Arrangement of Business
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, as is normal on these occasions, I must advise the Grand Committee that if there is a Division in the Chamber—I put in parentheses that I think that is highly likely—while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Public Authorities (Fraud, Error and Recovery) Bill
Baroness Finn
“PurposeThe purpose of this Act is to enable public authorities to identify and prevent fraud and error and recover monies lost through fraud or error, and to strengthen mechanisms for reducing fraudulent activity across public services.”
Member’s explanatory statement
This amendment sets out the purpose of the Bill—to identify, prevent and recover public funds lost through fraud and error, and to strengthen mechanisms used to reduce fraud across public services.
Baroness Finn (Con)
My Lords, this is a serious Bill. It deals with a serious problem. Fraud against the taxpayer is not a footnote. It is not a rounding error. It is a threat to public trust and the integrity of government. We on these Benches support the purpose behind the Bill. We want it to succeed. We want it to be strong, clear and capable of making a difference from the moment it takes effect. In the days ahead, we will approach Committee with purpose. We will work with the Government where we can; we will press them where we must. Our proposals will be focused, practical and aimed at making the Bill stronger.
At Second Reading, we raised a number of issues. These remain our priorities. We want proper oversight of the powers granted to the Public Sector Fraud Authority. We want strong review mechanisms. We want protection for those who may be exposed or vulnerable and we want recognition of the cost burden placed on those who are asked to deliver these powers. These concerns are not confined to one party or one corner of the House; they are widely shared. They reflect a simple truth: good intentions are not good enough. If we are to defeat fraud, we need sharp tools, clear lines of responsibility and laws that do not fold under pressure. That is the task before us and the spirit in which we will proceed.
We will be starting our Committee stage discussion by covering some of the proposals put forward in relation to the Cabinet Office. We broadly support the intention of these measures, but we have several key concerns and suggestions around the Bill as it stands. First, the role of the Public Sector Fraud Authority remains ill defined, particularly in relation to other public authorities. At present, the PSFA can only act when invited by the very bodies it is supposed to scrutinise. This is not effective oversight; it is an invitation to avoidance. Departments can simply choose not to refer themselves.
More importantly, if they lack the legal powers to investigate fraud internally, these powers should be given to them directly. If they already possess them but fail to act, a central authority merely serves as a convenient place to offload difficult or politically awkward cases. Yet the Bill does not address this gap. It does not strengthen departments or build capacity at source. Instead, it hands sweeping new powers to the Cabinet Office and places responsibility for tackling fraud across the entire public sector in the hands of a team of now just 25 civil servants. That is not a credible model. It concentrates accountability at the centre without providing the means to exercise it effectively and it leaves the rest of the system with little incentive to act.
PSFA officials are handed sweeping PACE powers with no direct authorisation or legal requirement to pass a reasonableness test and can refuse to undertake an investigation with no duty to report the reasons why. The risk is obvious. Complex fraud will be passed from hand to hand, referred and re-referred, until it disappears altogether into the undergrowth of government.
Secondly, the Bill grants the Public Sector Fraud Authority powers of remarkable breadth. These include the ability to obtain information notices, issue civil penalties, apply for search warrants under the Police and Criminal Evidence Act 1984 and extract funds directly from bank accounts by order. These are not judicial decisions; they are executive powers exercised administratively.
Critically, the Bill allows these functions to be exercised not by Ministers but by civil servants, as junior as high executive officer grade, acting as authorised officers under Clause 66. There is no requirement for ministerial sign-off and, in many cases, no real mechanism for contemporaneous parliamentary scrutiny. The only oversight comes in the form of an independent reviewer appointed by, and reporting to, the same Minister whose powers they are reviewing. That reviewer cannot intervene, stop action or compel disclosure. They merely write a report after the fact, which the Minister is then required to publish. That is not accountability; that is delegation without control, power without visibility and scrutiny without consequence. A system that concentrates coercive legal powers in the hands of junior officials outside of clear ministerial direction not only is constitutionally careless but risks creating a grey zone of enforcement where power is exercised without responsibility and mistakes cannot be traced back to those elected to answer for them.
Ensuring that we find the right balance, where we develop the PSFA into an authority that has proportionate powers, a credible anti-fraud function and proper oversight, is the objective of our amendments today. Our first amendment, the purpose clause, is intended to ensure that the use of sweeping powers in the Bill is limited only to the purpose of identifying and preventing fraud and the recovery of public funds lost through fraud and error, as well as to strengthen mechanisms to prevent this in the future. We believe that it is a sensible, proportionate amendment that will ensure that the powers in the Bill are used only in pursuit of that explicit objective. A legal protection against the abuse of powers is a responsible safeguard and, given the extent of some of the powers granted in the Bill, anchoring that to the core purpose on which noble Lords across the House agree is, in our view, a reasonable measure.
Our role as the Opposition, as I said, is to question the Government, to challenge them on their reasons and their rationale and to make suggestions on how to improve legislation. I look forward to this Committee day, and those upcoming, to play that role. I beg to move.
Lord Palmer of Childs Hill (LD)
My Lords, there is really not a lot to say at this stage. We support the purposes of the Bill. Obviously, it is not meant to be a contentious Bill, but the interesting thing is the fine line that it draws between chasing people who have made honest mistakes and those who enter into fraud. As with income tax—if we still use the old words from my accountancy days—the difference between evasion and avoidance is sometimes a very thin line. We will explore where you draw that line in terms of how you chase people for mistakes that have been made, perhaps on purpose or perhaps in error. We look forward to the progress of the Bill to see where those lines are drawn.
Viscount Younger of Leckie (Con)
My Lords, I shall speak briefly as the other opposition Front-Bencher working on the Bill. I shall make a few introductory remarks on the purpose of the Bill as we begin Committee. I join my noble friend Lady Finn in welcoming this opportunity to have a productive, collaborative opening discussion on what the Bill is actually about and what it should be about.
Public sector fraud, as we have debated, is a crime that hurts every taxpayer in the country. It hurts every public service user and is an insult to everyone who works hard, pays their taxes and contributes to our society. This is a problem that we need to take steps to address, and the Government are right to reintroduce legislation and restart the process, which I know both Ministers acknowledge was started under the previous Government.
As noble Lords will be aware, my main focus will be on the second part of the Bill, which covers the DWP. This will not be covered so much in the amendments under discussion today, although I want to take the opportunity at the outset to flag up in advance and highlight some of the concerns that I have around these provisions and where my focus will be in the forthcoming Committee days. I hope this is helpful to the Committee.
First, on banks, there are still many questions over how the relationship between the DWP and the banks will manifest itself. We do not have clarity from the Government over how the process will work in practical terms or the costs that will be incurred by the DWP and financial institutions as a result of compliance under the terms of the Bill. As we highlighted at Second Reading, the Government, if they remain committed to human oversight of all decisions and reviews of information obtained from banks, could see a massive increase in their workload. Gaining greater clarity on this relationship, how it will work, the impact that it is anticipated to have and the resources required will form part of our approach on this part of the Bill.
Linked to this is the need to test the means to the end. What will be the cost for the expected return? How will the return be defined? That is the identity and recovery of fraud; also, the measurement of the deterrent factor in taking greater and more stringent measures to combat fraud—to take the challenge to the fraudsters, who have been seen to become ever more sophisticated. We will wish to challenge enforcement. What works? What are the sanctions for those who are convicted? Are they effective? What costs and resources are judged to be estimated in respect of this aspect of the Bill?
Secondly, we want to ensure that the Bill protects vulnerable people and recognises additional factors that may lie behind, for example, an overpayment. Proportionality in the exercise of these powers is vital, and we need to ensure that we do not cause greater harm than good in the pursuit of our shared objective. This concern is shared by noble Lords in this Committee. I am hopeful that we can reach an understanding with amendments that protect vulnerable people.
Finally, we see the Bill as an opportunity to combat those who seek to share information, allowing people to defraud the benefits and welfare system—the so-called “sickfluencers”. This is a serious problem. Thousands of people every day are consuming content that informs them of how to play examiners and score certain points based not on their actual health condition but on a script they have been taught online. These assessments are the mechanism through which the state determines eligibility for welfare payments. “Sickfluencers” who actively encourage dishonesty and make money out of a dishonest gaming system for exploitation must be stopped. We shall support amendments that seek to make this an explicit offence, so that there can be no room for doubt that these actions are wrong and could be criminal.
This is an important discussion on a topic that deeply affects everyone in our country. I welcome the opportunity to discuss ideas and suggestions for improvements to the Bill, which attempts to achieve a noble task. I and my noble friend Lady Finn will work in good faith with the Government and noble Lords across the Committee to improve the Bill and to make it effective and responsible.
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, and so we begin. I thank all noble Lords present for their participation and engagement. On a personal note, before we get to the substance and serious detail of the Bill, this time last week I was having my make-up done for getting married, so I welcome noble Lords joining me on my honeymoon in our Palace.
Moving on to the substance, I remind your Lordships why we are here today. Fraud against the public sector takes money away from vital public services, enriches those who seek to attack the Government and damages the integrity of the state. This Government said clearly in our manifesto that we will not tolerate fraud or waste anywhere and that we will safeguard taxpayers’ money. This Bill is part of those efforts. This is a Government focused on delivery. The Bill makes provisions
“about the prevention of fraud against public authorities and the making of erroneous payments by public authorities; about the recovery of money paid by public authorities as a result of fraud or error; and for connected purposes”.
This is already in the Bill’s title. There is no need for an additional new clause at the start of the Bill to set out a purpose that reiterates this, albeit in different language.
It is important for your Lordships to understand the real impact of fraud against the public sector. This is a dry term for something profoundly impactful. It is not government or state that is the ultimate victim of such fraud. It is not the Chancellor’s pocket that is picked, although the Treasury bears the brunt of at least £55 billion of fraud and error each year. The real victim is the British people. Every taxpayer who pays their fair share pays a fraud premium, because fraudsters cheat the system and skim from the top. It is taxpayers who are the victims. Every citizen who uses public services, knows how much good every penny can be put to in the communities in which we all live and rightly expects that the money will go to support their community is being defrauded. It is our citizens who are the victims.
Everyone who is in need, and who relies on the benefits and welfare systems that others cynically abuse, is a victim of public sector fraud. Noble Lords across your Lordships’ Committee will share my contempt for fraudsters who attack the British people in this way, and will want to take decisive action to start putting things right.
Baroness Finn (Con)
My Lords, our first amendment —to insert a purpose clause—has a clear and simple aim. The Bill grants sweeping powers, many of which can be altered and wielded through secondary legislation. Our purpose clause would ensure that any Administration exercising powers under the Bill will be tied to the core purpose that we have defined: to identify and prevent fraud, to recover public funds lost through fraud and error, and to strengthen mechanisms used to reduce fraud across public services.
As we begin Committee, we do so with a clear and constructive purpose. We support the principle of the Bill and share the goal of tackling fraud against the public purse. But as I said at Second Reading, support for the goal must not mean silence about the means. Our focus now must be on ensuring that the legislation is as effective, proportionate and accountable as it needs to be.
Through our amendments and contributions, we aim to improve the Bill—strengthening its safeguards, clarifying its powers and ensuring proper oversight. In doing so, we hope to help shape a framework that is both robust in its fight against fraud and respectful of the principles of fairness and transparency. We look forward to working with the Government and colleagues across the Committee to achieve that outcome. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, I am now going right off script, for which I am sure I will get into terrible trouble, to say to the noble Baroness, Lady Anderson, what a way to spend a honeymoon—but many congratulations.
Clause 1: Core functions of the Minister for the Cabinet Office
Amendment 2
Baroness Finn
Member’s explanatory statement
This amendment probes the Government’s plans for the extent of the role of the Public Sector Fraud Authority in supporting other public authorities in tackling fraud against them.
Baroness Finn (Con)
My Lords, I apologise for not congratulating the Minister for choosing to spend her honeymoon in these august surroundings. What better way?
At Second Reading, I highlighted the cultural problem with tackling fraud—that it is often safer to overlook than to uncover—so we have to change the culture and ensure that proper tackling of fraud is a cultural practice embedded within every public authority and government department. There is merit in creating a body with the powers to investigate fraud externally, but we need to make sure that proactive prevention and investigation into fraud start at home. Our Amendment 2 seeks to create an obligation for the Minister for the Cabinet Office to support public authorities in undertaking their own investigations into fraud when it occurs in said public authorities. In further developing the PSFA, the Bill provides us with a new resource and opportunity to support departments to intervene early and create mechanisms through which they can tackle this issue internally.
This objective has several key advantages. One major advantage is that this approach recognises that public bodies are complex, with unique funding mechanisms and operational procedures. Internal fraud teams bring intimate knowledge of these environments and have greater capacity to pursue targeted objectives, using knowledge that external agencies may lack. This allows for swifter detection of anomalies, targeted interventions and smarter use of data and insight.
Another significant advantage is that conducting internal fraud investigations inspires deterrence. Internal investigations can often begin before fraud escalates or becomes systemic. Timely action minimises losses and creates a departmental culture that stands more firmly against fraud. Not waiting for an external body to point out what has already gone wrong can embed a culture of deterrence and proactive interdepartmental counterfraud measures, which are an opportunity to minimise losses and therefore departmental damage.
Of course, internal investigation must never mean internal cover-up. The answer is not to sideline external oversight but to complement it. We must ensure that departments are equipped with the right skills, resources and authority to carry out investigations properly and that they are held to account when they fall short.
Our Amendment 24 seeks to strike this balance by requiring public authorities to conduct an internal review if they lose £50,000 or more through an overpayment or fraud, and to provide that report to the Minister for the Cabinet Office. This measure seeks to meet the benefits that I have just outlined, while embedding in law that responsibility for fraud cannot be outsourced. Authorities that lose money must take account of why this has happened and, fundamentally, they must also take responsibility for it. Making them accountable to the Minister is a mechanism through which we can achieve this.
I hope that the Government will consider supporting the amendments in this group, which seek to embed departmental accountability for fraud while utilising the resources of the PSFA to create intradepartmental cultures that deter and counteract fraud. I beg to move.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, if we continue at this speed, the Chief Whip will be disappointed that we are doing only seven groups. It is probably unlikely that we will continue at this speed, but I can aspire.
While I appreciate the comments from the noble Baroness, Lady Finn, I want to be clear that Amendment 2 is unnecessary as it is duplicative. It would insert “investigating”, as a way that the Minister can support other public authorities’ actions in response to fraud, separately from the explicit function of investigating if a request is made of the Minister by the public authority, which is earlier in the same clause. It is unnecessary because the word “tackling” in the same line of the clause cited covers any activity to support a public authority dealing with fraud and supporting them in their own investigations too. It is deliberately drawn broadly so, if adopted, this amendment would not change the scope of Part 1.
The Government’s intention with Part 1 is for the PSFA to become one of the ways that public authorities deal with fraud, by requesting that it take on a case for investigation, enforcement or recovery. The PSFA is also happy to support other public authorities in their own fraud investigations, and already does so. Which option is best will depend on the facts of the case.
Amendment 24 would require departments to conduct an internal review if, following a PSFA investigation, it is confirmed that they have lost more than £50,000 to overpayment or fraud. All losses at this scale should already be investigated and reported on. There are established audit, assurance and reporting processes for this.
In addition, the facts of the case would already have been established by the PSFA, and learnings taken from it will be shared on a cross-government basis to aid the prevention of fraud—hence the establishment of the PSFA within the Cabinet Office. This amendment would create an extra burden on each department and replicate the work of the PSFA, and is unnecessary as its core aim will already be addressed through other activities.
I hope that this explanation reassures the noble Baroness, Lady Finn, and that she can therefore withdraw her amendment. I expect that we will discuss more of this in great detail as we continue.
Baroness Finn (Con)
My Lords, I thank the Minister for her response. As we draw the debate on this group to a close, I thank all noble Lords who have engaged with the issues—so I thank the Minister. We are clear in our recognition that tackling fraud must go beyond enforcement. It must be a culture embedded across every public authority and government department. Although it is right that the Public Sector Fraud Authority must have the powers and resources it needs to act decisively, with these amendments we highlight that fraud prevention cannot and must not rely on external investigation alone. The work must begin within departments themselves.
Amendment 2 reflects our view that the Minister for the Cabinet Office should have a duty to support public authorities in carrying out their own investigations, and the amendment seeks to use the resources of the PSFA to encourage early intervention, the development of internal counterfraud capability, and ensuring that every public body has the tools to act on fraud swiftly and effectively to counter fraud at home.
Our Amendment 24, which would require internal reviews for significant losses, is a proportionate and reasonable step towards building a culture of accountability across the public sector. If a public authority loses £50,000 or more through fraud or overpayment, it is right that the public body must work to understand what went wrong, and it is right that it must explain this to the Minister. Without our amendment, we risk allowing the same mistakes to recur, with no mechanism for learning or redress within the public body itself.
Our amendments seek to promote a culture of responsibility. They seek to ensure that no department or authority sees fraud as someone else’s problem or as a matter that will simply be dealt with elsewhere. The message that these amendments send is clear: tackling fraud must begin at home. These proposals are balanced, targeted and grounded in practical experience. I hope the Government will reflect carefully on these points and consider working with us to embed this into the Bill. I beg to withdraw the amendment.
Baroness Kramer
“(e) creating a whistleblowing reporting channel for cases of fraud against public authorities which—(i) guarantees confidentiality and anonymity if requested,(ii) includes clear definitions of who is a whistleblower in cases of fraud against public authorities,(iii) provides a process to update whistleblowers in cases of fraud against public authorities, and(iv) protects whistleblowers in cases of fraud against public authorities from retaliation and detriment.”
Baroness Kramer (LD)
My Lords, I congratulate the noble Baroness, Lady Anderson. In the eyes of this Committee, coming here today on her honeymoon to lead on the Bill demonstrates that she is a true romantic.
The amendments in this group, both of which are in my name, are probing amendments, and they are designed to create a whistleblowing channel in the PSFA. Amendment 3 is more general, but Amendment 66 would specifically set up an office of the whistleblower. Expanding the role of the Public Sector Fraud Authority without creating an appropriate whistleblowing channel seems an opportunity seriously missed. The Cabinet Office, with its wide reach, is exactly the right place to put an office of the whistleblower to tackle public sector fraud.
At Second Reading I spoke of the change in attitude towards whistleblowers by both regulators and enforcement agencies. Many now see whistleblowers as crucial to their effectiveness. I will not repeat a Second Reading speech; I ask the Minister not to take my word for this but to speak directly to the Serious Fraud Office, to HMRC’s tax office and to the Covid commissioner. I hope the Government will respect what these organisations have learned out in the field about tackling fraud, and that will lead her to see the significance of creating an appropriate whistleblowing channel.
However, I want to address what seemed to be some misapprehensions from the Minister’s speech at Second Reading. She seemed to be of the view that the national benefit fraud hotline is a sufficient whistleblowing channel. As far as I can tell, it funnels information, usually anonymous, to DWP, but there is little or no follow-up with the individual who has reported. Whistleblowing is a process. Initial reports lead to further exchanges and often to the gathering of information and evidence. That is why it is so valuable. The hotline today simply is not sufficient, and that is one of the reasons why fraud is so prevalent.
The Minister also said that only 6% of benefit fraud is linked to organised crime, and I find that impossible to believe. The Police Foundation recently did a major piece of research and concluded that 30% to 45% of fraud is linked to organised crime. That is way above the levels previously estimated anywhere across the piece before that report came out. It is now regarded, in a sense, as the masterpiece of research in this area.
Lord Maude of Horsham (Con)
My Lords, I apologise for not having been present for the Second Reading debate on this Bill—it is a subject rather dear to my heart—and for not being here at the beginning of this Committee’s proceedings this afternoon. In both cases, I had unmoveable previous commitments. I rise to express broad support for the amendment moved by the noble Baroness, Lady Kramer. She is absolutely right when she says that the Cabinet Office is the right place for a channel of this nature to be located. In later amendments, I will address concerns that the central public fraud authority needs to be empowered to intervene with other departments and be more strongly set up for that purpose. In the context of whistleblowing, I doubt whether it is essential to have this set out in the statute because there is nothing to stop the Cabinet Office setting up such a channel now, but it is an opportunity to ventilate the issue, which we should welcome.
Back when I was the Minister for the Cabinet Office, we were trying to simplify the way procurement was done because one of the unforeseen consequences of having absurdly overbureaucratic and overcomplicated procurement practices was that fraud became easier. When we were trying to simplify how procurements were done, we set up something we called, rather misleadingly, the mystery shopper channel. If bidders or suppliers saw, anywhere in the public sector, a procurement that was being done in the old-fashioned way—excessively prescriptive, rigid and expensive for bidders—they could let us know anonymously. They could tip us off, and the Cabinet Office was then in a position to intervene and draw attention to this—often because it was being done at a relatively junior level, without senior people being aware. So I know from experience that a channel of this nature can be very powerful, and many suppliers are immensely appreciative of the value it created for them. I support the approach that the noble Baroness has taken, and I hope the Minister will take that away.
Viscount Younger of Leckie (Con)
My Lords, I thank the noble Baroness, Lady Kramer, for raising whistle- blowers in respect of the Bill and for highlighting the importance of the protection of those who feel that they must speak out if they see an action or actions that they feel could be fraudulent or not in the public interest. Indeed, it could be actions that should be being taken but are not.
Ensuring that we have adequate protections for whistleblowers is vital to building confidence with the people we need to come forward if we are to tackle fraud. In respect of public sector fraud, such people are employed in local authorities or in the Civil Service. If certain protections are not in place, this can have a detrimental effect on recruitment, retention and perhaps career management.
In tackling fraud, we will inevitably ask—and, in fact, trust and expect—public officials to make the right calls and decisions in their day-to-day work. These decisions can often be incredibly tough, involving sensitive matters and perhaps involving close colleagues. So reassuring public sector workers that they will be protected when they do the right thing is of paramount importance, and we would support further reassurance from the Government that whistleblowers will be protected and supported when they come forward.
Amendment 3, tabled by the noble Baroness, Lady Kramer, presents a sensible proposal for the creation of a whistleblowing reporting channel that would guarantee anonymity and protect whistleblowers, who would themselves be legally defined. The noble Baroness might like to explain in her summing up, however, what she means by
“a process to update whistleblowers in cases of fraud”.
How would she see this work?
On her Amendment 66, we do not think it necessary to establish an office of the whistleblower, although I understand that, as she said, this is very much a probing amendment. It sounds laudable, with laudable aims, but we see this as potential overregulation—the setting up of another body, at an unknown cost and with an unknown number of employees and resources—when we believe that what we need is a proportionate and workable system, as the noble Baroness herself has said in her Amendment 3, and an established process by which fraud is able to be reported with protections in place.
There is a danger that if you set up a body such as a specific office for whistleblowing, you can perhaps unwittingly encourage too many false flags, where whistleblowing is almost encouraged and a bureaucracy is created. It is important that evidence of whistleblowing is protected only where it is substantive and where there are protections in place—not flimsy or based on hearsay, for example. Of course, wrongful reporting can have a devastating effect on people’s lives.
These are really questions for the Government to answer, because the noble Baroness, Lady Kramer, and I share the same objective: pushing and encouraging the Government, in the Bill, to demonstrate practically what actual new protections there are for those who see or perceive fraud in their area of public sector work, bearing in mind that fraudsters can be cunning and clever. It often surprises one who is ultimately seen to commit fraud—it is often in an unexpected area or from people you would never suspect of committing fraud.
I agree with the noble Baroness, Lady Kramer, that it is good to make comparisons with other whistleblowing processes, which she did with a deal of eloquence. I want to make a comparison with the NHS, as I understand that the NHS has upgraded its protections for whistleblowers. Thus Health Education England is listed as a prescribed person under the Public Interest Disclosure Act 1998, which was referred to by the noble Baroness, Lady Kramer. That means that workers at other organisations or companies who wish to raise concerns—in other words, whistleblowing—relating to the education, training and sufficient supply of healthcare workers at their employing organisation or company can do so to HEE. Prescribed persons enable workers to make public-interest disclosures to an independent body where the worker would prefer not to disclose to their employer direct, and the body may be able to take action on the disclosure.
We know that whistleblowing is the term used when a worker provides information to their employer or a prescribed person relating to wrongdoing. The wrongdoing will usually, though not always, relate to something that they have witnessed at work. This is also known as disclosure, which was raised by the noble Baroness as well. To be protected by whistleblowing law, a disclosure must be a qualifying disclosure. That means that the worker making the disclosure believes that doing so is in the public interest and it relates to one of the following categories, which I suspect the Committee will be aware of: criminal offence, breach of a legal obligation, miscarriage of justice, endangering health and safety, damage to the environment and covering up wrongdoing in any of those categories.
Workers have the right not to be subjected to any detriment as a consequence of making a disclosure. To qualify for protection when making a disclosure to a prescribed person, workers must have a reasonable belief that the matter falls within the prescribed persons remit and that the information disclosed is substantially true. Meeting these criteria is referred to as making a protected disclosure. Workers are encouraged to seek independent advice to help consider whether they might meet the criteria for making a protected disclosure. As the Committee may know, that can be obtained from Public Concern at Work or Speak Up or through a legal representative. In addition, HEE is required to report in writing annually on whistleblowing disclosures made to it as a prescribed person without identifying the workers concerned or their employers.
Rather than set up a new whistleblowing body— I have used the HEE as an example—I press the Government to find an existing mechanism, maybe within the Cabinet Office, a body that exists already and can be set up in the public sector and defined as a prescribed person specifically for public sector fraud, rather than setting up a particular office for the whistleblower.
We need to recognise that, although we are asking workers to do the right thing, we are also asking them to do something that is emotionally difficult and distressing. People should be empowered to stand up for the correct use of public money, which can happen only if cast-iron reassurances can be given to them.
With those explanations, I hope the Government will consider these points as they progress with the Bill, focusing on practical, sensible but proportionate proposals that will encourage people—which is the whole point—to come forward when they are made aware of some wrongdoing.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I welcome the amendments tabled by the noble Baroness, Lady Kramer, on the important issue of whistleblowing. Protections for whistleblowing are a key aspect of counterfraud investigations. A huge amount of the information originally received to guide our investigations comes from whistleblowers, so making sure that the appropriate protections are in place is incredibly important going forward. I welcome the opportunity to explore what more can be done and to reflect on what currently exists.
It will not surprise the noble Baroness that I am unlikely to commit to a new agency within this Bill today, but I welcome the opportunity to meet her to explore in more detail anything that she believes we can do within the confines of the Bill. I sat through a similar debate on the Armed Forces Commissioner Bill, when we also touched on these issues. I would like to reassure the noble Baroness, Lady Kramer, that the meeting she suggests is one that we have already discussed, but we will now advance it. I will meet all the agencies that she has highlighted to talk about what they do and do not require.
Currently, to qualify for the whistleblowing protections provided by the Public Interest Disclosure Act 1998, as inserted into the Employment Rights Act 1996, a worker needs to have a reasonable belief that their disclosure tends to show one of the relevant failures set out in legislation, that the disclosure is in the public interest and that the disclosure needs to be made to the relevant person—for example, the employer, a legal adviser or a prescribed person. The noble Baroness, Lady Kramer, touched on the challenges of using “workers”. DBT guidance sets out the definition of a worker as extending to agency workers and individuals supplied via an intermediary; non-employees undertaking training or work experience as part of a training course, otherwise than at an educational establishment; self-employed doctors, dentists, ophthalmologists and pharmacists in the NHS; police officers; student nurses; and student midwives. So although it is “worker”, there is a slightly wider definition.
Baroness Kramer (LD)
My Lords, I thank the noble Lord, Lord Maude of Horsham, and the noble Viscount, Lord Younger of Leckie, for rowing in on this issue of real significance. I also thank the Minister, who is clearly taking these issues on board, thinking them through and looking for a way to progress. I would love the opportunity to meet her to explore where I can be helpful.
I want to challenge a couple of issues raised by the noble Viscount. The cost is often raised when we talk about creating a specific office of the whistleblower. But in the United States there are offices of whistleblowing in the Securities and Exchange Commission, the CFTC and the Department of Transportation, for example. Every single one of them is now regarded by the US Department of the Treasury as a profit centre, not a cost centre. Their effectiveness in bringing people to trial and achieving fines is so significant that they not only pay for themselves but flow money up into the Department of the Treasury. HMRC has very similar experience. It is now proposing significant financial incentives for whistleblowers on the grounds that this will allow the recovery of lost tax to a degree that will more than pay for the process. There is a real set of questions there.
I fully accept that there are many ways in which to do this but I am feeling heartened by the broader receptivity around this issue. I do not think that there is one template that works for all, but there certainly can be a template that would work well within the context of the work that the PSFA will do. On that basis, I beg leave to withdraw my amendment.
Baroness Finn
Member’s explanatory statement
This amendment seeks to probe the circumstances in which a public authority would recover an amount paid in error.
Baroness Finn (Con)
My Lords, our amendments in this group seek to address some of the limitations that the Bill places on the powers of the PSFA to undertake investigations on behalf of the Minister for the Cabinet Office when it is made aware that fraud is suspected or has occurred in a public authority. It is vital that, in further developing this resource, we ensure that it has the powers and the relevant responsibilities to tackle fraud properly and pose a deterrent to those who seek to commit it in our public authorities.
Amendment 4, standing in my name, seeks to probe the circumstances in which a public authority would recover an amount paid in error. It is important that we distinguish, throughout our discussions over these Committee days, between funds that were acquired by deliberate fraud and funds that were acquired because of a mistake. We hope that, in responding to this amendment, the Government are able to make clear their distinction between these two things and how this will be reflected in the exercise of the powers in the Bill.
Amendment 5 removes the requirement that public bodies must first request an investigation into suspected fraud before the Minister for the Cabinet Office may undertake an investigation. The Bill as it stands contains a considerable loophole that can easily be exploited if any public authority wishes to avoid an investigation into its affairs. The PSFA needs to have the legal capacity to undertake proactive investigations into fraud when it is made aware of appropriate instances or concerns. To rely on public authorities that may be conducting illegal activities to find it within themselves to own up before an investigation could even commence is far too weak. We need a counterfraud authority that proactively goes after fraudsters, not one that waits to be invited to investigate.
We are also concerned that the PSFA, even if a case were referred, could simply refuse to take it out of hand. There is no requirement for the PSFA to justify when a case has been refused if it chooses to do so, and we cannot therefore be certain that the information referred would be acted upon. This creates a direct disincentive for organisations to make representations to the PSFA to initiate an investigation. Why risk the reputational damage of an investigation if it could simply be refused for no apparent reason? This is an issue that we will seek to address and that I hope the Government will consider as an amendment to the Bill.
