson (LD)]

My Lords, the Minister referred to the issues of public funding associated with universities and the national debt, and how that is counted. She said that these were marginal amounts of money. The UK university sector is worth £130 billion a year to the economy and employs three-quarters of a million people. Is that truly the definition of marginal? I declare an interest as chancellor of Cardiff University. Secondly, when we are looking at cultural organisations, does lottery money count as public or private money?

[Baroness Neville-Rolfe (Con)]

The honest answer is that I do not know about the lottery, but I will find out for the noble Baroness and write to her. On universities, of course she is right: very substantial sums of money, rightly, are involved in the education of our children. What I was explaining was that, at the margin of this activity—involving procurement and investment—the sum is relatively small compared with all that is done by universities.

[Lord Stevens of Birmingham (CB)]

May I offer a constructive suggestion on the clarity that might be adduced between now and further stages? Picking up on the question of the noble Baroness, Lady Blackstone, as I understand it, in 2003 the first case before the court to answer the question was Poplar housing association, where it was deemed that Poplar was a functional public authority under the Human Rights Act. That takes us to the useful report that was referred to by the noble Baroness, Lady Noakes, from the Lords and Commons Joint Committee on Human Rights back in 2003-04, entitled The Meaning of Public Authority under the Human Rights Act, which gets to the very matter we have been discussing. Obviously, jurisprudence has developed substantially since then. If the Minister could set out in writing how the Government regard the situation as having evolved since this very clear statement of the answer to the question we are struggling with this afternoon, that would perhaps nail the matter.

[Lord Boateng (Lab)]

The Minister has been enormously forbearing and we are very grateful for that. I wonder whether she could help us in this regard in relation to cultural bodies—here I must declare an interest, as an independent non-executive director of the Royal Philharmonic Orchestra. What would be the position of an orchestra that received some funding—by no means the majority of its funding—from the Arts Council, and which determined that, in the aftermath of an invasion of a sovereign nation by another sovereign nation, it no longer wanted to perform supportively of, say, the Bolshoi Ballet? What would be the position of such an orchestra, or of a board, that made that decision because it saw a real reputational risk, in the aftermath of the invasion of a sovereign country, of appearing in support of the national ballet company of the invading nation?

[Baroness Neville-Rolfe (Con)]

I understand the question. Of course, we now have government sanctions against Russia, so the question is wider. The suggestion made by the noble Lord, Lord Stevens, is a good one, which would perhaps help us to move forward. I have already said that I will look carefully at the questions raised by the noble Baroness, Lady Chapman. The example of the noble Lord, Lord Boateng, is of a slightly different kind, asking rather the same question. Perhaps I can come back on that at the same time.

[Lord Hain (Lab)]

May I also ask a question? I am very grateful to the Minister, who has indeed been generous in responding, even if she has been unable to offer the Committee further clarification. Virtually all training in this country is privately provided, by private organisations, but publicly funded. Where do they fit into all this? They receive public money—from the DWP, say. I remember, as the former Secretary of State, visiting a lot of private providers. Where do they fit in? Do they come under the contractual relationship to which the Minister referred, or are they caught by the Bill?

[Baroness Neville-Rolfe (Con)]

It depends, and it also depends on case law under the Human Rights Act, which I have undertaken to look at and come back to noble Lords.

[Lord Wallace of Saltaire (LD)]

My Lords, I cannot resist suggesting that one definition of a “public function” is somewhere you are served warm white wine and canapés. That is a suggestion of how loose some of these terms can be.

The concern that a lot of us have about the Bill is that we are not entirely confident that the Government have thought through its full implications. The manifesto commitment was specific to boycotts against Israel and was concerned particularly with local authorities and universities. But we have a Bill here with a much wider set of definitions and a universal set of foreign states to which it applies, which raises a much larger number of questions. We also have a whole succession of loose definitions, which the DLUHC memorandum to the Delegated Powers Committee says, in effect, that we should not worry too much about, as we will do this all with regulations. I hope that the noble Lord, Lord Hodgson, would think that it is not necessarily always a good idea to leave everything to regulations. We are asking for greater clarity, certainty and, above all, precision, and a more limited potential scope for the Bill.

17:15

The ball is in the Government’s court, and I very much hope that this will be one of those occasions in which, between Committee and Report, the Government will come up with amendments which respond to comments that have been made constructively by us. The Minister will recall a government Bill in the previous Session for which the Government produced 340 amendments between one stage and another. We are not asking for quite that many here; we are just asking for some that begin to provide much greater precision. On that basis, I will happily withdraw my amendment, and look forward to some constructive discussions between Committee and Report.

[Baroness Neville-Rolfe (Con)]

Before the noble Lord sits down, I will repeat the point that the Bill applies only to investment and procurement decisions, as everyone understands. We are trying to find a way forward on a manifesto commitment to ban public bodies from imposing their own direct or indirect boycotts or disinvestment or sanction campaigns against foreign countries. Obviously, we need to discuss a little further how we deal with that, but I reiterate the point that I made about the use of the Human Rights Act, because we are trying to be helpful by calling on existing case law. The concern that I had about the amendments we are discussing today is that they might extend the Bill in a way that was not exactly where the Committee seemed to be coming from. I look forward to further discussions on this key matter.

Amendment 10 withdrawn.

Amendments 11 to 14 not moved.

Clause 2 agreed.

Clause 3: Exceptions

Amendment 14A

Moved by

[Baroness Chapman of Darlington]

14A: Clause 3, page 2, line 17, leave out subsections (2) and (3)
Member’s explanatory statement
This would remove the regulation making power for Ministers to add exceptions to the bill by secondary legislation. This is to probe when Ministers would expect to use this power.

[Baroness Chapman of Darlington (Lab)]

My Lords, my noble friend Lord Collins is not moving this amendment, but I will do my best as his understudy.

This group is slightly different from the first, but we will probably touch on a number of the same sorts of issues, as it is all about trying to get some clarity. I take what the Minister said about this being only about procurement and investment decisions. Even so, the question of what procurement and investment are in relation to the Bill is something else that we might need to tease out. If an organisation’s primary activity is in another country, as the noble Lord, Lord Boateng, referred to, would the act of withdrawing from that activity be seen as a boycott under the Bill? If the Minister is saying that it would not, that is incredibly helpful information that may well soothe some of the concerns that will be raised in our consideration of this group.

My noble friend Lord Collins and I have tabled the amendments in this group in an attempt to tease out from the Minister exactly what the Government have in mind. I do not think that the public response to the Bill has been quite what the Government may have hoped or anticipated it would be when they embarked on this endeavour. Most public sector organisations are far too busy battling to provide services—often in extremely difficult circumstances—to their patients, students or service users to be following the back and forth of this debate. That serves to re-emphasise the importance of our considerations, and of making sure we do not land them with something that is unworkable and does not achieve the objectives.

Many of us understand what the Government set out to do when they started all this, so with that in mind, we tabled the probing Amendment 14A to discover in what circumstances Ministers anticipate using the power that they are giving themselves, which allows them to change the scope of the application of the Bill through secondary legislation. We are interested to hear what the Minister has to say about why Clause 3(1) and (2) are needed, and how she thinks they will work in practice. These subsections refer to the powers which allow the Secretary of State to remove any of the exemptions that are listed in the Bill, such as the one on national security. I cannot imagine that ever happening, but there is a whole list of exemptions in there—we are very pleased to see some of them. But why is that power seen to be needed? We cannot imagine a circumstance in which any of those exemptions would need to be removed. It seems an odd power for Ministers to take for themselves.

These decisions matter in the scope of the Bill, and they can have a profound impact on our relationships with other nations and our diplomatic efforts around the world, sometimes in incredibly sensitive situations. I have seen no evidence of Foreign Office engagement with, or even support for, the Bill, and it would be a concern if these decisions were to be taken by SI. We all want government to work interdepartmentally and for all decisions to be consulted upon internally in the right way, but we understand that is not always the situation. This concern was expressed at Second Reading, so can the Minister assure us that before any delegated legislation is proposed, appropriate input will always be sought from the Foreign Office?

We have a whole bunch of amendments which are probing—tongue in cheek is too strong a phrase but we could not think of any other way to do it. This is how we do things: we table amendments, discuss them and through that we get a better understanding of what the Government are trying to do. We tabled a handful to make a point—we could have gone on, but we did not—and I will run through them.

Amendment 22 would exempt schools and early years providers from the scope of the Bill. This was tabled with a view to finding out whether the Government intend early years settings to be involved. It comes back to the issue of what is and what is not a public body. Is a private school a public body? Is an independent nursery funded by a government childcare programme a public body? Is a childminder being paid indirectly by the state a public body?

Similarly, Amendment 23 would exempt charities providing public functions. We have heard the example of housing provision, because some housing providers are also charities.

Amendment 24 exempts community interest companies. There are thousands of such bodies up and down the country, engaged in all kinds of activities. Many are responsible for delivering public services, be that in social care, education, the arts or prisoner rehabilitation—virtually every area of activity you can think of. How are they to regard the Bill? What steps should they be taking to educate themselves and find out how to make sure that they do not do anything to make themselves fall foul of the Bill?

Our Amendment 25 exempts sporting bodies. Do the Government really want to get into this issue of sporting boycotts and which athletes should be doing what, where? If a sporting body did not deem that there was to be a boycott, but individual athletes decided that they did not want to take part in a tournament, what would happen then? There is pressure and debate, inevitably, whether it is part of a BDS campaign or not—but how you define what that is, I do not really know. How would that be considered? How could those people make sure that they are not, in any way, falling foul of this legislation?

We have also tabled an amendment asking for a list of public bodies. I was trying to be helpful and to work out the best way of getting this clarity. To answer the earlier point from the noble Baroness, Lady Noakes, it could be a list that the Minister takes the power to be able to amend and add to, although I completely accept that any schedule containing a list would very quickly need to be updated. We would not want to put something in a Bill that would not stand the test of time, but these schedules are amended on a fairly regular basis.

I asked the government website for a list of public bodies, and there is one. It contains 601 organisations. I doubt it is a comprehensive list, but it contains the 24 ministerial departments, 20 non-ministerial departments, 421 agencies and other public bodies, 113 high-profile groups—they are interesting—19 public corporations, including the BBC, and the three devolved Administrations.

I looked through this list and there were some public bodies listed that I thought we needed to discuss a little bit further. What would happen with some of our defence-related organisations? There is an exemption for national security, but how would that be defined in relation to the Bill? Would that need to be something that would be tested in court? The Minister sighs: I can well understand why. There are defence training academies and there are organisations that deal with the media in relation to defence and make decisions about what adverts, and so on, can be used. These are all public bodies that have duties relating to our relationships with other nations, and they could conceivably be asked to make decisions that would fall foul of this legislation.

The Government have not really thought about the implications for some of these bodies. I accept that some of them are probably relatively low-profile, small in scale or inactive. However, our job is to make sure that we make this as future-proof and workable as we can. That is why we have tabled Amendment 54, which asks for a list, because if your name is on a list, at least you can be alerted to the fact that this is happening and you can take the necessary steps to comply.

If not, it becomes very confusing for decision-makers. As we discussed at Second Reading, these will often be volunteers or people who have not had the necessary training and who are not following the proceedings here. We really would not want to criminalise people inadvertently, when the Government are seeking to do something that is really quite narrow and, as the Minister has said, involves mostly local authorities and universities, which could be done in a completely different way.

17:30

[The Lord Bishop of Manchester]

My Lords, I shall speak in favour of Amendment 54, to which I have added my name. I also support the other amendments in this group. I listened carefully to the previous debate. As other noble Lords have noted, there is a strong overlap between this and the previous group.

Again as others have said, my concern is that, before we pass this Bill, we get clarity on who it covers. I declare a particular interest in that those of us on these Benches, along with other diocesan bishops of the Church of England, do carry out public functions. From time to time, these might bring an individual, in our corporate capacity as bishop of a diocese, within whatever definition of a public body or authority we might eventually land on.

In responding to an earlier group debated before the Recess, the Minister referred to the fact that mayors, police and crime commissioners—and, indeed, Government Ministers—also exercise public functions and hence fall under the scope of the Bill. However, since what these officeholders have in common is that they are elected or appointed primarily to exercise political functions, I can see the logic that maybe they should not use their investment and procurement functions in order to pursue a foreign policy in contrast to that of His Majesty’s Government. Notwithstanding the fact that some diocesan bishops are members of your Lordships’ House, is it really intended that we, along with the small charitable funds for which we are responsible in our corporate personality, should fall under the scope of the Bill? If we place those modest charitable funds with an external investment body, do we have constantly to ensure that that entity does not at any point seek to make restrictions in contravention of the Bill, by investing our money where it should not be—or not investing it where it ought to be?

Other Church institutions are at potentially greater risk of being inadvertently caught up in the scope of the Bill. Noble Lords will be familiar with the Church Commissioners, the body that manages the historic endowments of the Church of England, for the furtherance of the mission and ministry of the Church in perpetuity. It was my great privilege to chair the commissioners’ board, until the end of last year, as the delegated deputy of my most reverend friend the Archbishop of Canterbury. During my tenure, we grew our reputation, alongside our sister pensions board, as being among the world’s leading ethical and responsible investors.

As noble Lords well know, the commissioners require parliamentary approval to spend capital. Indeed, I spoke before the Easter Recess when we brought just such a measure before your Lordships’ House. What noble Lords may not know is that six state officeholders, including the Prime Minister and the Lord Speaker, are ex officio Church Commissioners, notwithstanding that the Government make no contribution to the commissioners’ coffers. Noble Lords will have noted a plea there. The ability of the commissioners’ investment team to deploy assets in furtherance of our mission objectives is not a case of anyone taking taxpayers’ money and using it to pursue their own independent foreign policy, yet, on some readings, these Church bodies may be seen as being within the scope of the Bill. Can the Minister clarify whether such bodies are indeed in scope?

Beyond the Church of England, there are many religious, charitable and other foundations—across a variety of faiths and of no faith—which perform functions in areas such as education. We have heard that referred to before. I am a grammar school boy. I benefited from a scholarship. My widowed mother could never have paid school fees. Such bodies raise and hold endowment funds for such purposes in order to enable students and pupils from less well-off backgrounds, like mine, to fully access and benefit from their services. I know that goes on because I am regularly invited to donate.

What is true of schools is even more true of the endowment funds of universities and colleges. Let us suppose that such an institution receives an offer of funds from a private philanthropist in the UK or beyond who wishes to make some stipulation as to where the endowment may or may not be invested. This is private money. Would this Bill mean that the foundation has to refuse the money, not because the country that it wishes to boycott is already on the list but because it may come on to a subsequent list at some future date?

The simplest way out of this confusion is for the Bill to contain either a schedule of the types of bodies to which it applies, as in the amendment in the name of the noble Baroness, Lady Chapman, to which I have added my name, or to use a definition that points to a well-defined list in existing legislation. The noble Baroness, Lady Noakes, offered that earlier today in the previous group. The advantage of requests under the Freedom of Information Act is that they are ubiquitous and long-standing. I know because I get them all the time and turn them down because they do not apply to me. As we have already heard, this means that most institutions are now very clear as to whether FoI applies to them. The same cannot be said for other definitions, even those contained in the Human Rights Act. So, in responding to this debate, can the Minister let us know how His Majesty’s Government are going to provide the clarity over scope that will be essential for this Bill to become a workable Act?

[Lord Deben (Con)]

My Lords, I declare an interest in the sense that my wife is a trustee of a major public orchestra. It does not receive public money, but I just make the point: if you do not receive public money, are you one of these public bodies? If you do, do you become one, and does that mean that you make a choice, which is quite a serious choice?

I also declare an interest because in my business we advise people on procurement and sustainability of procurement. I say to my noble friend that procurement is a very difficult issue on which to advise, because it is very widespread. What does it mean? It means almost everything from what might be called lavatory rolls at one end to procuring very large numbers of services or products. It can also cover the issue of the orchestra that procures another orchestra from abroad. As the noble Lord, Lord Boateng, said, it might have intended to bring an orchestra from, let us say, Russia to this country; if it then decides not to do so, is that the kind of decision that comes under the Bill?

I also have a concern, as the noble Baroness put forward, that the Secretary of State has an ability to remove from the exceptions things that for most of us are really important. If we are not to be allowed to procure on the basis of sustainability or climate change—things that really are existential issues—we have a serious problem, because on any definition of public bodies, the very bodies we are talking about are the ones that ought to be procuring and investing on those bases. The idea that this is only temporary, that it is in the Bill but can be removed by the arbitrary decision of the Secretary of State—and it could be arbitrary, because there is nothing in the Bill to say it is other than arbitrary—worries me considerably.

I rose not just to say that to my noble friend. I am afraid that the Government have a record of producing Bills that do not appear to have been carefully thought through. If the Bill had been produced to me as Secretary of State for the Environment, I would have sent it back and said, “There are too many questions in this, and I don’t want to have to present it to either House of Parliament because I can’t answer a number of the questions”. I do not blame my noble friend for not being able to answer some of these questions, but they are pretty fundamental, are they not? I just wonder what the Secretary of State responsible for the Bill said when it was brought in front of him. Did he ask what the definition of public body is or what a public function is? If he asked those questions, did he get answers? If he got answers, were they satisfactory, and why do we not have those answers when the questions are asked on the Floor of the House?

My worry is this. Out there large numbers of bodies, some of them very small, are worried that this will affect them. I do not believe that kind of legislation does us any good at all. Precision is absolutely crucial here, and we need to restrict this to a very clear, relatively small number of bodies and have a very clear understanding as to what it means.

If we take sporting bodies receiving government money—I cannot claim to be a sportsman and I declare no interests whatever on this front—it seems to me that if individual sportsmen wish to boycott something, the sporting body probably has to discuss that. If a body discusses that, it seems to me that under this Bill it can easily get itself into a position in which that is improper, if not illegal. Again, I do not see why people should have to ask themselves this question.

We are, at the moment, seeing a very inelegant discussion about individuals’ decisions on tax matters, pretty unfairly in most cases I have heard. It is difficult to understand quite a lot of the detailed tax legislation, but producing this legislation will ask a whole lot of other people to understand very detailed and extremely difficult concepts. I say to my noble friend that all I want is to feel that I could vote for something that I understand, and that other people can understand, which does not reach beyond the necessary areas and actually achieves some good. Those are three perfectly reasonable requests, but I am not sure that the Bill meets any of them so far.

[Lord Warner (CB)]

My Lords, we are dealing with a Bill that is in highly controversial territory. If we have sloppy definitions in the Bill, it will encourage litigation. It would be a strange thing if we passed a Bill with a lot of problems around definitions that causes, over time, more people to raise issues around sources of investment through the courts. With all due respect to the Government of Israel, from time to time they have shown quite an enthusiasm for using litigation to make their points.

Also, picking up from the last group of amendments, we live in a rather different time in terms of who raises money for public services, particularly capital money for investments. If we take health and care, the areas I know something about, there is a lot more interest in the idea of going into the private sector—private equity and PFI being good examples—to try to raise money to build facilities of some kind or another for which the public sector has found it difficult to find the money. People who raise funding and use it to provide public services perform a kind of public function. If we have a sloppy Bill, they leave themselves exposed to probing of where their sources of money come from. You then run the risk of driving these people away from the kind of investments in public service that we may need to get some of our old capital structures improved over time. I suggest to the Committee that if we do not tighten up these definitions, we run a series of risks that are self-defeating to any Government.

[Lord Boateng (Lab)]

I am very grateful to my noble friends for these probing amendments, and even more grateful after hearing the contributions from Members opposite that they have elicited. A number of very serious questions have been raised about ambiguity and lack of clarity.

I hope that the Minister is not tempted to reply with words that are meant to reassure us, such as, “Don’t worry. Everything will be all right. The Secretary of State will decide”. I must confess to the Minister that, the older I get, the less confidence I have in Secretaries of State. I suspect that, in a few months’ time, she will begin to have less confidence than she currently has. There is a good reason for that: all of us—I emphasise this—whatever side of the House we are on, need to be wary of overpowerful government.

17:45

I hope that the Minister is able to answer this question. I reflect on times in which those who ran nurseries also provided fruit for children, on the basis that an apple or orange a day helps, and the people who ran such nurseries said that they would not provide Outspan oranges. A range of folk from the voluntary and charitable sector have run those nurseries—mothers’ unions have run them—and they said that they would not provide Outspan oranges because they knew the oppressive system that provided them. They substituted their values for those of the Secretary of State, and it is very a good job that they did, because their values were superior. I want to know this: will nurseries that are run by volunteers and provided by the charitable and voluntary sector, and happen to receive some form of public money from somewhere, be covered by this measure? If they are, it will be and should be no comfort to us or anyone, on any side of this House, that the Secretary of State can be left to decide.

[Lord Willetts (Con)]

My Lords, I intervene briefly, if I may, in support of Amendment 54, which is calling for a comprehensive list to be laid before Parliament. This debate is getting a bit metaphysical about public bodies, and it is revealing that there is no authoritative shared definition of a public body and no single authoritative list of public bodies. The term “public body”, on which the Bill rests, is itself very hard to define. I have two observations about this.