Amendment 6 would enable the PFA to undertake fraud investigations into HMRC and the DWP. This is an opportunity for us to simplify and co-ordinate counterfraud efforts across the public sector. We must ensure that we do not create a two-tier system in which some authorities are accountable to the Cabinet Office and others are not. This amendment would ensure that the PSFA can exercise these powers to prevent fraud and recover funds across these major public bodies to address the asymmetry that the Bill creates.
Our Amendment 7 balances our proposition that the PSFA be empowered to undertake proactive investigations with the control measures that would limit the use of the powers granted under Part 1 by requiring the Minister to be satisfied that there are reasonable grounds to suspect that fraud or attempted fraud has occurred. This test would ensure that investigations could be initiated only on reasonable grounds. The Bill as it stands provides considerable powers to the Cabinet Office in order to combat and prevent fraud. We need to ensure that these powers are exercised responsibly, carefully and for good reason. Our amendment would hold investigators in the Cabinet Office to a higher threshold before they could begin to exercise these powers, which will protect both the Cabinet Office and the people under investigation from abuse.
Finally, our Amendment 8 would ensure that the fee charged to any public authority by the PSFA would not exceed the amount of money that was recovered. This is a sensible amendment that would ensure that a fraud investigation did not come at a net detriment to the public authority. We feel that providing a legal guarantee to public authorities that they will not be left out of pocket as a result of an investigation is an important reassurance that must be made in the Bill.
Our amendments in this group seek to implement sensible, balanced improvements to the powers and role of the PSFA. By allowing this body to undertake proactive investigations into public authorities, which will include the DWP and HMRC, we will close the loophole in the Bill that allows public bodies to dodge investigations simply by failing to request one. This is balanced with controls on the powers of the PSFA requiring a reasonable grounds test to be met before commencing an investigation, and ensuring that any charges made out to public authorities do not exceed the amount of money recovered. We broadly support the Government’s proposition, although we feel that the purpose of this part—to recover money, combat fraud and deter future offences—will be better met if our amendments are incorporated. I beg to move.
Lord Maude of Horsham (Con)
My Lords, I will speak to Amendments 5 and 6 in the names of my noble friends on the Front Bench.
As I have said, I was the Minister for the Cabinet Office for five long years, during the entirety of the coalition Government—I am not sure that anyone else has been there for that long. Despite the best efforts of some in the higher levels of the Civil Service to have me promoted, moved sideways or eventually fired, I survived and outlasted them all. This was when the coalition Government took over—a time of fiscal crisis, with a budget deficit of some 11% of GDP—and it was urgent that the costs of government should be reduced. We were pretty successful in that: we reduced the running cost of government cumulatively over five years by £52 billion. We were DOGE before anyone had thought of it, and, frankly, we did it much more effectively.
One of the elements that we pursued was fraud and error, and indeed debt. We were surprised to discover that activity to counter fraud, reduce error and recover debt was not being seriously co-ordinated. You would have thought that this would be a core function of the Treasury but it was not; the Treasury’s view was that this should all be done in each of the individual silos, and of course that militates against effectiveness.
On the skill sets around countering fraud, et cetera, we concluded that this was a cross-cutting function that runs right across government and needs to be seen in that way. We started to introduce in a slightly makeshift way—piecemeal, making it up as we went along—what we now call the functional model. This is where these cross-cutting functions—procurement, IT and digital, major projects, and HR—are strongly led from the centre of government, with visibility into what is happening in those functions right across the Government. Of course, it is through all those functions, including financial management, that the money gets spent. However, the Treasury’s view, which is true of most finance ministries anywhere in the world, is that it looks at the verticals, and if something is in an approved budget line, that is it—you get on and do what you like.
There is an underlying assumption that all public servants are equally concerned about conserving public money but, regrettably, that is not universally the case. It is essential that there should be proper central oversight. Given the reluctance of the Treasury to take this seriously—as my noble friend Lord Agnew demonstrated vigorously when he resigned in the middle of a speech on exactly this subject, highlighting the reluctance of the Treasury to give it sufficient focus—the Cabinet Office is the place for this to be done. There needs to be proper oversight into how these functions are being run and are operating, and providing some real-time accountability rather than waiting for the Public Accounts Committee some time after the event, generally after the horse has bolted.
That is why allowing the Minister, through the Public Sector Fraud Authority, to intervene only at the request of a public authority seems justifiable in relation to the wider public sector, but in relation to central government departments, agencies, authorities and so on, it seems to be wholly indefensible. There is an assumption that all these authorities and entities will be so concerned to disclose what has gone on in their departments, in their own backyards, that they will willingly ask the Cabinet Office to intervene and be charged a fee for the privilege. I have to say that real life tells us that this is unlikely to happen because we have real-life experience to look at. When, during the coalition Government, it was disclosed that in one major department two suppliers to government had been systematically overcharging that department over not just a short period but a decade or so, it turned out that this had been known about for some time.
Lord Palmer of Childs Hill (LD)
I intervene only because the whole debate on these amendments seems to dwell on what a public authority is. We have heard from the noble Lord, Lord Maude, about the Treasury and central government, but my version of public authority would come down to local authorities, which as far as I am aware are public authorities.
I will talk from experience because I was a councillor in the London Borough of Barnet for 28 years, and for the last four years of that I chaired its audit committee. To my mind, what is missing in the Bill and the amendments is the use of audit procedures, which exist in many public authorities. That is where the investigation should start, at the lowest cost and more effectively.
The noble Lord talks about HMRC. The reason why it failed is that the outside body that had this work subcontracted to it collected the low-hanging fruit. It collected the frauds that were easy to collect because there was money in the individuals, companies or organisations involved. I ask the Minister and her team to think about how to stop attacking only low-hanging fruit. It is the ones that are not dealt with by the existing organisations that we are looking at. Encourage local authorities to set a gold standard where they and anything like them will look at the situation internally and assess where the fraud is. At that stage, it may well be that they want to call in these organisations. The noble Lord, Lord Maude, says they perhaps should not be called in, but they should be if needed. We need to use the things that exist already. To me, the fact that the word “audit” does not appear anywhere here is a negative part of this measure.
Lord Maude of Horsham (Con)
The noble Lord’s point about what we mean when we talk of a public authority is really important. I make a distinction between entities that are part of central government—where the writ of the Cabinet Office and the Treasury should absolutely run without exception for these purposes—and the wider public sector. I believe in localism; local authorities should be responsible for what they do and have access to a centre of excellence of great capability in central government. But there should be a sharp distinction made between central government and the wider public sector.
Lord Palmer of Childs Hill (LD)
My Lords, I apologise; to some extent I moved onto what sounded more like a Second Reading speech, but it comes out of the comments that the noble Lord made. Not just central government bodies but other public bodies must use the investigatory powers, where they are already there, and bring in the heavy guns only when needed. So I accept what the noble Lord, Lord Maude, says.
Baroness Fox of Buckley (Non-Afl)
My Lords, I feel rather inadequate after hearing the last few speeches, which were excellent in their expertise and in making me think about the issues, and after the earlier discussion led by the noble Baroness, Lady Kramer, on whistleblowers. I feel as though I am going to learn a lot from these debates, so I apologise, as I am raising just a few simplistic issues in this group on the chapter that has been labelled “Key concepts”.
As we start Committee, I draw attention to how the Government have been explicit that the powers in the Bill are designed to target error in addition to fraud. Error does indeed account for substantial losses of public money, so I have no problem with the Bill doing both but, too often, it seems that its powers—many of which are too draconian—are applied equally to fraud and error without distinction.
I am broadly in favour of looking at Amendment 4, which seeks to probe the circumstances in which a public authority would recover an amount paid in error, as we need to make a distinction between error and fraud. In general, many of my concerns, although largely confined to the section of the Bill dealing with the DWP and welfare, are on the dangerous conflation between fraud and error. If we do not keep them distinct, there will be unintended consequences from this Bill, and I am very worried about disproportionality in justice and so on. I would be interested to hear how the Minister responds to Amendment 4.
I am also very sympathetic to Amendment 7, which requires that:
“the Minister is satisfied that there are reasonable grounds to suspect that fraud or attempted fraud … has occurred”.
That notion of reasonable grounds is very important for this Bill and, sadly, it is too often absent. I think it can lead, for example, to suspicionless surveillance, which we will be talking about later in Committee.
I want to quote the written evidence given to the Public Bill Committee by the cross-party law and human rights organisation Justice. It emphasised that:
“This requirement for reasonable grounds is a well-known legal requirement in the context of state investigations: it is a safeguard to protect individuals from baseless state interference and fishing expeditions”.
It is very important that the requirement for reasonable grounds is taken very seriously throughout our discussions, so I was glad to see Amendment 7.
Although it is now completely after the effect, and I feel like this is a cliché, I will say congratulations to the noble Baroness, Lady Anderson. I kind of feel like the moment might have passed, but I have to say that her announcement at the start of the debate cheered me up.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, this has been a very useful debate, and I hope to be able to give some clarity on some of the issues that have been raised. It would be remiss of me, and I should have done it earlier, not to thank the noble Lord, Lord Maude, for starting the process of where we have ended up today. He and the noble Baroness, Lady Finn, started a great deal of this under the previous Government. We are now seeking to ensure that the PSFA has the appropriate powers to deliver what they started.
Before I move on to the substance of this group, I think it would be helpful to respond to a question that was touched on by the noble Lord, Lord Palmer, about what a public authority means with regard to the Bill and what we are actually talking about. Public authority is defined in Clause 70 “Interpretation”. The definition is:
“‘public authority’ means a person with functions of a public nature so far as acting in the exercise of those functions”.
It would include, for example, other government departments, arm’s-length bodies and local authorities. This is a broad definition that takes in a wide range of organisations and delivery mechanisms for public functions to ensure that fraud against the public sector in its widest sense can be tackled.
Whether a body comes into the definition of public authority will be tested before a case is adopted, but let us be clear that, especially when we are talking about fraud, it would be surprising if someone was targeting the public sector and they stopped at the remit of one government department just because we define it as one government department. We all know, and noble Lords who have served in government are even more aware, that MHCLG, the Cabinet Office, the DfE and the Department of Health will have multiple users that may touch on different levels of fraud, which is why it is important that we have the breadth of definition.
On the substance of this group, Amendment 4 would remove error from the scope of the amounts that the Minister can recover. This would significantly change and restrict the scope of the PSFA’s recovery function. It would mean that, if the PSFA investigates a case and does not find fraud but does find that a person has had money that they were not entitled to, it would not be able to take action to recover it, including using the debt powers in the Bill. The PSFA would have to refer the matter back to the public authority concerned to take whatever error recovery actions it is willing and able to take.
In response to concerns raised by many noble Lords, including the noble Baroness, Lady Fox—I am pleased that I was able to make her happy at the beginning of Committee stage—it is very likely that the PSFA will encounter payments that could be classed as error. Fraud and error are difficult to separate. Indeed, the National Audit Office and the PSFA do not attempt to do so in their measurement methodology. This is because proving fraud requires evidence of intent, and it is often impractical or impossible to do so. One of the purposes of the Bill is to do more to evidence fraud and take the right action to tackle it, but I hope noble Lords will agree that when you have money that you are not entitled to, you should pay it back and it should be recoverable if it is not paid back. That has always been a principle that the Government have adopted.
Before I move on to wider detail, I want to touch on some comments made by the noble Baroness, Lady Finn, on the loophole for public authorities. Public authorities are the victims, not the perpetrators. Even without powers, the PSFA enforcement unit is getting referrals. We do not foresee a shortage of cases coming our way. The PSFA must be able to triage and pursue the most impactful and value-for-money cases. This is a genuine question—which is why we are here in Committee—of culture and approach, and one that we should have a conversation about. The Government genuinely believe that a collaborative approach with other government departments will yield more co-operation in terms of investigations than a more aggressive approach. Being invited in will ensure that government departments actively engage with us, as has proven to be the case during our pilot so far.
I believe it will assist your Lordships’ Committee if I briefly set out the circumstances in which a public authority would recover an amount of money. Accounting officers of public authorities are required to follow the principles set out in the HM Treasury publication Managing Public Money in annexe 4.11, which is— apparently—readily available to noble Lords. The relevant section states:
“Most organisations responsible for making payments will sometimes discover that they have made overpayments in error. In principle public sector organisations should always pursue recovery of overpayments, irrespective of how they came to be made. In practice, however, there will be both practical and legal limits to how cases should be handled. So each case should be dealt with on its merits”.
Amendment 5 would remove the words:
“only at the request of that public authority”
from Clause 2(1). I believe the intention of this amendment is that PSFA should be able to simply decide to open a fraud investigation irrespective of the wishes of the target of fraud, in the same way that the police can open an investigation into other crimes. However, omitting the deleted words but not otherwise changing the clause would create an element of uncertainty over who is responsible, in the first instance, for dealing with fraud against a public authority. At the moment, it is clearly the public authority. If the intention of this amendment is that it should be for the Minister for the Cabinet Office to decide to investigate, whether or not the public authority wants the Minister to step in, this may conflict with the preservation of public authorities’ own fraud functions in Clause 2(5)(b).
Responsibility for managing fraud is, in the first instance, given to accounting officers of public authorities, as set out by Managing Public Money annexe 4.9—which I am sure all noble Lords have read. There may also be other unintended consequences by the adoption of this amendment, specifically whether the revised working of the clause might actually compel the Minister for the Cabinet Office to investigate all public sector fraud. That is something beyond the current capacity of the PSFA, which I am sure we will discuss in great detail later in Committee. If the PSFA finds fraud off its own bat, as it were, it might not then be clear on what legal basis, if any, it would be able to recover it, as it would not be acting on behalf of the public authority per se. The Government seek to maintain the status quo of acting at the request of public authorities as a matter of operational practice as set out in this Bill, in order to prevent any confusion.
The noble Lord, Lord Maude, raised a query about the Treasury not taking this seriously. The PSFA reports to the Cabinet Office and HMT. It works closely, advising HMT on fraud as part of the spending review process. I hope that that is somewhat reassuring, given where we are in the spending review process.
Amendment 6 would remove the restriction in Clause 2(2) on the PSFA undertaking cases at the request of the DWP and HMRC. This would be a significant change in policy intent. HMRC and DWP have 84% of the counterfraud resource across His Majesty’s Government, including thousands of people and their own designated powers. The PSFA role envisaged is supporting those departments which do not have well-developed fraud investigation, enforcement and recovery functions or powers, not seeking to subsume those with targeted powers that are already well established. For once, this is a government department not seeking to gather other people’s power and staff. Neither HMRC nor DWP need the further assistance of Part 1 of this Bill and there are many other public authorities which do.
Baroness Kramer (LD)
If the Minister does not mind, can I pick up the issue that the noble Lord, Lord Maude, raised? Nobody knows how to manage government more closely than him; he is deeper steeped in this than any of us. How does the Minister anticipate dealing with the fragmentation of investigation? If HMRC is chasing down someone, you can almost be certain that it will be dealing with public procurement in a different way and that there will be other issues around that particular entity. Is there a mechanism she sees that will break down those siloed lines?
Baroness Anderson of Stoke-on-Trent (Lab)
I reassure your Lordships’ Committee, particularly the noble Lord and the noble Baroness, that the PSFA and HMRC or the DWP can and will do dual investigations and work closely together. They have their own powers. I think the case of HMRC is probably more relevant than the DWP, but they will work collaboratively and do joint operations while having their own separate remits. It is not that they will not work together; however, we anticipate that especially where there is evidence—as I said earlier, it is about breadth of government—we would expect the majority of the PSFA’s work to be outside of those government agencies or public authorities.
Amendment 7 is unnecessary because it straight- forwardly duplicates matters already dealt with elsewhere in the Bill. Clause 1(1)(a) states that the Minister is given the function of investigating “suspected fraud” against public authorities. Clause 70, the interpretation clause, defines “suspected fraud” as
“conduct which the Minister has reasonable grounds to suspect may constitute fraud”.
I hope that the noble Baroness, Lady Finn, is content that the issues she raises in this amendment are appropriately dealt with.
Finally, Amendment 8 would restrict the fees that the PSFA could charge a public authority for investigation, enforcement or recovery action to no more than the amount that is recovered. Cash recovery is the hardest part of enforcement. Many initiated investigations will close without reaching the recovery stage—for example, because no fraud is found, an alternative approach is taken or because recovery is not possible even if the investigation is successful. The amendment would mean that no fee could be charged in those cases, despite the PSFA having necessarily invested resources into the investigation with the agreement of the public authority to have taken the case and undertaken the actions in the first place. That does not represent good value for money and runs contrary to the guidance in Managing Public Money on cost recovery.
In the most serious cases, cash recovery may not be the main or even a major factor; it will be the disruption of criminal gangs and prosecution of serious offenders. Such cases may be long, complex and multi-agency, and costs will probably exceed any potential recovery quite quickly. In cases of organised crime, assets may be irretrievable, laundered beyond reach or overseas. The public interest in investigation is to punish the criminals. The adoption of this clause would also fail to acknowledge or promote the deterrent effect of the investigations. The PSFA cannot be restricted in the cases that it selects by how much of its costs it can recover; that is counterproductive and counterintuitive.
I have two other points to raise.
Lord Vaux of Harrowden (CB)
I beg the noble Baroness’s pardon but, if the PSFA can charge more than it recovers, is that not a massive disincentive for the public authority to ask it to come in to begin with, given that it has to ask ?
Baroness Anderson of Stoke-on-Trent (Lab)
There is a balance here, because of the positives that go alongside this. There is a genuine issue that, if a criminal gang is actively targeting a public authority, the investigation and prosecution of those people in itself is something that the public authority would wish to see. There will always be costs involved in criminal activities, even if they cannot all be recovered. The police actively investigate criminal gangs, with the pragmatic understanding that not all costs can be recovered. There is also a deterrent effect in prosecuting people to ensure that everyone is aware that, if you defraud the state, you will be prosecuted. We will not always be able to get the money back, but we must be realistic about what is in front of us and what we can achieve.
Baroness Kramer (LD)
I have not thought this through, but a no win, no fee approach seems quite useful. If the PSFA, which will have many successful prosecutions where it brings in fees that are well above its actual costs, it will have a resource that will surely allow it to pursue cases where there is not a successful recovery but where it is important for the case to go ahead. I am just wondering whether there is not a model that might work more effectively.
Baroness Anderson of Stoke-on-Trent (Lab)
The noble Baroness makes an interesting point. That is why the Cabinet Office and the PSFA are adopting a test-and-learn approach to see what will and will not work. Having said that, we have to be realistic that we will not always be able to recover funds and someone has to pay for the cost of the investigation. The balance of what that looks like is something we will have to explore as cases progress.
Baroness Finn (Con)
My Lords, on this occasion I want to thank all noble Lords who have contributed. I hope that the Minister will recognise what we are proposing in this group are a series of amendments that would make meeting the objectives and purpose of the Bill easier. I thank her very much for her constructive approach. I especially enjoyed listening to the quotations from Managing Public Money, which used to be quoted extensively at me when I was in the Cabinet Office.
The proposals in the amendments would ensure that fraud could be proactively investigated and counteracted. That is the only way that we will bring fraud rates down, provide an effective deterrent to potential fraudsters and prevent departments dodging oversight by failing to request an investigation. The noble Lord, Lord Palmer, made the sensible case that public authorities must not go only after low-hanging fruit and duck difficult investigations.
I spent five long years as my noble friend Lord Maude of Horsham’s special adviser while he was in post. I spent that time learning from him, especially on the reluctance of the Treasury to engage properly with recovery on fraud. I am delighted that the PSFA has a dual remit and will report to both HMT and the Cabinet Office, but working closely with the Treasury was always a construct where the Treasury would assert its primacy, and I hope that does not happen in this instance if it works negatively.
I had a strong sense of déjà vu while listening to my noble friend Lord Maude of Horsham. He is correct when he says it is wholly indefensible that the PSFA must wait to be invited to conduct investigations into wrongdoing, and we will be probing on that. The DWP does not wait to be invited before it goes after benefit cheats, and there is no reason why public officials should be held to a different standard. The exclusion of DWP and HMRC is perplexing. My noble friend Lord Maude of Horsham correctly picked up on that and made the case—convincingly, I thought—for their inclusion in the remit.
The PSFA must always operate in the public interest, and ensuring that we have adequate thresholds for investigations is a well-established, sensible proposition. Our amendment would ensure that that threshold was included in the Bill so that we could be reassured that the PSFA would operate only once the reasonableness test had been satisfied, a point that was picked up by the noble Baroness, Lady Fox. The same can be said for a legal guarantee that recovering fraud must not come at a cost to the public authority in question.
In conclusion, we believe that our amendments in this group would improve what the Government have already set out in the Bill, and we hope the Committee will support us in incorporating these improvements. On that basis, I beg leave to withdraw the amendment.
Baroness Finn
Member’s explanatory statement
This amendment seeks to ensure the Minister is required to have a reasonable belief that an information notice would be proportionate in each case.
Baroness Finn (Con)
My Lords, the powers granted in this part of the Bill are necessary in principle, although the core principle of proportionality, which guides our approach on these Benches, means that we have some suggestions for improvement. We need to make sure that this system has adequate safeguards, protections and balance. I want to reiterate the view that in pursuit of a legitimate objective, we do not succumb to a temptation for overreach or powers which are too sweeping.
Our Amendment 9 introduces a reasonableness threshold, which has to be met before an information notice can be submitted. This amendment is designed to ensure that the information notice, which imposes a duty on the relevant person to provide information to the Minister, is imposed on that person only if there is a reasonable belief that the information notice would be proportionate.
We need to bear in mind throughout these discussions that the Bill establishes a substantial array of duties and responsibilities, and we need to make sure that when powers are exercised, they are done so with those burdens in mind. Our proposal that these powers can be exercised only when seen as reasonably proportionate incorporates this balance and will ensure that additional operational burdens are not imposed unless thought necessary.
Further, Amendment 10 seeks to protect the person to whom the information notice relates from unfair treatment ahead of any final conclusion about their liability. Banks and financial institutions, particularly when the Bill first comes into effect, will naturally be concerned that they are being asked to provide information about one of their customers in relation to fraud. It is feasible that the said bank may want to withdraw some banking services from the person in question, and it is therefore a reasonable demand that the Government make clear that the person in question is not necessarily guilty of the suspected fraud. We need to make sure that the verdict is not inadvertently passed on the person before a conclusion is reached, and this amendment would ensure that an investigation does not end up constituting a sentence.
Our Amendments 11, 12, 13 and 14 all address the technicalities of the review mechanism and seek to probe the Government on why they have set up the review mechanism in the way that they have in the Bill, Amendment 11 questions the Government on why they have defined 10 working days as the lower limit for the period in which the person to whom the information notice is given has to comply with the demands in the notice. Can the Minister assure the Committee that this period has been set based on a discussion with relevant persons to whom this duty will apply? Again, we need to recognise that this is a duty being imposed on third parties, and we need to balance it with the other activities undertaken by those persons.
Amendment 12 seeks to clarify how a review process could be initiated by the person to whom an information notice is given, which, alongside Amendment 13, seeks to make it easier for the person to review this decision with a longer timeframe. Amendment 14 would oblige the reasons for any decision reached following a review to be set out in writing, placing an additional duty of responsibility and accountability to the Minister for the steps they decide to take.
Alongside the reasonableness test outlined in our Amendment 9, these provisions work to make sure that the powers under the Bill are exercised proportionately and that they are balanced alongside adequate provisions for review, which will promote the sensible application of these notices.
Finally, Amendments 15 and 16 seek to protect the information of a person which has been shared with the Minister by limiting the people with whom that information can be shared. Defining in law that only specific people can have sight of personal, sensitive information is a proportionate check on the power of the Minister and will have the twofold benefit of protecting people who, we must remember, are not actually necessarily guilty of fraud, with the need to check their information to ascertain this fact.
The principle of obtaining information about a person is necessary for the provisions in the Bill to work and the objectives we all share to be met. Our amendments seek to nuance and improve the exercise of these powers by adding a reasonableness test, a clarification of the review process and additional controls on data sharing to protect those to whom the information notice relates. We hope that the Government and noble Lords across the Committee will recognise these improvements to the provisions currently set out in the Bill on information notices and the relevant review processes, and that these will be supported as measured and balanced proposals. I beg to move.
Lord Vaux of Harrowden (CB)
My Lords, I will very quickly make a couple of comments on Amendments 9 and 10. First, on Amendment 9, I have an amendment later in Committee that inserts a reasonableness point in a similar way, so I support this. However, I wonder whether this amendment is actually in the wrong place; I suggest that it ought to be in the initial line—“the Minister should reasonably consider”—as opposed to “reasonably proportionate”, but that is a small issue. I support the concept of Amendment 9.
Amendment 10 is quite important. This issue has been raised by the banking industry, and there is a very real concern that the receipt of a notice might provide reasonable grounds for the financial services firm to know or suspect that the customer has defrauded the public sector. In that situation, the failure to take action, for example to close or restrict the account, might conflict with wider anti-money laundering obligations and, possibly—I am not sure this is right—the corporate criminal offence of failure to prevent fraud. That might include having to exit customer relationships and so on.
So there is a very real concern from the financial services industry here. I am sure that that is not the intention of the Government in this situation but it is something that we need to think about, as the receipt of a notice cannot be seen as reasonable grounds to suspect fraud, because that would set all sorts of hares running against people who might be entirely innocent.
Baroness Kramer (LD)
My Lords, I will just pick up the issue that has been raised by the noble Lord, Lord Vaux. We are dealing tomorrow with a statutory instrument that attempts to provide safeguards against banks and other organisations deciding to close people’s bank accounts or to deprive them of other financial services. It is often the people who are under the most financial pressure who find it difficult to get banked in the first place. They can get a basic bank account if they are lucky, but to get a bank account with any of the features that make financial life reasonable is exceedingly difficult. I therefore share the noble Lord’s concern that we do not start a hare running.
Banks are eager to offload people who do not have a lot of exciting and interesting activity. If this notice gives them an excuse to do that, I can see that an awful lot of banks will seize that opportunity, so I raise this as an issue to be wary of. In fact, we have an SI going in the opposite direction tomorrow, so this is really for the Government to make sure that one hand knows what the other hand is doing.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I apologise in advance, because I think we are about to have a vote—or not, if the noble Baroness, Lady Kidron, does not press her Motion.
Some significant points have been touched on in this very short debate. I will respond to each amendment in turn. Amendment 9 looks to introduce a test of reasonableness to determine whether an authorised officer has appropriately considered that information sought is both necessary and proportionate. Clause 3(1)(a) and (b) already set out the test for issuing an information notice: an authorised officer will have the power to compel information only when it is necessary and proportionate to do so, and only when the information being requested relates to a person whom an authorised officer has reasonable grounds to suspect has committed fraud.
Lord Vaux of Harrowden (CB)
What the Minister says is not quite true. It is where “the Minister considers” that it is necessary and proportionate to do so, not simply where it is necessary and proportionate to do so. That is an important difference—hence the reasonableness requirement.
Baroness Anderson of Stoke-on-Trent (Lab)
The noble Lord is going to inspire me to go into more detail. There must be reasonable grounds to suspect that fraud has taken place, which follows the basic rule that there must be an objective basis for that belief. It must be genuinely suspected that the fraud has been carried out by the individual, and the belief must be based on facts and/or information that are relevant to the likelihood of needing to obtain information for the purpose of investigating suspected fraud against public authorities. It must be objectively reasonable for them to suspect this, given the information available to them. The reasonable grounds test is a standard and widely accepted test used by various organisations, including the DWP, the Serious Fraud Office and the police. We are seeking to replicate that.
Baroness Anderson of Stoke-on-Trent (Lab)
I shall begin where I left off. I was responding to Amendments 12, 13 and 14. It is necessary that an appropriate period is provided for a first or third party to request a review of an information notice. That is why we introduced the seven-day period for information holders to request a review. This ensures that those attempting to hold up an investigation by requesting a review for no necessary or legitimate reason do not hold it up for an extensive period. If all safeguards were fully utilised as outlined across the Bill, it could already result in delays to the investigation of two years or more, potentially enabling continuing activities that defraud public authorities in that time. We are seeking to make every effort to balance appropriate safeguarding with effectiveness and protecting the public purse. Extending this period to 28 days would add an unnecessary delay in the investigative process.
Amendment 14 would have no material effect over and above what has already been drafted as, in the event that the notice is upheld or varied, details will be provided to the information holder in order to inform their next steps, should they continue to not comply. On Amendments 15 and 16, while I am sympathetic to the intent of the amendments tabled, we believe them to be unnecessary. It is vital that any data-sharing powers between public authorities are done in a way that is relevant and effective for an investigation. An example of this would be sharing information with the public authority that has been defrauded or with the Serious Fraud Office. Imposing a prescriptive list of persons—who could regularly change—who can have information disclosed to them will restrict the intent and scope of the Bill. The clause details that information can be disclosed only for the purpose of exercising the core functions of the Minister, which already restricts to whom and for what purpose the information can be disclosed.
The Bill already contains safeguards to ensure that all data processing, including data-sharing, must be done in accordance with current data protection legislation, which is why I hope that the noble Baroness, Lady Finn, is prepared to withdraw her amendment.
Baroness Finn (Con)
My Lords, as we draw this stage of the debate to a close, I want to reiterate our position that the powers granted in this part of the Bill are in principle necessary. I thank the Minister for her response, but necessity must always be accompanied by proportionality. That guiding principle sits at the heart of the contributions we on these Benches have made today and of how we will approach the remainder of Committee. We have sought throughout to ensure that the powers conferred by this legislation are tempered by appropriate safeguards and a clear sense of balance. In the pursuit of the legitimate and shared objective of tackling fraud against the public purse, we must be vigilant not to reach for powers that are unduly sweeping or risk unintended harm.
Amendment 9 introduces the threshold of reasonableness before an information notice can be issued. This is about recognising that every power granted imposes a corresponding burden. We must ensure that those burdens are justified and not excessive, although I absolutely take the point the noble Lord, Lord Vaux, made about where the word “reasonably” should sit. We will look at this going forward.