First, we therefore reach out to lists of bodies that have been developed for other purposes in other legislation. There are candidates around: one is the Freedom of Information Act. I am looking across at the Lib Dem Benches, because I vividly remember a debate within the coalition about whether or not universities should be covered by the Freedom of Information Act. The Lib Dem members of the coalition thought that that information should be available from universities. We had a negotiation as part of some wider deal and agreed that universities should be covered by the Freedom of Information Act. At no point in those exchanges did people think that that meant we were defining them as public bodies. We were simply trying, for the purposes of where the information should be and what should be covered by the Freedom of Information Act, under pressure from a member of the coalition, to include universities. It was not intended to be an authoritative definition for other purposes of legislation. In these circumstances, I think that it is sensible to say that we should just have a list of the bodies for which this legislation is most relevant and not try to reach out to find some other list or some permanent definition on all accounts.

There is a second reason, which, if I may say so, is particularly relevant for us on these Benches. There is a paradox in the Conservative position here: the supporters of the Bill are quite keen to stop sanctions, boycotts and anti-investment campaigns by as many bodies as possible. That means that Conservatives are currently reaching out for a very ambitious definition of “public body” because they want as many as possible to be covered.

I am not totally sure that, in the long run, this is an approach that Conservatives will not find comes back to haunt Conservatives, who may think they have ended with an overambitious definition of “public body” that in turn gets used for many other purposes. There are good reasons for a highly precise and limited list of bodies to be covered by this legislation—anything else and you are on very slippery ground, and we may find it has consequences that, even within my own party, people come to regret.

[Baroness Janke (LD)]

My Lords, I thank the proposers of these amendments for offering an opportunity to establish, as many have said today, some precision and clarity on the range and definition of the public bodies referred to in the Bill. The Minister has an opportunity to reassure us and many groups who fear the implications of this Bill.

In Amendment 22, we are talking about schools or nurseries. The Minister has said we are talking about procurement, but do the Government really intend that school governors should sit poring over the school meals procurement to see whether they are contravening the terms of this Bill in any way? Indeed, as the noble Lord, Lord Deben, said earlier, would they also contravene the terms of the Bill even in talking about it and taking advice?

Do the Government intend that charity commissioners and trustees should take into account the implications of this Bill, and perhaps face vexatious challenges to contest some of the decisions that they have already made? The fact that the definitions are so poor, as many people have said here today, will leave open legal action and vexatious possibilities of weaponising this legislation, by the whole scope that seems to be covered. But the Minister can reassure us today, or in writing, that the list of public bodies covered is, as the noble Lord, Lord Willetts, said, closely defined and clearly identifiable by those whom it affects.

Particularly concerning, as highlighted in Amendment 26, is the implication for charitable organisations delivering public functions in terms of overseas aid and humanitarian work. Often founded on moral principles, as the right reverend Prelate said, many of these organisations have foundations which relate to moral principles and values, which they take into account when taking their decisions, whether on procurement or on investment. I believe territorial considerations must also be key to the functioning of these groups and charities. I agree we need a clear definition, and I would also like to understand and be reassured by the Minister on the reason for the additional powers being given to Ministers.

On the last amendment on this list, we should really have a much better idea—I think the noble Baroness, Lady Blackstone, who said that we are swimming through a sticky pudding, was absolutely right. We are totally unclear about the terms and the scope of this Bill, and I hope that we may be reassured in the course of this Committee.

[Lord Davies of Brixton (Lab)]

I have two questions relating to the issue of what constitutes a public body. My major interest in this Bill is Clauses 12 and 13, about local government pension schemes. It is interesting that it requires a separate section of this Bill to deal with local government pension schemes; that clearly indicates that these organisations are not public bodies. The Government’s commitment was in relation to public bodies and yet the Bill is being extended to these other organisations, which require their own section in the Bill, as they are clearly not covered by the general term “public bodies”. Perhaps the Minister could confirm or explain that particular point.

I have a different point relating to pension schemes. Some of these public bodies that we have been talking about have their own funded pension schemes, which are making investment and procurement decisions. As I understand it, because they are separate trusts, they are not themselves public bodies. But they belong to a public body and they are associated with the public body, so it is possible, within the bounds of trusts law, for those pension scheme trustee bodies to consider a decision that might potentially fall foul of this legislation. Therefore, we have the odd situation that the trustees can discuss these matters, but presumably the sponsoring organisation, which does count as a public body and is covered by the Bill, cannot discuss what the trustees whom they nominate should or should not be doing. There is a certain contradiction here, and again I invite the Minister to explain how that will operate in practice.

[Baroness Randerson (LD)]

My Lords, I will briefly go back to the Government’s own list of public bodies on GOV.UK. Of that list of public bodies, there are 18 listed for the Department for Education, none of which is a university. The Minister referred to overlapping definitions in the Bill. I have been sitting here and thinking about that, and wondering where the University of Buckingham sits in the Government’s concept of where universities lie, because that is a private university but one which is fulfilling exactly the same functions as all the other universities in the UK. Those other universities are, of course, exempt charities and so we are on a whole series of conflicting paths here, with just one aspect of the definition of public bodies that this Bill seems to wish to encompass. I raise these issues so that the Minister can perhaps give us some of her thoughts on these overlapping definitions and where they actually sit within the Bill.

[Lord Wallace of Saltaire (LD)]

My Lords, first, we are in the territory of the chilling effect, are we not? If there is a very large number of bodies which are not going to be sure how far they come within the scope of this Bill, they will be very nervous about doing things that they would otherwise do. That is why leaving it so unclear as to how far the definitions of this Bill stretch over the sector, in which public and private institutions, and public and private functions, overlap so closely, is highly undesirable.

Secondly, this clearly will require very substantial subordinate legislation. I think it is the sense of this House that it is a bad thing to pass Bills that need too much subordinate legislation. Yesterday, the noble Lord, Lord Hayward, whom I regard as an extremely good friend, said to me that the subordinate legislation under the Elections Act, which we passed in 2022, is now approaching 1,000 pages, and that the Electoral Commission is spending a considerable amount of its time providing guidance for local authority electoral registration officers on what this means for them. That is bad legislation; we want to avoid that again here.

Thirdly, there have been occasions, as others are aware, where lists of public bodies have been provided. The Minister will remember the SI on trade union levies being taken, or no longer being taken, automatically from pay scales for particular public bodies. That had a list, at the end, in the schedule, of over 200 bodies, which included some quite interesting ones such as the Scottish salmon council, and various semi-charitable local institutions to do with, as I remember, care homes and nurseries.

Fourthly, to add to the question of universities, what universities are most concerned about is whether or not the student loan book, which is a very large sum, is included in the Treasury’s calculation of national debt. That is not a marginal issue; it is quite important. That is why definitions such as this and how they are used by different parts of government and recognised be the courts are extremely important.

18:00

[Baroness Noakes (Con)]

My Lords, on the previous group of amendments I explained that I was concerned about the lack of certainty involved in the definitions. However, I feel the debate on this group has engineered more uncertainty than in fact exists.

My noble friend the Minister explained that the Government used the Human Rights Act definition because there is 25 years of jurisprudence, and the noble Lord, Lord Stevens, helpfully suggested that the Government update their understanding of what that definition means. I believe that most of the bodies know whether or not they are subject to the public sector duty involved in the Human Rights Act—not all of them, and there are certainly issues at the margin, but we need to get this in proportion. For example, I suspect that most of the bodies that the right reverend Prelate referred to already know whether or not they are subject to the human rights duty in Section 6 of the Human Rights Act. So although I continue to believe that clarity is important and that we need to find ways of achieving that clarity, we should not overstate the difficulties of establishing who is within the terms of the Bill and who is not.

[Baroness Blackstone (Lab)]

My Lords, could the Minister comment on the actual functions of some of these so-called public bodies? I assume that secondary schools will be regarded as public bodies. They have a wide range of functions focusing on educating the children who are pupils there, but they are also responsible for the development and improvement of their school buildings. Let us take the example of a school that has an extremely rich alumnus who wishes to reward it for the excellent job it did in educating him, and allocates to it a very large sum of money to put up a completely new building: will that be caught by the Bill’s scope, so that the school has to decide whether it will be found to be breaking the law because it takes into account moral and ethical considerations in its purchase of goods for providing a very large new school building? These are the sorts of questions that people will face, and I am not sure that the governors of most state secondary schools will be terribly familiar with Section 6 of the Human Rights Act; nor will they find it that easy to get advice about it. Perhaps the Minister could comment on that sort of situation.

[Lord Stevens of Birmingham (CB)]

I take the point that the noble Baroness, Lady Blackstone, just made in respect of schools, but I also agree with the point the noble Baroness, Lady Noakes, made about the jurisprudence that has arisen, which has clarified this for a number of institutions, including, I think the right reverend Prelate the Bishop of Manchester will find, the Church of England. In fact, I believe the first case to test whether a body in the Church was indeed a public authority was Aston Cantlow Parochial Church Council, which was trying to exact a chancel repair charge. In the Appellate Committee of the House of Lords at the time, the noble and learned Lord, Lord Hope, deemed that the parochial council was not a public authority. Many details have been laid out by the courts quite clearly over the years, but if the Government could adduce that on to a single sheet of paper in the way that has been described, it would be very helpful.

[Baroness Neville-Rolfe (Con)]

My Lords, as I set out in my response to the previous group, the Government chose to apply the ban to public authorities as defined by Section 6 of the Human Rights Act 1998. It is a great advantage that your Lordships, perhaps in contrast to the other place, scrutinise Bills in this way. I cannot accept that it is a sloppy Bill—it is a good Bill—but I think that concerns have been overstated. My noble friend Lady Noakes just explained why, very eloquently. We need clarity. Most bodies know whether or not they are covered.

There is another good reason for using the Human Rights Act definition—obviously, I am happy to look further at its implications, as I have said—which is that the Government intended to apply the Bill to a broad range of bodies when they are exercising public functions. This was to ensure a consistent approach to foreign policy across the UK’s public institutions, to stop public bodies legitimising divisive campaigns, which can undermine community cohesion, and to allow public bodies to focus on their core purpose when engaging in procurement and investment. That was the intention of the manifesto commitment that I mentioned in the previous group.

These amendments seek, rightly, to probe the scope of the Bill’s definition of public authorities, but they also probe the need for the power to make exceptions to the ban. I will try to address each in turn.

I am very glad that the right reverend Prelate the Bishop of Manchester has joined the debate. The Church of England would be in the Bill’s scope only to the extent that it exercises public functions. We have heard a little about the interpretation of that in the courts.

Before I address the specific amendments, I remind the Committee that the Bill will not create any new criminal offences. That is a very important point. I also take this opportunity to address the point raised by the noble Lord, Lord Boateng, and the noble Baroness, Lady Chapman, which was picked up by my noble friend Lord Deben, on orchestras. Orchestras are very unlikely to be regarded as public authorities. Moreover, withdrawing from an event is unlikely to be regarded as a procurement decision for the purposes of our Bill. The definition of a procurement decision does not include contracts where it is the public authority providing the service.

I can also reassure the noble Baroness who raised the issue that defence contracts are also exempt from the Bill. In addition, for contracts in scope, the Bill already contains an exception to the ban for national security considerations. In practice, if a case is reported to an enforcement authority it will look at whether the public authority had regard to any of the exemptions to the Bill—for example, the national security exemptions —during the decision-making process. Evidence of this might include if the public authority shows that it was following guidance from the UK Government, or became aware, for example, that a supplier was engaged in espionage.

Amendments 26 and 23 probe whether charitable organisations would come under the Bill’s scope. Charities would be captured by the ban only if they were performing public functions. It is the Government’s understanding that most charities will not be covered by the Bill. I hope that provides reassurance to noble Lords.

[Lord Collins of Highbury (Lab)]

I am sorry to interrupt, but I was just checking the relevant parts of the Bill relating to enforcement. The Minister said that no new criminal actions arise from the Bill. What we do have is the ability of the Secretary of State to have enforcement powers that include monetary penalties. If people refuse to pay the monetary penalties, what would that result in?

[Baroness Neville-Rolfe (Con)]

Perhaps I might continue on the points raised in the debate and come back to that point. It is a very reasonable question but I am not going to answer it without advice. However, there are no criminal sanctions in this Bill, which there often are in the Bills we consider in this House.

There may be a small number of cases where charities are delivering public functions; they would therefore be captured in respect of those functions. However, it is important to note that it does not mean that a charity is a public authority just because it is in receipt of public funding.

The Bill will not apply to charities’ private functions. For example, for universities, decisions that are part and parcel of delivering higher education would be public functions so they would be in scope of the ban. If a charity did have public functions in scope of the ban, it would apply only to investment and procurement decisions made within the public functions. That is a point that I need to emphasise. Therefore, the ban would not restrict how such bodies decide, for example, to distribute humanitarian aid, which was the subject of the earlier debate.

[Lord Boateng (Lab)]

I think the Minister, or those who advise her, has misunderstood the point I raised in relation to the orchestra. The orchestra is putting on a concert version of “The Rite of Spring” as part of a Stravinsky festival. That festival is being held in a number of cities throughout the world. It is booked to appear at the new opera house in Dubai. It puts out a tender for ballet companies to provide the dance section of “The Rite of Spring” for this concert version. It specifically precludes in its procurement—so perhaps those who advise the Minister can reflect on this—the national ballet company of a country that has recently invaded a sovereign nation because it does not wish reputationally to be linked with that national ballet company. That is quite clearly a procurement. Is the Minister saying that that would not be covered by the Act and that the fact that the orchestra concerned receives a proportion of its funding from the public purse does not make it fall within the ambit of the Act? It is to that question specifically that an answer would be helpful. If she cannot give that answer, it demonstrates very clearly the concern about ambiguity that all contributors to this debate have articulated.

[Baroness Noakes (Con)]

The noble Lord, Lord Boateng, has concentrated on the procurement decision, but before you get to decide whether a procurement decision is relevant, you have to decide whether it is a public authority—so it will come back to whether the orchestra is a public authority before getting to any issue about whether a procurement is covered.

[Lord Boateng (Lab)]

That is what we want an answer to: is it a public authority for that purpose because it receives public funding?

[Baroness Neville-Rolfe (Con)]

I am glad that we have focused on an individual example because, in my experience, this always helps us to clarify our own thinking. I think that, if the noble Lord, Lord Boateng, will allow me, I will take the orchestra example away, along with the example given by the noble Baroness, Lady Chapman, work out the right approach and get back to noble Lords, perhaps in discussions outside the Chamber.

We all want the same thing: to make sure that the Bill applies to the right bodies in the right way. That is what we are seeking to do, which is why we started with human rights legislation, which is often a popular start, for good reasons, to legislation. However, we have, as we do, scrutinised the detail of legislation today and have come up with some extremely good questions. It behoves us to go away. I am sure we can find good answers and use them to improve the Bill, which is, as I said when I introduced the Bill, what we are determined to do to get a good Bill that leaves this House in the right place and delivers on our manifesto commitment.

I turn now to Amendment 25, which seeks to probe whether a national governing body of sport that is in receipt of public funding would be in scope of the Bill. It raises some of the same questions and issues that we are going to consider. It is possible that a governing body of sport could be in scope of the Bill. If a sporting body is considered to be a public body under the Human Rights Act, on the basis that it exercises some public functions, the ban would apply only to the public functions exercised by that body, but a sporting body being in receipt of public funding would not in itself be enough for it to be considered a public authority. These bodies play a significant public role.

[Baroness Chapman of Darlington (Lab)]

We have got the public function thing again, which the Minister has referred to frequently. She has clarified that public funding is part of what will determine whether the sporting governing body is a public body, but she said that would be relevant only in the conduct of public functions. I am not clear on this, given that at the end of the previous group we were promised a response on what a public function is. I think the Minister said that she would follow up in writing, but she is relying on that term frequently in her response to this group of amendments, which I do not think is helpful, unless she can say something at this stage about what she considers a public function to be.

[Baroness Neville-Rolfe (Con)]

The noble Baroness is right that we need to use the term “public function” with care and to be entirely clear what it means, but the receipt of public funding is another legitimate issue that we need to understand—and understand the scale as well.

18:15

[Baroness Chapman of Darlington (Lab)]

As an example, if a young people’s badminton team were to be taking a tour of south-east Asia and felt it did not want to take part in events in certain regions of China and came under some pressure on this from parents or other groups, how would that be? You could say that enabling young people to engage in sport is perhaps a public function. I do not know. How would that be considered?

[Baroness Neville-Rolfe (Con)]

That example would not be procurement or investment, so it would be outside the scope of the Bill. However, the noble Baroness has raised the point. Sporting bodies can be within scope, as I explained, in procurement and investment decisions. The reason for this is that these bodies play a significant role in public life and it would send a very unhelpful signal if we were to single out governing bodies of sport as an exception to the Bill.

[Baroness Chapman of Darlington (Lab)]

I am sorry to keep on about this, but there is then a need to define procurement. In the example that I am, perhaps tenuously, relying on, there would surely be procurement of transport services, accommodation services, catering services and venues.

[Baroness Neville-Rolfe (Con)]

It seems to me that the issue here is boycotting a sporting event, and that is not a procurement or investment decision—but I have already undertaken to look carefully at these individual examples, because we all want to understand exactly what we are talking about and to come to the right outcome.

Amendment 24 would carve out community interest companies. While it is not inconceivable that a community interest company might perform a public function, neither the purpose nor the structure of a community interest company naturally lends itself to that. It is not, by and large, what the Bill is designed for.

Amendment 22 seeks to probe whether schools and early years providers, such as nurseries, are in scope of the Bill. I can confirm that all publicly funded schools will be captured by the ban when they are performing public functions, and some early years providers will also be public authorities on that definition. Other early years providers may be captured to the extent that they are performing a public function. However, I will take noble Lords’ concerns on that issue away, because I think it comes into the same category as the other two examples we will be looking at.

Privately funded independent schools—and I think this will probably apply to private universities—will be captured to the extent that they perform a public function. However, they are unlikely to perform functions of a public nature in scenarios where they are captured as hybrid public authorities, which we discussed on the previous group. The ban will ensure that publicly funded schools remain shared spaces for all, and the Bill will ensure that schools and early years providers can remain focused on their core duties, rather than being distracted by divisive campaigns promoted by BDS and others.

[Lord Deben (Con)]

If a Church of England or Catholic school says it will not buy from a country that is persecuting Christians, that is concentrating on its core responsibility. It is not avoiding it; it is what it is there for, which is to uphold the faith. Are we really going to dictate whether or not it should make that decision?

[Lord Roborough (Con)]

My Lords, the Minister has an advisory speaking time of 20 minutes. May I respectfully suggest that we leave any further interventions until the end to allow the Minister to answer as many of the existing questions as possible?

[Baroness Neville-Rolfe (Con)]

I have already said that I am trying to answer the many questions noble Lords have asked. There have been a great many interventions on me and I have been very patient. I have also made some undertakings to try to clarify some of these points, including childcare, which would cover the schools that my noble friend Lord Deben mentioned.

Perhaps I could turn to Amendment 54, which requires

“the Secretary of State to provide a comprehensive list”,

of the bodies in scope

“before the provisions in Clause 1 can be brought into force”.

The Government are not able to provide a comprehensive list of bodies captured by the Human Rights Act definition. However, I have tried to be clear on the categories of bodies that includes. To repeat, these include: central government agencies and non-departmental public bodies; UK Government Ministers and devolved Ministers; local authorities; administering authorities of local government pension schemes; universities and higher education providers with public functions; publicly funded schools; and some museums and galleries in receipt of significant public funding.

As with any definition, there will be further cases at the margins where it is impossible to generalise without the full facts of a case. That, of course, is where the courts come in. Legislation often uses general definitions—for example, the Human Rights Act from which we have taken the scope or the scope of bodies covered by obligations under public procurement legislation.

Finally, I turn to Amendment 14A. This would remove from the Bill the powers granted to the Secretary of State to amend the schedule to make exceptions to the ban for certain bodies, functions and types of considerations, and to amend or remove regulations made under these powers. I understand concerns about the use of subordinate legislation—the noble Lord knows that—and we are lucky that we have such a good committee to supervise its use. However, these powers are necessary to ensure that the ban can evolve over time and operate as intended, for example in response to emerging global events.

I assure the noble Baroness, Lady Chapman, that the FCDO is fully supportive of this legislation, and all regulations made under this Bill would follow the normal procedure of cross-governmental clearance and, of course, be approved by the Foreign Secretary. In the event that in future the ban has unintended consequences for a certain public authority, it is right for the Secretary of State to have the power to exempt that body, or a function of the body, from the ban via statutory instrument—I think today’s debate shows that that is necessary—and this would be subject to affirmative resolution by both Houses.

These powers will also allow the Secretary of State to exempt certain types of considerations from the ban. For example, Ministers may decide to exempt a narrow type of consideration to ensure the ban can evolve in line with government policy. The powers future-proof the legislation to ensure the ban can continue to operate effectively and mitigate against any unforeseen circumstances.