Amendment 10 would provide protection for individuals who may find themselves the subject of an information notice and who are not yet found liable, but are potentially facing premature consequences. The noble Baroness, Lady Kramer, raised similar concerns in this area. We want to prevent a situation in which an investigation becomes, in effect, a sentence. Banks and financial institutions in particular need clarity that a notice does not equate to guilt.
Amendments 11 through 14 examine the review mechanism proposed in the Bill. We have asked the Government to justify the 10-day working compliance period in an information notice and whether this reflects realistic operational constraints for third parties. We have also sought to strengthen the ability of the recipient to initiate a review, to provide more time for that review to take place and to require that the Minister’s reasoning be clearly set out in writing. These are sensible and measured proposals that will promote accountability and reinforce the legitimacy of the process, as attested by the justice group in its review.
Lastly, Amendments 15 and 16 address the handling of sensitive information. We propose that any data shared with the Minister under these powers be subject to tightly defined restrictions on further disclosure. This is a proportionate and necessary check, protecting individuals who may never ultimately face action while still allowing the Minister to undertake the task of fraud prevention.
The underlying objectives of this Bill are ones that we all share. Our amendments have been crafted to ensure that these objectives are pursued in a way that is fair, balanced and lawful. They offer reasoned improvements, a reasonableness test, a clearer and fairer review process, and better protections for personal data. I hope they will be supported at a later stage, but for now I beg leave to withdraw the amendment.
Baroness Finn
“(5) Within six months of the day on which this section comes into force, the Minister must prepare and publish guidance on the process by which authorised investigators are appointed in accordance with subsection (3).”Member’s explanatory statement
This amendment would require the Minister to set out the process by which authorised investigators are appointed in statutory guidance.
Baroness Finn (Con)
My Lords, our amendments in this group are based on a recognition of the fact that we are granting sweeping powers to investigators in the PSFA, to be exercised in the name of the Minister. This is, again, all about proportionality.
Amendment 17 would require the Minister to set out in statutory guidance the process through which authorised investigators are appointed. In combating fraud, we must protect against the creation of opaque but powerful bodies with inadequate oversight and accountability. Justice, a cross-party law reform and human rights organisation working to strengthen the UK justice system, recognises this amendment as an effective measure that would bring much-needed clarity to the process of appointment and the standards under consideration in that process.
Amendments 18, 19 and 20 relate to property. Amendment 18 seeks to probe the Government on the sort of changes they anticipate may be deemed necessary by the courts in relation to seized property. Before we vote to endorse this part of the Bill, I hope that the Government will take this opportunity to provide greater clarity on how they expect that the powers provided for under this part will be exercised, which is a particularly important point of clarification given that we are talking about property seized by the state.
Amendments 19 and 20 combined would prolong the period of time that must pass before an order to dispose of or destroy the seized property can be enacted. The seizure and destruction of personal property is a substantial power, and we must balance the practical consideration of holding seized property with a view to protect the rights of the individual to property which is theirs and which they have a right to recover. We believe that extending this period from six months to one year is a proportionate measure that would balance the practicalities of the process with the rights of the citizen.
Amendment 21 relates to oversight of the exercise of powers granted to the Cabinet Office under the provisions in this clause. If the Government deem it necessary to grant powers of this scale to the Cabinet Office in order to combat fraud, this must come with the acceptance that proper oversight and review of how those powers are used is a concurrent responsibility. This should not be left to the discretion of the Minister and ensuring that oversight is properly exercised from day one is a vital change.
Amendment 22 is an important measure designed, again, to ensure that sensitive information can be disclosed only to relevant persons. Although I am sure that this is simply an oversight in how the Government have drafted the Bill, clarifying the persons to whom information can be disclosed is an important safeguarding measure that would inspire confidence in investigations and ensure that confidence in the relationship between the IOPC and the PSFA is strong from day one. I hope that the Government and noble Lords will recognise this as a sensible improvement, which seeks to facilitate the role of the IOPC in the way that the Government have outlined.
The amendments in this group are rooted in a single, guiding principle: the exercise of significant powers by the state must always be matched by strong safeguards, transparency and oversight. We recognise the necessity of equipping investigators with the tools to combat fraud, but we must not do so at the expense of proportionality or the rights of the individual.
From the appointment of authorised investigators to the seizure and potential destruction of personal property, these powers touch on serious questions of liberty, accountability and trust in our institutions. Our amendments seek to ensure that powers are not only effective but clearly defined, properly scrutinised and subject to checks that protect both the public interest and individual rights. In strengthening the role of oversight, clarifying the limits on data sharing and demanding clear standards in the appointment and exercise of authority, these are far from wrecking amendments; they are constructive and measured. They reflect the careful, balanced approach we must take when legislating in areas where the state touches most directly on the lives and property of citizens. I hope the Government will engage seriously with these proposals and that noble Lords across the House will support them. I beg to move.
Baroness Kramer (LD)
My Lords, I will be brief. The Minister will be aware that false bailiffs knocking at your door are a major scam, and the PSFA clearly would not intend or hope to be a source of opportunity for people pursuing a scam in claiming to be part of its activities.
Has the Minister had the opportunity to talk to people such as those from StepChange to try to get a feel for how to deal with people who are vulnerable from whom they need to collect property or recover items? Has that charity been involved in shaping the framework for this particular set of issues?
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, your Lordships are speedy and my Chief Whip is confused, but I appreciate the opportunity to discuss some important issues and to put on the record things that I hope will reassure noble Lords.
Before I move to the substance of the amendments tabled by the noble Baroness, Lady Finn, I will respond to the question posed by the noble Baroness, Lady Kramer. I have not met StepChange, but that is an interesting suggestion. We have engaged with wider stakeholders. With regard to how the PSFA will be using the PACE powers that we request, that is in the next group of amendments so we will discuss those in more detail then, if that is okay. I will revert, and I will ensure that I have a meeting with StepChange before we progress such conversations. The people behind me are nodding at me.
As this group of amendments addresses three distinct areas of concern, I will take those in turn. I will start with the recruitment of authorised investigators. Under Amendment 17, the Minister would have to prepare and publish guidance on the process by which authorised investigators were appointed within six months of the Bill coming into force. We do not believe that the amendment is necessary. The PSFA is bound by well-established Civil Service recruitment principles under- pinned by relevant legislative provisions. All recruitment to the role of authorised investigator will be based on merit via fair and open competition.
Clause 7(3) of the Bill states that an individual can become an authorised investigator only if they have been authorised by the Minister to exercise the PACE powers conferred in the Bill. The Minister will not make such a determination unless they are content with the evidence provided to them demonstrating that the candidate has been suitably trained in the use of PACE powers and is ready to take on the responsibility of utilising them safely. All authorised investigators will receive bespoke training that will cover all aspects of investigative practice, including the relevant PACE powers. Training will be to the same standard as other law enforcement bodies that use PACE powers.
Authorised investigators will work to clear operational guidance to ensure that they are delivering the use of the powers in a lawful and transparent way. They will also become members of the government counterfraud profession, and their training will align with the profession’s investigator standard. Existing investigators within the PSFA’s enforcement unit, who will work to become the PSFA’s first authorised investigators, bring with them a wealth of relevant knowledge, skills and experience from previous roles in both the police and investigation services within government departments. These powers will be in safe hands. I hope noble Lords find that reassuring.
The disposal of property is incredibly important. On the face of it, the purpose of Amendment 18 is to remove the provision of the PSFA to make any changes to the relevant property that the court considers necessary for the purposes of avoiding or reducing any risk of the property being used in the commission of an offence. Noble Lords have indicated in the explanatory statement for the amendment that they wish to probe
“the Government’s expectations of what types of changes to seized property may be deemed necessary by the courts”.
Baroness Finn (Con)
My Lords, as we conclude this group of amendments, I return to the fundamental point at the heart of our proposals. These powers, granted to investigators in the name of the Minister, are substantial. With them comes a responsibility on us as legislators to ensure that they are exercised fairly, transparently and proportionately. Once again, I thank the Minister for her courteous explanation and response.
This Bill seeks to equip public authorities to tackle fraud more effectively. We support that goal, but it is precisely because we support the objective that we believe that the framework within which these powers operate must be clear, balanced and just.
Amendment 17 would introduce a duty to set out statutory guidance on how investigators are appointed, which is a practical step, endorsed by Justice, that would ensure clarity and prevent the emergence of opaque, unaccountable enforcement structures.
Amendments 18 to 20 address the issue of seized property. I listened very carefully to the example of the seized laptop, but Amendment 18 seeks to probe the Government on the nature of the necessary changes to seized property that may be authorised by the courts, and we are asking the Government to clarify what kinds of modifications or uses they envision and under what circumstances. Transparency on how that property may be altered or used is essential.
Amendments 19 and 20 relate to the disposal or destruction of seized property. As the Bill currently stands, property may be destroyed or disposed of after six months. We believe that is too short a period, especially in complex cases where legal processes or appeals may still be ongoing. Our amendments would extend this minimum period to 12 months, offering individuals a more realistic opportunity to recover their property if it turns out that the seizure was not ultimately justified.
Amendment 21 addresses the question of oversight. The Government have taken the decision to grant significant new powers to the Cabinet Office in this section of the Bill. That is a serious move, and one that must be accompanied by serious scrutiny. Amendment 21 would ensure that oversight is built into the system from the start.
Finally, Amendment 22 offers a simple but vital clarification around the handling of sensitive information. This amendment would ensure that the information gathered under investigatory powers can be shared only with persons who are relevant and necessary to the investigation.
Taken together, these amendments form a coherent and proportionate package of improvements. They do not challenge the fundamental aims of the Bill; rather, they support them. But they do so while insisting that the exercise of power must be lawful, justified and always subject to scrutiny. I hope that the Minister will reflect on the points made, and on that basis I beg leave to withdraw the amendment.
Baroness Finn (Con)
My Lords, it is me again. Our proposal in this group is that Clause 7 and the corresponding Schedule 1 do not stand part of the Bill. The powers granted to civil servants under the provisions in this clause are sweeping, and we believe that they are better exercised by those with adequate training and experience—namely, police officers.
I will cover in a little more depth what this clause is proposing. Clause 7 would allow junior civil servants in the Cabinet Office—relatively junior, at HEO level—to apply to a Justice of the Peace for a warrant to enter and search premises for material relevant to an indictable offence. These civil servants can enter the property whether the relevant person is present or not, and they will have the power to seize anything if they have reasonable grounds for believing that it has been obtained in consequence of the commission of an offence or is evidence in relation to an offence. Section 20 would grant these civil servants the power to seize computerised information, and Section 22 would allow PSFA investigators to retain seized property for as long as necessary in all circumstances.
These are police powers, yet under this clause they are to be exercised not by police officers but by civil servants who, however well intentioned, are under no legal obligation to have the legal training or operational experience that should be required to exercise such powers responsibly. We believe that if an intervention required as part of an investigation is serious enough to justify a search warrant and serious enough to justify entering a person’s private premises and removing their belongings, it is serious enough to require the presence of a police officer, who is recognised as the proper legitimate authority who should bear the responsibility for exercising these powers.
There is a practical point here too. If the Government believe that fraud against the state requires this level of intervention, they should work with law enforcement to build capacity, not bypass it. It is the job of the police to investigate crime, including fraud; that is the basis for their training. That is the established legal framework in which they operate and that is what the public expect. We should not seek to empower civil servants to do the job of police simply on the basis of current operational capacity. Once again, we return to our maxim of proportionality: we need to make sure that the necessary powers in the Bill are exercised responsibly and in a way that is both balanced and effective.
I want to be clear that what we are proposing will not prevent the PSFA undertaking its investigations. Once the threshold for the exercise of these powers has been met, the investigation itself will have had to progress considerably if a warrant is to be issued. Given the way these powers are set out in Clause 7, the Government are obviously certain that investigations will be able to proceed substantially without the need for these powers. Our proposal that they be removed from the remit of civil servants and held instead by the police, which is the established, recognised authority that largely wields these powers at present, will therefore not infringe on the capacity of the PSFA to investigate fraud, as recognised by the Government.
This is therefore another exercise in balance. We believe that our suggestion that Clause 7 and the corresponding Schedule 1 do not stand part of the Bill balances the need to counteract fraud with the imperative that we do not grant sweeping powers to civil servants who are not sufficiently trained, experienced or recognised to exercise them in the proportionate, measured and sensible way we need to be able to guarantee in the Bill. For those reasons we do not believe that Clause 7 and Schedule 1 should stand part of the Bill. We urge the Government to reconsider this approach and to ensure that powers of this magnitude are exercised only by those with the proper training, the proper accountability and the proper role: our police services.
Lord Vaux of Harrowden (CB)
My Lords, the noble Baroness, Lady Finn, has said it all, so I will be very brief. I have to say that I am extremely uncomfortable with giving these sorts of police powers to civil servants and others. We have an example in the recent past of powers being used inappropriately by a non-police agency in the Post Office Horizon situation. I am very uncomfortable about it. I am interested to hear why we should not allow the police to deal with these things and why we should give them to civil servants, but I will take some convincing.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I think it is now my turn to say, “I’m back”. This is a very important part of the Bill, and it is right that we discuss it in some detail. It was also raised by the noble Baroness, Lady Kramer, in the previous group.
I thank the noble Baroness, Lady Finn, for flagging her concerns regarding the PSFA seeking powers under the Police and Criminal Evidence Act 1984. For ease, I will now refer to it as PACE. Clause 7 designates authorised investigators with the necessary authority to use limited provisions from PACE within the remit of public sector fraud investigations. Specifically, they are the power to apply to the courts for a warrant to enter and search premises and seize evidence and special provisions to apply to the courts to gain access to certain types of material which are regarded as excluded material or special procedure material. These powers will only be used in criminal investigations to enable all reasonable lines of inquiry to be followed and all relevant evidence to be collected.
To reassure noble Lords, when executing a search warrant, authorised investigators will be accompanied by an officer who has the powers of a constable. This could be either a police officer or an officer from another government department, such as HMRC or the NCA, with the powers of a constable. They will ensure the safety of the authorised investigators and will be able to use their own powers of arrest or reasonable force if necessary. We are not seeking for the Cabinet Office to have powers of arrest. They will always be accompanied by appropriate officials who have powers under PACE.
Authorised investigators will adhere to the relevant PACE codes of practice, which provide robust safeguards around the use of these investigative tools. Every application for a search warrant or a court order under PACE must be scrutinised and authorised by the court. Authorised investigators will also be subject to robust internal and external scrutiny. This will come from the PSFA’s independent person, as appointed under Clause 64, His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services and, as required, the Independent Office for Police Conduct.
To reassure the noble Lord, Lord Vaux, we are very aware of the Horizon scandal and the impact that that had on normal people’s lives. We want to put in every safeguard to make sure, and we hope we have, that these powers could not be used to replicate such a scandal. The PACE powers sought in Clause 7 are the minimum necessary to allow the PSFA to effectively undertake criminal investigations. We are not seeking the full use of PACE powers under this clause for the PSFA.
Turning to Schedule 1, this modifies the provisions of PACE adopted in Clause 7 so that they apply appropriately to authorised investigators within the PSFA. Schedule 1 provides a route for authorised investigators to apply to the court for access to excluded material. Access to special procedure material is provided under Clause 7 and Schedule 1 to PACE. It also establishes a legal framework that allows the PSFA to transfer evidence seized under PACE to other organisations, securing the chain of command—I mean the chain of evidence. It has been a long week; I was getting married a week ago.
Lord Vaux of Harrowden (CB)
My Lords, the Minister mentioned a number of safeguards, including the authorised officer being accompanied by a police constable. I cannot find any of that. Where can I find those safeguards?
Baroness Anderson of Stoke-on-Trent (Lab)
The noble Lord raises a very interesting point. It is in the guidance, but I will write to him so that he has a written record.
Baroness Finn (Con)
My Lords, I thank the Minister and repeat that to spend her honeymoon in this way is truly admirable.
Our proposal in this group is straightforward: that Clause 7 and the corresponding Schedule 1 do not stand part of the Bill. The powers set out in them are neither minor nor administrative; they are both sweeping and consequential, as the noble Lord, Lord Vaux, pointed out. They are powers to enter private premises, to search them in the absence of the owner, to seize property and to retain it indefinitely if deemed necessary.
Clause 7 permits junior civil servants in the Cabinet Office to apply for search warrants in connection with indictable offences. These officials, who are under no legal obligation to possess police-level investigative training or operational experience, would be empowered to enter someone’s property and seize anything they believe is linked to a criminal offence. They may seize computerised information. They may retain this property for as long as they consider necessary. These are serious powers. They are, in every meaningful sense, police powers, and we believe that it should be the police who exercise them.
That is not a theoretical objection; it is a practical one. If the Government believe that the investigation of fraud against the state demands this level of intervention, they should work with law enforcement to build capacity, not attempt to bypass it—as I said previously. The public expect these duties to be undertaken by the police, not officials from within the Cabinet Office.
We are not proposing an end to investigations by the PSFA—far from it. We recognise the importance of this work, and the Government’s own framing of this clause makes it clear that investigations can proceed substantially without the need for these powers. If that is the case, transferring this responsibility to trained police officers, rather than allowing civil servants to exercise it, would not hinder the PSFA’s ability to investigate fraud. It would ensure that intrusive state powers are exercised by those who are properly equipped to wield them.
This is a matter of constitutional balance and operational integrity. Clause 7 and Schedule 1 confer powers that go beyond the traditional remit of the Civil Service. They risk blurring the lines between executive authority and law enforcement. We therefore hope that noble Lords across the Committee, and the Government, will consider supporting this proposal as a measured change, keeping powers in the remit of those who are best placed to exercise them, while ensuring that PSFA investigations can continue in the pursuit of the objectives we all support.
Parking (Code of Practice) Act 2019
(1 day, 5 hours ago)
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Lord Kirkhope of Harrogate
To ask His Majesty’s Government what progress they have made in implementing a code of practice under the Parking (Code of Practice) Act 2019.
Lord Kirkhope of Harrogate (Con)
In begging leave to ask the Question standing in my name on the Order Paper, I declare my interest as the legislator responsible for the Private Member’s Bill that became the Parking Act 1989.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
I thank the noble Lord for kicking off the very lengthy process that we are involved in today. The Government issued a code in February 2022, but it had to be withdrawn in June 2022 because of a legal challenge. Areas of challenge included concerns that the code incorporated lower caps than the industry caps on parking charges at the time and that it banned debt recovery fees. The Government are currently actively reviewing how best to raise standards in the industry and plan to launch a consultation about the private parking code of practice in the near future.
Lord Kirkhope of Harrogate (Con)
Oh dear. Following the success of my good friend the right honourable Sir Greg Knight in securing the Parking (Code of Practice) Act 2019, we still do not have an actual code in place six years on. Delays by the previous Government, through litigation and a need to consult—I think twice —more broadly, have all allowed things to come to a halt. We really must have the code, and I am therefore disappointed that the Minister refers to yet another consultation. This code is needed, so please can it arrive soon?
Baroness Taylor of Stevenage (Lab)
It sounds like there is unanimity around the Chamber on the need for this. Please be assured that I will follow this up to ensure that we do not wait another six years for the code. Consultation is very important. It is important that we take on board the views not only of the motoring public but of all the private parking organisations and motorists’ representatives. We do not want to end up with another legal challenge, which would hold it up even further. It is important we get it right this time.
Baroness Pidgeon (LD)
My Lords, the RAC has said that private parking operators are on track to hand out a record 14.5 million fines this year. In addition to the long-awaited code of practice, will the Government go further and introduce a regulator with appropriate powers to protect motorists and ensure transparency across the system?
Baroness Taylor of Stevenage (Lab)
We want to make sure that we do as much as possible to protect motorists, but this is an industry that helps to regulate parking. Having been a councillor for many years, I know the distress that wrong and illegal parking can cause people, so we have to get the balance right. We will look at all these issues, including the regulator, as we go through the process of drawing up the new code. The important thing is that we get something in place as quickly as possible to put everyone out of the parking misery they have been suffering.
Lord Lennie (Lab)
Can my noble friend say how the Government’s plans for greater devolution and multiyear funding settlements will help local authorities improve parking infrastructure and services?
Baroness Taylor of Stevenage (Lab)
I thank my noble friend. Giving local leaders the power and resources to deliver the solutions that are right for their area is at the heart of our Government’s devolution agenda. We have made £69 billion available to council budgets, and brought forward the first multiyear funding settlement in a decade, so that they can deliver better public services and drive forward our plan for change. The English Devolution White Paper was published in December 2024 and the Bill will come to us in due course, which I know noble Lords are all looking forward to. There will be an ambitious package of transport measures in there to give local leaders the tools and the flexibility they need to improve local transport networks and infrastructure. Through greater funding consolidation and multiyear settlements, authorities will have the flexibility to plan and deliver the services that are aligned to local priorities, and to design the transport systems that meet their local needs.
Lord Leigh of Hurley (Con)
My Lords, I gather that a consultation will take place next week between the industry and the Minister. One hopes that a code will be set up, but the Government can determine fines. Does she agree with the leader of Bournemouth Council, Millie Earl, who, following an incident where fire engines could not get through on a road by the seafront, said:
“We are really constrained in what we can do to deal with it”?
The fines are now £35, which, as the former MP for Bournemouth East, Tobias Ellwood, said, is a very good bargain for parking for a day out.
Baroness Taylor of Stevenage (Lab)
It is very important that local areas can determine that themselves. It is not the Government’s intention to impose that on local areas, because it may vary across an area. It is very important that local areas can determine that themselves and fit it around their overall local transport strategy—that is key. There is a great difference between local authority car parking, where the money might be recycled into local services, and private parking. Sometimes there are agreements between the private parking companies, sometimes there are not. This is a matter for local determination.
Lord Spellar (Lab)
My Lords, I declare an interest as a previous Transport Minister and pay tribute to the work of colleagues such as the noble Lords, Lord Kirkhope and Lord Brennan, in introducing and working with legislation. I make it clear to the Minister that companies have been stringing the Government along for many years and we are getting bogged down in process, but their business model totally depends on access to the DVLA register. It is only permissive for the Government to provide that information, to get them out of GDPR. Why do we not make it clear to the industry that we are going to get this solved, otherwise we will shut off access and its business will collapse straight away?
Baroness Taylor of Stevenage (Lab)
I would not take quite such a harsh view as my noble friend. On how the Government respond to the industry, there is a big industry here and we know that, as a result of the national code having to be withdrawn, it produced an update to the industry code, so the industry is trying to do something towards regulating itself, which we should commend. We will take account of that industry code when we draw up the national code to deliver better protections for motorists. My noble friend is quite right that we must make sure that the worst practices are dealt with, and the code will aim to make sure that they are.
Baroness Scott of Bybrook (Con)
My Lords, can the Minister outline the Government’s primary objectives for yet another consultation on private parking? What specific insights and further evidence do they hope to get from this? As she said, we have had two consultations on this already by the previous Government, and this seems to be another just waste of time, rather than getting this thing settled.
Baroness Taylor of Stevenage (Lab)
I understand Members’, motorists’ and the parking organisations’ frustrations, but the legal challenges that came forward in June 2022 relied heavily on the fact that there had not been proper consultation. That is why we need to make absolutely sure that we do it properly this time.
Lord Vaux of Harrowden (CB)
My Lords, one of the most frustrating elements of parking is when you turn up at the car park and discover that none of the three or four apps that you already have on your phone works in that car park. What will the Government do to try to introduce some level of commonality?
Baroness Taylor of Stevenage (Lab)
Again, I totally understand that frustration. What is important to motorists is that it is transparent when they arrive, so that they are able to make their own choice about whether they wish to use that car park. When you have a sign 12 feet up from the ground that you cannot read from your car, or when it has three columns of close-printed type in font size 6, it does not help anybody. All these matters are being considered. I hope that , as a result of the consultation, we will be able to do as much as possible to ensure that the process is transparent, so that when you turn up at a car park, you know what you have to pay and how long you will be able to stay there.
Baroness Winterton of Doncaster (Lab)
My Lords, I campaigned against cowboy wheel clampers because I saw the misery that rogue parking companies caused to motorists. Does my noble friend the Minister agree that, as the AA says, if there were an independent appeals process, a scrutiny oversight board and limits on what could go to court—as set out in the code of practice—the amount of time that courts spend on sorting out disputes could be massively reduced?
Baroness Taylor of Stevenage (Lab)
I thank my noble friend for all the work that she did on this—I am sure that the people in her area were grateful for it too. There is evidence of private parking appeals processes being unfair to motorists and insufficiently independent. It is important that motorists have confidence in the appeals process and that it is genuinely independent from the private parking industry. If motorists cannot trust the appeals process, they will be less inclined to engage with it. That could lead to worse outcomes for motorists. We will seek to further understand motorists’ concerns about the appeals process, and we are certainly looking at some of the ideas that my noble friend mentioned.
Denial of Banking Services: UK Defence Sector
(1 day, 5 hours ago)
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Lord Sharpe of Epsom
To ask His Majesty’s Government what progress they have made in reforming environmental, social, and governance rules to ensure that they are not used by financial institutions to deny banking services, including loans, to the UK defence sector.
The Financial Secretary to the Treasury (Lord Livermore) (Lab)
My Lords, the Government have been clear that there is nothing contradictory between ESG considerations and defence. No company should ever be denied access to financial services solely on the basis that they work in the defence sector. The Government are working closely with the defence sector and financial services to identify the extent of this issue, to reduce barriers to essential banking services and to support a resilient defence industry.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the Minister for that Answer, and somewhat reassured. However, there is still evidence—plenty, in fact—of the threat of debanking faced by SMEs in this sector because of an absurdly overzealous interpretation of ESG considerations. The Government’s defence commitments are welcome, but private capital will of course be necessary to deliver those. Can the Government commit now to bringing ESG rating agencies within the regulatory perimeter, which will force greater transparency? Will they also take a leading role in underlining the desirability of investment in defence and national security, such as by using the National Wealth Fund and encouraging local government pension funds and other public investment vehicles to allocate funds to the sector? While they are at it, can they perhaps also remind the banks that defending the nation is profoundly ethical?
Lord Livermore (Lab)
I am grateful to the noble Lord for his Question, and I am happy to say that to all three of his supplementary questions the answer is yes. I agree with a lot of what he says. Access to finance is a significant issue for defence SMEs, and as a result it will be one of the key considerations for the forthcoming defence industrial strategy. It is not entirely clear-cut that all those access to finance issues are a result of ESG considerations; there are many more, and it is quite a complex picture. As for the noble Lord’s three questions, we recognise that the ESG market has developed quickly and without formal oversight, leading to some stakeholders raising significant concerns. To address those concerns, the Government will lay secondary legislation later this year to bring ESG ratings providers into regulation so that they are subject to rules set by the FCA. We have also set defence as one of the priority sectors that we want the National Wealth Fund to invest in—I think that was the noble Lord’s second question. Finally, we are working closely with the banking sector to make sure that it understands the importance of the defence sector to the economy.
Baroness Smith of Newnham (LD)
My Lords, apart from ESG questions, there are wider questions about investment in defence companies. I declare an interest as an academic. Obviously, often it is students, and some of my colleagues as academics, who may think that the defence sector is not suitable to invest in, just as they are not keen to invest in tobacco or oil. What can His Majesty’s Government do to help launch the national conversation that the strategic defence review says we need to help people, not just the banks but other investors, understand that we need to work with defence companies, because the defence of the realm is the most important duty of the state?
Lord Livermore (Lab)
I was not quite sure where the noble Baroness’s question was going, but I definitely agree with where it ended up. The Government have made it absolutely clear that we consider defence an ethical investment. We do not see a conflict between sustainable investment and investment in our world-leading defence sector. At the end of the day, it is not for the Government to tell investors what they can and cannot invest in, but at a time of increasing geopolitical instability, supporting the defence sector has never been more critical.
Lord Browne of Ladyton (Lab)
My Lords, perhaps I may ask a supplementary to the excellent Question asked by the noble Lord, Lord Sharpe of Epsom, based on the experience of an entrepreneur and inward investor who plans to build a much-needed factory in the United Kingdom to manufacture weapons-grade ammunition and who has been refused access to banking facilities, because of the defence nature of his proposal, by one of our leading banks. As the strategic defence review makes clear, one criterion for success over the next few years will lie in the number, scale and diversity of defence and dual-use technology companies in the UK. The review also emphasises the need for a whole-of-society approach to defence. With that in mind, does the Minister agree that we must ensure that banking facilities are more readily available beyond the historic primes to defence companies, particularly those which aspire to be, or are, suppliers to the UK Government, and that our procurement should support SMEs to do just that?
Lord Livermore (Lab)
I am grateful to my noble friend for his question, and I agree with everything he said. The Government have been clear that no company should ever be denied access to financial services solely on the basis that they work in the defence sector, and the banking sector should never take a blanket approach to any one sector. I very much recognise the story that my noble friend tells, and that SMEs face unique challenges working in the defence sector, compared with larger, more established suppliers, including in accessing financial services, as the noble Lord said in his original Question. As my noble friend said, they face difficulties opening bank accounts and an increased risk of sudden bank account closure, as well as higher costs of borrowing and access to capital, and they often face a higher compliance burden. That is why we have set out that supporting and unlocking the full potential of SMEs will be a key consideration of the forthcoming defence industrial strategy.
Lord Howell of Guildford (Con)
My Lords, it sounds as though the Government are well aware that this is a fairly widespread practice, particularly among the larger lending banks. What advice have they therefore given to the banks about defining what the defence sector is? The defence sector, of course, through its supply chains, affects the vast bulk of British industry, so it is important that they define it in a sensible way.
Lord Livermore (Lab)
I do not think any specific guidance has been given in the way that the noble Lord asks, but the most important thing to say here is that the banking sector should never take a blanket approach to any one sector. Of course, the decision as to what banking services to offer is ultimately a commercial decision but, as I said, banks should not take a blanket approach and they should make sure that decisions are taken on a case-by-case basis. The Government are actively engaging with banks to ensure that they understand the importance of the defence sector. The FCA has worked to understand why banks might close or reject accounts, and where it has found areas where firms need to improve customer outcomes, the Government expect them to consider the FCA’s findings and take them very seriously.
Lord Watts (Lab)
My Lords, is this another case of a regulator letting the British public down? Should we not press the regulators to do the job that they are supposed to do, and if they do not do it, remove them?
Lord Livermore (Lab)
No, I disagree with my noble friend on that point. As I said before, the ESG market has developed quickly and without formal oversight, so it is the responsibility of government to make sure that that sector is brought under the scope of regulation. As I have said, we will lay secondary legislation later this year to bring ESG ratings providers into regulation so that they will be subject to the rules set by the FCA. Once that legislation is passed, the FCA will consult on regulatory requirements for ESG ratings providers.
Lord Stirrup (CB)
My Lords, the Minister has said that it is not for the Government to tell banks to whom they should lend and in what they should invest, but it seems to me that the banks, particularly the large banks, are never slow to beg for public money when they get themselves into trouble. Should the Government not make it clear to those banks that they have a moral obligation to help to defend the public on whose money they depend in times of difficulty?
Lord Livermore (Lab)
I agree very much with what the noble and gallant Lord says. The Government have made it very clear that we consider defence an ethical investment. We do not see a conflict between sustainable investment and investment in our world-leading defence sector.
Baroness Neville-Rolfe (Con)
My Lords, defence is a vital requirement of our nation; I think we are all agreed on that. There have been many bad examples, which is why we are debating this today. Does the Minister agree that it is preposterous, unpatriotic and concerning that investment in our defence sector—for example, by certain pension funds or others prioritising ethical investment—should be actively discouraged by those purporting to favour a sustainable approach to investment? This needs to change.
Lord Livermore (Lab)
I agree with the noble Baroness. As I said previously, the Government have made it very clear that we consider defence an ethical investment. We do not see a conflict between sustainable investment and investment in our world-leading defence sector, and at a time of increasing geopolitical instability, supporting the defence sector has never been more critical.
Young Children: Convenience Foods
(1 day, 5 hours ago)
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Baroness Walmsley
To ask His Majesty’s Government what steps they are taking to address the nutritional content, labelling and promotion of convenience foods aimed at very young children, including fruit pouches and snacks.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, good nutrition is essential to our goal of raising the healthiest generation of children. Foods for infants and young children have to meet regulations on nutrition, composition and labelling standards. More widely, we are committed to tackling the child obesity crisis and government actions, including the junk food advertising ban, demonstrate the scale of our ambition in this area.
Baroness Walmsley (LD)
My Lords, I echo the comment of the noble Lord, Lord Kirkhope, “Oh dear”, because this issue is not new. In 2019, Public Health England drew attention to the fact that these products contain free sugars, they are not advised by the Scientific Advisory Committee on Nutrition for these young children and they are very misleadingly labelled. Every time the Government respond to this, they do what the Minister has just done and say that there are very good regulations about nutritional content and regulation. But does the Minister agree that regulations are only as good as their enforcement, and these are not being enforced? So, when the Government have their many conversations with the food industry, will they please get a grip and stop these companies producing products that are making our children obese, with rotting teeth?
Baroness Merron (Lab)
I hope the noble Baroness will be pleased to know that I recognise the view she states. I realise that this has gone on for some time and I am grateful for her work in this area, including through chairing the Lords committee that produced a very helpful report. I recognise that the current situation is not good enough.
On the matter of food regulations and enforcement, it is the responsibility of local authorities in England to enforce legislation where breaches are suspected. Local authorities will liaise with businesses to clarify and, if necessary, agree the action to put it right. It is indeed the responsibility of individual businesses to ensure that they comply with the law, and I assure the noble Baroness that that is a matter we will continue to press, as well as keeping those food regulations under review.
Lord Farmer (Con)
My Lords, even natural and additive-free food pouches are processed by heating and blending for shelf life and a texture suitable for babies. Cooking from scratch is increasingly rare, but particularly important when incomes are low. This basic but valuable skill should be included in all Start for Life infant feeding programmes, as baby food, home-blended from nutritious, pre-spiced, pre-salted adult food is of little cost to families. I ask the Minister: are family hubs being encouraged to help parents learn how to cook?
Baroness Merron (Lab)
I definitely understand where the noble Lord is coming from and also share the view about where he wishes to get to on this. Cooking lessons have not been specifically included in the programme, as I believe he may be aware, but the Start for Life website and email programme has advice for parents and carers, including healthy recipes and videos on weaning babies and feeding toddlers, and that has recently been updated.
I hope the noble Lord will welcome the fact that the family hubs and the Start for Life programme are central to the Government’s ambition to raise the healthiest generation of children. That is why we are investing approximately £57 million this year, including £18.5 million for infant feeding support.
Baroness Boycott (CB)
My Lords, one area that goes under the radar is sponsorship of big sports events. The Olympics has Coca Cola and McDonald’s; many other Olympic sports have things such as Monster. In particular, rugby has Red Bull. The recommended daily allowance of sugar for a child is a maximum of 24 grams. A single can of Red Bull contains not only coffee but 27 grams of sugar. It is completely anti-health, yet we allow these adverts to be all over our televisions. Some 25 years ago, the noble Baroness’s Government took the brave decision to take all cigarettes off any sporting activity. Will this Government think about doing the same for soft drinks that actually make children ill, not healthy?
Baroness Merron (Lab)
As the noble Baroness is aware, we continue to support the levy on sugar in drinks. That has actually had success, not least with reformulation. On the point about advertising to which the noble Baroness referred, as I have said, we are committed to bringing in the advertising ban, which will be in place in January. Indeed, industry—TV and online advertising—has already agreed to implement what will be in the regulations earlier than that.
Marketing sponsorship is a much broader point, but again it is one we take very seriously and continue to keep our eye on. I cannot give the noble Baroness the reassurance she seeks today, but I can assure her how seriously we take the impact of advertising and branding and who it is aimed at, particularly where we seek to support better health for infants and young people.
Lord Brooke of Alverthorpe (Lab)
My Lords, I welcome the Government’s review of the so-called “fizzy tax” and the consultation that will end in July. Could the Minister tell me whether this extends to and covers these pouches, which are very heavy in sugar? If not, can a review take place to try to apply the same principles we have applied on the fizzy tax to the pouches?
Baroness Merron (Lab)
On the matter of new taxation, my noble friend will understand that it is above my pay grade and outside my department. However, we have worked closely with industry in this area. On the matter of pouches, there is already advice that parents should ensure, where children and infants are using them, that it would be better to use the contents through spoons, rather than the item at the end of the pouch, in order to help guard against dental decay. In working with industry, some brands are already taking action to improve their baby food products: for example, the amount of sugar in Heinz creamy rice pudding has been reduced by more than half and Heinz has changed its labelling, which now says pouches are suitable for those aged six months-plus. This is an example of the work we can do. Yes, we have to do more and I am very aware of the danger that sugar represents to the youngest in our community.
Lord Kamall (Con)
My Lords, when there are concerns about nutritional content, there are three, perhaps more, possible approaches. First, you could ban the product, although prohibition does not always work. Secondly, you could try nudging consumers towards healthier choices—maybe by taxation or restrictions. Thirdly, you could work with local community organisations. In addition to family hubs and Start for Life, many local community non-state civil society organisations work with local families to help them cook and eat healthily together as a family. Given what has been mentioned already, will the Minister tell us what work the Government are doing with such local community organisations, apart from Start for Life and family hubs, to make sure that civil society is playing its role in educating our children?
Baroness Merron (Lab)
On the three ways forward that the noble Lord identified, the approach often has to be a mix of all three. It is the balance that is the point under debate, and it has to be informed by evidence. I certainly share the noble Lord’s view about the importance of civil society and working with community groups. Indeed, my department, but also the Department for Education and other departments, have worked closely with community groups in order to advance the policies and practices we need to improve the health of the youngest in our communities.
Lord Scriven (LD)
My Lords, the Scientific Advisory Committee on Nutrition recommends that free sugars are limited for babies and toddlers, yet it reported that our children have excess sugars and 20% comes from snacks aimed at young children. How do the Government plan to ensure that manufacturers are taking actions that do not directly contribute to childhood obesity?
Baroness Merron (Lab)
Further to my answer to the last question, we are taking a multifaceted approach. The advice that we give to parents and carers is important, because the noble Lord raises a very important point about not overusing snacks. Although the regulations are roughly the same across the UK and the EU, in the UK we recommend that six months is the point of weaning, whereas across the EU it is four months. So there is some lack of clarity, although we are very clear about where snacks are not needed, which is up to the point of 12 months. We work to ensure not only that people have regulations for protection but that parents and carers are aware of what they should do in terms of providing a healthy and balanced diet for their children.
Gaza: Humanitarian Aid
(1 day, 5 hours ago)
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The Minister of State, Foreign, Commonwealth and Development Office (Baroness Chapman of Darlington) (Lab)
My Lords, we are in regular contact with European Union partners and the US. The Foreign Secretary most recently raised the situation in Gaza with EU High Representative Kallas on 19 May, and last spoke to US Secretary of State Marco Rubio on 11 May. The new EU-UK Security and Defence Partnership will enable stronger dialogue and co-operation on a range of issues, including the Middle East.
Lord Dubs (Lab)
My Lords, that is helpful. Does my noble friend agree that the Gaza Humanitarian Foundation is failing to meet the desperate needs of the people in Gaza, who are endangering their own lives as they seek to get water and food? Is not the only answer that Israel must be compelled to open up to the United Nations and humanitarian agencies? Will the Government seek to mobilise our friends and partners to achieve that?
Baroness Chapman of Darlington (Lab)
My Lords, we and others predicted that the scheme that Israel decided to implement to get aid into Gaza would fail—and the manner in which it would fail. We are deeply saddened by what we are seeing and to receive the information coming out of Gaza about the failure of that scheme. The only way to get aid in at scale that we can currently see is to allow the UN and partners to deliver the aid where it is needed, at the speed and scale needed to save lives.
Lord Callanan (Con)
My Lords, first, I condemn the demonstration taking place outside Parliament as we speak. Of course, people have a legitimate right to protest, but there are reports of Members being jostled, questioned and having cameras shoved in their faces. One Member reported having water thrown over them. Intimidating Members and obstructing access to the House are unacceptable, and I hope that the authorities will take note.
The Colonna report was commissioned by the UN in 2024 following the revelations that UNRWA staff members participated in the 7 October attacks. The report made 50 recommendations to UNRWA. The current Government lifted the suspension on funding for UNRWA that we had put in place, despite its involvement in those attacks. Can the Minister tell me how many of those 50 recommendations have been implemented?
Baroness Chapman of Darlington (Lab)
My Lords, there was a problem with UNRWA. The Colonna report tells us that steps have been taken by UNRWA to deal with that. I am not standing here to have an argument with the noble Lord about UNRWA or any of the things that have happened in the past. What matters today is that we get aid into Gaza, where children are dying through lack of food—that is what is happening. If Israel, or anybody else, can find a better way to get that aid where it is needed without the guns and violence that we are seeing, and without people being killed when going to get aid, let us have a conversation about that. There is no other credible way to get that aid where it is needed at the speed needed, and that is the focus of this Government.
Lord Fowler (CB)
My Lords, surely the only way of reaching some agreement on the size of the humanitarian disaster in Gaza is by allowing in the international press and television. They can report on what is actually happening there, as opposed to putting and leaving it in the hands of the public relations people. Should that not be one of the first priorities of the Government in their international discussions?
Baroness Chapman of Darlington (Lab)
Our first priority, as I have made very clear, is to get food to the people who are starving. The noble Lord is right that that is not being helped by the inability of journalists to report accurately what is happening in Gaza. I do not know the precise reasons the Israeli Government have for not permitting journalists to do their job. I know that there are journalists who, despite the undoubtedly enormous risk to themselves, would be willing to undertake that task. It would be far preferable for us to have accurate reporting.
Lord Purvis of Tweed (LD)
My Lords, the unconscionable humanitarian crisis has been compounded by the deadly weaponisation of aid delivery. Does the Minister agree with me that the UK should argue that the use of mercenaries in the distribution of aid should be halted immediately and that there should be designated humanitarian corridors involving Palestinian Authority civilian police, which the UK has trained? They need to be put in place this week, literally to save lives.
Baroness Chapman of Darlington (Lab)
My Lords, there are trucks of aid and professionals with the ability to get that aid where it needs to go, without the use of violence and at speed. Whether or not that is done through corridors, as the noble Lord suggested, I would leave to the judgment of those people on the ground, whom I have met; they are able to do that task and to do it very quickly. He is absolutely right that what is happening now is unconscionable and is failing. It is leading to a huge amount of distress and will lead, unless something is done quickly, to further death. All we can do is make our position clear, publicly and privately, to the Israeli Government. They have made a choice about this: this is not a natural disaster; this is a decision being made to prevent the adequate distribution of aid. We disagree with it, and we believe that the position should change.
Lord Harper (Con)
My Lords, I draw attention to my declaration in the register of interests. I have recently returned from a visit to Israel last week that was organised and paid for by Conservative Friends of Israel, where we were able to look at the impact of the events of 7 October, which is, of course, the context in which all this is taking place, and have a briefing about aid. The Israeli Government have wanted to move to a new model because under the previous model Hamas intercepted significant quantities of aid, used that aid to control the Gazan population and to sell it to raise money for weapons? Can she set out what the British Government are able to do, given their experience in humanitarian relief, to assist the Israeli Government in ensuring that aid gets to the people of Gaza but without funding Hamas terrorist atrocities?
Baroness Chapman of Darlington (Lab)
What happened to Israel on 7 October was a devastating attack of terrorism. Israel has every right to defend itself, and we have said this consistently. Israel is a friend and an ally. We have close links with the people of Israel and they should grow in the coming months and years. But what is happening now is wrong. The withdrawal and blockade of aid, and the inability of people to get that aid where it is needed straightaway, because of a choice being made by a Government, is wrong. The noble Lord is right to remind us about what happened on 7 October, and we are all right to hold in our hearts and minds the plight of those hostages still being held. But that does not make it right to withhold food from hungry children.
The Lord Bishop of Gloucester
My Lords, I too declare an interest, having just returned from Israel/Palestine last week. As we talk about humanitarian aid, does the Minister agree that the horrors we are now seeing in Gaza cannot and should not be separated from the tensions and conflicts in the West Bank, and that what we are seeing across the whole of the Occupied Palestinian Territories of Gaza, east Jerusalem and the West Bank are all part of one and the same thing —a diminishing of human dignity and equality, a dispossession of land and identity, and a violation by the Israeli Government of the right of Palestinian people to self-determination?
Baroness Chapman of Darlington (Lab)
I was in Ramallah in the West Bank myself a couple of weeks ago and I spoke to families who have been forced to move. It is right that we are reminded that we cannot just separate what is happening in Gaza and in the West Bank. It is the same Government undertaking all of this. What struck me, from the conversations I had, was the level of fear that there is in all communities in Israel and the West Bank. It is important that, inasmuch as we can, the UK uses its ability to influence, to try to work alongside the US, Egypt and Qatar to try to get some kind of negotiated settlement here so that there can be a ceasefire, the hostages can be released and we can get the aid where it is needed.
Lord Grocott (Lab)
My Lords, as usual, these exchanges are, rightly, reasonably calm and measured but they do not get close to the horrors that we see on our television screens, on news bulletins, night after night, with one horror overtaking another—the latest, of course, seeing starving people herded into the south of Israel and food supplies being used as a weapon of war. One report last week encapsulated it all: a mother, a doctor at a hospital in the south of Gaza, losing nine of her 10 children in an air strike. They were aged from six months to 10 years. I do not know what the right language is to describe this, whether it is carpet bombing, genocide or whatever, but I do know that it is evil—and I would love to hear my noble friend and my Government describe it in precisely those terms.
Baroness Chapman of Darlington (Lab)
If I am learning one thing about this job, it is that you can use whatever words and make whatever statements you like, and it has some effect—it is galvanising and it is important that the people of our country know where their Government stand and that we work with our partners and allies internationally to make clear the position of the United Kingdom—but what happens next lies squarely in the hands of quite a small group of people in the Israeli Government. I would have hoped that the statements that have been made and the information we now have coming out of Gaza would have led to a change in position, because the scheme they have come up with is clearly failing. It is going to lead to more death, starvation and desperation in that community and, ultimately, more violence. We need to get everybody we can around a table so that the dialogue can begin again and we can get the cease- fire that we so desperately want to see.
Alaa Abd el-Fattah
(1 day, 5 hours ago)
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Lord Black of Brentwood
To ask His Majesty’s Government what action they are taking to secure the release from prison in Egypt of British citizen Alaa Abd elFattah, in light of the condition of his mother, Laila Soueif, who is at risk of death as a result of her ongoing hunger strike in protest at her son’s detention.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office (Lord Collins of Highbury) (Lab)
I thank the noble Lord for his Question. Both and I and the Foreign Secretary were deeply concerned at Laila Soueif’s hospitalisation on Thursday. Certainly, our officials are in regular contact with the family. The Prime Minister had met Laila only on 14 February. The Foreign Secretary raised the case on 1 June with the Egyptian Foreign Minister, and the Minister for the Middle East raised it with the Egyptian ambassador on 31 May. I assure the noble Lord that the Egyptian Government are fully aware of the importance we attach to Mr el-Fattah’s case, and we will continue to press for an urgent resolution.
Lord Black of Brentwood (Con)
My Lords, I thank the Minister for that Answer. I am sure the thoughts of the whole House will be with the courageous Dr Soueif, who lies gravely in hospital as a result of the incredibly brave stand she is taking to secure the release of her son, whose detention in Egypt has been found by the UN Working Group on Arbitrary Detention to be in breach of international law.
I thank the Minister and the Government for all they are doing to secure his release. The Prime Minister’s direct intervention with President Sisi is very welcome, but given the extreme urgency of this tragic situation and the ongoing, deliberate violation of the UK’s consular rights, is it not clear that words are no longer sufficient? Will the Government now consider further concrete measures, including targeted sanctions, revising FCO travel guidance relating to Egypt, and proceedings in the International Court of Justice to secure the immediate release of Alaa Abd elFattah and bring comfort to his mother in what may be her final hours?
Lord Collins of Highbury (Lab)
I hear what the noble Lord says, but our absolute priority remains securing Mr el-Fattah’s urgent release and engaging the highest levels of the Egyptian Government. The Government judge that the best way to achieve this is engagement with the Egyptian Government at a bilateral level. We approach this case based on its individual merits and specific political context, but I reassure the noble Lord that we take this urgent matter seriously. We are in constant touch to seek his release in the very near future.
Lord Purvis of Tweed (LD)
My Lords, I associate myself with what the noble Lord said about Mr el-Fattah’s family, his mother and, of course, his own safety. This is an illegal detention, as defined by the United Nations, and we consider the refusal of consular access to be a breach of international humanitarian law. I appreciate the diplomatic representations that have been made at the highest levels, including by the Prime Minister, the Foreign Secretary and the Minister, but does the Minister agree that the situation is now so urgent that it requires concrete action? That could be done in two areas. First, travel advice for British citizens going to Egypt could be updated urgently to say that it is not safe to travel to Cairo, given that British citizens could be treated in such a way. Secondly, just a year ago, the UK-Egypt development partnership was agreed by the previous Administration. Surely the Government should signal that that partnership agreement must be paused to enable a swift response and the release of Mr el-Fattah?
Lord Collins of Highbury (Lab)
All these matters are a judgment call, and it is certainly the Government’s judgment at this stage that the best approach to secure the urgent release of Mr el-Fattah is that bilateral contact at the highest possible levels. We have been consistent in our support for Mr el-Fattah and his family. Of course, the Egyptian authorities do not recognise his British nationality and see him only as an Egyptian national, and our consular staff have therefore been unable to visit him in prison, but they are in regular contact with him through his lawyer and his family. I repeat that, at this stage, we are absolutely committed to that bilateral contact in order to see the urgent release of Mr el-Fattah.
Baroness Whitaker (Lab)
My Lords, I stood with the daughter of Dr Soueif outside St Thomas’s yesterday. There were a lot of journalists there. The call was mainly because of the extreme urgency of the situation and the fact that it appears to be President Sisi’s own personal obsession to keep the young man in prison. Really, our contacts should be not only at the diplomatic level, but with our Prime Minister to the President, and with the Prime Ministers and the Presidents of our allies, such as President Macron, who also has a relationship with the Egyptian Government. Is it not imperative to find out what the real reason is for keeping Alaa in prison—is it his influence on the young people of Egypt?—so that the right trigger can be used to persuade President Sisi to let him out before his mother dies, which is possibly a matter of days?
Lord Collins of Highbury (Lab)
I share my noble friend’s concern about the condition of Laila. We are very, very concerned, and we remain in constant touch with the family about her condition. Let me just remind my noble friend what I have told the House. The Prime Minister raised Mr el-Fattah’s case with Egyptian President Sisi on 22 May, and previously wrote to President Sisi on 4 May. The Foreign Secretary has also discussed Mr el-Fattah’s case with the Egyptian Foreign Minister on a number of occasions and spoke again on 1 June to press the urgency of the situation. Minister Falconer has certainly discussed this case multiple times with the Foreign Minister of Egypt, most recently on 25 May, and with the ambassador on 31 May. The National Security Adviser, Jonathan Powell, raised Mr el-Fattah’s case in a phone call with the Foreign Minister on 27 April. Let me reassure the House that we are absolutely determined to ensure that Mr el-Fattah is released, and we are maintaining that contact at the very highest levels.
Lord Callanan (Con)
My Lords, all sides of the House are, I think, united on the point that Mr el-Fattah’s continued detention in Egypt is an incredibly serious matter. As my noble friend said, the UN has concluded that he is being held arbitrarily by the Egyptian authorities and should therefore be released immediately under international law, which the Egyptian Government are breaking. The UN panel set a six-month deadline for the authorities to release Mr el-Fattah and investigate the violation of his rights. Can the Minister please update the House on what the Government plan to do if that six-month deadline is allowed to elapse with no change in the situation?
Lord Collins of Highbury (Lab)
On the UN decision, it is for Egypt, as the state detaining Alaa, to respond to the recommendations of the working group, which does not have the same sort of legal status. We take the working group’s findings absolutely seriously, which is why we have been consistent in calling for Alaa’s release. I repeat that the Egyptian authorities have to respond to that working group’s report. As far as we are concerned, we are determined to follow our bilateral approach at the highest possible levels to make the strongest possible case.
Baroness Jones of Moulsecoomb (GP)
My Lords, given that the mother, Laila, is in hospital and could die this week, is it not time to do something more than talk?
Lord Collins of Highbury (Lab)
I do not know what the noble Baroness would suggest. This is a judgment call. It is my absolute, sincere hope—shared by the Prime Minister and the Foreign Secretary—that we can support Alaa’s mother, Laila, and ensure that she is safe. We are going to do that at the highest possible levels, by working with the Egyptian authorities and conveying our strong message to seek his urgent release. It is a judgment call and, at this stage, I think that we are making the right judgment.
Lord McInnes of Kilwinning (Con)
My Lords, I do not want in any way to underestimate the importance of the bilateral efforts that the Government are making and that the Prime Minister has personally made, but, surely, given the strategic importance of Egypt to the United States and the significant aid from the United States that supports Egypt and its military, the Prime Minister’s strong relationship with President Trump should be leveraged to try to get justice in this case.
Lord Collins of Highbury (Lab)
The noble Lord is right that we should use all possible avenues to amplify our bilateral call, and we are certainly working with allies to do that. At this stage of the game, it is really important that we focus on our specific call.
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)
My Lords, can we hear from the noble Baroness, please?
Baroness Altmann (Non-Afl)
My Lords, as a mother, my heart goes out to the mother of Alaa Abd el-Fattah, Laila Soueif. I cannot imagine the pain that she and her family are going through. Given that the Egyptian Parliament is about to go into recess for Eid and that there may be little extra chance to have the time to negotiate bilaterally, would not some extra pressure give more comfort to the family? Given the bilateral talks that have been had at the highest level, are there any signs of progress at all that can give any such comfort?
Lord Collins of Highbury (Lab)
I repeat to the noble Baroness that these things are a judgement call. I reassure her and the House that we have kept the family constantly informed of our efforts, and certainly we will continue to do so. It is our hope and determination to see his early release.
Lord Marlesford (Con)
My Lords, I declare an interest as a former co-chair of the APPG on Egypt. What grounds do the Egyptian Government give for refusing diplomatic access to Mr el-Fattah, whether it be from the embassy or consular, while he has been in prison? Has the Foreign Office assembled, found or heard any information that has satisfied it as to whether there has been any ill-treatment of Mr el-Fattah while he has been in prison?
Lord Collins of Highbury (Lab)
I hope I have reassured the House that, while the Egyptian authorities do not recognise his British nationality and therefore our consular staff have not been able to see him in prison, we have remained in constant touch with his lawyer and his family, and through his lawyer we are able to determine his current status. The important thing that we have done to support the family is keeping them informed of what we are doing, while focusing very strongly on the highest level of bilateral relations.
Lord Bellingham (Con)
My Lords, following on from the question asked by the noble Lord, Lord Marlesford, has the Minister reflected at all on the incredibly cruel, inhumane and squalid conditions in the Bab al-Khalq prison? What representations has the embassy made to the Egyptian authorities? Can the Minister repeat the point about access? It is incredibly important that he is visited in prison by our officials, so that they can see for themselves these truly appalling conditions.
Lord Collins of Highbury (Lab)
I reassure the noble Lord that we have asked for access, which the Egyptian authorities have so far refused, but we have been in constant touch with his lawyer. The noble Lord is right about some of the conditions, but we are absolutely determined to ensure that he remains safe. We have made that case very strongly when seeking his urgent release—but we remain concerned. I must stress that, when I heard Laila on the radio, I thought her determination, at whatever cost, to see the release of her son has to be greatly admired and respected.
Lord Jopling (Con)
My Lords, I remember some years ago meeting President Sisi and being struck at that time by the very close relationship which the Egyptians, in personal and commercial terms, have with the Saudi Arabians. Might it be a good idea if we could, through diplomatic channels, encourage our representations in Riyadh to help us over this issue?
Lord Collins of Highbury (Lab)
I hear what the noble Lord says, and I responded to a previous question on this. Of course, we make sure all our allies are very much aware of our position and our call on the Egyptian authorities. At the end of the day, what will secure Mr el-Fattah’s release is that bilateral relationship and that bilateral call. It is a difficult judgement call, but we have kept the family informed, and it is very much our hope to ensure that he is released as early as possible.
Health and Social Care Information Standards (Procedure) Regulations 2025
Baroness Blake of Leeds
That the draft Regulations laid before the House on 25 March be approved.
Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 12 May.
School Teachers’ Review Body: Recommendations
(1 day, 5 hours ago)
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Baroness Barran (Con)
My Lords, on 6 February this year, in response to an Oral Question about teacher recruitment, the noble Baroness the Minister stated:
“We are committed to recruiting an additional 6,500 new expert teachers across our schools, both mainstream and specialist, and our colleges over the course of this Parliament”.—[Official Report, 6/2/25; col. 797.]
However, according to the Institute for Fiscal Studies, the recent pay award has left a £400 million funding gap that schools will need to fill, which equates to the salaries of about 6,000 teachers. A recent survey from the National Association of Head Teachers showed that 46% of heads said that they would have to cut either teaching hours or the number of teachers, and 80% said that they would cut teaching assistants or their hours. I wonder whether the Minister could update the House on what the Government’s revised forecast is for the number of additional teachers they will recruit—that is, net of those redundancies and retirements—over the course of the Parliament. My maths suggests that it will be close to zero.
The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)
My Lords, on 22 May we were able to announce that this Government will fulfil the recommendations of the School Teachers’ Review Body and award a 4% pay increase to our teachers. Alongside that, we were able to announce an additional £615 million to fund that pay increase. That, alongside last year’s acceptance of the STRB’s recommendations, means that, while this Government have been in office, teachers have received a pay increase of nearly 10%. That is a fundamentally important contribution to retaining teachers in our classrooms and recruiting new teachers to be able to meet our 6,500 extra specialist teachers during this Parliament.
Noble Lords opposite, while asking legitimate questions, might like to reflect on the fact that, when we arrived in government, we found on the desks of the DfE the STRB’s recommendations from last year that their Government had run away from implementing. Since this Government have been in office, given the action we have taken not only on pay but on other provisions, we have seen an increase of 2,000 students starting teacher training. We estimate that the actions we have taken will ensure that an additional 2,500 teachers will be retained in the workforce over and above what would have happened had the previous Government continued their action towards teachers.
Lord Storey (LD)
My Lords, on these Benches we welcome the Government’s acceptance in full of the School Teachers’ Review Body and the additional resources provided. However, there is a financial impact on schools having to implement the pay rises from their existing budgets. Given that half the schools are already considering staff cuts, and 45% of secondary head teachers are using pupil premium funding to fill budget gaps, can the Minister clarify the efficiencies the Government believe are still available to be found within existing school budgets?
Baroness Smith of Malvern (Lab)
The noble Lord is right that we have inherited a situation where school budgets are stretched. That is why we have already made available an additional £2.3 billion for the core schools budget in the October 2024 Budget, of which £1 billion was for high needs. We have also made available, on top of that, £930 million to support schools with the cost of the national insurance contributions increase in March 2025. There is also, as I have already said, £615 million for the 2025 pay awards. That means that, while this Government have been in power, we have seen the core schools budget increase from £61.6 billion to £65.3 billion.
There will be productivity challenges for schools and the Government have been clear that, as with other parts of the public sector, we will look to support schools in finding 1% of efficiencies to contribute to the ability to pay the pay award. That is alongside considerable funding support; considerable additional funding, on top of the efficiencies, to fund the pay award; and work that the department is doing with schools to help them find those efficiencies. That is a responsible way to balance the need for teachers—who are the most important in-school determinant of children’s success—in our classrooms with our responsibility to the taxpayer to ensure that public money is spent as effectively as possible.
Lord Hampton (CB)
My Lords, as a working teacher, I say thanks very much for the 10%—it is very gratefully received. It occurred to me a few days ago that the Government seem to presume that nowadays everybody leaves university, trains to be a teacher and stays a teacher for the rest of their lives. That is just not happening. The way working patterns are now, people change professions after 10 years. Is that built into the model of recruiting now—that people last only, say, 10 years and move on, and that we can get people who have been in other jobs and recruit them into this very fine profession?
Baroness Smith of Malvern (Lab)
The noble Lord raises an interesting point. There are of course people who enter the teaching profession, teach for 10 years, and then leave to become Members of Parliament and Ministers. I am probably too old now to ever countenance going back into the classroom, but the noble Lord makes an important point about how we attract people into the profession at a later age.