Before I close, I should perhaps address the point made by the noble Lord, Lord Deben, on the environment. The ban applies only to decisions that target a particular country or territory. For example, environmental campaigns, including ones against fossil fuels that are not country specific, are outside the scope of this Bill. I also reassure my noble friend that the power in Clause 3 cannot be used to remove any exception to the ban in the Bill as passed by Parliament. There is a schedule the noble Lord can look at, which includes environmental misconduct, which we are coming on to discuss.

I hope, finally, to address the point raised by the noble Lord, Lord Davies of Brixton, with regard to why there is a separate clause in the Bill for local government pension schemes. The administering authorities for local government pension schemes are public authorities under Section 6 of the Human Rights Act. Capturing administering authorities of LGPS in a bespoke provision means that the Pensions Regulator can use its existing powers and procedures to enforce the BDS ban for the administering authorities of LGPS. That avoids the Pensions Regulator setting up a separate enforcement system for the Bill. I am happy to have a discussion with him; we often discuss pensions issues which are of limited interest sometimes to the whole House.

I hope that my response to this group of amendments —importantly, alongside the undertakings I gave in response to my previous group which we expanded a little to bring in telling examples—will help the Committee to understand why we have chosen the Human Rights Act definition and I ask the noble Lord to withdraw his amendment. I look forward to further discussion.

[Lord Collins of Highbury (Lab)]

I hope I am able to intervene at this point before the noble Baroness sits down—some of these new rules that have been introduced for Committee stage I find incredibly damaging to our ability to properly scrutinise this Bill; I raised that point at the committee.

The noble Baroness said that the FCDO fully supports this legislation. She may recall that, at the previous Committee day, I specifically raised this question because I wanted to inform the Committee of the precise nature of the FCDO’s advice following United Nations resolutions regarding the Occupied Territories, which are specifically mentioned in this Bill. Perhaps she can take this opportunity to tell us how that advice could potentially impact the sort of investment and procurement decisions that organisations might make. There is advice issued by the FCDO in relation to the Occupied Territories.

[Baroness Neville-Rolfe (Con)]

We are going to be discussing the Occupied Territories in a group two or three later in this Bill and I do not have an answer to the noble Lord on this point today, except to reiterate that this Bill has been collectively agreed. I was particularly talking about the arrangements for regulations which, in turn, had been collectively agreed. I explained the system that when you have a new statutory instrument, there is a write-round which involves all relevant Ministers. In this particular case, that would certainly include the Foreign Secretary.

[Lord Warner (CB)]

Before the noble Baroness sits down, can I ask her to take away the point I was ineptly trying to raise earlier? If a public body—we could take as examples housing, health and care—has an investment decision to make on a new building and/or new services, is it expected to find out more about the sources of the money going to be used to enable it to perform public functions and provide new public buildings? Are they expected to go that far?

[Baroness Neville-Rolfe (Con)]

I am grateful for that point, but I am not sure I entirely understand it, so perhaps I can offer to meet the noble Lord or to write to him and make sure that he gets an answer in good time.

[Baroness Chapman of Darlington (Lab)]

My Lords, I was not expecting this group to elicit quite the debate it did, but it was incredibly helpful and welcome in exposing what the noble Lord, Lord Warner, called “sloppy”. He makes a fair point. The Minister said that she did not like that phrase but, given that we have been unable to agree a definition of a “public function”, unable to elicit a proper definition of “procurement” and have not agreed what a “public body” is by any means, I have to agree with him.

This is not us being mendacious or deliberately creating problems for the Government, although you could argue that is a fair thing for the Opposition to want to do; that is not what we are doing here. Like the noble Lords, Lord Willetts and Lord Deben, we are trying to get to the real nub of how this Bill enables the Government to fulfil the commitments that we all accept they made in their manifesto. We understand that the Government want to stand by those commitments, but we are so concerned that the legislation before us could end up straying into so many more areas. I honestly do not think that when this went into the manifesto, anybody had sporting bodies or schools in mind, yet here we are with the Minister unable to answer some quite straightforward examples, including a very good one from my noble friend Lord Boateng. I regret that.

I agree with my noble friend Lord Collins that, when the Government Whip pops up to try and rescue the Minister from having to take too many more interventions, that is fair enough, those are now the rules, but this place is supposed to be able to spend a bit more time in Committee—

[Baroness Neville-Rolfe (Con)]

I think that is a little unfair. The noble Baroness knows that I am always ready to take interventions and have continued to do so. I am doing my best to do the job that this Chamber does so well. We have used the Human Rights Act definitions and this Chamber has decided that that causes problems. I am sure those are soluble.

18:30

[Baroness Chapman of Darlington (Lab)]

I absolutely did not mean any disrespect whatever to the Minister. She is completely right; she has never declined to take an intervention and has been very accessible on every occasion that I have needed her to be so outside this Chamber. The point I am making is that these considerations in Committee intentionally sometimes involve a lot of back and forth, because we are trying to get to the point—trying to understand, to improve and to do our jobs.

This has been a helpful debate. We leave with a few more questions even than we arrived with. I am sure we will come back to some of this in later stages but, for today, I beg leave to withdraw.

Amendment 14A withdrawn.

Amendment 15

Moved by

[Lord Hain]

15: Clause 3, page 2, line 24, at end insert—
“(2A) Regulations under subsection (2) may not amend the Schedule to remove environmental misconduct as an exception from the application of section 1.” Member's explanatory statement
This amendment seeks to ensure that the Secretary of State cannot remove environmental misconduct as an exception in the Schedule by regulations.

[Lord Hain (Lab)]

My Lords, my Amendment 15 seeks to answer the question: what would happen if a public authority imposed a boycott campaign which related to Israel and arose as a result of environmental misconduct in the Occupied Palestinian Territories, illegal under international law?

Under the Bill’s Schedule, the Clause 1 prohibition on the consideration of moral or political disapproval is lifted, so far as that

“consideration … relates to environmental misconduct”.

This includes, according to the Schedule,

“consideration related to the possibility of environmental misconduct having taken place or taking place in the future”,

while the definition of environmental misconduct here

“means conduct that … amounts to an offence, whether under the law of a part of the United Kingdom or any other country or territory, and … caused, or had the potential to cause, significant harm to the environment, including the life and health of plants and animals”.

Surely such accusations of environmental misconduct should also apply to the State of Israel. There is credible evidence that Israel has engaged in such misconduct, particularly through the actions of the Israel Defense Forces, in its occupation and military actions.

In its military action in Gaza, there are serious questions to be raised about environmental misconduct. Dr Saeed Bagheri, scholar of international law at the University of Reading, stated of Israel in January this year that there may

“be evidence to suggest that they have acted contrary to the International Committee of the Red Cross … position that the prohibition on inflicting widespread, long-term and severe harm to the natural environment is a rule of customary international law”.

He added:

“The actions by the Israeli Defence Force in Gaza have left chemicals from white phosphorus weapons that could linger in the environment for years. This can have a long term impact on the soil, affecting the growth of crops, and in Gaza agriculture takes up about a quarter of land. For individual farmers and their communities, this pollution and its long-term impacts could be devastating”.


However, such questions far pre-date the current horror in Gaza. The Institute for Middle East Understanding has set out a long list of allegations of environmental misconduct. In its actions in the Occupied Territories, long-standing allegations against Israel have been made about the deliberate destruction of olive trees and olive orchards; at least 2.5 million trees have been destroyed since 1967, yet Palestinians depend on these trees as a primary source of food and income. The destruction of natural wildlife since October has been stark: a recent estimate states that around 4,300 acres of trees and plant life have been cleared around the Gaza Strip by Israeli forces, not to mention the complete devastation of the natural and built environment within the Gaza Strip.

What of Israel siphoning off water supplies from the Occupied Territories? This has caused a permanent drop in the West Bank’s water table and distorted water flows, damaging agriculture and increasing flood and drought vulnerability. In February this year, the IDF itself confirmed that it is dumping seawater into tunnels and waterways below Gaza, an act which the director-general of the Geneva Water Hub described as polluting and contaminating, and poisoning Gaza’s aquifer.

We also know that Israel discharges 52 million cubic yards of untreated sewage and other hazardous materials each year into the West Bank. The Israeli Information Center for Human Rights in the Occupied Territories reported:

“Israel’s environmental policy in the West Bank—including situating polluting waste treatment facilities there—is part and parcel of the policy of dispossession and annexation it has practiced in the West Bank for the past fifty years.”


In the West Bank, and in contravention of the Geneva convention, Israel has appropriated most water sources for itself and restricts Palestinian access to them. Of course, this is not Israeli state or Israel Defense Forces activity alone; the administration of this occupation relies on a vast number of agencies and companies. Is it not reasonable for any public authority doing due diligence on environmental matters to prefer to disengage with any companies or agencies which are involved in such acts?

Many of these instances could feasibly fall foul of international law, such as Rome statute prohibitions on inflicting damage to the natural environment, Hague regulations provisions on natural resource use, and customary international humanitarian law principles on hostilities to the natural environment, to name a few. But the matter goes beyond the practical application of these examples raised. The question is also: can we exempt Israel and the Occupied Territories from the Schedule’s considerations without denying the very real possibility, now or in the future, of Israeli state or corporate environmental misconduct?

Israel’s human destruction of Gaza is being compounded by an environmental crisis. In Rafah, large family groups have been living cramped together with no running water or fuel, while surrounded by running sewage and waste piling up. Like the rest of Gaza’s residents, the air they breathe is heavy with pollutants and the water carries disease. Beyond the city streets lie ruined orchards and olive groves, and farmland destroyed by bombs and bulldozers. Forensic Architecture, a London-based research group, has shown how family farms close to Gaza’s border with Israel, cultivated for generations, have been destroyed, their orchards uprooted and replaced by military roads. Israel has suggested it could make this sort of thing permanent to create buffer zones along the border, where a lot of Palestinian farms are sited.

An analysis of satellite imagery, reported by the Guardian newspaper recently, showed the destruction of nearly half of Gaza’s tree cover and farmland—mainly because of the military onslaught by the Israel Defense Forces but also because, starved of fuel, desperate Gaza residents have cut down trees to burn for cooking or heating. Not only have olive groves and farms been reduced to rubble but soil and groundwater have been contaminated by munitions and toxins. The sea is full of sewage and waste. The air is polluted by smoke and particulates. The impact on Gaza’s ecosystems and biodiversity is colossal, leading to calls for it to be recognised as ecocide and investigated as a possible war crime.

United Nations environmental experts report massive amounts of debris and hazardous material in Gaza, with harmful substances such as asbestos, heavy metals, fire contaminants, unexploded ordnance and hazardous chemicals. When Israel cut off fuel to Gaza after the 7 October terrorist pogrom, power cuts meant that wastewater could not be pumped to treatment plants, leading to 100,000 cubic metres of sewage a day spewing into the sea. The sheer scale and long-term impact of all this environmental destruction has led to calls for it to be investigated as a potential war crime, and to be classed as ecocide, which covers damage done to the environment by deliberate or negligent actions.

Under the Rome statute, which governs the International Criminal Court, it is a war crime to intentionally launch an excessive attack knowing that it will cause widespread, long-term and severe damage to the natural environment. The Geneva conventions require that warring parties do not use methods of warfare that cause

“widespread, long-term and severe damage to the natural environment”.

Forensic Architecture argues that:

“The destruction of agricultural land and infrastructure in Gaza is a deliberate act of ecocide”.


I put Amendment 15 to your Lordships’ Committee with the intention of asking: how should a public authority act if it wishes to disengage with a company or enterprise which may be involved in acts such as these, which could amount to environmental misconduct under UK or international law, if that company is Israeli or if it engages in alleged misconduct overseen by the State of Israel?

The Bill is clear that the Schedule considerations override Clause 1 prohibitions on boycotts. However, it is not clear whether the Schedule also applies to Clause 3, which likewise overrules Clause 1. This could present a glaring contradiction in the current formulation of this Bill, and one which I very much hope the Government and the Minister will respond to. It needs to be resolved through this amendment. I hope the Minister will come back on Report having accepted the amendment to deal with this matter.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak to my Amendments 32A and 32B. Amendment 32A would expand the environmental grounds on which a public body is allowed to make certain economic decisions. Amendment 32B would extend the definition of environmental misconduct to include damage, regardless of whether it is legal or illegal, and to include species, habitats and the natural world.

It is quite positive that this Bill at least recognises that public authorities should be able to consider environmental issues when deciding whether to spend taxpayers’ money on goods and services purchased from outside the UK, or when deciding how to invest the pensions of public sector workers and retirees. However, this environmental carve-out is far too narrow. I do not understand how public authorities can be forced to ignore environmental destruction as long as that destruction is not a criminal offence. I have worked closely with Friends of the Earth on these amendments, and they were also tabled in the Commons by my honourable friend Caroline Lucas.

We are all deeply concerned about this fundamentally flawed Bill and the impact it will have on public bodies’ legitimate procurement or investment decisions about companies or products that are destroying the natural environment, including pollution overseas and climate breakdown. All public bodies must be free to avoid investment in fossil fuels, which are contributing to climate breakdown.

This Bill sets out an uneven treatment between local or UK-based businesses and foreign enterprises, particularly where they are owned or controlled by a foreign state. A local council will remain entitled to refuse to purchase timber from a business that is clear-cutting the local woodland, but if it is in a foreign country linked to a foreign Government then the council will be prohibited from even considering the impact of clear-cutting woodlands and rainforests around the world. These types of considerations—so-called ESG criteria—are now quite routine, even mundane, among both the public and private sector. Public authorities should be entitled to consider the same types of environmental issues that they would consider if interacting with a UK-based business. There is no justification for it to be any other way, other than a totally misguided belief that the nature, land, air and water in the United Kingdom is inherently more valuable or deserving of protection than that outside the United Kingdom. That sounds slightly colonial to me.

Why have the Government chosen to draft this so tightly, so that the only environmental considerations are whether or not the environmental damage constitutes a criminal offence? I hope the Minister can see the glaring flaws in this approach and the obvious harms it will lead to. I ask noble Lords across the Committee, including the Minister, to work with us on this issue so that we can bring something that we can all support to Report. Environmental crime must not be set as a bar beyond which anything goes in public procurement and the investment of public pensions.

House resumed.

Safety of Rwanda (Asylum and Immigration) Bill

Consideration of Commons amendments
Wednesday 17th April 2024 Lords Chamber

Commons Reasons

18:46

Motion A

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendment 1D, to which the Commons have disagreed for their Reason 1E.

1E: Because the Commons consider that the provisions of the Bill are compliant with domestic and international obligations, and that it is therefore not necessary to refer expressly to having due regard for domestic and international law when setting out the purpose of the Bill.

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

My Lords, in moving Motion A I will also speak to Motions B, B1, C, C1, D and D1. I am grateful to noble Lords on all Benches for their careful consideration of this Bill. We have debated the same issues for some time, and it is of course right that the Bill is properly scrutinised. However, the time has come to get the Bill on to the statute book.

Motion A relates to Lords Amendment 1D in the name of the noble Lord, Lord Coaker, which seeks to make it clear in the Bill that it must have due regard to international law and specific domestic legislation. As I made clear yesterday, the Government take their responsibilities and international obligations incredibly seriously. The Bill simply ensures that Parliament’s sovereign view that Rwanda is a safe country is deferred to and binding in domestic law. This is to avoid systemic legal challenges frustrating removals. What it does not mean is that the Bill legislates away our international obligations. There is nothing in the Bill that requires any act or omission that conflicts with our international obligations.

In relation to domestic law, I have set out in previous debates the provisions in the treaty that take account of the needs of children and those who are victims of modern slavery. Rwanda has a long history of supporting and integrating asylum seekers and refugees, having already hosted over 135,000 refugees and asylum seekers, including women and children, and it has the necessary provisions in place to support those who are vulnerable.

I turn to Amendment 3G in the name of the noble and learned Lord, Lord Hope. At this late stage in the passage of the Bill I fear I am repeating much of what I have previously stated, but it is important to make it clear and to re-emphasise that we 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.

Article 24 of the treaty states that the treaty will

“enter into force on the date of receipt of the last notification by”

Rwanda or the UK

“that their internal procedures for entry into force have been completed”.

Both I and my noble and learned friend Lord Stewart of Dirleton set out yesterday the details of the internal procedures that are now in place and continue to be put in place. We have spoken at length during our many debates about the monitoring committee, so I do not propose to reiterate all the details which are clearly set out in the Government’s published policy statement. However, it is important to point out again that the joint committee and the independent monitoring committee will oversee the partnership and ensure that the obligations under the treaty are adhered to in practice. This will prevent the risk of any harm to relocated individuals, including potential refoulement, before it has a chance to occur. As I said yesterday, there will be an enhanced phase of monitoring.

As I also set out yesterday, Article 4(1) of the treaty sets out that it is for the UK to determine

“the timing of a request for relocation of individuals under this Agreement and the number of requests”.

This means that the Government would not be obligated to remove individuals under the terms of the treaty if there had been, for example, an unexpected change to the in-country situation in Rwanda that required further consideration. Pausing removals to a particular country in response to any potential changes which may affect that country’s safety and suitability for returns is the general approach the Government take across the board and will continue to take when looking to relocate individuals to Rwanda.

Moving to Amendment 6F in the name of the noble Baroness, Lady Chakrabarti, as clearly expressed by the other place on several occasions now, this is an amendment the Government simply cannot accept. It seeks to undermine the key measures of the Bill and is completely unnecessary. We have made it clear that we cannot allow relocations to Rwanda to be frustrated and delayed as a result of systemic challenges on its general safety. In this context, the safety of a particular country is a matter for Parliament, and one on which Parliament’s view should be sovereign. The evidence we have provided and the commitments made by the United Kingdom and the Government of Rwanda through the internationally binding treaty enable Rwanda to be deemed a safe country. This Bill makes it clear that this finding should not be disturbed by the courts.

Turning to Motion D, which relates to Amendment 10F in the name of the noble Lord, Lord Browne, as I said yesterday—and I again reassure the House—once the UKSF ARAP review has concluded, the Government will re-visit and consider how the Illegal Migration Act 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 and have earned. The Government recognise the commitment and responsibility that comes with combat veterans, whether our own or those who have shown courage by serving alongside us. We will not turn our backs on those who have served.

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to Amendment B1, as an amendment to Motion B.

I have asked for a further amendment in lieu to be put down, because I have raised important issues which need to be resolved before the Bill finally passes. As has been mentioned by the Minister, the Act will come into force on the day on which the Rwanda treaty enters into force. This means that your Lordships are being asked to say that, as from that very moment and without more, Rwanda is a safe country. That is not all, as Clause 2 states that from that date, every decision-maker, including the Secretary of State himself,

“must conclusively treat the Republic of Rwanda as a safe country”.

That is so, whether or not the treaty has been fully implemented, and whether or not Rwanda ceases to be safe some time in the future. The Secretary of State, just like any other decision-maker, will be locked by the statute into the proposition that Rwanda is a safe country, with no room for escape. In other words, it is no use his advisers saying that things still need to be done before all the protections and systems that the treaty provides for are in place. Nor is it any use his advisers saying that as these arrangements have broken down, Rwanda can no longer be considered safe. The Secretary of State is required by the statute to disregard that advice. He has no discretion in the matter. That is what the word “conclusively” in Clause 2 means.

The Minister has told the House several times that the Government are not obligated by the treaty to send anybody to Rwanda if the facts change. That may well be so, but that is not what the Bill says. The Secretary of State is bound by the statute to ignore any such changes. He is required by Clause 2 to treat Rwanda as safe, conclusively, for all time. If the Minister will forgive me, his head is buried in the sand, like that of the proverbial ostrich.

My amendment seeks to add two provisions to Clause 1. Before Rwanda can be judged to be a safe country, the mechanisms that the treaty provides for must be put into practice. Ratifying the treaty is an important step, but that is not enough. As has been pointed out repeatedly, the situation on the ground is still being developed. The treaty must be implemented before Rwanda can be considered safe. My amendment seeks to write into the Bill a provision whereby Rwanda cannot be treated as a safe country until the Secretary of State has laid before Parliament a statement from the independent monitoring committee that the key mechanisms the treaty provides for have been created. It provides that Rwanda will cease to be a safe country for the purposes of the Act if the Secretary of State makes a statement to Parliament to that effect. In other words, it provides the Secretary of State with the escape clause he needs if he is to escape from the confines of Clause 2, should that situation develop.

I remind your Lordships of what Sir Jeremy Wright said in the other place when my amendment was being considered there on 18 March:

“But it is simply not sensible for Parliament not to be able to say differently, save through primary legislation, if the facts were to change … the Government … should give some thought to the situation of the Bill…it must be right for Parliament to retain the capacity to reconsider and if necessary revise it”.—[Official Report, Commons, 18/3/24; cols. 679-80.]


Developing the point this afternoon, he said that I was wrong in my then amendment to give it to the monitoring committee to decide whether Rwanda was safe, as this should be a matter for Parliament. I agree with him and, as it happens, I have already deleted the reference to the monitoring committee from this part of my latest draft. What I am proposing now is that it be left entirely to the Secretary of State to decide, although he would no doubt seek the advice of that committee.