That requires, for example, some of the flexibilities we have introduced through the postgraduate apprenticeship route into teaching. It also means that you have to make teaching an attractive profession for people to enter at any age and, importantly, to stay in. That is why we are—through the targeted retention incentives, the bursaries we are offering for specialist subjects, the action we are taking on supporting teachers on the considerable workload they face and the action we are taking to ensure that technology can support teachers in doing the face-to-face work in the classroom that makes all the difference—helping to recruit teachers at the beginning of their careers and teachers who are perhaps coming from other areas and, most importantly, to retain the excellent teachers that we have.
Lord Pannick (CB)
Will the Minister say something about where the 1% efficiency savings in schools might be found?
Baroness Smith of Malvern (Lab)
Yes, they might be found by, for example, schools being able to take the opportunity of the national energy contract that the DfE has entered into. We have already seen that schools that take part in that save considerable amounts of money. They might be found in other ways by thinking about the procurement that schools are doing. To emphasise the point I made earlier, we are not asking schools to do this alone, not least given the enormous pressures that we know there are on head teachers; we are standing alongside schools to support them with a wide range of advice and practical things, such as the energy contract, to be able to achieve this.
It is not unreasonable, at a time when we are asking organisations across the public sector to find efficiencies, that a small part of the contribution to the teachers’ pay award should come from efficiency. On top of that, of course, is the considerable investment of £615 million that this Government are making in teachers through the teachers’ pay award.
The Earl of Clancarty (CB)
My Lords, the Minister mentioned bursaries, but art and design and music lag a long way behind science subjects. Do the Government have any intention of increasing those? Science subjects get a considerably higher amount of bursaries than art and design and music do.
Baroness Smith of Malvern (Lab)
This pay award means that all teachers will now be receiving about a 10% increase, which this Government have been able to deliver. When we are then thinking about specific bursaries and retention incentives, we need to think about those areas where there have been particular difficulties with recruitment as well as those areas that are particularly important for delivering on the Government’s growth objectives. That has been the thinking behind where those additional incentives have gone. However, I reiterate that the basic pay for teachers now means that median or average pay for a teacher is now over £50,000, which strikes me as being the sort of amount of money that we should be willing to provide for those people who are making such a fundamental—the most important—difference in school to our children’s futures.
Thames Water
(1 day, 5 hours ago)
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Lord Roborough (Con)
My Lords, these Benches attempted to amend the Water (Special Measures) Act to protect consumers from bearing any costs associated with a special administration regime, but this was rejected by this Government. Will the Minister commit today that consumers will not be made to pay any SAR-related costs, and that under no circumstances will the Government take responsibility for repaying the rumoured £20 billion of Thames Water debt? I should also declare an interest that one of my daughters works at a firm named in the press as a bondholder.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)
My Lords, the Government do not have any intention for consumers to pay towards this. We do not see that consumer bills need to go up to cover these debts. It is not for consumers to pay for the mistakes and poor behaviour of the water companies. In response to the second question, within the regime, we will look at it in detail, but it is, again, not our intention for the water companies to basically get away with it.
Baroness Jones of Moulsecoomb (GP)
My Lords, we are already paying more for our water because Thames Water has put up our bills. I declare an interest as a Thames Water bill-payer. How much higher are our bills going to go before the Government actually accept that they have to put public ownership before private profit?
Baroness Hayman of Ullock (Lab)
One of the reasons that bills are going up—not just for Thames Water customers but for other consumers—is the lack of investment for years and years by the water companies in infrastructure, which is why we have so many problems with pollution, for example. While it is not something that the Government want to see continue—we do not want to see consumer bills going up unnecessarily—it is important that, with the PR24 settlement that was made, that money goes directly into investment, which is why we are stopping dividends and unnecessary bonuses being paid.
Baroness Grender (LD)
My Lords, does the Minister agree that the creditors who have heaped billions in debt on to the company should now pay to sort this mess out, possibly through a well-planned administration process and a swift exit, after which the company should be mutually owned by the 16 million customers? Do the Government now have plans ready and in place for Thames Water to be brought into special administration? What plans do the Government have for a new operating model for water companies to work for the public benefit?
Baroness Hayman of Ullock (Lab)
Any future operating model will be part of Sir Jon Cunliffe’s review that is currently taking place—I am sure the noble Baroness will be aware that the interim report is out. That will be part of the work being carried out by Sir Jon and others.
The big issue is that fundamentally this a private company. It for the company to solve the issues of financial resilience. It is not for us to tell a private company how to manage its finances. That is really important. But, having said that, we have to be prepared for all eventualities across regulated industries and Thames Water has clearly had some pretty serious problems. If it comes to a SAR, creditors cannot ask the debt to be repaid during that special administration regime. If it did come to that, there is a moratorium on legal proceedings during a SAR and that would take away the creditors’ ability to enforce any debt repayments.
Lord Sikka (Lab)
My Lords, while the Government are dithering about the future of Thames Water, its debt has increased by £3 billion, it is spending £200 million a year on its business advisers and one-third of a customer’s bill basically covers the interest payments. Is it not time that the Government recognise that privatisation has failed and that the only way of giving the water industry firm footing is through public ownership?
Baroness Hayman of Ullock (Lab)
As I have said previously, the Government are not going to be renationalising the water companies. The Government are not dithering. This is a private company that has some serious debt problems. It is not for the Government to tell a private company how to manage its finances. If it comes to it, we are prepared to ensure that customers continue to receive high-quality water through their taps, because that is what is really important, and that the systems stay in place.
Baroness McIntosh of Pickering (Con)
My Lords, the interim Cunliffe report was very clear that part of the problem is the short-termism of regulation and the high volatility in returns not being conducive to long-term, low-risk, low-return investors. Will the Government accept whatever the commission proposes in its final report and bring a Bill before this House so we can review the situation in the long term?
Baroness Hayman of Ullock (Lab)
Clearly, the report we have in front of us is an interim one, so we are currently looking at it and considering the recommendations. Further work will then be done and as a Government we will then look at those recommendations and work with Sir Jon Cunliffe on how best to move things forward. Clearly, there are some serious structural issues in the way things have been managed and we need to take this very seriously if we are going to sort out the mess that many water companies have found themselves in. That may well result in a further water Bill in the future.
Baroness Ludford (LD)
What lessons are the Government learning from the water sector experience for other regulated industries? As the Minister said, there have been decades of underinvestment. The 1990s European law should have been implemented, and successive Governments, including the last Labour Government, failed to apply the law on proper treatment of sewage. What lessons from poor regulation ought to be applied in other so-called regulated industries?
Baroness Hayman of Ullock (Lab)
I am sure that the other regulated industries are watching what is happening in the water industry with great interest. It is important that where our industries are regulated, they are regulated properly, appropriately and for the benefit of the country and consumers. It will be interesting to see the outcomes of the Cunliffe report, particularly regarding Ofwat, the Environment Agency and some of the people who have been responsible for the hands-on regulation. We have some important and interesting decisions to make as we go forward.
The Duke of Wellington (CB)
My Lords, does the Minister agree that—as many people have said already—the root of the problem at Thames is the level of debt? The fact is that, many years ago, Ofwat allowed Thames Water to increase the level of its own debt beyond any reasonableness. The public have been let down as much by the regulator as by the water companies. I very much hope that the Minister will agree that we need to change the type of regulation that the water companies have to live by.
Baroness Hayman of Ullock (Lab)
The noble Duke makes an extremely important point. The Cunliffe report is pretty damning on how the regulators have overseen what has happened. Clearly, it has not been good that water companies, particularly Thames, have been allowed to get into so much debt. We will absolutely be considering these matters very seriously.
Lord Cryer (Lab)
My Lords, I was a London MP for 22 years, and I can say with some conviction that Thames Water was one of the worst and most contemptible organisations I have ever dealt with—and that is up against some pretty stiff competition. Can we scotch this myth that has been put out by Thames Water for years that it has not been paying dividends? It has been paying what are, in effect, dividends to the parent company. Technically they may not be dividends but, in effect, they are. When Thames Water makes these claims, we should call it out for what it is doing: telling lies to the British public.
Baroness Hayman of Ullock (Lab)
It is really important that we have clarity and honesty from our water companies, because there are so many problems. If we are genuinely going to sort this out, we need to have a proper understanding, and there should not be little tricks and ways of paying money—whether through dividends or otherwise—that circumvent what we would consider to be best behaviour.
Arrangement of Business
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, before we consider the Commons message on the data Bill, I remind the House again of the importance of applying some discipline to ping-pong. We have now spent 42 hours debating the Bill as a whole, including nearly eight hours on the last three rounds of ping-pong. The remaining issue is well known to Peers and the arguments have been rehearsed at length, so I ask noble Lords to minimise contributions and keep any interventions brief, succinct and to the point. I am grateful in advance to all noble Lords. I have asked the Whips to continue to monitor the situation and intervene if necessary.
Data (Use and Access) Bill [HL]
(1 day, 5 hours ago)
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18:03 - Division on Motion A1 (as an amendment to Motion A) - Ayes: 221 / Noes: 116 - Motion A1 agreed.
Baroness Jones of Whitchurch
That this House do not insist on its Amendment 49F, to which the Commons have disagreed for their Reason 49G, and do propose Amendments 49H, 49J, 49K, 49L and 49M in lieu of Amendment 49F—
“(e) ways of enforcing requirements and restrictions relating to—
(i) the use of copyright works to develop AI systems, and
(ii) the accessing of copyright works for that purpose (for example, by web crawlers), including enforcement by a regulator.”
“(3A) The consideration and proposals under each of paragraphs (a) to (e) of subsection (3) must include consideration of, and proposals relating to, AI systems developed outside the United Kingdom.”
49M: After Clause 134, insert the following new Clause—
“Progress statement
(1) The Secretary of State must, before the end of the period of 6 months beginning with the day on which this Act is passed, lay before Parliament a statement setting out what progress has been made towards the publication of—
(a) the economic impact assessment required by section (Economic impact assessment), and
(b) the report required by section (Report on the use of copyright works in the development of AI systems).
(2) The duty in subsection (1) does not apply where the economic impact assessment and the report have been published before the end of the period described in that subsection.”
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, in moving Motion A, I will also speak to Motion A1. Following on from colleagues discussing this in the other place yesterday, we are back here again today to debate this issue of AI and copyright. Your Lordships will see on today’s Order Paper amendments from the Government providing legislative underpinning to the commitments I made on Monday. My letter to noble Lords yesterday set out in detail what these amendments do alongside everything else the Government have done to respond to noble Lords’ concerns. I hope this helped to dispel the feeling that the Government are not listening and have not compromised. It also puts beyond any doubt the Government’s views on the issues at hand, especially the issue of transparency.
The solution to these issues is what we have said all along. There is no disagreement with our plan to finish analysing the consultation processes, convene technical working groups, make a Statement to the House on progress, and then bring forward reports setting out our proposals and our economic impact assessment of them. I am glad to make amendments to the Bill to give this plan legislative effect. This is consistent with our approach of hearing concerns, responding to them and moving the Bill forward. I urge noble Lords from across the House to support them.
The only issue on today’s Order Paper with which there is any disagreement is the question of whether the Bill should mandate the future production of a draft Bill, its contents and it going through the pre-legislative scrutiny process. I hope that noble Lords agree with what I put in my letter to them: we cannot, should not and must not prejudge the outcome of these processes. Despite assertions to the contrary, good government does not assume what 11,500 detailed responses to its consultation will say.
Our plan—to consult properly and finish the job, carrying out the processes as now mandated in the Bill and then bringing forward legislation that both Houses of Parliament can have confidence in—is surely the right one. A draft Bill is not a plan to solve the problem. Indeed, it could have the consequence of delaying the very reforms that your Lordships have called for. For these reasons, I hope that noble Lords will support the amendments in my name, but not continue to insist on Amendment 49F today.
Before I finish, I will address the question of double insistence. Today, noble Lords have been presented with a question of whether to go even further than we have come so far during ping-pong and choose whether they want the entire Bill to fall if the Government do not accept the amendment from the noble Baroness, Lady Kidron. I sincerely hope that it does not come to this, for it would mean that noble Lords are willing to countenance the unprecedented: trying to collapse a Bill that does nothing to weaken copyright law, but which does deliver many of the elected Government’s manifesto commitments—for example, a data preservation process supporting bereaved parents; new offences for intimate image deepfake abuse; smart data schemes such as open banking that businesses have been crying out for; and a framework for research into online safety.
This would mean that noble Lords are willing to try to collapse a Bill that the elected Government are using to grow the economy by £10 billion, the number one mission from their manifesto and election campaign; that makes vital, uncontroversial and necessary amendments to our national security and policing laws to keep us safe; that will save 140,000 hours of NHS time per year, with the potential to reduce medication errors by 6.8 million and prevent 20 deaths per year; and that the elected House has voted overwhelmingly in favour of four times. I urge noble Lords to choose instead the Government’s plan to solve this issue and vote with the Government today. I beg to move.
Motion A1 (as an amendment to Motion A)
Baroness Kidron
Leave out from “House” to end and insert “do insist on its Amendment 49F.”
Baroness Kidron (CB)
My Lords, I did not expect to be here today. I am disappointed, frustrated and, to be honest, quite sad to be here and to have to make this argument again. I will make just four points and then I will listen to the House and to the Minister.
First, it is not fair, reasonable, just, balanced, or any other such word to stand in the way of the creative industries identifying those who are taking their work and their property. It is not neutral; it is aiding and abetting what we have called in the House “widespread theft”. We have asked, both privately and repeatedly on the Floor of both Houses, what the Government are going to do to stop the work of creatives being stolen right now. The answer is nothing.
Secondly, the Government may be new—ish—but your Lordships’ House is full of people with long political histories. They see time and delay in the consultation, in working groups, and in Statements to Parliament. Inaction is a powerful tool in politics.
In opposition, Labour wrote a manifesto for the creative industries that it took into the election with a raft of promises, including to
“support, maintain and promote the UK’s strong copyright regime”.
The manifesto stated:
“The success of British creative industries to date is thanks in part to our copyright framework”.
Yet we are struggling to get the Government to act on that promise, or to act on that knowledge.
The Government are aware of the stealing, aware of the law, and aware that creative work morally and financially belongs to its creator. The Government are aware that the success of creative industries depends in large part on the copyright regime, and that mass theft is breaking the press, the arts and other IP-rich businesses, and hampering the UK AI community. Inaction is not neutral. It is hurting our community and it is hurting the Government’s future prosperity.
Thirdly, all noble Lords, including me, are concerned about the primacy of the Commons. We are being accused of constitutional wrongdoing. I was very disappointed in the Minister’s opening speech. We are not trying to collapse the Bill. This Bill is a Lords starter. If we vote, we will not be double-insisting. That is entirely, 100%, in the hands of the Commons. Even though we have been here several times—largely because the Commons evoked financial privilege twice, with a very low bar—today is the first time the House would be insisting on any of its amendments. That point has been made by many noble Lords who have been in the House a great deal longer than I have.
If we were to send the Bill back for Commons consideration today, the other place would have three choices. It could choose to accept the amendment, it could choose to replace it with its own amendment in lieu, or it could choose to double-insist—and crash the Bill. I want to make it absolutely clear that, whatever transpires today, I will accept the choice the Government make. This is our last chance to ask the Government to provide a meaningful solution, and it will be in their hands alone to provide one.
Yesterday in the other place, Conservative and Liberal colleagues voted for this amendment enthusiastically, on the basis that it was a minimum that we could ask for—an amendment that the Government told me in advance of our debate that they would overturn. And indeed they did, in 38 minutes. I thank those on the Opposition Benches in the other place, many of whom have written to me this morning expressing support and the hope that noble Lords will, as they say, keep going. I thank colleagues across your Lordships’ House for their eloquent contributions and extraordinary support throughout.
I also thank again Labour colleagues who have sat on their hands and occasionally come through the Lobby with us. I know it is hard, but it is the role of your Lordships’ House to ask the Government to think again, and it is both against convention and a rebuke to the House, a rebuke to the true feelings of their own Back Benchers, a rebuke to a £126 billion industrial sector and a rebuke to the 2.4 million creative workers, to return again and again with no solution to the stealing. Unless this is a tacit deal with big tech, it makes no sense to refuse to take a power just in case, and to refuse to create a timeline or a legislative vehicle for transparency on behalf of our second-biggest industrial sector when it is crying out for our support—the very support that Labour promised.
Lord Russell of Liverpool (CB)
My Lords, I will very briefly make two points. The first is to perhaps allay some fears that noble colleagues may have about the constitutional propriety of where we find ourselves, and for this, I thank our wonderful Library.
This is a Lords starter Bill—it started in your Lordships’ House. Since 1997, there have been no fewer than 14 Bills which started in the Lords and have gone backwards and forwards for ping-pong three times or more. Of the 14 Bills, two of them got a score of five, one got a score of four and 11 got a score of three, so we are not in virgin or new territory. This is tried and tested and it is what happens when there are fundamental disagreements, and there is nothing unconstitutional about trying to settle a genuine disagreement in a way which gets each side to listen to the other, to acknowledge the other side’s strength of view and to come up with some sort of accommodation which both sides can live with. We are having a problem arriving at that, but we are not in a state of constitutional impropriety. That is the first point that I wish to make.
The second is to emphasise the point my noble friend was making on the urgency of this. I have some sympathy for His Majesty’s Government here. When I spoke briefly on Monday, I tried to indicate the background and the dilemma that our Government find themselves in, and I have a lot of sympathy for that.
Under the previous Government, noble Lords may recall that our penultimate Prime Minister was a great fan of AI and made great play of trying to attract interest in AI, positioning the United Kingdom as potentially a major base of the AI sector outside the United States. The new Government have continued that theme and recognised AI as a core element in one of their many missions for growth. However, if we look at where the United States is coming from, we see that its position is very clear, and it is deeply uncomfortable for us. Vice-President Vance said on 11 February at the Artificial Intelligence Action Summit in Paris that
“with the president’s recent executive order on AI, we’re developing an AI Action Plan that avoids an overly precautionary regulatory regime while ensuring that all Americans benefit from the technology and its transformative potential … Now, we invite your countries to work with us and to follow that model if it makes sense for your nations. However, the Trump Administration is troubled by reports that some foreign governments are considering tightening the screws on U.S. tech companies with international footprints. Now, America cannot and will not accept that, and we think it’s a terrible mistake not just for the United States of America but for your own countries”.
What could be clearer than that?
OpenAI, one of the major companies involved in this, says that America needs a global strategy that adopts American AI systems, not anybody else’s, and a copyright strategy that protects
“the rights and interests of content creators”,
and preserves
“American AI models’ ability to learn from copyrighted material”.
After the consultation in this country with our Government, it said:
“The UK has a rare opportunity to cement itself”,
—it makes one think of being in cement under Brooklyn Bridge—
“as the AI capital of Europe by making choices that avoid policy uncertainty, foster innovation, and drive economic growth”,
calling for a broad copyright exemption.
Lastly, Google said that rights holders can already effectively exercise “choice and control”, but suggested those who opt out of AI training would not necessarily have a right to remuneration if they still appeared on a model’s training data—so, basically, “We’ve stolen it, but too bad”. It further said that
“we believe training on the open web must be free”,
and it warned that
“excessive transparency requirements … could hinder AI development and impact the UK’s competitiveness in the space”.
This is the very uncomfortable dilemma we are in. I would welcome transparency from His Majesty’s Government about the fact that we are in an uncomfortable place and that we all need to work together to find a solution that is in the best interests of our country and of our creative sector. We obviously need to come to an accommodation with the United States of America, but on the basis of the last two months since “Freedom Day”, one day after April Fools’ Day, we are in dangerous territory. We just need to be honest with one another.
Lord Baker of Dorking (Con)
My Lords, I warmly congratulate the noble Baroness on her determination and consistency in promoting this cause. It is very worth while, and, as she said, she is the spokesperson for at least 2.5 million people who constitute the cultural history of our country.
What I find rather extraordinary about this Government is that, within a period of a year, they have sought to turn huge numbers of people sharply against them. First, they turned the pensioners against them, then they turned on the farmers, and now they are turning on the creators of our culture, which are very much larger than the farmers. If this is passed tonight, I am sure it will go to the Cabinet and the Prime Minister, who must begin to wonder, if he is managing to turn all these groups into enemies, how many will support them in 2029 This has political implications.
There is no doubt that the whole cultural world of our country—not just the writers but the composers and painters as well—feels that it would have its livelihood severely limited, if not almost eliminated. Not only does that go for the famous writers such as Ishiguro but last Thursday, Antony Gormley, our leading sculptor —some would say he is a genius—said that it was our duty to defend the moral integrity of creators. I hope that the Minister also believes in what he said about defending the moral integrity of creators. That is what this Bill is about. Once we remove the protection of royalty, we make copying very easy and very quick. If the Bill stands on the statute book like this, it will also enhance criminality, because not only the big four but anybody in their garage in Wolverhampton could ask ChatGPT, or AI, or Microsoft to create a picture by a great painter, and then they could sell it. Only if the painter were alive and said, “Well, I never painted it” would they be able to stop it. When they are dead, anybody can do it. In fact, I think some would do it.
I know the Minister is under pressure from the big American companies, but I draw her attention to comments in the Financial Times this week by someone who is described normally as the godfather of AI, a Canadian called Yoshua Bengio. He says that, at this moment, all sorts of people are experimenting in AI and trying to find a way to accommodate it and protect themselves from it but also benefit from it. He said very clearly that he was scared by recent events,
“because we don’t want to create a competitor to human beings on this planet, especially if they’re smarter than us”.
That is of course the danger of AI, particularly in the creative world. Once the creators have lost control of their royalties, what will they depend on? There is absolutely no doubt that many of them will suffer financially because of this Bill. Last week, as I already mentioned, Antony Gormley—our famous sculptor; some would say he is a genius—said on the “Today” programme that there is a duty to defend the moral dignity of our creators. That is at the heart of the amendments the noble Baroness has tabled.
I hope the Government will therefore consider not only that this is a bad Bill but that it has been done far too quickly. Normally in our legislation, we have consultation before we get to Report, but the Minister says that they are now consulting everywhere on the impacts of this measure. That is entirely the wrong way to behave, and I hope we will send the Bill back to the Commons later tonight.
Baroness Benjamin (LD)
My Lords, as I have often said in this House, I will accept nothing less than a compromise, but it seems that this Government are refusing to act on the wisdom, knowledge and experience of this House. My heart is broken to think that the Government could be so irresponsible and not see the damage being done to our creative industries. I declare my interests as set out in the register.
I will tell the House a personal story about something that happened to me the other day. I was in the supermarket discussing with my husband which apples to buy, when a woman standing nearby said, “I would recognise that voice anywhere. You’re Floella. I’m one of your ‘Play School’ babies”. I smiled, happily posed for a selfie and gave her my autograph. However, it made me realise that my voice is linked to my character and legacy and is also an asset. This is the perfect example of how many people in my creative industry rely on their voices to earn a living.
The deep concern is that AI models could replicate an actor’s or presenter’s voice and distinctive vocal style, almost perfectly, and use it in an advert or voiceover without their knowledge or permission, without payment, and without care or moral conscience—and in such a cavalier fashion. This is why people in the creative industries are so frightened about the consequences of an AI free-for-all where transparency and copyright law are non-existent.
I once again speak in support of the intrepid noble Baroness, Lady Kidron, and stand shoulder to shoulder with her to make sure that we keep fighting to prevent the livelihoods of thousands and thousands of people—their lifeblood—being stolen. Yes, it is a shame that we have to be involved in ping-pong in this way, but I do so because, at the end of the day, I cannot face my friends and colleagues in the creative industries knowing that I did not do the right thing and make a stand. I can now look them in the eye and say, like many other noble Lords across this House, “I stood up for you and the future of your creative industries, and for the benefit of our children’s future, as I have always done”. They will be excluded from being part of the creative industries as we know them, and from forging careers in this exciting, adventurous, creative, highly respected world.
I do not see this as a party-political matter, and, in years to come, we will suffer the consequences of this error of judgment and the mental anguish it has caused. In my 15 years in this House, I have been assured many times by Ministers, “We will make changes later”, only to realise that “later” never comes. So, we are standing up for the creative industries and their fight for survival and fairness—now, not later. I urge all Members of this House to show strength of support, stand together with the noble Baroness, Lady Kidron, and send a clear message to the Government that we are not accepting this on our watch. The creative industries deserve better and must be saved.
Lord Knight of Weymouth (Lab)
My Lords, I have yet to vote with the Government on this issue. We all owe a great debt of gratitude to the noble Baroness, Lady Kidron, for the way in which she has championed the interests of the creative sector against the daylight robbery of its rights by big tech to train its models. She has given another powerful speech today. But I have decided that today, I will support the Government, to the disappointment of her and my friends alongside me, for three reasons. First, I accept we are not there yet, but we are perilously close to losing an important Bill that is needed to secure data adequacy with the European Union, to give coroners access to social media companies’ data, and to secure the offences relating to deepfake porn championed by the noble Baroness, Lady Owen.
Secondly, constitutionally, it is now time to listen to the elected House on a Bill that has been through the Commons three times and this House twice, more or less, and was a manifesto commitment. Thirdly, we now have some modest movement from the Government in their amendment, reflecting more urgency and a commitment to comprehensively dealing with the issues of AI and copyright together.
This issue has been appallingly dealt with by the Government. I am not referring to my noble friend the Minister, because some things are out of her hands; but I hope that, as a result of ping-pong, the Government now understand this House better, that they understand the passion and power of the creative sector better, and that they deliver on their promises to legislate comprehensively on the issues of AI and copyright as quickly as possible, and based on the need for transparency. On that, I will work with anybody else to hold their feet to the fire.
Lord Berkeley of Knighton (CB)
My Lords, the noble Lord, Lord Knight, misses one or two points. My noble friend Lady Kidron has made it clear that this is her last stand, so nobody is suggesting that noble Lords are going to try to defeat this Bill. Indeed, I do not think any of us would want to do that.
The Government have said that there is no change to copyright law—I think that is correct—and that copyright law will be upheld. So far, so good. But if we cannot see how copyright is being transgressed, how can we enforce the law? How can we take people to court to get back our royalties? I should mention my interests as listed in the register. In order, it would seem, to appease the American big tech companies and quite possibly President Trump himself, what we have actually done is locked the front door of our creative mansion but left the back door wide open. That is why, in a nutshell, the creative industries are up in arms. It is why I will support the noble Baroness, should she decide it wise to seek the opinion of the House, and I will support her on behalf of all those writers, artists and musicians who stand to lose out through this lack of transparency.
I know many composers, writers, painters and film-makers who earn a pittance from copyright—£2, £3, £50, £100. But however small it is, it is an acknowledgement that they created something, and that that intellectual property belongs to them and should be rewarded.
Lord Cashman (Non-Afl)
My Lords, I am an unaffiliated Member of this House, even though I sit on Labour’s Benches—some may say an “unbalanced” Member of this House. I refer to my registered interests. I, like the noble Baroness, Lady Kidron, am saddened that we have reached this point. The Bill will not be destroyed should she divide the House this afternoon and should noble Lords vote in favour of her amendment. That is purely within the power of the Commons.
The noble Baroness, Lady Benjamin, referred to friends in the industry, and we have many. I say to the Government: are the creative industries, unions, associations, writers, directors and painters all wrong and the Government are right? If so, what do the Government have to fear from an approach that is absolutely transparent and allows us, the creators, to hold those who use our work accountable?
I believe the noble Baroness, Lady Kidron, has said everything that needs to be said at this juncture. Valiantly, she has marched us to the top of the hill. It is the moral high ground, and it is not a hill I am going to march down from.
I had the Whip suspended from me by the Labour Party nearly a year ago, and on a point of principle, I subsequently resigned. I believe, like everybody else here, we are here to pursue the principles we believe in—yes, the democratic principles—high amongst which is holding accountable the Members of the other place and the Government.
The Earl of Dundee (Con)
My Lords, I join with others in supporting the noble Baroness in exercising her right to insist upon Amendment 49F. Three months after the Government’s own report, this allows Parliament to be informed of the scale of the theft and the loss of revenue to United Kingdom companies, as it also enables a draft Bill on copyright infringement, AI models and transparency of input.
Your Lordships may consider that these measures are relevant for three reasons. First, they offer a degree of competence and protection, otherwise so far insufficiently provided, to and for the creative industries in the United Kingdom.
Secondly, they give an example internationally, including within the 46 states affiliated to the Council of Europe, of which the United Kingdom remains a highly regarded member and of whose education committee I am a recent chairman.
Thirdly, both within and beyond Europe, and starting with the 1710 Statute of Anne, granting legal protection to publishers of books, they continue to set a copyright protection standard, which in this case is expected of the United Kingdom and is also consistent with Article 11 of the 2024 Council of Europe Framework Convention on Artificial Intelligence, human rights, democracy and the rule of law, safeguarding privacy and personal data.
Lord Freyberg (CB)
My Lords, I support the noble Baroness, Lady Kidron, and declare my interest as an artist member of DACS.
I have supported the amendments from the noble Baroness because transparency would have unlocked avenues to negotiate licences, bringing mutual benefits to AI companies and rights holders alike.
Yesterday, in another place, the Minister asked, “What is the point of transparency if a company refuses to comply without enforcement?” The answer is simple: not all companies will refuse. There are responsible players: companies that will want to act lawfully and ethically, which would welcome clear frameworks for transparency and licensing.
Transparency would level the playing field in favour of those companies and would put pressure on those that choose to defy the law, rather than allowing them to dominate by default. Without transparency, the opposite happens: the market rewards infringement and penalises respect for copyright. That is the road we are on, and it is not one this House should endorse.
Every day of inaction allows unchecked infringement while good companies face competitive disadvantage. How long must artists and rights holders wait? The time for transparency is not some distant future date; it is now.
Lord Brennan of Canton (Lab)
My Lords, I have supported the noble Baroness, Lady Kidron, throughout in her amendments, but, as a former Member of the elected House, I think we reach a very difficult juncture today in insisting on an amendment which I think we all know and agree is actually inadequate. It is a modest, moderate amendment that will not do the job that all of us who have been supporting the noble Baroness, Lady Kidron, throughout would like to see done: namely, to guarantee the transparency that is needed in order to protect copyright into the future.
As a former Member of the elected House, and despite agreeing entirely with all the arguments that have been made, I find it very difficult to walk through the Lobby when the elected House, of which I was a Member for 23 years, has clearly rejected the proposal that we are now considering again today to send back to that House. In saying that, I want to say to the Government that I hope that they have listened intently to the debates that we have had in this House and all the points that have been raised, and I hope that they are aware of the emergency that we are describing in this House.
I went this morning, as I did yesterday, to visit and have a look at the South by Southwest conference taking place in Shoreditch, in north London. If you go through the Tube station at Old Street, you will encounter a number of advertisements for AI companies with the slogan, “Stop Hiring Humans”. Now I am a member of the Labour Party and for us in the Labour Party, one of the reasons why we have been putting through measures such as the Employment Rights Bill is because we believe in the dignity of labour, and in the importance of people being rewarded for their labour. That includes those who work freelance or who depend on their intellectual property for their income.
I want the Government to think, when they are engaging with these companies, “Who are we getting into bed with on some of these occasions? Who are the people we are perhaps unnecessarily favouring and giving privileged access to in government? What are their intentions for the future of labour, the workforce, pay and conditions, the dignity of people in work and the right for them to protect their intellectual property?”
What is happening right now, for example, in the music industry? Just last weekend, the four major record labels announced that they were in negotiations. Rather, it was revealed, they did not announce it, that they were in negotiations with apps such as Suno, which I have on my phone, which will create—not create, generate—for you. It does not create anything, it is just a desiccated calculating machine, but it will generate for you a piece of music within 30 seconds that is a facsimile of human creativity. It is not very good, but it is astonishing at the same time, as a piece of technology.
What will happen is that the major labels will go into negotiations. They would have had a stronger hand, actually, in some ways, if the Government could have found their way to support the amendments that the noble Baroness, Lady Kidron, put forward—but they will go into those negotiations. In fact, they will probably come to some kind of deal where they will agree some kind of licence. It will not be a very lucrative one, because their power at the moment is weak, unless Governments start standing up for the right of intellectual property. In exchange, they will try to take a bit of equity in those businesses.
The people who will be left out of the room—as usual—will be the creators. The big labels will be in there. The Lucian Grainges of this world will be in there. He recently paid himself more in one year than every songwriter in this country as the head of Universal. The Musicians’ Union will not be represented in there. Equity will not be represented in there. The Writers’ Guild will not be represented in there. The representatives of visual artists will not be represented in those talks. As usual, the deal that is done will favour those people who have control over some of those rights and will leave out the creators from those talks.
I urge the Government, in what has come of all this, to make use of a thing that was created and actually came out of a Bill that I introduced and from the work of a Select Committee in the other place in the last Parliament, namely the Intellectual Property Office, the creators’ round table, which has been created by this Government. I give credit to Minister Bryant for taking it very seriously and pushing people hard to make sure that creators are remunerated. I urge the Government to make use of that and to make sure that they insist that creators are represented in these discussions going forward, and that they use all the leverage they can to ensure that that happens.
Taking on board what the noble Baroness, Lady Benjamin, said, I completely agree with what she said about her voice. We should introduce new rights for creators—it is not original but I always call them VINL rights: voice, imagine, name and likeness rights—to ensure that people’s voice, image, name and likeness cannot be stolen and used by others to make a profit without them being properly consulted and rewarded for that. There is good to come out of this. Although I cannot walk through the Lobby with the noble Baroness, Lady Kidron, today, because I believe that, if the elected House insists on not accepting this amendment —we all agree, I think, that it is not a strong amendment—
Lord Rooker (Lab)
Does not my noble friend appreciate that sending this amendment back to the elected House will, for the first time, give it a choice? There has been no choice for anybody in the elected House. There has been no government amendment; it has just been yes or no. Sending this back forces a choice, as the noble Baroness, Lady Kidron, said. It cannot be sent back again. I speak as someone who did 27 years there and suffered ping-pong, but I am sticking with the noble Baroness today.
Lord Brennan of Canton (Lab)
I have enormous respect for my noble friend and find myself agreeing with him about a great number of things. However, it could be sent back with an amendment in lieu from the Government—that is true—as the noble Baroness, Lady Kidron, pointed out, because this is not double insistence. I feel, and always felt in my 23 years in the other place, that, once the elected House has taken a strong view on a particular amendment, it should be accepted by the unelected House. That is my view, even if it is not the view of my noble friend.
Lord Cromwell (CB)
My Lords, I will be mercifully brief. We have heard a lot of powerful eloquence about property rights, both in this debate and in the days that preceded it. There is much in that to agree with. I hope that those who have spoken so well on this topic today will speak up as enthusiastically when the property rights of others who are perhaps less good at presenting their case are threatened with theft—for example, via the compulsory purchase coming to this House soon.
Lord Dobbs (Con)
My Lords, like the noble Baroness, Lady Benjamin, I need to declare my interest. I was in a bookshop and a lady of, let us say, a certain number of years scuttled over to me and said, “You’re Michael Dobbs, aren’t you? I’ve always wanted to meet you and tell you that I read one or two pages of your book before I fall fast asleep at night”. I am glad that the noble Baroness’s experience was rather better—though I took it as a compliment.
Like the noble Baroness, Lady Kidron, and so many others, I am desperately sad that we are where we are. This is not just a disagreement about the Bill. This has become a more fundamental disagreement about the rights and the responsibilities of the Government—their right to get their legislation through and their responsibility to listen. The Government Front Bench insists that it is listening, but not even their Back Benches believe that. In the first round of ping-pong, Ministers managed to get only 125 Members to vote for them, on what I assume was a whipped vote. The Government soldiered on, but, in the second round of ping-pong, their vote fell. In the third round, on Monday, their numbers fell yet again. It was a little like watching Napoleon’s retreat through the snow from Moscow. On Monday, only 116 stumbled through the drifts in the government Lobby, which included all the officer class on the payroll—although I see that the screws appear to be on today. That 116 was despite, if I may say so, a gallant intervention by the noble Lord, Lord Liddle—many of us will remember that. It was a brave speech in support of the Government; indeed, it was the only speech in support of the Government.
From every corner and every Bench in this House, even the Government’s own Benches, the plea has gone up: please listen. The Government have not responded. They have given us nothing but silence; the silence of a forest in winter, frozen and unbending. It is so strange and so unnecessary. They have changed their mind on so many other things—even winter fuel payments, I understand—but not on this. I suggest to the Government that they are using up their credit in this Chamber and they cannot be surprised if, in future days, when the snow melts and their way turns to mud, as it does for all Governments, the courtesies that they expect from this Chamber are not given as willingly as they might be. When the conventions of this House are so blithely ignored, they cannot always be easily rebuilt.
Ping-pong is not a game. It is a most profound expression of the right of this House to ask the Government to listen to its advice. That advice has been given with more eloquence, more persistence, and indeed more authority and passion than I can ever recall. It would not surprise me if Elton John were to write a new song about it— “Candle in the Wind”, or perhaps “fading footsteps in the snow”, along with the fading rights of every copyright holder in the country. Noble Lords may laugh if they wish, but 2.4 million people, their families and their friends will not think it a laughing matter. I find it a great shame. I leave it to others to decide whether it is also deeply shameful.
Baroness O'Loan (CB)
My Lords, I have not spoken previously on this issue, and I do not have the creative abilities of so many noble Members of this House, but I have listened repeatedly to these debates. It is right now to speak briefly in support of protecting our creative industries so that we can continue to reap the ripe rewards of their efforts.
We have to consider, as the noble Lord, Lord Russell, said, whose interests are being protected here. We have a duty to protect the wonderful creativity of our own country, which gives us so much pleasure and informs, educates and develops us in more ways than anything else can. We are under no obligation to protect others, but we are under an obligation to protect the interests of our people, not of massive tech industries.
I will support the noble Baroness, Lady Kidron, because her amendment is the right thing to do. Even at this late stage, His Majesty’s Government could choose to act positively to respond to the massive concern that has been articulated in your Lordships’ House. If they do not do so, I very much hope that the noble Baroness, Lady Kidron, will seek to call a Division on this matter.
Lord Parkinson of Whitley Bay (Con)
Yesterday, in another place, Conservative MPs voted proudly for the amendment in the name of the noble Baroness, Lady Kidron, including my fellow members of the shadow DCMS team, and they stand ready, I am sure, to do the same again, if necessary. I understand the reticence of many noble Lords for prolonged rounds of ping-pong, but I have to say, as the noble Lord, Lord Russell of Liverpool, pointed out, this is not unprecedented. We would not be in this position if the Government had not wasted the first two opportunities by hiding behind points of process on financial privilege rather than engaging with the substance of the argument that the noble Baroness put.
The Bill began in your Lordships’ House, and the noble Baroness is right to insist upon this; there are important points of principle at stake about the protection of private property and the dignity of labour. This is not the point that would kill the Bill; it would ask the Government to come forward with a bit more compromise and respect than they have shown so far. I am proud to be a member of a revising Chamber that stands up for those principles and that power of scrutiny.
Lord Pannick (CB)
The noble Lord, Lord Knight, said from the Government Benches that his Government have handled this issue badly. I think he used the word “appallingly”. That is indisputable. The question I have is, why? I suggest that the answer may have been stated by my noble friend Lord Russell of Liverpool. He put his finger on the point, referring to the concern of the United States Administration to protect the interests of AI companies. Noble Lords may know that the head of the United States Copyright Office was sacked last month, the day after she published a report identifying the importance of AI companies respecting copyright rights.
I have a question for the Minister, which I hope she will answer frankly. She said in her opening remarks that she recognised the importance of transparency. Will she tell the House, in the interests of transparency, what weight the Government have given to the concerns of the United States Government in resisting the repeated amendments of the noble Baroness, Lady Kidron, over the last few weeks?
Lord Dobbs (Con)
Before the noble Lord sits down, on Monday I asked almost precisely the same question of the Government and asked for a guarantee that no side deals or side understandings, or anything like that, had been done regarding the trade agreement we have with the United States. No answer has yet been forthcoming; I wish the noble Lord well in his adventure.
Lord Pannick (CB)
I am delighted to be associated with the noble Lord on this, as on many other topics.
Lord Stevenson of Balmacara (Lab)
I am sorry to interrupt these exchanges, which are of great interest. I have not been able to participate in ping-pong for some time, but the House will be aware that I am very keen on the issues being discussed and have been involved in a number of Bills on which issues of a similar nature have arisen. I have been working with a group, keeping in touch on WhatsApp—the fashionable thing to do these days—and we had a broad approach to this, which I am afraid is now fragmenting. My noble friend Lord Knight has traitorously said that he is going to come back into the fold, and I wish him well with that.
The very fine speeches made by the noble Baroness, Lady Kidron, have been misinterpreted by this House, and I regret that. She is absolutely right in asking us to look again at this. If she is successful with her Motion, it is right and appropriate that at last, the Commons has a chance to put forward a proposal which would be in everybody’s interest as a compromise based very closely on—but, ironically, not the same as—the amendment she has been forced, by the system of ping- pong, to put down today.
The right amendment was suggested some time ago—I was involved in discussions around that, but it received short shrift. It would allow the Government to have the power to bring forward by regulation measures required to deal with the ongoing and accelerating crisis, which is increasingly difficult to understand, concerning the way in which creative rights are being stolen and theft exercised on a grand scale. The amendment does not have a timescale or a period over which it can be looked at maturely; it does not rely on consultation; it is a judgment. It is that trust in the decision I want to be taken by my Government that is important to stress, not some of the other issues raised today. The noble Lord, Lord Russell, was right to reflect on the fact, picked up by the noble Lord, Lord Parkinson, that although this is not the first time the House has been faced with a difficult issue, it is the first time it has been frustrated by inappropriate processes and procedures. Let us have a debate on what we can do to get ourselves to a better place. The issues have been well explained.
I reflect on the work we did on the Online Safety Bill, when I said from the Opposition Benches—unscripted, and with slight trepidation that I would be shot down—that I did not want to work in opposition to the Government on a Bill for which there was no political disadvantage on either side, and that we wanted to use the talents, skills and expertise so often found in this House to get the best Bill possible. I am glad to see the noble Lord, Lord Parkinson, nodding, because we worked well together. It was really difficult to do, because the system is set up to provide opposition to anything that challenges the supremacy of the Bill as introduced. Even the noble Lord had long and difficult times persuading his own side that there was a case to make on moving forward.
This is exactly the same issue. There is not a huge difference in where we want to get to. The Government have moved, but they lack the flexibility that we think will be necessary in the next few months—or even years—to bring forward at the appropriate time the transparency that everybody knows has to be there.
There are other things that need to be looked at, such as copyright, but they can be dealt with in time. However, transparency is at the root of this. I urge the Government to work with the noble Baroness, Lady Kidron, and others—I offer to participate in any necessary discussions—to get to a point where everyone can relax, knowing that the main issue is dealt with and we have a clearly articulated programme that will take us forward at the appropriate time, in the Government’s judgment. That is what we need.
Lord Sentamu (CB)
My Lords, I do not want to detain the House for long. I have sat through every stage of the Bill and not uttered a word. I have been absorbing the debate, and I am still puzzled as to why the Government are not willing to reach agreement with some of the wonderful statements being made.
I have two issues to reflect on. The first is that the creative arts have had a fantastic campaign, but it would be a mistake to think that this is only about the creative arts; it is to do with any property right where copyright is involved. The first to fall would probably be the creative arts, but anybody who is protected by copyright will be affected by AI in one way or another, unless you follow the wonderful wisdom of the noble Baroness, Lady Kidron.
The second point is one for the Government to reflect on. They need to remember the words of Francis Pym, the first Foreign Secretary in Mrs Thatcher’s Government. They had a very big majority, and he dared to suggest to the Iron Lady that big majorities never make for good government. Why? Because you can rely on even those who do not listen to the debate to turn up and vote for your side. You know what happened to Francis Pym? He lost his job. How much will the Labour Government reflect on the experience of Francis Pym?
Lord Clement-Jones (LD)
My Lords, I once again declare an interest as chair of the Authors’ Licensing and Collecting Society, and once again give the staunch support of these Benches to the noble Baroness, Lady Kidron, on her Motion A1. She made an incontestable case once again with her clarion call.
I follow the noble Lord, Lord Russell, and others in saying that we are not in new territory. I have a treasured cartoon on my wall at home that relates to the passage of the Health and Social Care Bill as long ago as 2001, showing Secretary of State Alan Milburn recoiling from ping-pong balls. Guess who was hurling the ping-pong balls? The noble Earl, Lord Howe, that notable revolutionary, and I were engaging in rounds of parliamentary ping-pong—three, I think. Eventually, compromises were reached and the Bill received Royal Assent in April 2001.
What we have done today and what we are going to do today as a House is not unprecedented. There is strong precedent for all Benches to work together on ping-pong to rather good effect. As the noble Baroness, Lady Kidron, says, what we are proposing today will not, in the words of the Minister, “collapse” the Bill: it will be the Government’s choice what to do when the Bill goes back to the Commons. I hugely respect the noble Lord, Lord Knight, but I am afraid that he is wrong. It was not a manifesto commitment; there is no Salisbury convention that can be invoked on this occasion. It has nothing at all to do with data adequacy except that the Government feel that they have to get the Bill through in order to get the EU Commission to start its work. If anything, the Bill makes data adequacy more difficult. I say to the noble Lord, Lord Brennan, that I agree with almost everything he said: everything he said was an argument for the noble Baroness’s amendment. Once again, as ever, I agree with the noble Lord, Lord Stevenson, as I so often do on these occasions. I regard him as the voice of reason, and I very much hope that the Government will listen to what he has to say.
Compromise is entirely within the gift of the Government. The Secretary of State should take a leaf out of Alan Milburn’s book. He did compromise on an important Bill in key areas and saw his Bill go through. I am afraid to say that the letter that Peers have received from the Minister is simply a repeat of her speech on Monday, which was echoed by Minister Bryant in the Commons yesterday. The Government have tabled these new amendments, which reflect the contents of that letter. Despite those amendments, however, the Government have not offered a concession to legislate for mandated transparency provisions within the Bill, which has been the core demand of the Lords amendments championed by the noble Baroness, Lady Kidron, for the reasons set out in the speeches we have heard today.
In the view of these Benches, the noble Baroness, Lady Kidron, other Members of this House, and countless creatives have made the absolutely convincing case for a transparency duty which would not prejudge the outcome of the AI and copyright consultation. We have heard the chilling points made by the noble Lords, Lord Russell and Lord Pannick, about US policy in this area and about the attitude of the big tech companies towards copyright. We are at a vital crossroads in how we ensure the future of our creative industries. In the face of the development of AI and how it is being trained, we must take the right road, and I urge the Government to settle now.
Viscount Camrose (Con)
My Lords, given where we are, I will speak very briefly, but I will make just two points. First, I think it is worth saying that the uncertainty surrounding where we are with AI and copyright is itself damaging, not just to the creative sector, not just to AI labs and big tech in general, but to all those who will themselves be impacted by the Bill’s many other provisions. Overall, I think it is worth reminding ourselves that this is an important Bill whose original conception did not even address AI and copyright. It carried very important and valuable provisions—as the Minister pointed out in her opening remarks—on digital verification services, smart data schemes, the national underground asset register and others. These can genuinely drive national productivity. Indeed, that is why my party proposed them when we were in government. It is, therefore, deeply frustrating that the Government have not yet found a way forward on this, and I am afraid that I very much agree with the noble Lord, Lord Knight. The way the Government have gone about this has been reprehensible: I think that is the word I would use.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords for their contributions today and throughout this process. Colleagues have spoken consistently with passion and eloquence, as befitting the many, varied and celebrated interests that noble Lords have in the creative industries. As I have said on numerous occasions and feel I do not need to repeat, this Government are absolutely committed to the creative industries. We want them to flourish, and we have a plan to achieve this.
I am grateful to noble Lords who took the time to read the letter I sent to Members of your Lordships’ House last night, which, I hope, sets out more clearly our approach to these important issues. Given our debates to date and the letter, I will spare the House a full repetition of our position. However, our concern remains that any legislation mandated now, whether a draft Bill or regulations, will prejudge all the work required and result in laws that are not fit for purpose.
Contrary to some of the suggestions we have heard today, the Government have been listening carefully throughout the Bill’s passage. The Government have set out a plan to deal with this issue which includes additional compromises that respond to specific concerns raised by noble Lords in this House which have been put on the face of the Bill and would be strengthened if the House supports Motion A. I agree with my noble friend Lord Brennan that once the working groups get going it is vital that the creative sector has a voice in them. Of course it is our intention to deliver that.
The next step, which I know that noble Lords are keen to take, is simply to get on with it. The quicker the Bill is passed, the sooner we can put more resources into resolving the issues that noble Lords have raised. I agree with the noble Lord, Lord Russell, that we need to work together to find a solution that is appropriate for the UK, not for other countries, which will obviously have their own agendas. I also make it absolutely clear that there are no side deals in any agreement in the trade deal with the US.
Unless and until we reach Royal Assent we are basically stuck in limbo. We need to move on. I know noble Lords have spoken in support of the amendment from the noble Baroness, Lady Kidron, and she herself has called for action now, but we believe that the noble Baroness’s current amendment as drafted would take a long time to implement. It is intended to take effect after the proposals that we have set out in the Bill.
We have heard concerns about expediency and have tested how quickly we can pave a clear way forward, ensuring that all elements are considered in the round. I say to my noble friend Lord Brennan that of course we are aware of the urgency of this. This is why we will publish the economic impact assessment and the report the Bill requires within nine months. This will ensure that we are ready to act as soon as possible while also having sufficient time to consider all views and options. If the report and economic impact assessment are not published within six months of Royal Assent, the Secretary of State has made it clear that he will lay before Parliament a Statement setting out progress towards their publication.
The noble Lord, Lord Berkeley, asked for clarification on the copyright situation. The Government are clear that copyright must be complied with when copies are made to train AI models. This means that licences are required from copyright owners but in some circumstances a copyright exception may apply. If copying takes place in other jurisdictions, that country’s laws will apply. The law in this area is complex and disputed and it is not appropriate for us to comment on the litigation which noble Lords will know is currently before the courts. We recognise calls for greater legal clarity and this is why we have consulted and are now developing options for the way forward.
Noble Lords have raised the constitutional issue that we are dealing with today. The noble Baroness, Lady Kidron, said in her letter that the Bill is unusual as it started in the Lords and that, if the Lords insisted, the Government would have to accept the amendment or let the Bill fall. I will make our position absolutely clear: the primacy of the House of Lords applies equally to Bills that start in the Lords and in the Commons. This primacy is necessary for a democratic society. The views of MPs elected by the public should be respected, and the House of Commons has expressed its view on the issue of AI and copyright three times already.
Lord Wallace of Tankerness (LD)
I would be grateful if the Minister could clarify that, if the amendment of the noble Baroness, Lady Kidron, is carried, it will not scupper the Bill, but rather the Bill will go back to the Commons, where the Commons can provide an amendment in lieu. Therefore, the ball would be in the Commons’ court and the Government’s court; it will not scupper the Bill if we vote for the amendment of the noble Baroness, Lady Kidron.
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
Could the Minister also just clarify her point about the primacy of the House of Commons? She just seemed to imply the opposite.
Baroness Jones of Whitchurch (Lab)
We regard the primacy of the House of Commons as absolutely paramount. As I have stated, at the end of the day if we are not careful, we will get into a situation—which I think the noble Baroness was beginning to raise—where we will not be able to accept the primacy of the House of Commons. To us, that is absolutely paramount.
Passing the Bill will also let us get on with delivering the other measures it contains, many of which have been championed by noble Lords for some time— and I welcome the support of the noble Viscount, Lord Camrose, for all of these. The Bill has had broad support, which was enjoyed in the last Session too, and that is testament to the work done by this Government and the previous one on these issues, and why both our party and the Opposition advocated for the Bill and its policies during the general election.
Many noble Lords, including the noble Baroness, Lady Kidron, have spoken in this and other debates about the good that these measures will do. I am glad to recall her warm support during our Second Reading debate for the data preservation measures for coroners to preserve data when a child dies, and her wishes for the Bill’s swift passage to see that become law, and I agree with her. I also recall the noble Lord, Lord Clement- Jones, saying that this version of the Bill was much improved from the last, and that as we have done so much scrutiny of its predecessor, we should be able to make good progress.
These policies and the significant economic benefits they will bring are why the elected House has voted in favour of the Bill’s continued passage four times in a row. It has exercised its choice. We now have to get on with the job—for the bereaved parents, the victims of deepfake intimate image abuse, the charities that want to use the soft opt-in and the businesses keen to benefit from the use of smart data and all the many and various benefits of the measures and manifesto commitments in the Bill. I urge your Lordships to accept the Government’s new amendments and let the Bill pass into law, rather than moving us to the precipice where we could face collapsing it entirely.
Lord Watson of Wyre Forest (Lab)
I am very disturbed that the Minister says there is a potential for the Bill to collapse, with all the important measures within it. If the other place chooses to collapse the Bill, can she tell me which Cabinet Minister or adviser will take responsibility for what is clearly an unprecedented legislative and political failure?
Baroness Jones of Whitchurch (Lab)
As I keep saying, the primacy of the House of Lords—sorry, the House of Commons—is absolutely vital.
Baroness Jones of Whitchurch (Lab)
Noble Lords can laugh about this, but it is a really serious issue that is absolutely fundamental to our democracy. The House of Commons has made its position clear on a number of occasions now, and it is not right that the House of Lords continues to try and overturn that.
Baroness O'Loan (CB)
My Lords, I have listened with great respect to the Minister, but she has stated repeatedly that we are going to deprive the country of all the other measures in the Bill that are accepted. That is not the case. It is not necessary for the Bill to collapse at all; what is necessary is for the Government to take some positive action. It would be appropriate for her to accept that in her closing remarks and confirm that, if this House votes in favour of the amendment from the noble Baroness, Lady Kidron, the Bill will not collapse.
Baroness Jones of Whitchurch (Lab)
As I have said, there is a danger that the Bill will collapse if the Lords continues in its current form, and that is not what any of us want. I hope that everybody here accepts the primacy of the House of Commons, which is absolutely fundamental to our democracy.
Lastly, I give my thanks to the public servant whose character and motives were questioned in the House on Monday. Public servants are not able to defend themselves when attacked, and instead of criticism they deserve our thanks. I want to take the opportunity to recognise their long record of distinguished and dedicated public service, not just under this Government but also the previous ones.
At times, it has felt like this debate has indeed brought us to the edge of reason. I hope that today your Lordships’ House will unite around our approach and the fundamental constitutional principles by supporting Motion A in my name.
Baroness Kidron (CB)
My Lords, I will start by reiterating something I said in my opening remarks to make it absolutely clear to anyone who was not in the Chamber at that time. If we vote on this amendment, one of three things will happen: the Commons can consider the amendment and accept it; the Commons can put an amendment in lieu, or—and as the noble Lord said, this would be inexplicable—the Commons can collapse the Bill. That is the situation.
I also say to the House that, when I set that out in my opening remarks, I also said that if we choose to vote on this and successfully pass it, I will accept anything that the Commons does. The Commons can accept the amendment; it can put in its own in lieu or it can collapse the Bill, but I will not stand in front of your Lordships again and press our case. I have made that utterly clear, and I want that to be on the record before anybody makes up their mind about what they are going to do today.
I also say to my friends on the Labour Benches—if I can bypass the normal convention—that the Government have not listened. I am afraid that the Government told me before we had our debate on Monday that they would overturn the amendment, and they overturned it in 36 minutes; they did not take the full hour. This whole palaver is not a constitutional crisis, but it is an attempt to get the convention whereby this House is heard by the other House, they bring something back and we compromise. I understand and believe in the pre-eminence of the elected Chamber, and I want everybody to know that—in fact, when the Lord Speaker had me on his podcast, I said, “I am a turkey that will vote for Christmas”.
The other thing that I must say before we get on with this—I beg your Lordships’ forgiveness—is that I was disturbed by the Minister suggesting that I would do anything to undermine the whole of the Bill. It will not be my choice. Those amendments in the Bill to do with bereaved parents and the coroners were amendments in my name and the names of other noble Lords around this House and were the result of a similar campaign to what I am trying to do right now. I resent that.
Sentencing Guidelines (Pre-sentence Reports) Bill
(1 day, 5 hours ago)
Lords ChamberRead Hansard Text Watch Debate Read Debate Ministerial Extracts
19:13 - Division on Amendment 2 - Ayes: 65 / Noes: 130 - Amendment 2 disagreed.
Viscount Hailsham
Viscount Hailsham (Con)
My Lords, in moving Amendment 1 in my name, I begin with an apology. I have not previously intervened in the debates on the Bill. Unfortunately, long-standing commitments, including professional commitments, prevented me from participating both at Second Reading and in Committee. That, in fact, is one of the disadvantages, albeit a minor one, of so-called emergency legislation introduced at short notice. More serious disadvantages are, of course, the curtailment of time for reflection and a reduction in the time for consultation. However, I have had the opportunity of studying the Hansard reports of what was said in this House on both occasions, and what was said in the House of Commons.
My main purpose today is to speak briefly to Amendment 1. I begin by commending the admirable speech of the noble and learned Lord, Lord Phillips of Worth Matravers, at col. 1614, to those of your Lordships who, like me, were not present at the Second Reading debate. His speech was a model of brevity and conciseness, and I agree with everything that the noble and learned Lord said. He said that he did not believe that the guidelines introduced two-tier justice. I agree with that view. He said that he did not believe that the introduction of the guidelines would severely damage confidence in our criminal justice system. I share that view.
The noble and learned Lord, Lord Phillips, considered that there was no need for this Bill. I am of the same opinion. In my view, this legislation has been triggered by an unhappy combination of political point-scoring and political back-guarding—personal characteristics of an unwelcome kind, albeit not falling within the statutory definition in the Bill. The noble and learned Lord concluded by saying that we should reluctantly accept this Bill but seek to improve it by way of amendment, and that is what I seek to do.
My amendment is in substance a statement of principle—in fact, one that reflects policy, albeit, because of resource constraints, not the current practice. But given the fact that we have this Bill, I suggest that there is merit in framing the policy in explicit statutory and positive language.
I suspect that everyone who has experience in this field would agree that in the great majority of cases where an offender is facing the possibility of a custodial or a community sentence, it is highly desirable that the sentencer should have available a properly considered pre-sentence report—but not one which is the product of a few minutes of discussion in the cells. What is required is a considered and researched pre-sentence report by a qualified member of the Probation Service. That implies a Probation Service which is properly staffed and properly financed to address the required workload.
I deeply regret that, in recent years, there has been a serious decline in the number of pre-sentence reports, and I have in mind the decline of 42%, from 160,000 to 90,000, between 2015 and 2022, mentioned by the noble Lord, Lord Bach, in the Second Reading debate, and by others too. I acknowledge, with very great regret, that one of the immediate causes of this decline in the availability of proper reports was the policy of the Government whom I supported. I will add too, if I may, that the existence of a properly financed and staffed Probation Service is fundamental to the success of the sentencing reforms proposed by Mr David Gauke.
It should be self-evident that the pre-sentence report addresses all the relevant considerations that may help the sentencer to determine the appropriate sentence. That is what my amendment states explicitly. Such considerations may include the individual circumstances and the personal characteristics of an offender. I accept that, as became apparent in the debate, especially in Committee, there is a distinction between the two concepts, although there is a very high degree of overlap, so both criteria should be included. My amendment does that, with a definition to be found in Amendment 7. Guidelines are there to ensure uniformity in the practice of the courts.
Obviously, there is concern about the availability of resources: hence, the impossibility of making reports mandatory. It was the council’s concern about the inadequacy of resources that caused the guidelines to identify specific cohorts as having priority. But drafting the guidance in the positive language of my amendment meets the expressed concern of the critics of the guidelines. My amendment provides for the guidelines to be general in their application, and might encourage the Government to ensure that additional resources are made available to the Probation Service, so that pre-sentence reports become the norm in all appropriate cases. Amending the Bill in the modest way that I have proposed will, I hope, make a small contribution to the proper administration of criminal justice in this country. I beg to move.
Lord Beith (LD)
My Lords, I agree very much with what the noble Viscount has said. His amendment, like others in this group, would give some helpful clarity to an extremely unclear piece of legislation. I think we are about to make bad law, because the Government have been unable or unwilling to define what “personal characteristics” are. We do not know what will fall within the range of prohibitions placed on the Sentencing Council. It will be left with an undefined scope and an undefined extent. Race, religion and belief, or cultural background, whatever that is, are listed, but after that it becomes a matter for speculation as to what might be included.
The Government insist that the list that appears in the Bill is non-exhaustive. In a letter sent to several of us, the Minister states, but without citing any authority, that “personal characteristics” include sex, gender identity, age, physical disability and pregnancy or “other similar conditions”. What is similar to pregnancy? I have been puzzling over that for some time and I am not quite sure.