Sir Bob Neill and Sir Robert Buckland, both of whom spoke in favour of my amendment last time, also spoke in support of it this afternoon. Sir Robert Buckland accepted that there needs to be a system by which it can be verified that the treaty has been fully implemented. He said that to do this would reduce the possibility of legal challenge. He said that a reliable method of doing this was to use the monitoring committee set up by the treaty itself. He also said that there needs to be a mechanism for dealing with the situation if Rwanda is no longer safe, without resort to the time-consuming method of primary legislation. That is what my amendment seeks to provide, and as to the question of what happens in the future, my system is flexible: the Secretary of State can come to Parliament and say that Rwanda is not safe. He does not need primary legislation, so the Act is still there, and he could come back when the situation is cured to say that Rwanda can be regarded as safe now. It provides not only an escape clause but flexibility to enable the Act to continue if necessary, without the amending legislation.

The Commons reasons set out in the Marshalled List are exactly the same as last time. They state that my amendments are “not necessary” because the Bill comes into force when the treaty comes into force, and that

“it is not appropriate for the Bill to legislate for Rwanda adhering to its obligations under the Treaty as Rwanda’s ongoing adherence to its Treaty obligations will be subject to the monitoring provisions set out in the treaty”.

No doubt that is so, but that still fails to face up to what I am saying on both points.

In short, the coming into force of the treaty is not enough. We need confirmation and verification that it has been implemented before we can make the judgment that Rwanda can be considered safe. It simply is not sensible for Parliament not to be able to say differently, save through primary legislation, if the facts were to change.

I regret that I have had to press my points yet again. It is not my intention to obstruct the operation of the Bill in any way. My amendment is necessary to make sense of the Bill. It is modest, simple and easy to operate. The other place needs to think yet again.

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute privilege to follow the noble and learned Lord, Lord Hope. There are three Motions left: B1, C1 and D1. Motion B1, as we have heard, is the parliamentary sovereignty amendment—that, if I may say so, is what the noble and learned Lord has just described. If the Bill is about restoring sovereignty to Parliament, then Parliament must have an ability to scrutinise the ongoing future safety of Rwanda. Forgive me for paraphrasing.

19:00

Motion C1 is the rule of law amendment, which has been amended after I listened to a particular exchange last night about what would happen if the facts changed in Rwanda. Would the Secretary of State be able not to send people to Rwanda? As we have just heard once more from the noble and learned Lord, the Secretary of State’s hands are tied by this legislation. Even if the Secretary of State—or, dare I say it, a future Secretary of State—believed that the facts had changed, they would be bound by this legislation to send people to Rwanda. So I amended my amendment to take out immigration officers to avoid systemic challenges but just to allow the Secretary of State to make a judgment, and for that to be reviewed by the courts. That is the rule of law amendment.

Motion D1, in the name of my noble friend Lord Browne of Ladyton, is the debt of honour amendment—the debt to those who have paid in courage and blood for a promise that they would be looked after by the Crown that they served. Many of them are refugees in the first place only because they served this country.

Those are the three amendments. I will not be pressing the rule of law amendment because it is right for your Lordships’ House to focus on what is attainable at this stage in the process, but I take this opportunity to thank noble Lords across the House for the moral and practical leadership that they have shown in this legislation to this generation of voters and future voters. Noble Lords’ grandchildren can be proud of what they have done over this Bill.

I will not be pressing Motion B1 but I urge every noble Lord in this House to support the noble and learned Lord, Lord Hope of Craighead, in his parliamentary sovereignty amendment and my noble friend Lord Browne of Ladyton in the debt of honour amendment this evening.

[Lord Browne of Ladyton (Lab)]

My Lords, it is a great pleasure to follow my noble friend Lady Chakrabarti, and I thank her enormously for her words of support for Amendment 10F. I also thank her for her continued support throughout the time that I have been pressing this amendment in my preparations and other aspects of what I have been doing in your Lordships’ House.

I will speak to Motion D1 and Amendment 10F in lieu. I began my remarks yesterday with a promise not to rehearse the moral case for the amendment. I add to that the promise not to rehearse the compelling long- term strategic security case for it to protect our future credibility as an ally, nor to rehearse in detail the irrationality of the Government’s two principal lines of argument in refusing to accept the principle of exempting a small number of ill-served brave Afghan fighters, who are already here in the UK, from deportation. Rather, as this is the fifth time that I have had to make a speech in your Lordships’ House in support of a variant of this amendment, I refer noble Lords to cols. 906-08 of the Official Report for yesterday—that is for those of you who are not already word-perfect on my speeches on this.

Since yesterday the halls of this Parliament and beyond have echoed to suggestions, and in some cases reassurances, that we who support this amendment could expect a statement of assurance from the Government about the fate of this small body of brave soldiers who fought with our forces in Afghanistan and are in this dilemma, facing compulsory deportation to Rwanda, only because of our Government’s sclerosis and administrative shortcomings and the possible venal dishonesty of some forces that they served with, which have resulted in the wrongful refusal of the ARAP status that they would have been awarded and which would have included visas for them, thus enabling them to escape certain death rather than compelling them to take irregular routes here in the first place. If those assurances had been bankable, our party and I would have engaged with them. A promise of such assurances was supported by credible evidence of high-level exchanges, but that was withdrawn this afternoon. I understand that that is because of a political policy decision at No. 10 that was reflected in a statement by the Prime Minister’s spokesperson. I would read it out to noble Lords but they can read it for themselves.

We are left with the best that the noble Lord, Lord Sharpe, for whom I have great regard, can offer. I will read the assurance from yesterday that he repeated today in his short, interrupted speech:

“I turn to Motion F and Amendment 10D. As we have set out before, the Government recognise the commitment and responsibility that comes with combat veterans, whether our own or those who have shown courage by serving alongside us, and we will not let them down. Once again, I reassure Parliament that, once the UKSF ARAP review has concluded, the Government will consider and revisit how the Illegal Migration Act and removal under existing immigration legislation will apply to those who are determined ARAP eligible as a result of the review, ensuring that they receive the attention that they deserve”.—[Official Report, 16/4/24; col. 901.]


That is what we have, but I do not have any faith in the Government’s attitude to the brave men and women concerned from that assurance. I do not understand what it means. I do not take any assurance from it, given not only the way that these individuals have been treated but the way that your Lordships’ House and my noble friends have been treated over the last 24 hours. I also do not take any reassurance from it because, as a parent, a practising lawyer and a politician, on occasions in my life when I have “ensured that people receive the attention that they deserve”, it has normally resulted in me scolding them, disciplining them or telling them they were wrong and they will have to be punished. It does not seem to give any assurance that there will be any positive result; it sounds more like a threat than anything else.

As I said yesterday, now is the time to give these people the sanctuary that their bravery has earned. This worthless assurance will not do. I therefore feel compelled to test the mood of your Lordships’ House and to send the message to the other place that it is time the Government learned the political consequences of the failure either to give an assurance that is bankable or to accept this amendment. There is little, if any, support in your Lordships’ House for the failure to do so, and there is certainly no majority support in the country for us to treat these brave people this way.

[Lord German (LD)]

My Lords, I do not intend to repeat the arguments that were made yesterday for the two amendments that I understand are going to be pushed to a vote. I shall simply say this about the amendment from the noble and learned Lord, Lord Hope: it provides Parliament and the Government with protection. Parliament, including this House, is provided with protection by the amendment in declaring that Rwanda is a safe country when we do not have the evidence of it being so. The amendment gives us security. Secondly, it provides protection for both present and future Secretaries of State, whose ability to act when Rwanda is perhaps declared as not being safe in the future is constrained by the Bill that we are being asked to pass without amendment. It is therefore essential for both Parliament and the Government to have the protection that this Motion provides.

In respect of the amendment from the noble Lord, Lord Browne, I was hoping to hear from the Government a concrete guarantee that Afghan supporters and allies, who provided such great service to the United Kingdom, would be given the right to live in our country. No such guarantee has been given. Vague words do not stand the test here, and it is essential that this House stands by the resolve it has shown by ensuring that this matter is referred back to the other House to really consider its obligations to those who have served this country.

[Lord Coaker (Lab)]

My Lords, it is a great privilege to follow the speeches that we have heard this evening. What a brilliant speech that was from the noble and learned Lord, Lord Hope, setting out in clear and concise terms why your Lordships should vote for his Motion B1. To put it more simply, at the moment the Bill says that two and two is three and a half; the noble and learned Lord’s amendment makes two and two make four.

The Government should listen. The amendment would not delay or stop the Bill—it is not an obstacle to the Bill—but would simply make the Bill make sense. It uses the monitoring committee, set up by the treaty that the Government have put forward, to say to the Government in a very simple way, “Rwanda is now safe, because all the mechanisms outlined in the treaty have been put in place”. The Government have committed themselves to that, and if the amendment is accepted it will simply allow the monitoring committee to inform the Government of that fact.

More important, perhaps, is the second part of the amendment, whereby the monitoring committee could rescue the Government from what is in the Bill, if at some point in the future Rwanda became unsafe, by letting the Government know—or the Government themselves could act. Why on earth would the Government oppose that amendment? It is completely unbelievable that a sensible amendment like that has not been accepted.

I say to the Government—to those on the Front Bench both here and in the other place—that they should reflect properly on what the noble and learned Lord is saying. I hope that your Lordships will reflect on the words before us. We will certainly support his Motion B1.

The other brilliant speech was that of my noble friend Lord Browne on Motion D1. I have said this before, and I say it again, with a lot of regret. I do not blame the Minister or the others on the Front Bench, but it is inexcusable for the Government to say, 24 hours ago, to His Majesty’s Opposition and others that we could expect something to be done about this amendment —that we could almost accept that it would be accepted, changed and put into the Bill—only for us to find out, when we woke up this morning, that nothing like that had happened. I am not talking about the Front Bench in this place, but that is a terrible way for the Government to behave. It is inexcusable for us to be told what we have been told.

The Minister has carried on with the Bill for months now. He has included us, talked to us and treated us with respect. But somewhere along the line, those on the Front Bench here have been told what to do by somebody. We would like to know who. Who has turned around and said that my noble friend Lord Browne’s amendment is unacceptable? Who in this House believes that we do not have a moral duty to those who stood by our Armed Forces, fought with our Armed Forces and in some cases died with our Armed Forces, and did all they could to ensure that the values of this country and the coalition that operated in Afghanistan were as successful as they could be? Who on earth in His Majesty’s Government has decided that those people do not deserve the protection of my noble friend’s amendment?

This is an astonishing situation. It is wrong. It is morally bankrupt. The Government have failed in their duty to protect those they promised to protect. That cannot be right. I say to noble Lords opposite, particularly when they are asked to vote on my noble friend’s amendment, that this is not only to do with whether they are Conservative, Labour, Liberal or Cross-Benchers, or of no persuasion at all. It is a matter of standing up for the moral certainty of what His Majesty’s Government, of whatever colour, stand for—that when they give their word to other countries, and to those defending the freedoms, the democracy and the values that we care for, those people can trust that word. The Government of today are breaking their word to those veterans, and that is what my noble friend Lord Browne’s amendment seeks to address.

19:15

The amendment from the noble and learned Lord, Lord Hope, is important from a legislative and a moral point of view. My noble friend Lord Browne’s amendment speaks to what sort of country we are and what sort of country we would want others to see us as. How on earth can we stand in the corridors of power of the various international institutions and have the moral certainty and the moral position that we would all want?

I do not believe that those on the Front Bench here agree with their own Government on this. Their Government are asking them and all their Back-Benchers to vote for something that is morally bankrupt—something that goes against what we promised those who stood with us in Afghanistan. We promised that we would protect them—but we are not going to do that, because my noble friend’s amendment will not be passed if we send it to the other place and those there do not give way. We are not going to exempt them from the provisions of the Bill. It does not matter what political party you stand for; that cannot be right. I ask and urge every Member of your Lordships’ House not only to consider the noble and learned Lord’s Motion B1 but, when we come to my noble friend’s Motion D1, to consider what the consequences will be for this country if we cannot ensure that our word is our bond.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions to this relatively short debate. The House of Commons has now considered and rejected these amendments on several occasions. I will keep my remarks brief and simply remind noble Lords of the key points.

We 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. Rwanda has a strong track record of welcoming asylum seekers and looking after refugees, and it has also been internationally recognised for its general safety and stability. The Bill complies with our international obligations and allows direct access to the courts and an appropriately limited possibility of interim relief, consistent with what is required by the ECHR. No word is being broken. We will not turn our backs on those who have supported our Armed Forces and the UK Government.

It is simply not right for criminal gangs to control our borders and decide who enters the UK. It is not right that they exploit vulnerable people and put lives at risk—their own and others’. It would not be right if this Parliament did not pass this legislation, which will enable us to protect those being exploited, protect our borders and stop the boats.

Motion A agreed.

Motion B

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendment 3E, to which the Commons have disagreed for their Reason 3F.

3F: Because the Commons consider that it is not necessary to refer expressly to the arrangements in the Rwanda Treaty being, and continuing to be, implemented and adhered to; the Bill is clear that it comes into force on the day on which the Rwanda Treaty enters into force and it is not appropriate for the Bill to legislate for Rwanda adhering to its obligations under the Treaty as Rwanda’s ongoing adherence to its Treaty obligations will be subject to the monitoring provisions set out in the Treaty.

[Lord Sharpe of Epsom (Con)]

My Lords, I have already spoken to Motion B. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

[Lord Hope of Craighead]

At end insert “, and do propose Amendment 3G as an amendment in lieu of Amendment 3E—

3G: Clause 1, page 2, line 31, at the end insert—
“(7) The Republic of Rwanda cannot be treated as a safe country for any of the purposes of this Act until 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 Rwanda Treaty have been secured by the creation of the mechanisms listed in that Article.
(8) The Republic of Rwanda can no longer be treated as a safe country for any of the purposes of this Act if a statement is made to Parliament by the Secretary of State that the provisions of the Rwanda Treaty are no longer being adhered to in practice.””

[Lord Hope of Craighead (CB)]

My Lords, I do not wish to say any more; I simply wish to test the opinion of the House on my Motion B1.

19:20

Division 1

Ayes: 245

Noes: 208

19:31

Motion C

[Lord Sharpe of Epsom]

Moved by

That this House do not insist on its Amendment 6D, to which the Commons have disagreed for their Reason 6E.

6E: Because the Commons consider that it is not appropriate to leave out clause 4 of the Bill and insert the new clause in the Amendment, as the Bill allows decision-makers to consider claims that Rwanda is unsafe for an individual due to their particular circumstances.

[Lord Sharpe of Epsom (Con)]

My Lords, I have already spoken to Motion C; I beg to move.

Motion C1 (as an amendment to Motion C) not moved.

Motion C agreed.

Motion D

[Lord Sharpe of Epsom]

Moved by

That this House do not insist on its Amendment 10D, to which the Commons have disagreed for their Reason 10E.

10E. Because the Commons consider that it is not necessary as the only way individuals should come to the UK is through safe and legal routes.

[Lord Sharpe of Epsom (Con)]

My Lords, I have already spoken to Motion D; I beg to move.

Motion D1 (as an amendment to Motion D)

[Lord Browne of Ladyton]

Moved by

At end insert “, and do propose Amendment 10F in lieu—

10F: After Clause 5, insert the following new Clause—“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) allies or agents who have supported His Majesty’s armed forces overseas in an exposed or meaningful manner that now affects their claims 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 or persons referred to in paragraph (a) or (b) above;(d) persons who were the partners or family members of persons referred to in paragraph (a) or (b) above in a manner that now affects their claim for protection.(2) The exemption in subsection (1) above includes but is not limited to persons eligible for entry to the UK under the Afghan Relocation and Assistance Policy (“ARAP”) and Afghan Citizens Resettlement Scheme (“ACRS”).(3) A person seeking to rely upon the exemption in subsection (1) above shall give the Secretary of State notice within one week of arrival in the UK to allow prompt verification of available records as to allies, agents, employees, contractors and family members. (4) Failure to give reasonable notice as required under subsection (3) above, may in the absence of available records verifying the claimant’s qualification for exemption under this section, allow a court or tribunal to draw adverse inferences as to the credibility of the claimant’s case for exemption.””

[Lord Browne of Ladyton (Lab)]

My Lords, I wish to test the opinion of the House.

19:33

Division 2

Ayes: 247

Noes: 195

Cass Review

Wednesday 17th April 2024 Lords Chamber

Statement

The following Statement was made in the House of Commons on Monday 15 April.

“With your permission, Madam Deputy Speaker, I would like to make a Statement on the Cass review of gender identity services for children and young people. May I say how pleased I am that we are joined by parents of children who have been affected by some of the issues raised in this review? I hope all of us will bear the sensitivities of this debate in mind as we discuss it this afternoon.

This review strikes hard and sure at an area of public policy where fashionable cultural values have overtaken evidence, safety and biological reality. This must now stop. As recently as 2009, the NHS’s sole gender identity development service at the Tavistock and Portman NHS Foundation Trust received fewer than 60 referrals for children and young people, and just 15 for adolescent girls. Since then, demand has surged. By 2016, over 1,700 children and young people a year were referred—a 34-fold increase. More than half were teenage girls. In 2022, more than 5,000 children and young people were referred to gender identity clinics, and almost three quarters were female.

This exponential increase in demand is not a coincidence; it has been driven by a number of factors which I will come to later, but at its heart it was driven by a myth. This myth was that for children and young people grappling with adolescence who were questioning their identity, their sexuality or their path in life, the answer to their questions was inevitably to change gender to solve their feelings of unease, discomfort or distress.

That near-uniform prescription was imposed on children and young people with complex needs without full and thoughtful consideration of their wider needs, including, as is set out in the report, conditions such as neurodiversity, experiences such as childhood trauma or mental health conditions, or indeed discovering who it is that they may one day fall in love with. Indeed, the response from some of the people who should have protected them—some of the clinicians in charge of their care at the Tavistock clinic—was almost always to put them on an irreversible path: blocking puberty, then prescribing cross-sex hormones, and on to surgery as an adult. In other words, such professionals were not asking the right questions of themselves or of their patients.

That is why in 2020, with the support of my predecessors, my right honourable friends the Members for West Suffolk, Matt Hancock, and for Bromsgrove, Sir Sajid Javid, NHS England commissioned Dr Hilary Cass to examine the state of services for children questioning their gender. I would like to start by thanking Dr Cass and her team for undertaking a considered, comprehensive and courageous review into an extremely contentious area of healthcare. Since NHS England commissioned the review in 2020, they have meticulously unpicked what went wrong, what the evidence really shows and how to design a fundamentally different service that better serves the needs of children.

I must also thank those who raised the alarm and contributed to the review over the last four years: the clinicians who spoke up against their peers to blow the whistle about what was happening at the Tavistock clinic, even though it risked their careers; the journalists, academics and activists who listened to their stories and investigated further, even when they were derided as bigots and transphobes; the parents who were just trying their best to support their children, but were so badly let down by a service that vilified them for questioning whether the interventions offered were right for their children; and, of course, the young people themselves who have shared their experiences, including those who have gone through the pain of de-transitioning only to find out that the so-called ‘reversible’ treatments they were offered are not in fact reversible.

The Cass review makes for sober reading. It is extremely thorough, so I will not attempt to cover all its recommendations today, but I genuinely encourage all Members to read the report in full. It should concern every single Member of this House that part of our public space—the NHS—was overtaken by a culture of secrecy and ideology that was allowed to trump evidence and safety. We say enough is enough; our young people deserve better, and we must do whatever it takes to protect them.

Since the publication of Dr Cass’s interim report in 2022, a series of important changes have been made, and I put on record my thanks to NHS England’s chief executive, Amanda Pritchard, and all those at NHS England who have worked hard with Dr Cass to implement them. On 31 March, the Tavistock clinic finally closed, having stopped seeing new patients a year earlier. Two new regional hubs have been opened, in partnership with the country’s most prestigious children’s hospitals, to ensure that children are supported by specialist, multidisciplinary teams. Indeed, another hub will follow in Bristol later this year.

In the past few weeks, NHS England made the landmark decision to end the routine prescription to children of puberty blockers for gender dysphoria. On the day of publication of Dr Cass’s final report, it announced that it is stopping children under 18 from being seen by adult gender services with immediate effect, and an urgent review on clinical policy for cross-sex hormones will now follow without delay. I also welcome NHS England’s plans to bring forward its full review of adult services, including Dr Cass’s recommendation for a follow-through service for young people up to the age of 25.

I also share Dr Cass’s concerns that clinicians who subscribe to gender ideology will try to use private providers to get around the rules. Let me give a very clear warning: prescribing is a highly regulated activity, and the Care Quality Commission has not licensed any gender clinic to prescribe hormone blockers or cross-sex hormones to people under the age of 16. Any clinic that does may be committing extremely serious regulatory offences for which its licence can be revoked and its clinicians can be struck off. My officials have been in contact with the CQC following the final report to ask that it looks again at the age thresholds in its licensing conditions.

The CQC has also reassured us that it will incorporate Dr Cass’s recommendations into its safe care and treatment standards for all care providers. That means that all new providers will be asked if their practices respect the Cass review, and all existing providers have to meet the same rigorous standards when they are reviewed by the CQC. My officials met the General Medical Council over the weekend, and will do so again in the coming days, to understand how it will ensure that every clinician on its register follows its code of practice and implements the wider findings of the Cass review.

It is morally and medically reprehensible that some online providers not registered in the UK have stated their intention to continue to issue prescriptions to children in this country. I am looking closely at what can be done to curtail any loopholes in prescribing practices, including legislative options. Nothing is off the table, and I will update the House in due course as we progress that work at pace.

Dr Cass also found that there was a lack of robust data on what happened to the 9,000 children who were treated by gender identity services between 2009 and 2020. Many went on to continue their treatment at adult clinics, and the University of York had been due to research the long-term consequences of treatment they received as children, so that we can properly support them through their journey into adulthood. It was expected to provide important insights into the clinic’s work, including how many patients de-transitioned and how many were also diagnosed with a mental health condition or an autism spectrum disorder.

This Government took the unprecedented step of changing the law to make it possible for adult gender clinics to share medical data with the university. All bar one of the adult gender clinics refused to co-operate with this vital research. To quote Dr Cass, that is ‘unacceptable’, but I would go even further: I think it is deplorable and a dereliction of their professional duty. I am pleased to update the House that following the publication of Dr Cass’s report, I have been informed that all seven clinical leads for the adult gender services now intend to fully participate in this important work.

Dr Cass also concludes that a cultural shift alone ‘does not adequately explain’ the huge growth in young women being referred to gender services. She paints an alarming picture of digitally engaged young women who are frequently exposed to pornography involving violent, coercive, degrading and pain-inducing acts. Is it any wonder than more and more of them are looking for ways to opt out of becoming women? That is deeply troubling and, as Dr Cass makes clear, we have a duty to support those young women with considered, evidence-based care.

Our children deserve healthcare that is compassionate, caring and careful. Their safety and well-being must come above any other concern, and anyone who threatens it must be held to account. I will work with NHS England to root out the ideology that has caused so much unnecessary harm, to support those who have already received life-altering treatment, to give the next generation access to holistic care, and to protect our children’s futures. Anything less would be neglecting our duty to the next generation. That will not happen under this Government, and it will not happen under my watch”.

19:45

[Baroness Merron (Lab)]

My Lords, Dr Cass and her team are to be thanked for their rigour and their care with this report, in which they have navigated many complex and sensitive issues. This review into the NHS’s gender identity services concludes that children and young people have been let down by inadequate research and evidence on medical interventions, and they have been failed by inadequate services amidst a debate which has, sadly, been marked by extreme toxicity.

At the same time, at the heart of the complexity around gender identity services are two aspects that are simultaneously true. There are trans adults who have followed a medical pathway and say that, for all the pain and difficulty involved, it was not just life-affirming; it was life-saving. There are also people who followed a medical pathway and say that it has ruined their lives irreversibly and ask how anyone could let that happen. For those children, young people, and now adults, but particularly those who are being referred into gender identity services today, there is a duty to get this right.

The Cass review refers to many scandals, which exposes both the inordinate amount of time that children and young people are waiting for care while their wellbeing deteriorates, and medical interventions that have been made on what could be called shaky evidence. Can the Minister say how it came to be that NHS providers refused to co-operate with this review? How was it allowed that adult gender services would not share data on the long-term experience of patients? What accountability does the Minister feel that there should now be?

The Minister will know that the discussion around the substance of the review has been highly toxic. People have felt silenced, and it has required investigative journalism to prompt this review to take place. Tribute should be paid to journalists, including Hannah Barnes, and to the whistleblowers, who together helped shine a light on the Tavistock clinic. It is concerning to note that Dr Cass said that the

“toxic, ideological and polarised public debate has made the work of the review significantly harder”,

and that will

“hamper the research that is essential to finding”

a way forward. This particularly vulnerable group of children and young people is at the wrong end of the statistics when it comes to mental ill health, suicide and self-harm. They have been badly let down, so we owe it to them to approach this discussion with the sensitivity it demands.

Parts of this report today will sound very familiar: services unable to cope with demand; significant staff shortages; a lack of workforce planning; and unacceptably long waits for the mental health support and assessments that children and young people need, such that in some cases children become adults before they even get a first appointment with the gender identity services. To this point, the Cass review recommends a follow-through of services up to the age of 25, to ensure continuity of care. Will the Minister indicate how long it will take to establish these services, and could the Minister set out what plans there are to cut waiting times for assessments for mental health and neuro- developmental conditions?

Last month’s decision by NHS England to stop the routine prescription of puberty blockers to under-18s is welcome. However, the loophole that exists for private providers risks illegal trading. In the other place, the Secretary of State said that she expected private clinics to follow the report’s recommendations to follow the evidence. I underline our support for these expectations on compliance. Does the Minister consider that further regulation might be needed to enforce the recommendations? Could he say something more about the timescales involved in making progress, both for the CQC to incorporate the recommendations into its safe care and treatment standards and for NHS England’s urgent review on clinical policy for cross-sex hormones?

Children’s healthcare should always be led by the evidence and be in the best interests of their welfare. Dr Cass’s report has provided the basis on which to go forward. This report must also provide a watershed moment for the way in which society and politics discuss this issue. There are children, young people and adults, including trans children, young people and adults, who are desperately worried and frightened by the toxicity of the debate. There are healthcare professionals who are scared to do their job and make their views known. I hope that we can now put children’s health and well-being above all else.

[Baroness Burt of Solihull (LD)]

My Lords, I believe that the Cass review is an extremely thorough summary of where we are now and of the pathways available to young people that we need to explore. Most importantly, this report gives a way forward for young people and their clinicians who feel anxious and frightened because they find themselves at the centre of a political maelstrom.

Interestingly, the most balanced response I have seen to the report came from Stonewall, which was consulted by Cass, and I have used some of its points here. Cass says that these youngsters have been sorely neglected by the NHS, which sidelined them away from mainstream care to services that have fallen short. She points to how we can start the process of making it up to them, by giving them the holistic care that they need and deserve.

Despite the way in which the report was received by certain gender-critical individuals, it does not question trans identities or recommend rolling back healthcare access. It does not say that puberty blockers are unsafe or dangerous. It does say that there is insufficient and inconsistent evidence about some of the effects of puberty suppression. In addition, it notes that cross-sex hormones are well established and have transformed the lives of trans people, and supports their use from the age of 16. Importantly, it does not, at any stage, suggest a ban on social transition for any age of child or young person, but recommends that this be done with the support of parents and clinicians.

Cass says that gender incongruence is a result of a complex play between many biological, psychological and social factors, of which sexual orientation can be one. There are many factors, and no simple answer. For example, saying that such young people are simply confused gay people, unhappy teenagers, or that it is all the fault of social media, is all too simplistic. Regrettably, this has not stopped the Government spinning their own version of who is to blame.

For example, this week’s Statement by Secretary of State Victoria Atkins said that Tavistock clinicians “almost always” put children on an irreversible path of blocking puberty, then prescribed cross-sex hormones and on to surgery as an adult. This is not my understanding of the situation. In 2019-20, only 161 under-19s were referred by gender identity development services for puberty blockers. It was estimated that only around one in six GIDS patients ended up being prescribed puberty blockers. Is not the picture bad enough, without painting something even worse?

There are currently more than 5,000 children on the waiting list for treatment. The NHS has confirmed that everyone currently on puberty blockers via the NHS—fewer than 100 children—will be able to continue on them. These children, and any new recommendations for puberty blockers, will not be prescribed unless they agree to take part in a clinical trial to test the effectiveness of puberty blockers properly. How long does the Minister estimate that it will take for this clinical trial to be set up? Speaking of waiting lists, I understand that it currently takes three years for a child on the list even to be seen. How will the trial ever be set up, except for the few now on puberty blockers, while the rest languish for years on waiting years while their puberty seeps away? Does the Minister not agree that it is time to make up this shocking treatment which has, or rather has not, been given to children by the NHS and put them immediately on a par in priority with other NHS services?

These are our children. They, and the clinicians who want to treat them, have been intimidated by the toxic environment that we have all helped to create. I have heard the Cass report described as a rock that we can now all cling to. We will never all agree about some quite fundamental issues regarding trans and the nature of trans, but we must never make our children suffer for it; we must never make them pawns in a zero-sum game. We must rise above it and argue well, with more light than heat, to protect our children, who, after all, must be at the centre of all we seek to do.

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

I thank the noble Baronesses for their important points and for their sensitivity.

First, I echo the Secretary of State’s gratitude to Dr Cass and her team for undertaking a considered, comprehensive and courageous review into an extremely contentious area of healthcare. Officials have described this to me as probably the best report they have seen, in its excellence, thoroughness and sensitivity. Since NHS England commissioned the review in 2020, it has meticulously unpicked what went wrong, what the evidence really shows and how to design a fundamentally different service that better serves the needs of children.

Noble Lords and Baronesses will be aware of why this review was commissioned, but it is worth repeating here. The statistics are startling. As recently as 2009, the NHS’s sole gender identity development service at the Tavistock and Portman trust received fewer than 60 referrals for children and young people, with just 15 being adolescent girls. Since then, demand has surged. In 2022, more than 5,000 children and young people were referred to gender identity clinics, almost three-quarters of whom were female. The near uniform prescription of an irreversible medical pathway on the basis of sometimes very minimal evidence was imposed on these children and young people with complex needs without full and thoughtful consideration of their wider needs, including neurodiversity, trauma, mental health conditions or who they loved.

In her Statement in the other place, the Secretary of State outlined the immediate priorities for taking forward the recommendations from Dr Cass’s report. This includes looking closely at what needs to be done to curtail loopholes in the prescribing practices of private or online providers to ensure that they fall in line with Dr Cass’s recommendations. In answer to the noble Baroness, Lady Merron, the CQC is on this, and made it clear to all providers straightaway. We hope that legislation will not be required, but we are prepared to table it if necessary, because we need to send out a very clear message.

Private providers have been put on notice. Prescribing is a highly regulated activity and the CQC has not licensed any gender clinic to prescribe hormone blockers or cross-sex hormones to people under the age of 16. Any clinic that does may be committing extremely serious regulatory offences, for which it can have its licence revoked and its clinicians struck off.

On the point made by the noble Baroness, Lady Merron, I share the view of Dr Cass and the Secretary of State—I know that noble Lords share it, too—that it is completely unacceptable that all bar one adult gender clinics refused to co-operate with the University of York research into the long-term consequences of treatment received at the Tavistock centre. To be completely honest, I do not understand how they could be allowed to do that and I think we all are united in saying that that is simply not acceptable. That is why we have gone back so strongly on exactly that point.

Since the publication of Dr Cass’s interim report in 2022, NHS England has made a series of important changes. On 31 March, the Tavistock clinic finally closed, having stopped seeing new patients a year earlier. To answer the points made about new services, two new regional hubs have been opened in partnership with the country’s most prestigious children’s hospitals to ensure that children are supported by specialist multidisciplinary teams, and another will follow in Bristol later this year. In the last few weeks, NHS England has made the landmark decision to end the routine prescription to children of puberty blockers for gender dysphoria. On the day of publication of Dr Cass’s final report, NHS England announced it was stopping children under 18 receiving adult gender services with immediate effect, and an urgent review on clinical policy for cross-sex hormones will now follow without delay.

Children are at the heart of this debate. Dr Cass’s report demonstrates that they deserve healthcare that is compassionate, caring and careful. Their safety and well-being must come above any other concern. That is why the Government will work with NHS England to root out the ideology that has caused so much unnecessary harm, and to give the next generation access to holistic care and protect our children’s future.

I turn to the other points raised. In addition to the three clinics mentioned, eight regional clinics will also be set up to make sure we can provide services on this. Within all that, the point about providing continuity of care up to 25 will be a key part of that. On mental health treatments generally and helping people on that, that is what the £2.3 billion investment has all been about in terms of developing the hundreds or thousands of extra places.

With regard to clinical trial timings, that is a difficult one. I think all noble Lords agree—this was very much a feature of the round table we held after we had the question on gender identity—that there is a general feeling that of course you do not want to settle on any course of treatment for a young person while they are still at that stage of life, in terms of puberty, where they have not had a chance to discover their own feelings. We all know that it is a complicated time and so, more than anything, we want to make sure that people are not set on a course of action that is irreversible before they really know their own minds and bodies and what is appropriate in that situation. That is why we are so firm in trying to follow the Cass guidelines to make sure that that is not available in those circumstances. To be open and honest on that point, I am not absolutely sure whether those clinical trials are compatible with that, but I will come back in more detail on that point. I hope that that answers the points for now, and I look forward to answering other points raised.

20:04

[Baroness Bottomley of Nettlestone (Con)]

My Lords, this is a deplorable situation. It is a formidably good report and I commend the Government on their firm action following its publication. I question why it took the NHS quite so long to stop the routine prescription of puberty blockers to children under 18—that seems rather slow off the mark.

However, I have a more important point. I fear that one of the great damages from all this is to one of our national and international centres of excellence. The Tavistock clinic has been in existence for over 100 years. It was started by Hugh Crichton-Miller for the treatment of soldiers with shellshock. It has been the home of John Bowlby, Lily Pincus and RD Laing. It has done incredibly important work in terms of mental distress, mental health and emotional well-being. It is a national and international centre of training, with about 2,000 students a year. If I may take up the Minister, for whom, as he knows, I have an inordinate regard, I think he said that the Tavistock clinic had closed. It has not closed; the gender reassignment clinic has closed for ever. I ask the Minister and everyone in this House to try to help reclaim the reputation and the respect that the Tavistock clinic rightly deserves.

[Lord Markham (Con)]

Yes, absolutely, and I thank my noble friend for correcting me and giving me the opportunity to correct that. Again being very honest, this shows that part of the challenge in setting up the new services is that this has become such a difficult, toxic space, and finding and recruiting staff who want to work in this area is a real challenge as well.

[Baroness Hayter of Kentish Town (Lab)]

I thank the Government, the Minister and indeed the Opposition for their very robust response and welcome to the report. I am really sorry that the Lib Dems have chosen to use Stonewall’s briefing in what we have heard tonight; I hope that is not the whole of the Lib Dem position.

I note that the Government have already met with the GMC over the weekend, and they have been in contact with the CQC. However, just last month, the Royal College of General Practitioners tried to cancel a conference posing exactly the questions covered by Dr Cass in her excellent report. It allowed this conference—it was called “First Do No Harm” and I had the privilege to open it—only after an enormous amount of persuasion; it did it under duress, with bad grace and some hostility. That was the Royal College of General Practitioners.

Will the Government also meet the Royal College of General Practitioners and indeed the Royal College of Psychiatrists, the Royal College of Nursing, the Professional Standards Authority and all the other regulators, many of which seem to have been blind when all this was going on, and ensure that they all engage with the conclusions and the recommendations of Cass, whether those professionals over which they have oversight are working in the NHS or in the private health sector? These puberty blockers were being prescribed years after we knew they were irreversible, when Stonewall still said they were reversible, and when the doctors should have known but still prescribed them. Will the Government therefore engage with all those regulators to ensure that Cass is implemented in full?

[Lord Markham (Con)]

Yes, and that is an excellent point. Again, I thank the noble Baroness in this area. The questions that she raised earlier in the year in terms of some of the language from the GMC really added to the debate and represented a step forward. Therefore, although I am sure it is happening already, I will doubly check that it is.

[Lord Sandhurst (Con)]

My Lords, my focus is on the misuse of drugs for unlicensed purposes. It is perfectly proper and sensible that drugs are used for unlicensed purposes in the right circumstances. For example, in the case of children, drugs are not tested on them; they have been tested and licensed for use on adults, and they are used quite properly—it is called “off-label”—for children for the same purposes. However, in this case, as Cass has found at paragraphs 20.11 and 20.12 of her report, in the case of puberty blockers there was what she describes as a “system weakness” in that off-label use. It went beyond the usual level of permissiveness in extending use to a very different indication. So she has recommended, in recommendation 32:

“Wider guidance applicable to all NHS services should be developed to support providers and commissioners to ensure that innovation is encouraged but that there is appropriate scrutiny and clinical governance to avoid incremental creep of practice in the absence of evidence”.


I have two questions. What steps are the Government taking to implement this important recommendation as a matter of urgency? It will not just be puberty blockers; there will be drugs used in a range of fields. Who will be charged with the responsibility for creating this guidance and then implementing it?

[Lord Markham (Con)]

With the wonders of modern technology, I hope I can answer two questions in one. On the previous question, yes, the regulators have been communicated with about making sure that it is very clear. On that point, I say to my noble friend that the regulators have been charged with making sure that very clear guidelines are put out on the drug use that he mentions; those are being set right now. While I am clearing stuff up, to be clear and to save me correcting it later, it will be eight clinics in total when they are all there; I might have said that it was eight additional clinics.

[Lord Young of Norwood Green (Lab)]

My Lords, I too pay tribute to the Government, and to Dr Cass especially, for a magnificent report that took both determination and courage; let us not underestimate that. She has achieved a huge amount: we now have four clinics up and running with people who understand the need to counsel young people. What we do not know is how many thousands of lives have been wrecked by the indiscriminate use of puberty blockers and hormones; it may eventually be uncovered. I also pay tribute to our party and our shadow Health Minister Wes Streeting for unequivocally backing the Cass report and committing the next Labour Government, should that be the case, to an evidence-based situation.

I put it to the Minister that puberty is not something that ends at 18. Dr Cass rightly defines it as a process that could go up to 25. She recommends that those services should include that kind of counselling, and I would welcome some confirmation from the Minister that that will be the case. There is still more work to be done on this. I have said on previous occasions that this is a cult that has invaded a lot of the institutions of government and other institutions. It is not going to just lie down quietly; there will be attempts to evade this legislation, and we should be on our guard against that.

I want to end on a positive note. I welcome the Statement. I pay a further tribute to Dr Cass, a woman who came out of retirement and was probably looking for a nicer and easier thing than this to deal with. This Chamber owes her and her civil servants a real debt of gratitude.

[Lord Markham (Con)]

I remember that it was the noble Lord who, in the round table that we had on this, made very clearly the same point I was making earlier about puberty and age. It is only when you are right the way through it that you really are in a position where you start to know your own mind and your own body. I agree with the noble Lord that it can be as late as 25, and that is why that is definitely the intention behind the eight clinics that are being set up—that they can provide that continuity right up to the age of 25, given that there is such a state of flux in a young person’s life.

[Baroness Finlay of Llandaff (CB)]

My Lords, I thank the Government for giving us this opportunity. Dr Cass’s report is incredibly important. She has taken a scientific, as well as a kind, humane and humanitarian, approach to the children affected and to the way the report is written. In the recommendations, as well as the discussion over puberty blockers there is the importance of ongoing research, research capacity and data. One finding that emerged for her was that there was a lack of consistent collection of data, which means that for many of these children, the people who were looking after them were, in effect, flying blind. That cannot be allowed to continue in future.

Her recommendation 17 is that:

“A core national data set should be defined for both specialist and designated local specialist services”.


Recommendation 18 is that:

“The national infrastructure should be put in place to manage data collection and audit and this should be used … to drive continuous quality improvement and research in an active learning environment”.


My question to the Government is whether, among the organisations listed, there are also discussions with the Royal College of Surgeons, because there is also surgical intervention undertaken in some of the processes. Without a database of the numbers that undergo a surgical intervention, the type of intervention and the complication rates, and monitoring the effect of that surgery on quality of life, we risk carrying on flying blind with clinical treatments that are literally life changing.

[Lord Markham (Con)]

I thank the noble Baroness. She is absolutely right: it is only in that lack of data environment that, dare I say it, ideology can fill in the vacuum and start to drive the sorts of behaviours that we see. Data is always the best way to cut through and provide light when there is a lot of heat in an argument. She makes an excellent point about the Royal College of Surgeons. I am sure that it has been contacted along with all the other bodies, but we need to make sure that is covered off. As ever, I will come back in detail in writing to all noble Lords who have raised points. I will make sure that point is addressed as well.

[Baroness Deech (CB)]

My Lords, my gratitude to Dr Cass is that the report has given the rest of us the strength to challenge something that we knew was irredeemably harmful. I have two questions for the Government. First, will they remind the NHS of the law? Gillick competence—I am abbreviating it—states that:

“Children under the age of 16 can consent to their own treatment if they’re believed to have enough intelligence, competence and understanding to fully appreciate what’s involved in their treatment”.


It is simply impossible for any child under the age of 16 to understand what is meant by sex change or puberty delay. They cannot get their heads around it or possibly comprehend what it will mean for them in future, so Gillick competence has to be remembered.

Secondly, will the Government also remind the NHS that young people and others are confused and possibly endangered by the ridiculous use of phrases saying that “people who have ovaries” or “people who have cervixes” should come forward for treatment and so on? Can we please restore the word woman, or indeed girl, when it comes to medical treatment?

[Lord Markham (Con)]

To take the second point first—it was also made by the noble Baroness opposite—that is absolutely right; it can be a real danger. People with English as a second language might not understand that a “person with ovaries” refers to them. It needs to be very clear. It is fundamental that the first description has to be “male” or “female”; you can then put additional parentheses after that.