The Minister did not mention autism, a background of local authority care or experience of sexual abuse, although in the latter case the Government said, in a different letter, that it is not a personal characteristic to have been a victim, perhaps a repeated victim, of sexual abuse. What is included in the list appears to be in the minds of Ministers, or whatever may appear in the minds of Ministers at some later date, leaving the Sentencing Council and, indirectly, judges and magistrates in some confusion as to what the Government intended.
I think and hope that, in making decisions about whether to call for a pre-sentence report, courts will not be influenced by this whole row—it would be very unfortunate if they were—but there is just a slight risk that this may become an area in which courts start to think, “This is a bit political, we’d better not go there”. That must not happen. The still-existing freedom of courts to decide to have a pre-sentence report is not directly affected by the Bill. My worry is that it might have an indirect effect.
Law can have consequences. I foresee the day when a non-exhaustive list of prohibitions will appear in some other Bill on some other subject. What will happen then? We will be told that non-exhaustive lists of prohibited actions are an established practice and appeared in the Sentencing Guidelines (Pre-sentence Reports) Act 2025. It will become a precedent that will certainly get used on some future occasion, and I think that is a dangerous thing to be happening.
My noble friend’s Amendment 2 restores the Sentencing Council’s freedom, if there is good cause, to issue guidelines that refer to personal characteristics. I urge support for it and, if he presses it to a vote, which I hope he will, he will certainly have my vote and, I hope, those of others who are concerned to protect the ability of the Sentencing Council, a body of some distinction, to do its job in the light of sensible judgment, following discussion with the Government wherever that is necessary or appropriate.
I turn finally to Amendment 9, which is in my name. The Minister has asserted that pregnancy is a personal characteristic, falling within the restrictions imposed by Section 2 of the Bill. But there is case law accepting pregnancy as a reason to order a pre-sentence report, in R v Thompson 2024. Modern slavery was similarly referred to as grounds for a pre-sentencing report in R v Kurmekaj 2024, and being a young offender is dealt with in R v Meanley 2022.
It is difficult to accept that the case law should be overridden by the Bill if it becomes an Act. The Minister has asserted that it is overridden, asserting in his letter that the Bill would make
“such direction about obtaining PSRs across existing guidelines unlawful”.
“Unlawful” is the word used in the Minister’s letter. Nevertheless, he claimed that
“it will not prevent guidelines from reminding sentencers in more general terms that PSRs will be necessary”
when
“an assessment of the offender’s personal circumstances would be beneficial”.
So where does that leave us? It leaves us in a tangle of legal uncertainty, and there is no excuse for that. I suggest that the Minister should accept my amendment, leaving the Sentencing Council free to issue guidelines that reflect and draw attention to well-established case law on the value and importance of pre-sentence reports in cases of the kinds I referred to.
Baroness Hamwee (LD)
My Lords, I confess that I am still struggling to understand this Bill, despite it having only one clause. The Minister was as helpful as he could be in Committee, and we all know his pedigree, but he has been dealt a very difficult hand. I think this is a bad Bill and, as my noble friend has just said, it is going to be bad law. We all know the political background to it. On Monday, at Second Reading of the Border Security, Asylum and Immigration Bill, one noble Lord used the delicate word, which I will repeat, “presentational”. I think that is quite a good synonym. The Constitution Committee has commented on the Bill, picking up very much the points that the noble Viscount and my noble friend made and the response from the Ministry of Justice has not, I think, taken us any further.
In Committee, I asked what was meant by the words “framed by reference to”. I still do not really understand them. This has caused me to table Amendment 3, although I realise it is a bit risky pursuing this, because we may be told from the Dispatch Box that the Bill is more restrictive than we would actually want to see, and it is arguable that as it stands, the guidelines can refer to characteristics depending on the law which is being shaped.
The legislation should be clear and certain—points which were made very clearly by the Constitution Committee—especially in this sort of situation. It is curious that the Bill seeks to pit the state against a body such as the Sentencing Council.
Lord Garnier (Con)
My Lords, like my noble friend Lord Hailsham, I begin my remarks by apologising for not having been able to attend the earlier stages of the Bill. However, I am happy to say that, like my noble friend, I have read the report and I am reasonably up to date with the way in which the debates have gone.
I am very much attracted by what my noble friend said in support of his Amendment 1, and I speak from a position of some—but not a great deal—of experience as a sentencer. I was a recorder of the Crown Court for 15 years, from 1998 until about 2015, with time off when serving in the Government. One of the things I found most useful in dealing with what I thought was the most difficult task as a judge was the advice and help of the sentencing report.
If you are a High Court judge, you tend, if you are dealing with criminal cases, to deal only with life sentence cases. The job that you have to do when sentencing is to consider the tariff within the life sentence. This is difficult but not, perhaps, as complicated as having to deal with the multiplicity of sentences involved in road traffic cases, drug cases, dishonest acquisition cases, and so on, and obviously cases to do with assault and other forms of violence.
As a recorder, as a Crown Court judge and as a magistrate—I see the Minister, the noble Lord, Lord Ponsonby, is in his place—one is dealing with, in a sense, a much more complicated sentencing picture. The assistance of sentencing reports is huge and valuable. Anything that the Bill can do to make the life of the sentencer easier and to enable him or her to produce a juster sentence is to be welcomed, and the suggestion of my noble friend Lord Hailsham through his Amendment 1 provides the sort of assistance that I would very much have wished to have had as a low-level sentencer. It is perhaps more neatly encompassed in the suggestion through Amendment 2, tabled by the noble Lord, Lord Marks.
Either way, both amendments appear to me to be trying to undo the political mess that has caused the arrival of the Bill. I understand the politics of all this; I am sure we all do. It is a thoroughly unnecessary Bill, one that the Government allowed themselves to be backed into a corner about. It may well be that they regret it. However, given that we have got the Bill, I invite the Government to pay close attention to the speech of my noble friend and to listen very carefully to my chambers colleague, the noble Lord, Lord Marks, when he comes to speak to Amendment 2.
Lord Meston (CB)
My Lords, I have not spoken before on the Bill, and frankly, like others, I was rather astonished that this was a topic requiring legislation at all. Like the noble and learned Lord, I have been what you would probably call a low-level sentencer for a number of years.
I will make two points. First, in recent years, in my experience, the quality of pre-sentence reports has greatly improved: from what were sometimes formulaic and feeble reports to nowadays, in my more recent experience, really providing an insight into the defendant’s background, life and attitudes, and conveying realistic recommendations. To that extent, they must always be regarded as helpful, greatly improving on, as the noble Viscount described, representations made by the legal representatives after a few moments in the cells or in the court corridor before coming into court.
Secondly, this experience has led me to adopt the attitude that, whenever in doubt, a report should be directed. I, for one, never regretted directing a report. For that reason, I certainly support Amendments 5 and 6. In other words, pre-sentence reports should, wherever possible and sensible, be the norm.
Lord Carter of Haslemere (CB)
My Lords, I have not previously spoken on the substance of the Bill before, either, but I am very attracted by the noble Viscount’s amendment, for the reasons that he and the noble and learned Lord, Lord Garnier, have set out.
I think the Government have accepted that their Bill is not intended to prevent sentencers inviting pre-sentence reports in the case of personal characteristics. They are getting at the guidelines that should not take account of personal characteristics. However, there is a danger that, as the Bill stands, sentencers might be deterred slightly from seeking pre-sentence reports in the case of personal characteristics, even though, were the Bill not on the statute book, they would otherwise have done so.
The amendment of the noble Viscount, Lord Hailsham, sorts that out. It makes it absolutely clear that there is nothing to stop the sentencer seeking a pre-sentence report in the case of personal characteristics, if that is desirable for the purposes of the particular case. That is exactly what the legal position should be.
So, I strongly urge the Government to give close attention to Amendment 1 and indeed the amendment in the name of the noble Lord, Lord Marks, which, as has been said, seeks to achieve the same thing. This is consistent with what the Government think their Bill allows for, but there is a danger that it might not have the effect they seek, whereas the noble Viscount’s amendment would clarify the position in what everyone must agree is the right way.
Lord Hardie (CB)
My Lords, I, too, have not spoken before on the Bill. I understand the sentiment behind the noble Viscount’s amendment. As a former judge in Scotland, I do not demur from the advantage of having such reports. However, I wonder whether there is an element of confusion in the various amendments. In the sense that the noble Lord, Lord Carter, seemed to suggest, there may be confusion in the mind of the sentencer as to whether he or she can order a report.
I do not read this clause as being that. Clause 1(2) specifies that the guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender. The personal characteristics are defined in Clause 3 as including race, religion or belief, and cultural background. So, I would have thought that it is irrelevant to determining a sentence that someone is of a certain race, or adheres to a certain religion, or has a certain cultural background. What one wants to know is something about the upbringing of the individual, whether he or she was abused as a child, and whether there are other circumstances in his or her upbringing that would explain his or her behaviour. So I do not see the need for the amendments that simply reinforce the position that already exists.
Lord Marks of Henley-on-Thames (LD)
My Lords, before turning to Amendment 2 in my name, I will make a number of points that are relevant to the general difficulty of this Bill, highlighted by all the amendments in this group, and relevant to the unsuitability of legislating for what the Sentencing Council may or may not recommend in guidelines as to when pre-sentence reports should or should not be required. I take the point just made by the noble and learned Lord, Lord Hardie, that there is a distinction to be drawn between the guidelines and when a pre-sentencing report is to be required, but there is real scope for confusion, and that does concern us all.
When sentencing, effective judges must inevitably take into account the personal circumstances of individual offenders, alongside the nature of their offences, the requirement to punish and the need for deterrence. When taking into account those personal circumstances, they are bound to consider their different personal characteristics. So, the drafting of this Bill starts with a conflict that is, on analysis, almost impossible to resolve.
The Government tried to clarify what is meant by personal characteristics in an all-Peers letter just before Committee, in which the Minister cited the words of the noble and learned Lord, Lord Neuberger, in the House of Lords as the precursor of the Supreme Court, when he said that
“the concept of ‘personal characteristic’ … generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him”.
This might assist a court to consider in a judicial context what words may mean, but it does not necessarily help with the construction of the meaning of a Bill. No clear distinction can be drawn between what a person is by birth and what a person may have become by reason of life experience. For example, is a woman pregnant because of what she is or because of what has happened to her? Is a black person scarred by racism suffering because of what they are or because of what has happened to them?
That difficulty is compounded by the fact that the list of personal characteristics in Clause 1(3) is non-exhaustive. They are said to
“include, in particular … race … religion or belief
or
“cultural background”.
But that does not exclude anything else—a point that has been made by my noble friend Lord Beith and by others throughout the discussion of this Bill. The use of the phrase “framed by reference to” was also rightly criticised by my noble friend Lady Hamwee as hopelessly uncertain. That was in the context of her proposing her Amendment 3, but it runs through the whole of this issue of personal characteristics.
The Lord Bishop of Gloucester
My Lords, like other noble Lords, I have already registered my feelings about the Bill at Second Reading and in Committee. Now that we have had the publication of the Independent Sentencing Review and the Government’s response, I reiterate the point that, like others, I simply do not believe that we need this legislation. It seems that the left hand is not aware of the right hand on the evidence around sentencing.
I agree with what has been said already. Amendment 8, in my name, seeks something very specific: to ensure that existing sentencing guidelines relating to the mitigating factor of pregnancy, childbirth and postnatal care can continue to provide directions for courts to obtain pre-sentence reports for offenders who are pregnant or primary carers of young children. Without this amendment, the Sentencing Guidelines (Pre-sentence Reports) Bill directly contradicts the Government’s stated policy intent to reduce the imprisonment of pregnant women and mothers of young children.
On 22 May, in her response to the Independent Sentencing Review, the Lord Chancellor explicitly stated the Government’s intent to reduce the imprisonment of pregnant women and mothers of young children. She said:
“I am particularly keen to ensure that pregnant women and mothers of young children are not anywhere near our female prison estate in future”.—[Official Report, Commons, 22/5/25; col. 1204.]
Indeed, the Independent Sentencing Review
“recognises the harm caused by imprisoning pregnant women and believes pregnant women and new mothers should be diverted and supported in the community, unless in exceptional circumstances. Custody must only be a last resort”.
How, then, are we to achieve this, when the Bill makes unlawful the existing Sentencing Council’s mitigating factor—pregnancy, childbirth and postnatal care—which came into force on 1 April 2024 and directs courts to obtain PSRs for pregnant and postnatal offenders? I am very grateful to the Minister for writing after Committee, but he confirmed—extraordinarily—that the Bill will render such direction about obtaining PSRs across existing sentencing guidelines unlawful. I query his assumption that, without direction, sentencers might request a PSR. This is a backward step. Simply put, without a pre-sentence report, alternatives to custody cannot be considered by a sentencing court. Without a mandatory direction to obtain a PSR, there is no way to ensure that women are diverted from custody. Without this amendment, the Bill directly contradicts the Government’s stated policy intent. I recognise the very difficult position that the Minister has been put in, but I am simply looking for the Government to have the grace to admit this contradiction and to accept this amendment. It does not have to be seen as a humiliating backing-down, but, rather, a humble response to listening.
I will not delay the House further. I will listen to the Minister’s response in due course, but I am minded, at this point, to divide the House. However, I might need some careful direction, should other amendments be passed, as to where that leaves my Amendment 8.
Lord Thomas of Cwmgiedd (CB)
My Lords, I wish to add a few sentences to what the right reverend Prelate said. I preface that by noting that, when we built the Sentencing Council, the legislation was discussed and agreed. It was clear when this Bill was introduced that discussion and agreement were needed. I find it very disappointing that we have not been able to get together to find a satisfactory way to deal with this legislation other than by dropping it—I regard that now as gone.
I think it important that Ministers appreciate what the right reverend Prelate said. It is plain that pregnancy and maternity are characteristics, and one ought to ensure that all judges receive the same guidance as to obtaining pre-sentence reports. I know that the Minister and the Lord Chancellor are very keen that pregnant women do not go to prison, but they are not the law; the law is laid down by this unfortunate legislation. If there is one thing we can do to ensure that it does not wreak injustice, it is to allow the amendment proposed by the right reverend Prelate. There is a huge amount more that we should do, but, without a consensus and discussion between us, I do not believe that we can make any improvement. That is why I content myself with this very narrow point. We cannot be in a position where we cannot give guidance to courts that they should get a pre-sentence report to avoid sending pregnant women to prison.
Lord Sandhurst (Con)
My Lords, I thank all noble Lords who contributed to the Bill’s progress in Committee. In particular, I acknowledge the thoughtful and constructive contributions from the noble and learned Lord, Lord Burnett of Maldon. We have heard further thoughtful contributions today, not least from the noble and learned Lord, Lord Thomas of Cwmgiedd, and the right reverend Prelate the Bishop of Gloucester.
None the less, from this side of the House, I wish to place on record our broad support for the principles that underpin the Bill. The use of pre-sentence reports, when applied rigorously, consistently and with due regard to the individual circumstances of the offender, is an essential part of a fair and effective justice system. They play a crucial role in informing judicial discretion, ensuring proportionality in sentencing and helping to reduce the risk of reoffending through appropriate rehabilitative measures. We welcome the intention of the Bill to strengthen and clarify the expectations around the preparation and consideration of pre-sentence reports. These seek to embed good practice across the system and to promote greater consistency in the court’s approach to sentencing.
However, while we on this side support the direction of travel, we remain mindful that sentencing is a complex and sensitive area of the law. It touches not only on legal principle but on human lives, social outcomes and the effective operation of our prison and probation systems. In that context, I will take a moment to acknowledge a specific concern raised by noble Lords in Committee: the lack of clarity around the term “personal characteristics” as it appears in the Bill. This is not a small point. If the legislation is to provide clear and workable guidance to practitioners, including report writers and the judiciary, we must be precise about what we mean. Any doubt or uncertainty in this area risks inconsistent application. It undermines the very consistency and fairness that the Bill seeks to promote. I hope that the Government will reflect carefully on these concerns and consider whether further definition could be usefully provided.
More broadly, I echo the view expressed at earlier stages that, with just a little more time and careful consideration, we could strengthen and improve this legislation further. There remain questions that would benefit from additional scrutiny, and we should proceed with care. We must get this right, not only in the interest of justice but for the confidence of the public, the judiciary and those working on the front line of our criminal justice system. We on these Benches remain committed to working constructively with the Government, with noble Lords across the House and with all those who bring experience and insight to bear on this important issue.
I will turn briefly to the amendments in the first group. As for Amendments 1 and 7, spoken to by my noble friend Lord Hailsham, we recognise that Amendment 1 seeks to provide clarity about the range of matters that the sentencer may take into account. We invite the Government to consider these during the Bill’s journey through the other place.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
I am grateful to noble Lords for their continued and careful consideration of this Bill. Before I turn to each amendment in this group, I want to briefly recap why we have brought the Bill forward.
In revising its imposition guideline, the Sentencing Council included text that suggests that a pre-sentence report will
“normally be considered necessary”
if an offender belongs to certain cohorts, including some that specifically refer to offenders’ personal characteristics, such as those
“from an ethnic minority, cultural minority, and/or faith minority community”.
We believe that the approach taken through this guidance risks offenders receiving differential access to pre-sentence reports based on their personal characteristics. It also means that the Sentencing Council is making policy on who should get a pre-sentence report, when this is properly a matter for Ministers and Parliament to decide. For these reasons, we have introduced this Bill to stop this guidance coming into force and prevent the Sentencing Council making similar guidance in the future.
I turn to the amendments in this group. First, there are those amendments which seek to give the Sentencing Council more discretion to include some factors that are based on offenders’ different personal characteristics. Amendments 1 and 7, from the noble Viscount, Lord Hailsham, with contributions from the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Carter, seek to give the Sentencing Council more discretion. The Sentencing Council could still make guidelines with reference to personal characteristics but only if the guidelines also said that those personal characteristics had to be relevant to the ultimate sentencing decision.
Amendments 2 and 4, in the name of the noble Lord, Lord Marks, would give the Sentencing Council discretion to include factors based on offenders’ different personal characteristics within relevant guidelines, if it felt that doing so would avoid inequalities in sentencing outcomes. Amendment 9, in the name of the noble Lord, Lord Beith, is intended to provide that the Bill does not prevent the Sentencing Council including provision within relevant guidelines that reflects existing case law about pre-sentence reports.
During Committee, I committed to take away the concerns expressed by noble Lords about the Bill’s current approach. I have carefully reflected on where there are alternative ways of meeting the Bill’s fundamental objective—to ensure equality before the law. However, ultimately, I remain confident that the current approach taken within the Bill is the best and clearest way to meet this objective. This is because, if these amendments were accepted, the Sentencing Council would be able to continue to produce guidelines that could risk differential access to pre-sentence reports. In doing so, the Sentencing Council would be making policy on a matter that is within the proper remit of Ministers and Parliament. Therefore, we do not believe that these amendments are beneficial, as they would undermine the Bill’s objectives.
I turn to the amendments of the noble Baroness, Lady Hamwee. Amendment 3 would change some of the drafting used in Clause 1. The Bill states that sentencing guidelines about pre-sentence reports may not include
“provision framed by reference to”
offenders’ personal characteristics. Instead, if the noble Baroness’s amendment were to be accepted, the Bill would state that any provision which is “solely based on” offenders’ personal characteristics cannot be included in relevant guidelines. The noble Baroness’s Amendment 6 seeks to add text to the Bill that confirms that it does not prevent the Sentencing Council producing relevant guidelines. This suggests that a pre-sentence report would be ordered where an assessment of an offender’s personal circumstances would be beneficial to the court. I have no doubt that the noble Baroness has suggested these amendments in the spirit of attempting to make the Bill as clear as possible, and I am grateful for the constructive challenge. I have carefully considered both amendments and we ultimately believe that they would not improve the Bill’s drafting.
For Amendment 3, this is because the Bill is already sufficiently clear. The drafting, which would prevent the Sentencing Council making sentencing guidelines about pre-sentence reports
“framed by reference to different personal characteristics”,
means that the council cannot include any text within relevant guidelines that refers to offenders’ personal characteristics. This effectively captures our intent, which is to ensure equality before the law. For Amendment 6, the Bill as drafted does not prevent the Sentencing Council including text within relevant guidelines that suggests to sentencers, in general terms, that a pre-sentence report should be sought where a further assessment of the offender’s personal circumstances would be beneficial to the court. We have been clear throughout the debates and in supporting material of the benefits of pre-sentence reports. We believe our intention is clear from the language we have used in the Bill. In the spirit of keeping the Bill short and simple, we do not consider it necessary to explicitly state within the Bill things that it does not do. The Bill does not prevent sentencing guidelines encouraging pre-sentence reports based on an offenders’ personal circumstances.
Amendment 8, tabled by the right reverend Prelate the Bishop of Gloucester, seeks to ensure sentencing guidelines can continue to advise sentencers to seek pre-sentence reports in cases involving offenders who are pregnant or who are primary carers of young children. I should like to start by thanking the right reverend Prelate for raising this point. I have long been an advocate for better support for pregnant women in prison and for those women who are primary carers of young children, ever since I first sat outside HMP Styal with my mother, taking foster children to see their mums on visits. I know all too well that so many of the foster children who I lived with had mothers in prison who were often victims of considerable trauma and abuse, and they were often vulnerable, addicted and mentally ill. Many found imprisonment had life-changing impacts, for not only them but their children.
Around two-thirds of female offenders sentenced to custody receive short sentences and around the same number are victims of domestic abuse. I proudly chair the Women’s Justice Board, which was set up last year with the aim of closing a women’s prison and addressing the specific needs of this cohort. The sentencing review’s recommendations on short, deferred and suspended sentences will reduce the number of women in prison. This is an important step towards that objective.
However, in the context of this specific Bill, following the Committee debate, I have further considered whether it would be appropriate to add an exclusion. Amendment 8 would allow the Sentencing Council to retain existing wording across relevant guidelines that suggests sentencers request pre-sentence reports for pregnant and post-natal offenders. We remain satisfied that the Bill’s current approach is the right one. It ensures sentencing guidelines do not risk preferential access to pre-sentence reports based on offenders’ personal characteristics. In doing so, it prevents the Sentencing Council making policy on who should get a pre-sentence report.
To be absolutely clear, this does not mean we think pregnant or post-natal women should not be receiving pre-sentence reports. We fully support the ability of sentencers to make their own judgment on whether to order a pre-sentence report, based on their consideration of the unique circumstances of individual cases. That is why nothing in the Bill stops courts requesting pre-sentence reports in any case where they ordinarily would do so. This includes appropriate cases involving pregnant or post-natal women, as well as other individuals who may be vulnerable for a number of reasons.
The key distinction here is that we cannot support any suggestion within sentencing guidelines that access to pre-sentence reports should be based on offenders’ personal characteristics. It is for this reason that we have been clear throughout the Bill’s passage that it does not affect the existing obligation on courts, under section 30 of the Sentencing Code, to obtain a pre-sentence report, unless considered unnecessary.
I want to re-emphasise that, following the Bill’s passage, the Sentencing Council can still remind sentencers in general terms that pre-sentence reports are necessary when, among other things, a full assessment of an offender’s personal circumstances would be beneficial. I would like to clarify that, even without a pre-sentence report, alternatives to custody can be considered by a sentencing court. Pre-sentence reports are by no means the only route through which alternatives to custody are considered, and women are diverted away from custody.
I hope I have reassured noble Lords about the Government’s sentiment with regard to better support for pregnant women and primary carers currently in prison and about our clear policy intention to reduce the number of women in prison. I therefore encourage noble Lords not to press their amendments in this group.
Lord Beith (LD)
Before the Minister sits down, could he clarify something for me, because he has made two apparently conflicting statements in the course of the correspondence? One is that it would be unlawful—and that is his word—for the Sentencing Council to frame guidelines in a way that reflected the existing case law that pregnant women should be the subject of pre-sentence reports. But he has just said, and has said on other occasions also, that the Sentencing Council can issue guidelines or statements of some kind which draw attention to that pre-existing case law. The purpose of my amendment was to leave the Sentencing Council free to do so. How can he, at one and the same time, say that this would be unlawful and then describe this way of carrying it out?
Lord Timpson (Lab)
These are different things and we do not want to link them. The Bill intentionally deals with the Sentencing Council, not the Court of Appeal. The Bill as drafted achieves its aims simply, and we do not want to overcomplicate things.
Viscount Hailsham (Con)
My Lords, the noble Lord, Lord Marks, has indicated to your Lordships that he proposes to test the opinion of this House on Amendment 2. I am a pragmatist. I want to see the Bill improve to further the objective that I have explained to your Lordships. That being so, I am perfectly content to rally behind Amendment 2. I therefore beg leave to withdraw Amendment 1.
Member's explanatory statement
This amendment, together with Lord Marks’ amendment to page 1, line 7, would allow the Sentencing Council more discretion in preparing sentencing guidelines about pre-sentence reports in order to avoid inequality of sentencing outcomes.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to the Minister for his response. However, I do not believe that the proposed guidelines that the Bill seeks to make unlawful were inimical to equality before the law. Nor do I believe that the Bill advances—indeed, I believe it is hostile to—the attempt of the Sentencing Council to advise judges as to how to address the inequality of outcomes that bedevils our criminal justice system. My amendments are an attempt to assist in the addressing of that inequality, so I wish to test the opinion of the House on Amendment 2.
“(4B) Sentencing guidelines about pre-sentence reports must promote greater use of such reports as part of sentencing, in particular when the sentencing decision is likely to involve a choice between a community penalty and imprisonment.”Member's explanatory statement
This amendment is intended to encourage increased use of pre-sentence reports.
Lord Marks of Henley-on-Thames (LD)
My Lords, in the first group, we considered what we regard as the unsatisfactory nature of this Bill. My Amendment 5 is directed to ensuring that guidelines promote the use of pre-sentence reports as a general rule. As has been mentioned, there has been a very serious decline in the use of pre-sentence reports. As the Minister said in Committee and others have said today—notably, the noble Viscount, Lord Hailsham—there has been a 44% reduction in the number of pre-sentence reports ordered and produced over the last decade. That flows in part from the effect of a recognised lack of resources for the Probation Service to produce these reports over that period.
Not only that, but the reduction in numbers has been accompanied by a recent decline in the quality of the reports produced by the courts. Although, as the noble Lord, Lord Meston, said, some years back there may have been an improvement in the quality of pre-sentence reports, contemporary evidence suggests that there has been a significant decline over the last 10 years. I do not believe that that decline is attributable to a lack of commitment on the part of individual probation officers. However, we should recognise that the demoralisation that has taken place in the Probation Service has been very serious indeed. That has been partly the effect of the ill-starred changes to and reorganisation of the whole of the probation services, initiated by the previous Government. The later reversal, while welcome, merely proved that the whole experiment was profoundly unsettling and damaging to the probation services as a whole.
But the declining quality of pre-sentence reports has been principally the result of a lack of resources allocated to the production of individual reports, particularly the time probation officers have had to prepare them. These reports need to be thoughtful, and thoroughly and individually researched, with a real assessment of the most appropriate sentences in individual cases. The reports need to consider the individual circumstances of offenders with care, and officers need the time to do that. There needs to be much more opportunity for officers carefully to consider individually suitable community sentences and to research their availability. They need to have the time and resources to consider the conditions that might be appropriately attached to such community sentences, along with the employment and housing, and opportunities and risks, that need to be considered in individual cases.
In discussing these issues, we should not lose sight of the central features of sentencing hearings. Pre-sentence reports are the only real independent sources of information for judges about the personal circumstances of offenders and of the possible disposals and their suitability. Judges cannot get this assistance from speeches in mitigation by defence advocates, however well-researched and argued they might be. That is primarily, of course, because such speeches are delivered on instructions—the instructions of the offenders the advocates represent—and are not, therefore, independent. But it is also because the Probation Service has an unrivalled expertise in advising judges on appropriate sentencing. Given the resources and training that dedicated probation officers receive, they can make all the difference to sentencing and can help offenders to make their best efforts to turn their lives around. This is not only a civilised and humanitarian outcome; in turning offenders away from crime, and in reducing reoffending and the huge personal costs to victims and families associated with it, it brings substantial societal benefit as well.
The case for this amendment is that we need to return to the principle that once underlay pre-sentencing reports in practice, as well as in theory, and certainly in every case where the sentencing decision was between custody and community sentences: that the judge should have pre-sentence reports of the highest quality possible in all such cases. During the course of the noble Lord’s tenure as Prisons Minister, he has made it clear that it is his ambition to bring more investment into the Probation Service and to increase the number of probation officers—which should also improve, I would add, the retention of probation officers within the service and raise standards generally. For us, this is a crucial issue.
I am very grateful to the Minister for his constructive engagement with me and others during the passage of the Bill. If he can convince us from the Dispatch Box—I am very hopeful that he will—that his ambition is also the Government’s ambition for the Probation Service and pre-sentence reports, I will not press my amendment to a vote. However, the converse also follows. I await what the Minister has to say in response. I beg to move.
Lord Sandhurst (Con)
My Lords, I may be brief, having made my general observations in respect of the previous group. So far as this amendment is concerned, in appropriate cases, pre-sentence reports are of course necessary—but not in all cases. The probation officer is usually the best person to alert the court to the possible benefit of obtaining a report, or not obtaining one, in a given case. In some cases, the sentencer will also want a report, whether or not the probation officer has indicated that a report might assist. We on this side are of the view that we do not need this amendment.
Lord Bach (Lab)
My Lords, I agree entirely with what the noble Lord, Lord Marks, said about pre-sentence reports. A long time ago, I had much experience of defending in the Crown Court, so I know that such reports are of extreme and important value. However, I have to say—for the first time, really—that I agree with the noble Lord on the Front Bench opposite, who just said that he does not see the need for this amendment. With great respect to the noble Lord, Lord Marks, I do not see it, either, I am afraid. I know that the noble Lord needs to be satisfied by the Minister, who will no doubt follow what I have to say, but, in my view, the Government’s policy on pre-sentence reports is clear: they are in favour of them, and we need to improve them because they have been allowed to go downhill in the past number of years. I agree with that. My view is that this amendment is not something that should divide the House.