The noble Baroness’s first point is exactly right. Until young people are through the age of puberty and its effects, they are not in a real position to make up their own minds. That does not mean that they should not be supported during that process, but it does mean that we should not be doing anything irreversible.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I watched the Secretary of State’s introduction to this Statement on Monday, live from my office. She asked the other place to

“bear the sensitivities of this debate in mind”.—[Official Report, Commons, 15/4/24; col. 55.]

I am afraid that it is clear from the printed record before us, and was even clearer watching the Secretary of State speaking, that it was delivered in a triumphalist, dogmatic tone, which meant that she did not follow her own prescription.

The Statement speaks of “myths” but fails to acknowledge the agency and lived experience of children and young people. I have two questions for the Minister. Can he reassure me that we are not going to lose, in this ideological debate, the need for massively more investment in services for children and young people in the NHS? The noble Baroness, Lady Burt, referred to the huge waiting lists that are behind the report we are discussing today.

The Statement also did not mention—and I think we have to acknowledge this—that hate crime against transgender people hit a record high in figures out last October. I hope that the Minister will agree with me that children and young people seeking gender identity services should not have to live in a society where their experiences are used as a political football. They should not be treated as a weapon in the culture war. They should not have to live in a hostile society.

[Lord Markham (Con)]

First, I think I speak for the whole House in agreeing that no one, under any circumstances, should feel that they live in a hostile society —whatever case it is, whether it is transgender, race, sex or whatever. I totally agree with the noble Baroness there. I will absolutely clarify this in the follow-up in writing, but I know that, in this specific area, the NHS has already committed £18 million in this space. Of course, this is quite separate from the £2.3 billion that I mentioned before in the mental health space generally, which, from memory—and I will absolutely clarify this—is the provision of 350,000 extra places for young people, because we know how much the demand is out there.

[Baroness Jenkin of Kennington (Con)]

My Lords, I am grateful to the Noble Baroness for clarifying the Lib Dem position because, unfortunately, the page on the website has disappeared this afternoon. May I ask my noble friend whether the Government acknowledge that a conversion practices Bill would have a detrimental effect on the recruitment of clinicians to the new children’s services, as highlighted in the Cass Review?

[Lord Markham (Con)]

I must admit that I am not sure that I quite understood the question from my noble friend.

[Baroness Jenkin of Kennington (Con)]

There are a number of conversion practices Bills currently in play, and Cass has said that such a Bill would have a detrimental effect on the recruitment of clinicians, because they would feel a chilling effect before they would apply.

[Lord Markham (Con)]

Understood. Again, I will come back in detail on that point. One of the points made to me about the difficulties of trying to recruit to these eight new services was that, when this is such a toxic space, how do you get good-quality people? I think we agree we need that more than ever, because it is such an essential and sensitive area. So I will take that back and make sure that nothing we are doing, such as that legislation, should have that sort of chilling effect.

[Lord Allan of Hallam (LD)]

My Lords, if I could add to the Minister’s correspondence list, this is really following up the point made by the noble Baroness, Lady Finlay. Dr Cass rightly highlights that we need data about all the young people who present to the services—what service they received and what happened to them over time. Can the Minister include in his letter the measures that the Government will be taking to encourage those young people to participate? If they feel intimidated or that the data is going to be used against them, they are going to opt out, and then we are not going to have the dataset we need to understand the best treatment.

[Lord Markham (Con)]

That is an excellent point—yes.

Economic Activity of Public Bodies (Overseas Matters) Bill

Wednesday 17th April 2024 Lords Chamber

Committee (2nd Day) (Continued)

20:25

Debate on Amendment 15 resumed.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support all the amendments in this grouping. I think we still have to hear one of them being set out.

The climate emergency is surely the most important issue facing our planet. We should not be responsible for tying the hands of any body, such as a local authority, that might be able to use its position to oppose actions that contribute to environmental degradation. At Second Reading, the Minister, moving onto climate change, said:

“I would like to clarify that the Bill will ban only considerations that are country-specific. It will therefore not prevent public local authorities divesting from fossil fuels or other campaigns that are not country-specific”.—[Official Report, 20/2/24; col. 593.]


But she did not mention the question of legality, because paragraph 10(3) of the schedule makes clear that environmental misconduct means conduct that

“amounts to an offence, whether under the law of a part of the United Kingdom or any other country or territory”.

Yet many of the actions driving the climate emergency are perfectly lawful. Indeed, as Friends of the Earth points out in its briefing, the fact that destructive environmental activity is allowed to continue legally could even be the rationale for a boycott or disinvestment campaign.

So I invite the Minister to reconsider what she said at Second Reading, or, better still, amend the Bill’s schedule so as to remove the reference to an offence under the law and work with other noble Lords whose amendments are in this group to see how we can take on board the concerns that they have raised in those amendments.

[Lord Wallace of Saltaire (LD)]

My Lords, I rise to support these amendments and simply emphasise that the whole issue of climate change and environmental degradation is now a very major one, which divides generations. My children care about it much more passionately than my generation does. In the United States on the hard right, there is still a very powerful climate change denial lobby pushing against the inclusion of environmental sustainability and development goals in company statements and so on. So I think it would be wise to widen this part of the schedule, not just to deal with environmental misconduct but to accept some of the language in the various amendments that we have seen. Again, this goes back to the Government. They are thinking of the long term and about long-term planning and public opinion. It would be wise to see what can be done to adjust the language to accommodate the very real concerns which have been expressed.

[Baroness Deech (CB)]

My Lords, environmental matters are of course very serious, but the question is whether boycotts work. The speech by the noble Lord, Lord Hain, shows the determination on the part of some in this House to boycott Israel come what may. However, if you look at the list of the most polluting and environmentally damaged countries in the world, Israel does not feature, and the degradation in Gaza, which is true, started long before the current invasion—it goes back to when Israel quit Gaza in 2005. Now, the issue is boycotts. People are looking for ways to boycott Israel. I have not noticed any suggestion of boycotting, say, China, for its polluting activities.

20:30

[Lord Hain (Lab)]

I am grateful to the noble Baroness. I did not advocate a boycott; that was not my purpose. I was talking about the destruction of the environment in Gaza and the West Bank, and that is not disputable.

[Baroness Deech (CB)]

The environment is bad in Gaza, but this Bill is about boycotts.

Now, no less a moral authority than Helen Suzman said that boycotts do not work. In 1987, she said:

“If there were any chance that sanctions would dismantle apartheid, I would be the first to support them. But reducing South Africa to a wasteland would lead not to a nonracial democracy but to more oppression and misery”.


A boycott, in particular a boycott of the so-called Occupied Territories, would not actually change the international scene as far as a two-state solution goes. The only people who would be hurt are the impoverished Palestinians working in the businesses in the Occupied Territories. This was proven by the SodaStream case. SodaStream closed down because it was thought unacceptable to deal with it because it worked in the Occupied Territories. Hundreds of Palestinians lost their jobs; SodaStream moved to Israel. We have to drop the illusion that a boycott of Israel, or indeed any other country, will achieve anything meaningful, let alone when it is carried out by a local authority as opposed to the Government. Environmental damage is indeed a problem, but I am not sure this Bill is the way to tackle it.

[Lord Pickles (Con)]

My Lords, I shall speak on Amendment 15, moved by the noble Lord, Lord Hain. I take a slightly different view from what has just been said. I think the Committee owes the noble Lord, Lord Hain, some thanks; he has managed to put together what it is like in extremis—how this Bill will be dealt with when it is faced with war. Now, I cannot recall a single war in the history of our planet that did not harm the environment.

I suppose that when we put this thing together, on the facts that the noble Lord, Lord Hain, gave, we are probably going to have to think about how much of the damage was caused by the Gazans. How much of a discount should there be for the amount of damage the Gazans caused? In particular, one of Hamas’s first acts after murdering children was to cut off the electricity and the water supply, and it continued to ensure that anybody that came to try to put back the electricity or restore the water supply faced violence. The pipes that would have been used to improve sanitation and have the flow of clean water were stolen and used to fire rockets into Israel. Some 25% of those rockets fell short, killing Gazans, leaving ordnance around Gaza, particularly in the north.

All the concrete that was there to build roads, hotels and social facilities was stolen by Hamas to build the tunnels. The tunnels in themselves were a great environmental risk, because they were not built to building regulations. They were quite close to the surface; they were beneath and beside houses; they affected the foundations, which meant that any disturbance, whether it be earthquakes or the dropping of bombs, made those houses so much more unsafe and susceptible to collapse.

There is the use of flying incendiary bombs, released by supporters of Hamas across into Israel, designed to burn crops. Burning crops causes all kinds of problems. It seems illogical that Hamas should have done that, but it did it in order to make life difficult for Gazans. That is why it is sitting on so much of the food supply; that is why there are lorries waiting to deliver aid into Gaza, but Hamas will not allow it.

I take exception to the quote relating to the Red Cross; if the Red Cross can go in to make that kind of assessment, it should be able to see the hostages. The Red Cross has made no attempt to meet with the hostages.

[Baroness Jones of Moulsecoomb (GP)]

What has this got to do with the boycotts Bill?

[Lord Pickles (Con)]

All I was doing was speaking to the amendment from the noble Lord, Lord Hain, about which he was immensely eloquent. He mentioned all the things I am mentioning now. The noble Baroness should perhaps pay a little more attention when the noble Lord, Lord Hain, speaks.

[Baroness Jones of Moulsecoomb (GP)]

Don’t be rude!

[Lord Pickles (Con)]

I apologise for being rude. I was merely trying to give the noble Baroness some advice on when it is sensible to interrupt and when it is best to keep your peace.

Finally, it seems sensible that not every public body will have somebody with the eloquence of the noble Lord, Lord Hain, on it to give this kind of advice. It seems very sensible that—

[Lord Warner (CB)]

Risking my life slightly, I wish to intervene. The noble Lord has made a lot of statements about the damage done either within the regimes run by the Gazan authorities—Hamas—or as a result of war. I have been to Gaza and the West Bank quite a few times, sometimes when there has been a reasonable peace and the people have been able to get on with their lives. During those periods, the pollution of water and of the sea and the problems of sewage were monumental. This is not something to do with the war, the wars, or the tumult from invasions; it is actually that the status quo in Gaza is appalling. It was not just me who said this. I seem to remember that a former Prime Minister, who is now the Foreign Secretary, described Gaza as an “open-air prison”. Does the noble Lord accept that there are some seriously long-entrenched problems of—

[Lord Evans of Rainow (Con)]

My Lords, interventions should be brief and to the point. Can the noble Lord please get to the point?

[Lord Warner (CB)]

They are relatively brief, considering how long the noble Lord, Lord Pickles, has been speaking, and some of the claims he has made.

[Lord Evans of Rainow (Con)]

The noble Lord knows full well that this is an intervention, so can he please get to the point and his question of clarification?

[Lord Warner (CB)]

If the noble Lord had not jumped up I would have got to my question; it needed some context. Does the noble Lord, Lord Pickles, accept that there are some long-standing problems, which I think the noble Lord, Lord Hain, mentioned, with the state of the environment in Gaza?

[Lord Pickles (Con)]

I am most grateful; I was actually just about to finish, but I will take into consideration what was said. I too have visited Gaza in happier times; some of the happy times I spent in the region were in Gaza by the Mediterranean Sea. The noble Lord is right: there have been some long-standing environmental problems in Gaza, which have been caused largely by Hamas. Let me give the noble Lord just one example. Hamas refused to co-operate with Israel on a desalination plant. Hamas could have had a desalination plant, which would have provided lots of fresh water, but it did not want it because it does not want to see ordinary Gazan citizens enjoy their life. Hamas wants them to be continuously in a state of disruption.

The final point I was making was that not every public body would have the benefit of the guidance of the noble Lord, Lord Hain, nor would it necessarily have someone else to offer a balance to what he said, so I think that decisions regarding Israel are better taken by the Government.

[Lord Evans of Rainow (Con)]

My Lords, I remind the Committee that interventions should be brief and about clarification on a technical point.

[Baroness Blackstone (Lab)]

My Lords, can I ask the Minister whether it is the intention of this Bill to stop disinvestment in oil and gas companies associated with a particular country or territory?

[Lord Wolfson of Tredegar (Con)]

My Lords, I will do something very controversial and invite the Committee to look at the terms of the amendment, coupled with the terms of the Bill. The speech of the noble Lord, Lord Hain, in introducing the amendment, rather oddly for an environmental-based amendment, seemed not to see the wood for the trees, but it paid very little attention to the actual terms of the Bill, so perhaps we could do that; I know this is controversial.

Let us start with the amendment, which seeks to prevent a future Secretary of State amending the Schedule, by way of regulations, to remove environmental misconduct. The predicate for that amendment must be that, as drafted, the Secretary of State does have the power, by way of regulation, to remove environmental misconduct from the Schedule, so let us look at Clause 3(2) to see what this Secretary of State can actually do. By way of regulation, under Clause 3(2)(a), he or she can

“add a description of decision to Part 1”.

That is not relevant because we are not dealing with Part 1 and we are not dealing with decisions. He or she can

“add a description of consideration to Part 2”.

That is also irrelevant because we are not dealing with adding anything; we are dealing with taking away, are we not? So let us look at Clause 3(2)(c): he or she could add

“or remove a description of decision or consideration”,

but only

“added under previous regulations under this subsection”.

What that means is that if Secretary of State A adds a new consideration—let us call it the Wolfson consideration —Secretary of State B can later remove the Wolfson consideration, but the Secretary of State cannot remove what is already there because that has not been added by way of a previous regulation.

Therefore, this amendment is wholly unnecessary, as was the speech of the noble Lord, Lord Hain. I do not know whether the noble Lord knows the point I have made but it is correct. I hope he will now withdraw the amendment and not bring it back, and certainly, if I may say with respect, not use a very technical amendment to this Bill to make points that are both factually and materially erroneous.

For present purposes, I stand by the legal point I have made as to the construction of the Bill. This amendment is wholly unnecessary because the predicate to it—that the Secretary of State could remove environmental regulation—is entirely misplaced.

20:45

[Lord Collins of Highbury (Lab)]

Let me start by making it clear, if it is necessary, that the Opposition do not support BDS—we made that clear at Second Reading—so my contribution tonight on this group of amendments is about the environment and the exceptions to it. Of course, currently the Bill does not prevent a decision-maker taking environmental misconduct into account. Environmental misconduct is defined as

“conduct that … amounts to an offence”

that causes

“significant harm to the environment”.

As the noble Baroness, Lady Jones, said in introducing her amendment, this is quite a narrow exemption. It relies on UK decision-makers being able to be confident as to whether an environmental practice constitutes an offence in the UK or another country. There is no mention of climate change or the need to invest and to make procurement decisions proactively to protect the environment. Unfortunately, my noble friend Lord Dubs, who I know was very keen to address this point, cannot be with us.

Amendment 32C would provide that the Bill does not prevent a decision-maker taking into account the climate crisis and the need to achieve the Paris agreement goal or other climate change goals when making decisions. The Paris agreement goal is to hold the increase in the average global temperature to below 2 degrees Celsius above pre-industrial levels, which is a critical threshold. The amendment mirrors the language that is already in statute in the Pensions Schemes Act 2021. The Government included climate change provisions in that Act to require, as the Minister said at the time,

“occupational pension scheme trustees and managers to secure effective governance on the effect of climate change on the scheme”.—[Official Report, 26/2/20; col. GC 156.]

During the debates on those matters, Members of this House spoke of the need for pension schemes not only to consider the financial risks of climate change but to play an active part in combating climate change and achieving the shared international goals, so it is a proactive approach.

One of the fundamental problems we have constantly been addressing in this Bill is whether people will be too cautious: will the Bill have a chilling effect on investment and procurement decisions that we proactively want people to take? We have, on the one hand, legislation that requires pension scheme managers to consider the financial implications of climate change and the transition to a low carbon economy; on the other hand, we have this Bill, which makes no mention of climate change and which, through overly broad drafting, risks limiting what public bodies and local government pension schemes are able to take into account when making decisions.

Sadly, the noble Lord, Lord Willetts, is not in his place. What we have to be clear about is the unintended consequences of this legislation. We have to be careful about where it could lead, because future Governments may not be so proactive in supporting efforts on climate change. We have to be careful because this legislation, which empowers the Secretary of State, could be incredibly dangerous.

The Local Government Association has raised questions about how this Bill sits with local government’s existing procurement practices and its ability to take environmental, social and governance issues into account. I hope the Minister will agree that combating climate change, including considering a country’s environmental policies, conduct and record, should be a crucial part of decision-making on public procurement.

In her introduction, the noble Baroness, Lady Jones, also raised the key issue of the ability of public bodies to be free to avoid investment in fossil fuels. That is a critical area, as extraction of coal and other fossil fuels is often part of government strategy and often controlled by Governments. Could this Bill be interpreted in a way that will stop those sorts of proactive, positive investments that the Government, the Opposition and most people in this country think are right? That is the problem I hope the Minister will be able to address. Fossil fuels are a controversial issue that people have taken very polarised views about; we need to be clear about the consequences of this legislation.

I did not see this group of amendments as being about BDS, but about how we support positive policies on the environment and how the Government intend to ensure that this legislation does not have a chilling effect on the very things they seek public authorities and public bodies to do. I hope the noble Lord will be able to address these specific points.

[Baroness Altmann (Con)]

My Lords, may I make a brief intervention? I did not realise that Back Benchers were not continuing to debate, so please forgive me. I have a brief point on this group of amendments and, in particular, the speech from the noble Lord, Lord Hain, on his Amendment 15. I have enormous respect and admiration for the noble Lord, but I suggest that this debate, in a way, encapsulates why it is important to consider the Bill very carefully. It also suggests the one- sided and sometimes very difficult debate that surrounds Israel and the BDS question.

For example, the noble Lord described the environmental damage involved in taking away olive trees from Palestinian land as some kind of environmental crime, but historically one of the big criticisms of Israel has been that it uses forestation projects to push Palestinians off their land, so the environmental issue can be argued in different ways for different purposes. Israel has planted over 200 million trees since it was founded, so it does take care of the environment.

On some of the arguments that the noble Lord, Lord Hain, was using, one might suggest that one wants to boycott Israel or protect the environment in the opposite way from that which is often argued, and the double standards that have been applied to this debate. I urge my noble friend the Minister carefully to consider the unintended consequences of well-meaning environmental protection. I am, of course, very keen to protect the environment and support the comments made so excellently by my noble friend about the detail of Amendment 15. I thank noble Lords for their indulgence in allowing me to make these points.

[Lord Roborough (Con)]

My Lords, before I address this group of amendments, I reassure noble Lords that the intention of the Bill is not to interfere with the ability of public authorities to campaign on environmental issues. In answer to the noble Lord, Lord Wallace of Saltaire, the Bill is well defined on this issue. It already makes an exception for environmental misconduct, including where this has been facilitated by a foreign state or as a result of the laws or policy of a state failing to prevent it.

In answer to the noble Baroness, Lady Lister of Burtersett, environmental misconduct includes conduct that caused, or had the potential to cause, significant harm to the environment and amounts to an offence under the law of the United Kingdom or any other country or territory. This is in line with the exception in the Procurement Act 2023. The Bill therefore already exempts considerations related to a range of environmental offences.

I begin by addressing Amendment 15, tabled by the noble Lord, Lord Hain. This amendment seeks to ensure that the Secretary of State cannot remove environmental misconduct as an exception to the Schedule by regulations. In response to the first of the noble Lord’s points, the Bill does not stop campaigns on general environmental issues such as fossil fuels or biodiversity. This includes where they lead incidentally to not procuring from or investing in a number of countries. I hope that this also answers the questions asked by the noble Baroness, Lady Blackstone, and the noble Lord, Lord Collins.

Environmental campaigns will be captured by the Bill only if they single out a country in a way that is influenced by disapproval of foreign state conduct. General campaigns that do not single out a specific country or territory would not be captured. However, the Bill must not leave a loophole for public authorities to take a general position on an issue mainly with the intention to target a particular state. For example, a public authority might shape a general position on an issue with the intention that it results in a boycott of Israel. The Bill should rightly stop that. If a case is flagged to enforcement authorities, they will assess the evidence of whether a public authority’s procurement or investment decision was based on a non-country-specific campaign with the intention of targeting a particular state. Enforcement authorities will have the power to ask for a range of information before making a decision.

To repeat some of the comments made by my noble friend the Minister in the previous group, I reassure noble Lords that the power in Clause 3 cannot be used to remove any exception to the ban in the Bill as passed by Parliament. This includes the exception to the ban for environmental misconduct in the Schedule. To go further, in answer to the final question of the noble Lord, Lord Hain, the limitation in Clause 3(7), which refers to

“Israel … the Occupied Palestinian Territories, or … the Occupied Golan Heights”,

does not mean that the exceptions in the Schedule cannot be used in relation to suppliers and companies with connections to Israel or the Occupied Territories. All that limitation does is restrict the power of the Secretary of State to use regulations to add further exceptions to the Bill if those regulations would have the result of removing Israel, the Occupied Palestinian Territories and the occupied Golan Heights from the scope of the Bill. I am also grateful for my noble friend Lord Wolfson of Tredegar’s comments on this, which were helpful in explaining our position.

Amendments 32A and 32B, tabled by the noble Baroness, Lady Jones of Moulsecoomb, would broaden the range of considerations relating to the environment that are exempted from the ban. The Bill already allows public authorities to make territorial considerations that are influenced by moral or political disapproval of foreign state conduct when assessing complicity in conduct that causes, or has the potential to cause, significant harm to the environment. Lowering this threshold would allow public authorities too broad a discretion to engage in the behaviour this ban aims to prohibit. These amendments would allow public authorities to boycott countries that have reduced the level of environmental protection in a country. Governments across the world frequently adjust their environmental targets. It would not be proportionate to allow an entire country to be boycotted for this reason.

An example of where the exception as drafted in the Bill may be relevant is if a prospective supplier has, or may have, engaged in environmental misconduct due to inadequate environmental protection laws in a state. The existing exception has been drafted to accord with offences under UK law, including under the Environment Act 2021. In answer to the noble Baroness’s question, I reiterate that the Bill does not apply to campaigns that do not target countries or territories specifically, including campaigns against fossil fuels or for other environmental causes. The Bill will in no way prevent public authorities setting their own environmental standards as part of their procurement or investment strategies. The Bill defines “environmental misconduct” as conduct that is an offence

“under the law of … the United Kingdom or any other country or territory, and … caused, or had the potential to cause, significant harm to the environment, including the life and health of plants and animals”.

21:00

The Bill will not prevent public authorities divesting from fossil fuels on a non-country specific basis. This exception to the ban is in line with the approach taken in the Procurement Act 2023, which was agreed by the House in the previous Session. Wherever possible, we have aligned this Bill with the Procurement Act. This means that public authorities subject both to this Bill and the Procurement Act do not have to deal with two incoherent regulatory regimes. I believe that this dramatically reduces the risk of a chilling effect.

I also reassure the noble Baroness and the noble Lord, Lord Dubs, who tabled Amendment 32C, about the ban applying only to country-specific campaigns. This also means that nothing in the Bill will prevent public authorities considering the Government’s climate change targets under the Paris Agreement or setting their own environmental targets. The Bill will not prevent public authorities having regard to any environmental treaties or environmental law.

The Government have kept the powers given to the Secretary of State in the Bill narrow. Accordingly, the Delegated Powers and Regulatory Reform Committee had no comments on the Bill’s powers.

I hope that I have been able to reassure the Committee on this matter and I trust that this response addresses the concerns of the Committee. I am also grateful for the many well-informed and passionate contributions. I respectfully ask that the noble Lord withdraws his amendment.

[Lord Collins of Highbury (Lab)]

The Minister mentioned the Environment Act. During the passage of that Act, the limitations of due diligence measures to only significant targeted illegal deforestation were made clear because, for example, a significant proportion of deforestation due to soy in Brazil or palm oil in Indonesia could take place legally. It would be extremely difficult to distinguish between legal and illegal activity. I do not think the Minister is correct in saying that there would not be a chilling effect. Certainly, the evidence is backed up by a lot of pension experts who have presented evidence to Members of this Committee in their briefings that that is exactly what will happen: public bodies will not be pushing their ESG duties. I hope that he will understand why I have specifically raised that point.

[Lord Roborough (Con)]

I am grateful to the noble Lord for the intervention. I should declare an interest, as set out in the register, in various investments in companies around the world, including in Brazil and Indonesia. I am familiar with the points he raised. I think I answered as well as I can with reference to the Procurement Act and consistency with that, but I would like to write to the noble Lord, if that is helpful, to clarify further.

[Lord Hain (Lab)]

My Lords, in responding to the debate I invite everybody who heard what I said, and those who did not hear what I said, to read it in Hansard tomorrow. Did anybody hear me advocate the BDS cause? Did anybody hear me advocate a boycott of the State of Israel? I did not and I never have in any speech in this House or elsewhere. If there is criticism to be made of what I said, I invite noble Lords and Baronesses to focus on what I said rather than what they think I might have said, or what others have said. I think that is fair, frankly, in terms of debate in this House.

I say to the noble Baroness, Lady Deech—many in this House have considerable respect for the role that she plays—that I think she spoiled her argument by bringing in the South African comparison. She quoted Helen Suzman, who played a valiant role in the anti-apartheid struggle—a lone white role in many respects. At the time the noble Baroness quoted her, it was illegal to advocate a boycott or any kind of sanctions against the apartheid state. Indeed, she opposed boycott campaigns against all-white sports tours I organised, but if she had supported them and advocated sanctions, she could have been imprisoned under apartheid law. I would prefer to quote Nelson Mandela, who said that sanctions were very effective in bringing apartheid to its knees, along with other factors, so the noble Baroness spoiled her argument by quoting that.

[Baroness Deech (CB)]

I will be brief because the night is late, and I am provincial and have to get a train. I have done a lot of research into what allegedly changed South Africa, and the majority of the writings were that it was not sanctions. What changed life there was having two leaders of moral stature who were prepared to talk to each other, which we do not have in the Middle East. As far as the noble Lord’s advocacy of boycott goes, I cannot recall when—I think it was way back in March when we started to talk about this Bill—but the noble Lord himself raised the issue of South Africa, and how things had changed there because of a boycott. The inevitable conclusion to be drawn, though I resist the parallel, is that something like that would work in the case of Israel. I do not think it would, as they are not at all similar, but the night is late, and this Bill is not supposed to be about it.

[Lord Hain (Lab)]

I agree that they are not that similar, and I have never suggested that they are. The reason I brought in the South Africa comparison, and majored on it, is that legal opinion says that this Bill would have made the anti-apartheid campaigns of the late 1960s, 1970s and 1980s illegal. That is why I brought the argument into play. It is not to advocate a boycott, disinvestment or sanctions policy against Israel, which I have never done in this House or elsewhere. If noble Lords are going to disagree with me, as they are entitled to do, then they should make the case on the arguments as they stand.

Since the noble Baroness has intervened again on this, I am sure she has read widely on it, and I am not going to disagree with that, but Nelson Mandela did not agree with her. He said that sanctions were critical. They were not the only thing, and I did not say that they were. The internal contradictions of the system, the fact that the economy was almost on the point of collapse by the time that President de Klerk released Nelson Mandela, that the country was on the brink of civil war and facing the abyss in that respect, was why the people who had imprisoned him for 27 years and oppressed his people were forced to negotiate with him, both for his freedom and for that of his people. It was an accumulation of factors, but sanctions were certainly very effective. The noble Baroness spoils her case about Israel by seeking to deny that.

The noble Lord, Lord Pickles, made a strong point that there are others culpable for the environmental destruction, and I have never denied that. He made some important points about the culpability of Hamas as well.

[Lord Pickles (Con)]

Forgive me for interrupting, but I have just realised that when I made my speech, I did not declare my interests. I would like to do so now, particularly those relating to friendship for Israel.

[Lord Hain (Lab)]

I am happy to be interrupted on that point.

My point to the noble Lord, and to the whole House, is that this Bill is technically flawed. I refer to the explanatory statement that I put on the face of my amendment:

“This amendment seeks to ensure that the Secretary of State cannot remove environmental misconduct as an exception in the Schedule by regulations”—


in other words, by executive decision. This should not be possible, and it should remain in primary legislation. That was the purpose of my amendment.

That brings me on to what the noble Lord, Lord Wolfson, argued. He—and I commend him for this—technically disputed the basis for my amendment, which he is entitled to do. I disagree with his interpretation, and I do ask the noble Lord to reflect on this: what was factually erroneous about what I said in terms of the case I put on environmental destruction in Gaza and the West Bank?

The noble Baroness, Lady Altmann, for whom I have a great deal of respect and count as a friend, pointed out that Israel has planted a considerable number of trees, for which I commend Israel. My point is that there is terrible environmental destruction in Gaza and the West Bank now. Nobody can dispute that, and it has been going on for a long time, including the destruction and poisoning of the water supply for many Palestinian residents there.

[Lord Wolfson of Tredegar (Con)]

My Lords, I did not introduce a technical problem with his amendment. I sought to explain to the Committee, and to him, that the basis of his amendment—that is, that the Secretary of State could by regulation remove this exemption—was entirely flawed. Having mentioned this in passing as a technical response, he has now gone back to his favourite subject of attacking Israel. Is he going to provide a response to the fundamental problem that I raised with his amendment?

[Lord Hain (Lab)]

I have already done that. On what he calls my favourite hobby of attacking Israel, as it happens, as I said in the foreign affairs debate, the whole strategy for resolving this terrible dispute is fundamentally flawed. The lessons should be learned from the Northern Ireland experience. Hamas will not be defeated militarily, however much I would like it to be. I made it clear that I am a friend of Israelis as well as Palestinians, but we are not revisiting all of that. On the criticisms, apart from the noble Lord’s criticism of the case that I have made, I invite people to engage on the substance, rather than bringing in arguments that I have never made in order to adopt a kind of diversionary tactic on this.

To conclude, the Bill is flawed and the Minister, speaking for the Government, should look again at this matter. If there is an issue with the wording of my amendment, then we can discuss that. Unless that is done, people will interpret the Government’s stance as showing that environmental protection is not being given the priority under the Bill that it should. Having said that, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendment 16

Moved by

[Baroness Bryan of Partick]

16: Clause 3, page 2, line 28, leave out paragraphs (b) to (d)
Member's explanatory statement
This amendment and others are consequential to another in the name of Baroness Bryan of Partick to Clause 17, removing Wales, Scotland and Northern Ireland from the territorial application of the Bill.

[Baroness Bryan of Partick (Lab)]

My Lords, I thank my noble friends Lady Ritchie of Downpatrick and Lord Hain, and the noble and learned Lord, Lord Thomas of Cwmgiedd, who, by adding their names, demonstrate the breadth of opposition to the inclusion of the devolved Administrations in the Bill. As noble Lords can see, Amendment 16—and the consequential amendments that I will not bother to list now—would remove Wales, Scotland and Northern Ireland from the territorial application of the Bill.

We are just 25 days away from the 25th anniversary of the first meetings of the Welsh Senedd and the Scottish Parliament in 1999. Those institutions have been around long enough for Ministers to be aware that they are not simply large local authorities. The official advice for civil servants and policymakers on taking account of devolution, as updated in 2020, reads:

“Devolution has fundamentally changed the constitutional arrangements of the UK. Officials need to be aware of how devolution affects the policies they work on or the public services they manage”.


The Government might have been well-advised to consider those guidelines when drafting this Bill.

Intergovernmental relations sometimes feel like one step forward and two steps back. There was the Dunlop review, whose whereabouts were raised in this House numerous occasions before it was discovered in the levelling-up department, where it was somewhat reinterpreted. More recently, there have been a number of important pieces of legislation where the Sewel convention has been ignored. Rather than using the Sewel process as a way of arriving at a shared approach, it has now become common practice to ignore it and take action without legislative consent.

The Interparliamentary Forum report published in January noted that there were

“ongoing challenges of intergovernmental relations including operation of the UK Internal Market Act, and the scrutiny of intergovernmental working”,

and

“substantial challenges in reaching agreement between the governments of the UK”.

Some academics have put this down to the Government having a unitary mindset, even after 25 years of devolution, and not accepting that there has been a fundamental change in the constitution.

21:15

Both the Welsh and the Scottish Governments have expressed their serious concerns about this legislation, arguing that the Bill is disproportionate and unnecessary, and that it is not clear what problem the UK Government seek to address by including Scottish and Welsh Ministers in its scope.

The Bill is unnecessary because the WTO has rules in place that all UK Governments are expected to adhere to. Neither the Scottish nor the Welsh Government have taken action outwith the terms of the WTO or other trading partners. Indeed, it is the UK Government who have been subject to challenge for breaching WTO rules and other international agreements. There is a strong case for greater scrutiny of UK trade deals and for the devolved Administrations to be given a role in those processes.

As it stands, this is probably the most restrictive legislation that the Government have so far tried to impose on devolved Governments. The noble Baroness, Lady Ritchie, is unable to be here this evening, but she has suggested that as devolution has returned to Northern Ireland for only some nine weeks, it is still in the process of bedding down and it would be extremely unfair to impose a requirement on the Executive and the Assembly for legislative consent. That would cause unwarranted division in the Executive and the Assembly at this time, when they need to work together. The Bill could serve to undermine not only the principles of devolution but the carefully negotiated political settlement in Northern Ireland.

In relation to Northern Ireland in particular, could the Minister outline what discussions have taken place with the Ministers for the Economy and for Finance and the Northern Ireland Executive regarding the impact of the Bill? The noble Baroness, Lady Ritchie, would like an assurance that it will not be forced on public representatives in Northern Ireland.

Can the Minister answer the question raised by the Scottish Parliament? How could a decision taken by the Scottish Government in relation to a particular procurement or investment process be mistaken by anyone for an alternative UK foreign policy? Can she also respond to the Welsh Government’s concern that the UK Government will go over the heads of Welsh Ministers in relation to the Welsh devolved authorities? On this matter I welcome Amendment 20A, which seeks to address that point. I am also pleased that my noble friend Lady Chapman, through her amendment in this group, is attempting to achieve a similar outcome, albeit in a more succinct manner.

Many of the public bodies that expect to be covered by this legislation are concerned about Clause 4, which they have argued will gag public bodies and is likely to be a disproportionate interference with the right to freedom of expression, as protected by Article 10 of the ECHR and given domestic effect by the Human Rights Act. The devolved Governments are required by law to act within the ECHR, which obliges them to uphold a minimum level of human rights protection. The UK Government should not put the devolved Governments in a position where they cannot uphold their statutory commitments.

There are many reasons why the Bill should not pass, not least because it is an embarrassment to this Parliament. Any Bill that attempts to prevent people who hold different political or moral views from the Government expressing those views with the threat of legal redress belongs in a totalitarian regime, not in a constitutional democracy. That is particularly the case when the Government seek to silence other elected representatives. Demeaning their electoral mandate is totally unacceptable and should be opposed.

[Lord Hain (Lab)]

My Lords, I apologise to the Committee for speaking so soon after my previous contribution, but I will speak to my Amendment 20A. I associate myself with the amendments of the noble Baroness, Lady Bryan, which I have signed.

I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Randerson, for adding their names to my Amendment 20A. This iniquitous Bill challenges the very foundations of devolution in the United Kingdom—namely, that decisions should be taken at the local level, and that local leaders should be answerable for them, rather than decisions being taken at the centre by remote politicians and officials. I say that as a former Secretary of State for Wales who helped bring in the Government of Wales Act 2006, which strengthened the devolution possibilities for the now Welsh Parliament —the then Welsh Assembly. My amendments and those of my noble friends address one aspect of that: they seek to remove from the Bill matters for which the Governments of Scotland, Wales and Northern Ireland should properly be responsible.

I will speak about Wales in particular. The Explanatory Notes acknowledge that the Bill affects the decision-making of the devolved Administrations. The memorandum of 8 September 2023 from Rebecca Evans MS, the responsible Welsh Minister, set out in detail the way in which the Bill intruded into devolved competences in Wales and why it was right to withhold the legislative consent of the Senedd—which has occurred.

Deciding whether a particular purchase or contract should be made by the Welsh Government, or any other public authority in Wales, is patently a function exercisable in relation to Wales under the terms of Section 3 of the Wales Act 2017. The conduct of foreign affairs is reserved to the UK Government under that Act, but the making of moral or political judgments about the conduct of foreign states is not conducting foreign policy. That is a crucial distinction denied by this authoritarian Bill, which abrogates powers to Ministers so that they can act by executive diktat—in this case, by overriding the devolution settlement in respect of Wales, Scotland and Northern Ireland.

Moral and political judgments are made by every individual—and so they should be; they should not be dictated by the centre. That means that the decision-maker should be at the lowest accountable level. In the case of Wales, decisions should be taken by a county or county borough council, the Welsh Government or the Senedd. Those authorities would be answerable for the moral and political judgments they make at the local or all-Welsh level. Are the Government seriously saying that they have a monopoly on moral and political judgment? That is what the Bill saying, which is both arrogant and absurd. Council tax payers in Neath, Gower, Wrexham or the Vale of Glamorgan are best placed to decide whether their councils are making the right decisions, and electors in Wales can make the same decision about the Welsh Government’s and the Senedd’s choices.

I cannot agree more with the Welsh Government’s view that the Bill is disproportionate and unnecessary, and I support the Welsh Parliament’s decision to refuse to give it legislative consent.

There are also major constitutional issues. If the Bill is enacted, it will fly in the face of the fundamental constitutional principle articulated in Section 2 of the Wales Act 2017, with parallel provisions, of course, for Scotland and Northern Ireland, that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of—in this case—the Senedd in Wales, the Parliament of Scotland or the Assembly of Northern Ireland.

The Bill would also fly in the face of the principle of subsidiarity to which the Government ostensibly subscribe: namely, that decisions are made at the level closest to the citizen, consistent with effective delivery.

So far as our amendments are concerned, because there is a single jurisdiction of England and Wales—something that the noble and learned Lord, Lord Thomas of Cwmgiedd, has reported on compellingly—the amendment of Clause 17 to remove the word “Wales” would not work technically. For that reason, it is necessary to achieve the removal of Welsh devolved bodies from the Bill in a different way from the way that can be achieved for Scotland and Northern Ireland, because England and Wales have a common legal framework and that is not the case for Scotland and Northern Ireland. That is done by my amendment to the schedule. This would add the Welsh Government and public authorities that are responsible to that Government to those bodies excepted from the provisions of Clause 1. Effectively, it would mean that the Bill would not apply in devolved Welsh areas.

Our amendments are an opportunity for these issues of devolution to be canvassed, for the devolution settlement to be preserved and for the rights of the other Governments in United Kingdom and their legislatures to be asserted. I hope that the House, in some way, will manage to protect the devolution settlement, because otherwise the future of the United Kingdom is threatened.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Bryan, and the noble Lord, Lord Hain, and to essentially agree with everything they said. I rise to offer Green support; I am not going to engage in the technical details, which the noble Lord, Lord Hain, set out so clearly, but I will simply say that this Bill should not apply to Wales, Scotland or Northern Ireland.

I listened to the debate on an earlier group, when the noble Lord, Lord Boateng, talked about a small nursery, run by a charity, deciding to ban oranges from South Africa. That obviously is not right—it is the sort of thing that the Bill appears to be addressing—but how much more so when we are talking about an entire devolved Administration? If we think about the kinds of examples that might apply here, let us say that one of the nations’ devolved Administrations might choose to block a supplier of staff uniforms because the clothing is made under abusive conditions in an abusive regime. How can it not be right that the people of Wales can decide for themselves that they do not want to see people wearing uniforms from that kind of source?

In the earlier group, my noble friend Lady Jones of Moulsecoomb pointed out how the environmental derogations are utterly inadequate. How can it be that the Scottish Parliament could not decide to ban food sourced from deforested areas of the Amazon from being served in the Parliament? Those are the kinds of things that the Bill is currently providing.

It is worth looking over the history of this a little bit. I think it was two Prime Ministers back—it is rather hard to keep track, but I am referring to Boris Johnson. Under Boris Johnson, it seemed that there was a real desire to pick fights with the Scottish Parliament and the Welsh Senedd in particular. Since then, we have seen some improvement; we have seen the Review of Intergovernmental Regulations, which said that

“decisions will continue to work on the basis of agreement by consensus”.

I think that is an important phrase to look at, although I note we have seen some backsliding recently, and perhaps this Bill is a symbol of that.

21:30

I put down a Written Question, HL3655, asking why no Westminster Minister attended the meeting on 21 March of the Interparliamentary Finance Committee Forum with Members of the Scottish Parliament and the Senedd Cymru. I did not get a substantive answer to that question, so I hope we are not seeing that kind of backpedalling here.

It is worth running through the fact that Scotland and Wales have already very clearly indicated that they will not provide consent for the Bill, and the context in which that happened. In Scotland, we saw human rights groups, unions and environmentalists urging Scottish Ministers to reject the Bill. Then the Government, having listened to those representations from the people of Scotland, came out and acknowledged that this was a wholly unnecessary and unwelcome alteration to Scottish Ministers’ competence. This is what Scottish Ministers have said. The Bill is telling them that decisions should not be made on ethical or moral matters, in Scotland, for Scotland.

In Wales, there was a campaign by 70 civil society organisations, including the TUC, Amnesty UK and Liberty. Senedd Members were told that this was an attack on freedom of expression and, again, on their right to make their own ethical decisions on investment and procurement. The Welsh Minister for Finance and Local Government said that the Bill was not compatible with convention rights or international law, and there was widespread criticism from the legal community. These are things that Welsh Ministers and the Welsh Government have said.

I can update what the noble Baroness, Lady Bryan, said about Northern Ireland. Just in the last few hours, the Finance Minister has written to Stormont’s Finance Committee opposing the Bill. We note that the DUP has said that there is unlikely to be agreement within the Executive on this. This presents real risks in Northern Ireland, as the noble Baroness outlined, and as has just been made very clear in the last few hours.

This is, in its own terms and in terms of what is it doing, an indefensible Bill. It is also, as the noble Lord, Lord Hain, made very clear, causing real damage and concern to the devolved Administrations and to the nations. I am aware that many Members of your Lordships’ House regard themselves as unionists. If noble Lords want to keep the union together—that is not my position—the Government should think very hard about what they are doing with the Bill.

[Baroness Randerson (LD)]

My Lords, I rise to speak specifically to Amendment 20A, to which I have added my name. I did so because the Bill is yet another intrusion on devolution. It is part of a pattern by which Bill after Bill in this House, Act after Act produced by this Government, raids the powers of devolved Governments and the devolved Assemblies. The Internal Market Act started that, along with the Procurement Act—and there are others. It is a complete pattern by this Government; an intention to reduce devolution in stature and in practice.

As a Wales Office Minister between 2012 and 2015, I recall that it was unthinkable that we, as a UK Government, would ignore the need for an LCM on something like this. We have now got to the point where it is routine for this Government to do that. In addition, in the case of this Bill, the unpredictability of Henry VIII powers will give the opportunity to the Secretary of State to make regulations that could have additional, profound implications for both Wales and Scotland, and throughout the UK.

The Government seem to forget the history of devolution. In 1999, when devolution was established, the Scottish Parliament had a much more comprehensive settlement than that provided for Wales. That proved to be a mistake. It was not just that Wales had fewer powers. The lack of a proper pattern to those powers and a comprehensive picture of them made it very difficult to make devolution work. I am conscious that I have signed an amendment led by the noble Lord, Lord Hain, and that I am criticising the Government of whom he was a part. I am sure he would agree that Labour First Ministers led campaigns to increase the powers of the Welsh Assembly, now the Welsh Senedd, specifically because it just did not work with much more limited powers. We now have something much more workmanlike, effective and constitutionally coherent. This Government have set about dismantling it again.

Added to that, the Bill is unnecessary. In the Senedd, the Minister made it clear that the Welsh Government are of the view that the UK Government have sufficient powers in place within the World Trade Organization Agreement on Government Procurement, enshrined in the Public Contracts Regulations 2015, and that those powers enable fair and equal treatment of overseas bidders where there is a relevant trade agreement. They do not believe that there is any need for additional powers. The UK Government already have the power to set sanctions for trade. All these arguments and discussions that we are having are irrelevant because those powers already exist. The Welsh Government fundamentally believe that the powers in this Bill would have a significant impact on the freedom of public bodies and democratic institutions in Wales. They have the majority support of Members of the Senedd on this. The impact would be on their freedom to decide not to purchase or procure in a way that impacts on their existing legal obligations in relation to human rights, abuse of workers’ rights and the environment. In practice, these powers are not going to fit comfortably with the structure of our legislation as it currently exists.

The fundamental reason why I signed this amendment on behalf of the Liberal Democrat Benches is that this is yet another impact on devolution and the coherence and effectiveness of the way in which the Governments of the United Kingdom should work together in a positive and effective manner.

[Baroness Noakes (Con)]

My Lords, I think that noble Lords who have spoken have misrepresented the devolution settlement. It is clear that foreign policy is a reserved matter. When we come to this Bill, the question of the political or moral disapproval of the conduct of foreign states is a matter of foreign policy that can be determined only by the UK Government.

Noble Lords have been trying to describe devolution as they would like it to exist but the plain fact is that foreign policy is a reserved matter, and that is what is driving this. I do not think that the other matters that the noble Baroness, Lady Randerson, just referred to prevent action by the devolved authorities because of the quite extensive exemptions, which align with the procurement legislation, that are set out in the Schedule. We are talking about political or moral disapproval of state conduct, very specifically, and that is a matter reserved to the UK Government.

We have to remember that the devolved Administrations have form here in relation to Israel. To take the Scottish Government, back in 2014, they issued a Scottish procurement policy note which, in effect, encouraged Scottish bodies to boycott operations in the Occupied Territories. That note, which is quite difficult to find on the internet nowadays, because it seems to have disappeared into a black hole of an archive, was reconfirmed by current Scottish Ministers only a couple of years ago, so it remains the Scottish Government’s policy, which they cannot effectively implement because of the reserved nature of foreign policy.

To take the Welsh Government, in 2020 they informed the Welsh Parliament that they intended to issue advice to all Welsh authorities

“that they may exclude from tendering any company that conducts business with occupied territories either directly or via third parties”.

It was only after intervention from an organisation called UK Lawyers for Israel that the Welsh Government deferred their decision. So we have the Scottish Government and the Welsh Labour Government itching to boycott Israel, and to use that as a reason—

[Lord Hain (Lab)]

The noble Baroness accurately quoted the Welsh Government’s position as referring to occupied territories which are illegally occupied, including those determined by the British Government, not as boycotting Israel.

[Baroness Noakes (Con)]

Whether that is relevant is another matter, because the boycotting of the Occupied Territories would also cause a problem under this Bill if Wales and Scotland were allowed to, in effect, opt out of the Bill.

[Lord Collins of Highbury (Lab)]

I am sorry to interrupt again, but has the noble Baroness had the opportunity to read the FCDO’s advice on the Occupied Territories?

[Baroness Noakes (Con)]

The noble Lord has the advantage of me, because the straight answer to that is no. However, if he points me to it, I shall certainly read it before we consider that again. I believe that trying to boycott the Occupied Territories is the same as trying to boycott Israel. Certainly, the intent is the same, and they are covered by the Foreign Office.

[Lord Collins of Highbury (Lab)]

I am sorry to labour the point. The noble Baroness keeps using the word “boycott”. We are also talking about decisions on procurement and investment, and there is advice from the FCDO about investing in occupied territories.

[Baroness Noakes (Con)]

I was referring largely to procurement because those were the decisions that were made by the two devolved Administrations that I cited. I would be very surprised if the FCDO had advice that boycotting procurement decisions relating to the Occupied Territories was something that it approved of, and therefore it was something that it thought the devolved Administrations could do. However, in any event, that is for the Foreign Office, not the devolved Administrations, to determine. I do not think we can get away from the fact that the current devolution settlements give foreign policy autonomy to the UK Government.

[Lord Warner (CB)]

My Lords, I have listened to this debate with some astonishment. I will not raise the issue of the ECHR; we will come to that when we get to my Amendment 48. However, to keep chanting the view that it is for the national Government to make foreign policy seems to be ducking out of a fundamental democratic issue.

21:45

I want to end by posing a particular question to the Minister. Throughout my life, from time to time, there has been outrage among the public about a Government’s foreign policy in relation to particular countries; there is nothing new or startling about that. On many occasions that has been because people took the view that a particular Government of a particular country was behaving in a morally reprehensible way. Let us remember the marches against the Iraq war and let us also remember that many local authorities took sides on that issue. I did not see many Ministers jumping up in the Government to say “How dare you do this, because this is actually foreign policy, which is a matter for the Government. Why don’t you get back into your boxes and shut up and behave yourselves?” You cannot stop the public taking a view on the behaviour of a foreign Government in a particular set of circumstances. Israel is no different from any other country; it will make mistakes from time to time, however brilliant the Israelis may or not be.

Here we have a situation where we have given three areas of the United Kingdom and Northern Ireland the power to make many of their own decisions, including what they purchase to meet the needs of their communities. Are we really saying that we will stop them doing that? It was not that long ago that we gave them these powers; are we really saying that we will stop them doing what Parliament gave them the power to do, which is, so far as I can see, what this Bill will do? We will come back to Clause 4 later under my amendment, but it is very difficult not to see Clause 4 —as the noble Baroness said—as a gagging clause in the Bill to stop debate.

So I say to the Government—this is where I come to my question—“You can get yourself into a tangle because now, if you concede to these amendments, it will be very difficult for you, because if you concede to them and then do nothing for England, you will put English authorities in an inferior position to the authorities in Scotland, Wales and Northern Ireland”. So the Government will get themselves into a tangle, if they concede to these well-argued amendments, over what they would do about England. I cannot see local government in England being terribly thrilled if the Government have given way to these three, rightly, devolved Administrations. What will they say to the local authorities in England about why they are put in an inferior position to local authorities in Scotland, Wales and Northern Ireland? That is where you would end up. So my question to the Minister—

[Lord Hain (Lab)]

I am very grateful. I agree with everything he has said. On his point about central government not always being correct, that would have been the case in the 1930s when a Conservative Government were appeasing Hitler and there was massive pressure from outside, from people in all walks of life who took a different view, that eventually forced a change of policy and Churchill took over with a different policy—thank goodness.

[Lord Warner (CB)]

Absolutely—I thoroughly agree with the noble Lord, and this comes to my question as to whether the Government have thought this through. I do not know what the penalties will be for breaches of this law, but I can foresee that, on some issues, people will feel so strongly that they will be prepared to pay—you might say it is the cost of trade—the penalties so that they can demonstrate to the Government what they feel about a particular action in a particular country by a particular Government. Have the Minister and the Government thought through what happens if there is a willingness among groups of people to take a stand against this Bill, accepting that they may get some financial penalties and being prepared to pay those penalties because they feel so strongly about a particular issue?

[Lord Wallace of Saltaire (LD)]

My Lords, I will try to be brief at this late hour. I spent my entire career studying and writing about foreign policy. The noble Lord, Lord Moylan, was kind enough when he made his speech some months ago to say that, when he joined the Foreign Office, he was told, “You’ve got to read William Wallace’s The Foreign Policy Process in Britain”, before he started work—so I know a little about it.

I emphasise there has always been, and remains, a difference between the approach to foreign policy in the security sense and defence sense—in which it is quite clear one has to have command, central control and therefore real concern about sovereignty—and to trade policy, international investment and procurement, which are usually controlled by a different department, often in competition with the Foreign Office, and in which subordinate entities of government, in most states, also have degrees of latitude. The German Länder pursue different international investment policies. I remarked earlier that the British Government are negotiating trade deals with Washington state, Texas and others within the United States. The idea that all foreign policy in the broadest sense, from immigration through to defence, has to be undertaken by central government is an extreme sovereigntist and unionist case, which I think should not hold.

[Baroness Chapman of Darlington (Lab)]

My Lords, I will be very brief. I do not want to repeat some of the excellent points made, but I do have an amendment in this group about requiring a legislative consent Motion. For us, this is primarily an issue of respect. It saddens us: from the internal market Act, relationships between the UK Government and the devolved Governments started to go really badly wrong. It seems to happen again and again. I remember a couple of weeks ago, in this Chamber, the noble Lord, Lord Moylan, referred to the Welsh Government’s desire to work to support the Welsh language as a fascist attitude. That has played on my mind ever since. Things have really deteriorated to such an extent that, in the personal relationships between politicians in the UK Government and the devolved Governments, which politicians used to take pride in putting some effort and work into, nobody seems to even try anymore. Bills such as this one come along where the Government do not seem to care whether it has any legislative consent and do not even try to persuade their colleagues in the devolved Administrations to see the benefits of a particular piece of legislation. That is very sad. I regret that deeply, and the Government really ought to do better.

This is primarily about freedom of expression for people who have been elected in their own right to represent their communities. It is wrong that Clause 4 prohibits statements. We will come on to that later, but they are to be gagged by the Bill, and that is to be regretted. It is a backwards step. We will debate that another day. I hope that noble Lords will understand just how offensive the restrictions in that clause are to elected Governments in Scotland, Wales and Northern Ireland.

As others have said, the Bill is disproportionate and unnecessary. The Minister and I have had exchanges about things raised by the noble Lord, Lord Foulkes, about the Scottish Government having offices in other nations, and he says that this is wrong because foreign policy is the UK Government’s domain, He is right about that—he does not speak for the Labour Party on these issues and is not right in the complete sense on the points that he makes on this. The Government agree and say that this is a terrible problem, that it is confusing for our partners overseas and that something should be done, but they are doing nothing about it. Instead, they feel that this is causing confusion in foreign policy. I just do not believe it. I do not believe that any other Government anywhere in the world is confused about our foreign policy because of some statement that the noble Baroness, Lady Noakes, says has been put in a drawer somewhere in Edinburgh, was passed 10 years ago, and is somehow causing such diplomatic confusion. I do not see any evidence of that whatsoever.

It is sad that the Government no longer even try to pretend that they want to work in partnership with devolved Governments. We can do so much better. The UK Government already have sanctions powers, and they are now seeking unnecessarily to fetter and gag devolved Governments. This shows a terrible lack of respect and I regret it very much.

[The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)]

My Lords, the amendments put forward by the noble Baronesses, Lady Bryan of Partick and Lady Chapman of Darlington, and the noble Lord, Lord Hain, seek to remove Wales, Scotland and Northern Ireland from the territorial application of this Bill. I am sorry that the noble Baroness, Lady Ritchie, and the noble and learned Lord, Lord Thomas, are not here tonight, as they usually are in these discussions.

I disagree with these amendments for two reasons. First, the intention of this Bill is to ensure that the UK speaks with one voice internationally. It will safeguard the integrity and singularity of the UK’s established foreign policy, which is set exclusively for the whole of the United Kingdom by the UK Government. My noble friend Lady Noakes explained that well—political and moral disapproval is the issue here—and she gave a Scottish example. The noble Lord, Lord Wallace, takes a different view.

I see it this way: international relations and foreign policy are reserved matters and remain the responsibility of the UK Government and the UK Parliament. Removing Scotland, Wales and Northern Ireland would be out of line with the devolution settlement and undermine one of the main aims of the Bill—one UK foreign policy decided by the UK Government. I appreciate the view of the noble Lord, Lord Hain, that decisions should be made as close to local level as possible. However, I do not believe that this would be appropriate for international relations, which is rightly reserved for the UK Government. The UK cannot effectively conduct a single foreign policy if each devolved Administration or indeed local authorities, as I think we were talking about, are conducting a separate policy.

The second reason I oppose these amendments is that the BDS campaigns, which risk undermining community cohesion, are a UK-wide problem. I will illustrate this briefly with some examples. In Wales, a 2014 motion passed by Gwynedd Council called for a trade embargo with Israel. In 2020, as the noble Baroness, Lady Noakes, pointed out, the Welsh Government informed the Welsh Parliament that they intended to issue advice to all Welsh public authorities that they may exclude from tendering any company that conducts business with the Occupied Territories, whether directly or via third parties. Only after intervention from UK Lawyers for Israel did the Welsh Government defer this decision.

In Scotland, in January 2009, West Dunbartonshire Council passed a motion agreeing to boycott all Israeli goods. That motion was reaffirmed in June 2010 and May 2011. In December 2010, Stirling Council passed a motion resolving to

“reassess its current procurement arrangements and ensure future agreements and contracts boycott all Israeli goods”.

In March 2013, Clackmannanshire Council passed a motion to

“resist, insofar as legislative considerations permit, any action that gives political or economic support to the State of Israel”.

In Northern Ireland in 2016, Derry and Strabane Council voted in favour of BDS. A motion was passed to investigate the most practical means of implementing the BDS campaign in the council. Finally, in Belfast in 2019, councillors attempted to bring forward a resolution to support BDS.

For these reasons—the need for a single UK foreign policy and the record of boycott campaigns across the UK—it is vital that the Bill’s provisions extend to each of the jurisdictions of the UK. This includes all public authorities, as defined in Section 6 of the Human Rights Act 1998. This includes Ministers in the Devolved Administrations. This may alter their executive competence, so the legislative consent process has been engaged, as the noble Baroness, Lady Chapman, explained. We have therefore sought legislative consent from the devolved legislatures to apply the bans in Clauses 1 and 4 to Ministers in Scotland, Wales and Northern Ireland.

International relations and foreign policy are reserved matters and remain the responsibility of the UK Government and the UK Parliament. The Bill legislates in this area.

The noble Baroness, Lady Bryan of Partick, emphasised that the devolved Administrations are required to act within the European Convention on Human Rights. The Bill will not compel public authorities to make a decision that would put them in breach of the convention, and it will not interfere with the rights of any public authority. One of the reasons why we chose the public authorities definition is that these bodies do not have convention rights, so the Bill is compliant with the convention, including the Article 10 right to freedom of expression.

In response to the noble Baroness, Lady Randerson, I would like to reassure her that the powers in the Bill can be used only to narrow the scope of the ban, as it would be set in primary legislation. They cannot be used to place broader obligations on the devolved Administrations than what was agreed by Parliament.

22:00

[Lord Warner (CB)]

I am sorry to interrupt the Minister, but I am still trying to puzzle out what happens, to take the example of Scotland, if there is a great deal of resentment about this legislation, particularly Clause 4. What happens if the Scottish Parliament, presumably protected by privilege, decides to have a debate, there are a number of decision-makers under Clause 1 in that debate, and they voice their view in a way that is totally different from the Government’s view on that particular country and the issue they are debating? Would the UK Government then wind itself up to fine them? I am not quite sure what the fine levels will be. What if the Scottish Parliament then has another debate and decides not to pay the fine? This does not seem a fanciful position, given that the Government seem to be going out of their way to annoy the devolved Administrations. What will the Government actually then do, in practice?

[Baroness Neville-Rolfe (Con)]

If I may, I will come back to that at the end of the speech, because I want first to try to explain what we are doing with the devolved Administrations. The noble Baroness, Lady Randerson, said that the WTO already places non-discrimination requirements on public authorities. Although this is the case, these obligations do not cover all countries and territories and apply only to procurement decisions, not investment decisions.

To return to the subject of legislative consent, I think it is fair to say that we are disappointed that the Senedd and the Scottish Parliament have refused to give their consent to apply the ban to their Ministers and the respective departments and agencies. It is always the Government’s intention to legislate with the support of the devolved Administrations and, where relevant, the consent of the devolved legislatures. We will therefore continue to ensure that the interests of the devolved Administrations, including the devolved assemblies, are fully taken into account. Contrary to the noble Baroness’s suggestion, we do engage with the devolved Governments. I was in Northern Ireland last week, I visited the Welsh Government relatively recently, and my office has contacted the offices of the relevant Ministers in the Scottish and Welsh Governments. I hope to meet with them in the coming weeks to discuss further how we can gain their support for the Bill.

[Lord Hain (Lab)]

I will be brief, given the hour. What advice would the Minister give to Welsh local authorities if they refuse to procure or encourage any local companies to do business with Xinjiang province in China because of its oppression of the Uighur Muslims? China, unlike Russia and Belarus, is not listed in the Bill in that way.

[Baroness Neville-Rolfe (Con)]

I am not quite sure what will happen about Xinjiang; that is a foreign affairs question. Obviously, although it is not referred to in the Bill, we have made it clear that we will use the Bill, where appropriate, to exempt areas. We have already said we will use the powers in relation to Russia and Belarus. I am going to talk to the Welsh Government, and I am sure this is a question that will come up. As I said, I hope to meet them in the coming weeks to discuss further how we can gain support for the Bill and what would be the right approach.

In Northern Ireland we have been formally seeking consent from the Northern Ireland Assembly since the restoration of power sharing and will continue to do so. The noble Baroness, Lady Bryan, asked for reassurances that we have engaged with the Northern Ireland Executive. Officials have discussed the Bill’s provisions with officials in Northern Ireland and have been actively pursuing engagement with the Northern Ireland Executive now that power sharing has been restored. I hope to be able to meet Ministers in the Executive to seek their consent for the Bill soon.

In response to the concerns expressed by the noble Lord, Lord Warner, about what would happen if a public authority does not pay a penalty, we would advise public authorities to reconsider before refusing to pay a fine as the enforcement process, which I think we will come on to discuss on subsequent days, makes it clear that it could end up being enforced by the respective court system of the devolved area. The enforcement authority can apply to the court for the enforcement of an information notice. A failure to pay a fine is a civil debt, to answer the point that was made in an earlier group by the noble Lord, Lord Collins, under Clause 10(3). This will be through the courts in the relevant devolved jurisdiction, so if a Scottish council was subject to an information notice or issued with a fine, that would be enforced by the Scottish courts.

I am conscious it is late. We have had a lively conversation on this subject. I hope that for the reasons I have set out the noble Baroness will be willing to withdraw her amendment.

[Baroness Bryan of Partick (Lab)]

I thank the Minister for her response and everybody who has participated in this discussion. The Minister and the noble Baroness, Lady Noakes, believe that there should be one voice in all international policy, but procurement is a devolved issue and, as we have heard, Clauses 1 to 4 require legislative consent. The worry is they require it, so they can ignore it, but I hope not.

The noble Lord, Lord Hain, put his finger on the issue of subsidiarity versus centralisation. Are we going to have one centralised procurement body for the whole of the UK that will choose which procurement is in line with the Government of the day’s international policy? I do not think anybody wants to go down that route. There is strong concern about the backpedalling, as it was described, and the resentment that this will cause. Remember that 50%-plus of voters support independence in Scotland. They might not be ready to vote for it at this time, but give them a push further along, and we might find that that happens. More Welsh voters are coming to support independence, and Northern Ireland is being held together by constant vigilance. I hope that the concerns raised here are taken seriously and that the Government engage properly with the devolved Administrations, discuss their trade plans with them and do not treat them as a minor inconvenience that gets in the way of the big issues of government. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

House resumed.

House adjourned at 10.09 pm.