Lord Timpson (Lab)
Amendment 5 in the name of the noble Lord, Lord Marks, would require sentencing guidelines about pre-sentence reports to encourage their greater use, particularly in cases where a sentencing decision is likely to involve a choice between a community or custodial sentence. I am grateful to the noble Lord for moving this amendment. He was right to ask how we can encourage greater use of pre-sentence reports and ensure that we have sufficient probation resource to do so, and he made exactly the right points in speaking about the importance of pre-sentence reports. I am grateful to him for the discussions that we have had since Committee; I would welcome continued engagement with him on this issue.
I hope that the noble Lord will not mind me giving quite a full answer to his question. Although he asked the right question, I would argue that there are other levers beyond sentencing guidelines that are the better place to solve the problem. We must ensure that we have a Probation Service that is properly funded and staffed, and which has the tools it needs to deliver. We must also balance the need for sufficient and thorough pre-sentence reports with the other crucial roles that the Probation Service plays. We want more, and better-quality, PSRs.
I am mindful that the noble Lord tabled a similar amendment in Committee, where I took the opportunity to set out the steps that the Lord Chancellor and I are taking to improve the Probation Service’s capacity to deliver timely and high-quality reports. I would like to reassure noble Lords further on the steps that we are taking to support our Probation Service; if they will permit me, I will endeavour to give a thorough answer as to what the Government are doing.
First, we are increasing staffing levels. We recruited more than 1,000 new trainee probation officers last year and we aim to recruit a further 1,300 this year.
Secondly, I am delighted that we have announced a significant increase to the budget for the Probation Service and other community services for offenders. It will rise by up to £700 million by 2028-29, representing an increase of around 45% by the final year of the spending review period. This is a very significant investment and demonstrates the Government’s commitment to this vital service. I am sure that the noble Viscount, Lord Hailsham, will agree that this is needed to fund probation in a way that ensures that our probation officers can do the job they came into the service to do.
Thirdly, I am convinced that a significant part of the answer sits with new technology. The Lord Chancellor and I recently hosted a tech round table with industry experts to make sure that we are asking the right questions and working collaboratively on the best solutions. Let me give noble Lords a sense of some of the transformative impact that we are already exploring in terms of technology.
I am passionate about ensuring that probation officers are able to do the job they came in to do. For probation, as with every other public service, new technology has the potential to be really transformative. We are exploring the benefits of AI in a number of areas. We are piloting the use of transcription and summarisation tools to reduce administrative load. We are developing algorithms to support decision-making, risk assessment, case prioritisation and operational planning. AI-powered search is being explored to better support the information gathering needed for report writing. All these have the potential to save significant practitioner administration time and to improve quality, allowing probation officers to focus on face-to-face time with offenders, to support them to change, rather than on administrative tasks.
Technology can also transform how probation staff can bring the right information together to assess and manage offenders. For staff writing pre-sentence reports, we are rolling out a new service called “Prepare a case for sentence”, which links probation systems with the court’s common platform and gives probation staff in the courts the earliest possible notice of cases that are being listed, as well as new templates so that reports are timely and give the courts what they need.
We are also investing in the complete redesign of the approach to the assessment of risks, needs and the strengths of the people on probation and in prison. The resulting sentence and risk management plans will combine a new assessment and planning approach that incorporates the latest desistance research, supported by a new digital service. This new service will reduce the resource burden on front-line staff and ensure that assessment and planning practice better supports individuals, thereby achieving better rehabilitation and public protection outcomes.
Noble Lords will recognise that, although investment in staff numbers and technology are vital foundations, it is nothing without also supporting staff to have the right skills to spot risks and needs and to communicate those to the court. Our staff have access to a wide range of learning and development, including modules relating to court-specific roles and skills, ensuring that they are well equipped to work in this setting. The better trained they are, the better PSRs they will present.
The Probation Service has a dedicated court case assessment tool for line managers to quality assure pre-sentence reports. His Majesty’s Inspectorate of Probation also completes regular inspections of probation regions, with an assessment of court work included as a key component of this. Furthermore, the Probation Service seeks detailed feedback from sentencers on the quality of reports through an annual judicial survey. Through all this investment and improvement, our aim is that, whenever a court orders a pre-sentence report, it can be confident that it is based on the fullest information and a thorough analysis of risks and needs; and that it answers the right questions the court is wanting to understand.
I recognise that the noble Lord’s amendment now specifically refers to scenarios where a sentencer will likely need to decide between imposing a community or a custodial sentence. I completely agree with the noble Lord that pre-sentence reports can be particularly helpful in these kinds of cases. These reports provide sentencers with an effective assessment of risk and targeted assessments of the individual’s needs. This then confidently articulates suitable sentencing proposals that balance public protection, punishment and rehabilitation. In doing so, they will consider a range of disposal options, setting out the best use of credible community sentences where appropriate.
I hope that it will offer some reassurance to the noble Lord that the revised imposition guideline already includes relevant texts in this spirit, which the Bill does not impact. Specifically, it states:
“A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence”.
Of course, it is for the sentencer to decide whether to order a pre-sentence report, and there is an existing obligation on courts to obtain a pre-sentence report unless they consider it unnecessary. The Bill does not change that.
I reiterate my thanks to the noble Lord, Lord Marks, for raising the importance of pre-sentence reports and increasing their use. As I have set out, the Government are committed to ensuring greater funding, capacity and efficiency for the Probation Service. I therefore urge the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to the Minister for his helpful and detailed response. As I hoped he would, he has given an outline of the Government’s very real commitment to more and better pre-sentence reports. He has also detailed the considerable investment that the Government propose to make in the Probation Service and in the production of such reports. I completely agree with him as to the future role of technology in the Probation Service and in the production of these reports. In that spirit, I respectfully ask leave to withdraw the amendment.
“but do not include pregnancy or maternity.”Member's explanatory statement
This amendment seeks to ensure that existing sentencing guidelines relating to the mitigating factor of “pregnancy, childbirth and postnatal care” can continue to provide directions for courts to obtain pre-sentence reports for offenders who are pregnant or are primary carers of young children.
The Lord Bishop of Gloucester
I am minded not to move this, given what we have seen already, but I did just want to say to the Minister that there has been real confusion here, and I am really disappointed that this is undermining something that is already in existence. The Minister said the pre-sentencing guidelines are saying one thing, and the Bill is saying another. I am very disappointed, but I am not going to move this amendment.
Malvern Hills Bill [HL]
Lord Faulkner of Worcester (Lab)
My Lords, I should express my gratitude to the Malvern Hills Trust for inviting me to present the Bill on its behalf.
I am sure that none of your Lordships needs me to describe the iconic beauty of the Malvern Hills. I now live in the city of Worcester and for much of my life I have been in Malvern itself or in the villages close by. The hills stretch for about eight miles from end to end across the borders of Herefordshire and Worcestershire. The highest point is the Worcestershire Beacon at 1,394 feet. The hills are designated as a national landscape, formerly known as an area of outstanding natural beauty. Some 62% of the hills are a site of special scientific interest, and there are three scheduled ancient monuments, including the remains of trenches on the Herefordshire Beacon, or British Camp, which was used by Caratacus in his last stand against the Romans. The hills are home to a rich variety of wildlife and protected habitats. They attract very significant numbers of visitors who take advantage of open access, including a network of footpaths and bridleways.
The promoters of the Bill are the Malvern Hills Trust. That is its working name; its statutory name is the Malvern Hills Conservators. It is the job of the trust to protect and manage the hills for the benefit of the public. I should say that if one visits the hills, it is evident that the trust performs its task very well indeed. The trust was established by an Act of Parliament in 1884 and since then, four further local Acts have amended and supplemented each other. The most recent Act was passed in 1995.
One of the purposes of the Bill before your Lordships is to consolidate those Acts. This would make good what the late Lord Colville of Culross said when introducing the Bill for the 1995 Act at Second Reading on 8 March 1993. I hope it is not out of order if I refer to my pleasure at seeing the noble Viscount, Lord Colville of Culross, on the Woolsack. The late Lord Colville said in 1993:
“I have great sympathy with one of the petitioners, who would like to see this private legislation consolidated. I am sure that everybody would”.—[Official Report, 8/3/1993; col. 869.]
The area that falls within the management of the trust consists of large parts of the hills themselves and other areas of open land comprising roadside verges and commons. The area is illustrated by a map which has been deposited with the Bill. The trust owns most, but not all, of the land within its management. About 90% of it is registered common land and virtually all of it open space, accessible by the public on foot and on horseback.
Lord Colville also remarked on the ever-increasing pressures on the hills as they become more and more popular. The pressures arising from that popularity continue to increase, and the need for the hills to be conserved and managed for the future public good remains as strong as ever.
The trust is in a somewhat unusual position in that it has the power to issue a levy on the residents of certain parishes in the local area. I will come on to that in more detail later, particularly as it is one of the topics that has been raised in the instruction tabled by the noble Earl, Lord Atlee.
It is worth drawing your Lordships’ attention to the fact that the trust is a charity. As such, the trust has to comply with charity law and take heed of guidance issued by the Charity Commission. As your Lordships are aware, the purpose of a Second Reading is to consider the Bill generally and approve the principle. In due course, a Select Committee will be appointed to examine the Bill and the 50 petitions that have been deposited against it. The trust has looked through the petitions and will respond to all the petitioners.
Common themes have been identified in the petitions, and I will touch on some of them today. Part 2 of the Bill has drawn more attention from petitioners than any other. It would make significant changes to the composition of the board of trustees, which has not changed significantly in 100 years. The trust considers that its board needs to be smaller, and it needs to include trustees who possess the skills necessary to manage an area of open space as significant as the Malvern Hills, in line with good governance of other modern statutory bodies and Charity Commission guidance. The Bill would achieve that.
Currently, the trust comprises 29 trustees: 11 are directly elected by the residents of the levy-paying parishes; 18 are nominated by various local authorities and, in the case of one trustee, by the Church Commissioners. The Bill proposes to reduce the overall number of trustees to 12, with six elected trustees and six appointed trustees. It has been suggested that the Bill would dilute the proportion of elected trustees. The reality is that, if the Bill is enacted in its current form, the proportion of elected trustees will increase from 38% to 50%.
Another point that has been raised by petitioners is about the changes that are proposed to the way elections will work. Currently, the electors of three parishes and of some former wards of a long-abolished urban district council elect one or more trustees for their individual area. The Bill proposes one electoral area, combining all the areas which currently elect trustees, so each one of the six elected trustees would be voted for by all the electors, rather than each trustee being chosen by the electors of an individual parish or ward.
A complaint that has been made is that this will mean that parishes lose their representation on the board, but charity trustees are not representatives of the interests of those who appoint them. The trust’s objects are to preserve and manage the hills for the benefit of the public as a whole. They are not to look after the interests of any particular area.
The trust and I are grateful to the noble Earl, Lord Attlee, for giving us the opportunity to comment on a draft of his instruction, which touches on the trust’s constitution. I can say now that I do not intend to oppose it. I understand that the noble Earl’s concerns may, to some extent, overlap with those of the board as regards the potential for single-issue candidates dominating the elected trustees. I am sure that the Select Committee will look into this in detail, but the position of the trust is that the Bill strikes the right balance between elected and appointed trustees.
Part 3 of the Bill is about finance, and includes Clause 33, which deals with the levy, the subject of the other limb of the noble Earl’s instruction. The first point is that Clause 33 makes no changes to the current position. The parishes which are subject to the levy would not change; the amount that is charged at the time the Bill attains Royal Assent would not change; the way in which the levy is collected would not change; and the statutory limitation on annual increases to the levy would not change. The instruction would require the Select Committee to consider the area within which the levy is applied. I am sure that this would be a matter which the Select Committee would wish to examine in any event. I say again that I do not intend to oppose the instruction.
At the request of the trust, the noble Earl, Lord Attlee, included some wording in his instruction about a restriction on the trust on what it can promote in the Bill in relation to the levy. By law, the trust has to obtain the consent of the Charity Commissioners to incur expenditure on the promotion of the Bill. As a condition of that consent, the trust must not incur expenditure in promoting any material changes to the levying provisions, including changes to the levy-paying area. The trust is content, of course, with the levy clause as contained in the Bill, and it would seek to persuade the Select Committee of its merits.
Part 4 deals with public access to and management of the hills. It is worth referring back to Clause 5 for context. Clause 6 sets out the objects of the trust, which are
“to protect, conserve and maintain the landscape, natural appearance, habitats, flora and fauna, geology and archaeology of the Malvern Hills”,
and to
“keep the Malvern Hills unbuilt on as open space for recreation and enjoyment of the public”.
Alongside Clauses 38 and 40, which respectively set out the statutory rights of the public to access the hills and impose a duty on the trust to keep the hills unenclosed, there remains very significant protection for the hills into the future.
I hope that your Lordships have no complaints about the way in which the trust manages the hills now or about the provisions of Part 4, which, in general terms, consolidate the existing local legislation, with very few changes. The most significant change in the Bill is a new power to fence common land to prevent animals straying from it. The Bill does not provide the trust with a charter to build on the hills or to install solar panels or wind turbines all over the hills, as some of the Bill’s detractors have, rather fancifully, suggested. It is quite the opposite.
The proposed instruction by the noble Baroness, Lady Coffey, asks that the Select Committee pays particular attention to the provisions which would impede or restrict public access. I strongly suspect that public access also will be of interest to the Select Committee, and I do not intend to oppose her instruction.
Part 5 restates in modern terms the trust’s power to make and enforce by-laws with one significant change—namely, a new power to issue fixed penalties. Part 6 deals with the trust’s power in relation to land, and again makes no significant changes.
Finally, I should mention Clause 83 in Part 7, which is a new general power for the trust, akin to general powers enjoyed by other statutory bodies and charities. It is important to note the inbuilt restrictions on the use of the power, which means that any fears about the trust bypassing the provisions I have mentioned about preserving the hills cannot become reality.
The proposed instruction of the noble Baroness, Lady Coffey, touches on the scope of the promoters’ powers. I am sure that, in any event, the Select Committee will take particular interest in Clause 83 and Clause 84, which introduces a number of miscellaneous powers, all of which can be exercised only to further the objects of the trust. The noble Baroness’s instruction is based on the instruction which was passed on Second Reading of the Bill which became the Malvern Hills Act 1995. Following in the footsteps of the previous Lord Colville, as mentioned earlier, I do not intend to oppose it.
I hope that what I have said is persuasive enough for your Lordships to allow the Bill to be given a Second Reading and for it to proceed to Committee. I beg to move.
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Faulkner of Worcester, for his usual expert introduction of the Bill today. The promoters would have been hard pushed to find a more suitable and capable Peer to move the Second Reading.
Assuming that your Lordships give the Bill a Second Reading, I will then move my Motion that it be an instruction to the Select Committee considering the Bill that it considers both the precept area and the electoral arrangements. This will not prevent the Select Committee considering, subject to the Standing Orders governing its procedures, any other matters it sees fit or the many petitions that have been deposited, and the noble Lord recognised that. I am indebted to him for agreeing in advance that he will not oppose my Motion. I gently point out to my noble friend Lady Coffey that the drafting of my Motion was very carefully considered and agreed with the promoters in early February this year.
If both instructions are agreed—and they probably will be—your Lordships’ Committee of Selection will have to decide between composing a committee that is ideal for considering the electoral and precept issues or one that is ideal for considering the AONB and access aspects of the Bill, if I may put it that way. I think that the electoral and precept aspects are more important.
My interest in the Malvern Hills arose through my wife, who was born in Little Malvern, and we regularly attend local events. By chance, last Saturday, we were in Malvern and climbed the Worcestershire Beacon—my hips have just about recovered. We have no property interests in Malvern, although my wife’s siblings do.
I would like to think that I am very well briefed on the MHT. I have an open mind, but I have some serious anxieties regarding the governance of the MHT. In particular, last year, the board lost its chair in acrimonious circumstances; there were accusations that it was being run by a small group and was withholding information from certain trustees. Some trustees complained of not getting information in a timely way, or even at all. I have taken up the governance matters with the Charity Commission at the highest level, and this is no longer a matter for me to deal with—I am not equipped to deal with it, nor is it my role. It should be noted that not all trustees are in favour of the Bill. However, advice from the Charity Commission is that the decisions of the trustees do not have to be unanimous.
I echo the comments of the noble Lord, Lord Faulkner, about the operational side of the MHT. Despite a recent tragedy, I have no doubt that the Malvern Hills are being very well looked after. There is an excellent new chief executive in place. I agree that the five Acts of Parliament that govern the Malvern Hills need to be brought up to date; some of the drafting is archaic and refers to organisations that are no longer extant, and the trustees are unnecessarily constrained in what they can do.
Compared with the eight petitions in 1995, there are 50 petitions on this occasion, reflecting the Bill’s complexity and controversy. Many of them are very well argued, and I am sure that the Select Committee will look at them all carefully.
Removing “natural aspect” from the objects of the Acts and replacing it with “natural appearance” is one example of shared concerns of those living in or close to the Malvern Hills or surrounding commons. Others concern estovers and other ancient rights of commoners. In the context of the trust’s rights to grant land access easements, the residents fear that the changed wording will invalidate previous case law and counsels’ opinions on what might affect the natural aspect, leaving the door wide open for future developments to be facilitated. “Natural aspect” continues to be used and understood in the planning context and neither the conservators of Epping Forest nor of Wimbledon and Putney Commons have chosen to remove those words from their governing Acts.
An important issue raised by many petitioners is whether or not MHT is a public body. Last year, I tabled a Written Parliamentary Question on this point and it was confirmed by the Government that MHT is not a public body. However, very recently, the ONS has undertaken a reclassification exercise and determined that MHT is indeed a public body. My understanding is that the ONS did not consult with MHT before making its conclusion public, which was rather surprising when MHT is in the course of putting a private Bill through your Lordships’ House.
If it is a public body, MHT might be subject to freedom of information requests, but it is not well enough resourced to deal with them. I am not a fan of FoI, although I have used it to good effect myself. Can the Minister tell the House what she thinks the new position is regarding FoI and MHT?
Some of the petitioners make compelling arguments that MHT is a public body because it takes in the precept as its main source of income. Car parking charges are considerable, but those are for the provision of a service. Charitable income is negligible. If it was a normal charity, funders could walk away if they disagreed with how it was being run. Instead, they must pay a compulsory levy.
No doubt MHT will consider the implications of this latest development. The committee will have to consider it because there are several potential consequences; these might include distinguishing between the legal and statutory requirements of being classed as a public body as distinct from its role as a charity receiving donations. As a public body, the trustees could have a duty to the levy payers rather than acting only in the best interests of the charity—a point touched on by the noble Lord.
I have identified two major issues of concern for the residents of the Malvern Hills area; that is, the area in the jurisdiction of the trust. They are the subject of my instruction to the Committee, and they are both linked. The first is the long-standing anomaly that some residents pay the precept while others also in the MHT landholding area do not. Although existing Acts provide that the levy-paying area can be applied to commons and wastelands at any time and from time to time, the provisions have never been used. However, the new draft position at Clause 71(6) appears to give the power only on lands acquired in the future, so the residents in those existing areas will never bear a portion of the precept. I also question whether orders made by the Secretary of State under Clause 71 really require the affirmative order process.
On the one hand, the trustees recognise that some paying the levy and some not is illogical and unfair. But, of course, there is no financial advantage for them in changing this because the total precept received would remain the same but there would be some increased costs for the trust. On the other hand, existing precept payers argue that they are exposed to an increased burden on costs, especially as some 46% of the trust’s landholding is outside the precept area and the trust continues to have the power to purchase more land. Parliament owes it to residents in the Malvern area to have the matter of the precept very carefully considered.
The second issue is the electoral and appointment arrangements for trustees. The noble Lord has carefully explained the new arrangements for the trustees. The proposals to have all the levy-paying parishes combined into a single electoral area is of concern to the residents because they believe they will lose their democratic right to elect their own representative. Their concern is that the new arrangements will extinguish the practice established in 1884 of ensuring that the individual needs of the different parishes—rural, urban and agricultural—are properly considered through their local trustee. That may now become particularly relevant if MHT is a public body.
A further concern is that non-levy payers, many of whom live in the rural areas, may have no voice at all. Extending the precept area could resolve these anomalies and be fairer. Matching the precept area to the landholdings of the MHT was envisaged in the 1884 Act, because, if the conservators acquired land in the future, they had the powers to levy the relevant parishes and they would be entitled to appoint a conservator.
The removal of the 18 trustees appointed by local councils across the whole of the area under MHT’s jurisdiction, to be replaced by the appointment of six independent trustees, via a new nomination committee, from anywhere in the country with no necessary connection to Malvern whatever, will further dilute the residents’ ability to have a voice in the trust. Surely the necessary expertise could be found from within the Malvern area or at the very least from within, say, 35 miles of Great Malvern Priory and all of Birmingham.
However, the question remains whether the complete severance of the link with all local councils is the best way of managing the hills effectively. Perhaps the residents of Malvern would be better served if the trust bought in some or all such expertise as and when needed and instead increased the numbers of elected trustees to give a fairer representation.
In addition to some of the concerns that I have had time to mention, I am concerned that, over time, the new arrangements would mean that it would be too easy for the trust to be taken over by a single-issue pressure group, with serious adverse consequences—a point recognised by the noble Lord.
In conclusion, I hope the whole House will welcome the principle of having a new Bill. It is essential that we instruct the committee to look specifically at the two areas I have suggested. However, the Committee will have to consider the petitions and other matters as well, and I fear that the Committee’s task will be somewhat onerous.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Earl, Lord Attlee, who has clearly carefully applied himself to the details, in both his speech and instruction. I thank the noble Lord, Lord Faulkner, for so ably introducing the Bill.
I have the misfortune not to have a special connection to the Malvern Hills, although I have been a visitor there a number of times, but I have had representations from people who are very concerned about their future who have asked me to speak today. They are passionate about the future of the hills and they support the Bill and the way forward. A really important point, as the noble Lord, Lord Faulkner, stressed, is that this is a charity and is under the governance of the Charity Commission, which we know is important for keeping a sense of direction and for bodies following their aims.
I have to reflect briefly on why we here in Westminster are debating this Bill. According to Google Maps, it would take us one day and 20 hours to walk to the top of the Malvern Hills—I do not think I would do it in that time myself, but that is the maximum record. It would take more than four hours by public transport. That being about 120 miles, it means the average speed is 30 miles per hour, which is something of an indictment of the public transport. None the less, the question is: why do we have a system of government that means that we are here in Westminster debating the future of a local area? Would it not it be much better if it was local people having the debate in that local area? However, we are where we are and we have to do the best we can, and that is what noble Lords are doing.
There are a couple of points that I particularly wanted to make. The noble Lord, Lord Faulkner, has outlined so much that I am not going to go over anything like all the ground that he did, but it is important to make the point about the reduction in the number of trustees from 29 to 12. That figure is the maximum number generally recommended by the charity governance code and the Charity Commission guidance. I think most noble Lords in this Chamber and elsewhere will have found themselves on many governing bodies, trusts, boards, et cetera, over the years. Twelve is a very large board, and we know how difficult decision-making can be in those sorts of situations. It is also important to stress that, if the Bill is enacted in its current form, the proportion of elected trustees increases from 38% to 50%. This is a modernisation and a moving forward—that is the overall direction of the Bill—for an area that sees 1.25 million visitors a year, according to University of Bristol figures.
It is worth noting—and many people have commented on it—what a good state the Malvern Hills are in. I looked this up. The word Malvern derives from the Celtic, “moel bryn”, which means “bare hill”. That is obviously an historic name, but we know that we live in one of the most nature-depleted corners of this blighted planet. I am sure that we can do better by nature; we can do better by those many visitors, and we know how important green spaces are to public health to make those spaces as good as they can be for visitors, for the farmers, and for the communities. This is an attempt to make a step forward, a modernisation. Ideally, we would not be doing this here at all, but given that these are the rules we operate under, I support the direction of the Bill.
Baroness Thornhill (LD)
My Lords, I too thank the noble Lord, Lord Faulkner, and the noble Earl, Lord Attlee, for their more detailed and comprehensive look at this Bill. Several years ago, when I was working for the Local Government Association with councillors in Malvern Hills, I came to enjoy being in the town. I found a super B&B on the main road and particularly enjoyed the backdrop of the wonderful Malvern Hills. However, I also heard of issues and concerns—even back then—with the Malvern Hills Trust, as it likes to be known. When I saw this Bill coming forward, therefore, my interest was piqued. It did not take very long research to see that the changes in the Bill were meeting considerable opposition—and I emphasise “considerable”.
As a former elected mayor, I am no stranger to some vocal members of the public opposing any modernisation within any organisation, however they are constituted, and, indeed, being resistant to any change whatever—do not get me started on development. However, the opposition to this Bill is something of a completely different order. As a member of our office staff said to me yesterday, “I have close friends in Malvern. They said the whole town is talking about it” and the evidence confirms that they are, so the noble Baroness, Lady Bennett, should be assured that they are having the debate, but it is mainly in acrimonious public meetings.
That the House has received more than 50 individual, highly articulate, well-intentioned petitions, including petitions from the local county, district and parish councils, from former chairs of the Malvern Hills Conservatives and even from a group of current trustees is a red flag. Raising substantive concerns in respect of this Bill, they surely tell a tale in themselves. I think the House has received more petitions in respect of this Bill than it has received in total for the past 10 years for all Private Bills. That their concerns appear to be completely ignored begs the question as to the motives behind these changes. What will the Bill change? What powers is it granting that are causing such a furore of public opinion?
I do not doubt that the trust could and should be improved, which is why I am not opposing this Bill but think that it must and should be improved. However, I do believe that the trust’s PR has been dire, or we would not be in the situation that we are in now. The noble Lord said how wonderfully things have been managed and how good things are, but “Oh, but we have to change”. I would argue that the trust has not made the case for change to the general public. That is in how it has conducted its affairs and its consultation, which needs to be looked at.
It is clear that the promoters, as well as consolidating the existing five Acts, wish to be granted substantial additional powers while being governed by a much smaller and— as outlined well by the noble Earl, Lord Atlee—less democratic board. For example, if one of the six elected people stands down, the other six can appoint a person in their stead, so it is easier to be taken over by a single-issue pressure group. The evidence suggests that little, if any, thought has been given by the promoters to the substantive concerns raised by the levy-paying public in Malvern who fund this—and I am going to use the words—public body. I commend the work of the Malvern Environment Protection Group in bringing these issues to the attention of the public.
There is even a dispute as to the constitutional nature of the trust. Several noble Lords have referred to it as a charity, yet we hear that as recently as last month it was deemed by a KC to be a public body, and that is usually defined by the amount of taxation that it gets as part of its revenue—which, again, was well expressed by the noble Earl. This must be clarified, because noble Lords will be very aware that there are significant legal differences as to whether you are a public body or a charity in what you can do, what you cannot do and to whom you are accountable. This lack of clarity is making members of the public nervous and, whether rightly or wrongly, question the motives and intentions of the trustees.
This has, understandably, set hares running, and, it might seem, with good reason, because something starts to smell not quite right. As mentioned by the noble Earl, Lord Attlee, its former chair could not find out how much a senior official of her trust was being paid. We all know that if you are the chair of any board, you are responsible, so to not be able to have that information tells you that something is a bit rotten in the state of Denmark. These anxieties and fears were further fuelled when, at recent meetings to discuss this Bill and the financial arrangements regarding it, eight trustees were, in effect, gagged from speaking or voting. Moreover, in successive board meetings, the level of transparency and accountability would appear to have fallen significantly below what would be expected of any public body or, indeed, any well-run charity. In such circumstances, I am quite shocked that they are pushing ahead regardless. Surely, with this level of concern and with so many unanswered questions—including from some of their own trustees—they should think again.
Yes, I too am deeply concerned about the governance arrangements. These proposals remove 140 years of accountability to local councils and the public, which should not be cast off lightly. I sense the public feel that they have not been given good reasons for this change. “Everything’s going wonderfully; everything’s terrific; it’s all managed well, but we need to modernise and move forward”. What does that actually mean?
If power could pass to a small group of people to take over and run the trust, there is a fear that corruption will increase and of course that changes will be made to alter the nature of and access to the hills—and also that it could make significant amounts of money. The Bill erodes the rights of taxpaying residents to question and challenge this new body on how that money is spent: a right they have enjoyed for 140 years. Retaining or clarifying its status as a public body is vital to ensure that the organisation remains subject to a judicial review and the ability to be subject to freedom of information.
In summary, therefore, I welcome the proposals from the noble Earl, Lord Attlee, and to a large extent those from the noble Baroness, Lady Coffey. However, I think the issue about access, the one line in her proposal, should be left to trustees and not be down to us to dictate. I feel that we need to consider the arrangements concerning the appointment of board members and the scope of the levy-paying area. I also urge noble Lords to carefully consider the application for a general power.
What might be of interest to your Lordships—and please indulge me on this; it is probably because I am married to a historian—is that, when the Act was discussed by noble Lords in 1993, Baroness Macleod of Borve said:
“It would empower the conservators to change the face of Malvern forever”.
Lord Hampton added that the conservators were
“seeking powers well beyond those needed to carry out their prime functions”.
Lord Moran commented that there was
“no explanation of why the conservators thought that they required these comparatively sweeping powers”.—[Official Report, 8/3/93; cols. 870-76.]
These objections seem to me to be still valid because they have not been answered, because of the lack of good engagement and good consultation.
Finally, I urge the promoters of this Bill to very carefully consider the costs they are incurring. There was yet another acrimonious meeting, where questions went unanswered about the amounts of money. That too is not good. If you are funded mainly by taxpayers, they want to know what you are spending their money on and how much this is all going to cost. There are estimates that the true final cost could be well over £1 million, compared with an annual income of £1.4 million. Had the conservators actively engaged with those who articulated their concerns, I believe they would have saved themselves a great deal of time, effort and expense.
There is still an opportunity to do this now. It should never have been necessary for five trustees to have to petition this House, with the consequence that they and others appear currently arbitrarily suspended from matters relating to that Bill. I believe that the committee will have its work cut out, but, having been on a Private Bill Committee, I have no doubt that it will do it and do it well and that the suggestions for its work from the noble Baroness and others are going in the right direction.
I really feel that the conservators should answer the questions raised and conduct themselves in a more open and transparent manner than it would appear is happening at the moment. Then we can come to an amicable situation where we can satisfy most of the people. One of the things I have learned over the years in politics is that you can never please all of the people all of the time. I used to settle for pleasing some of the people some of the time.
Lord Murphy of Torfaen (Lab)
That puts a different light on things.
I support my noble friend Lord Faulkner of Worcester in supporting this private Bill. I also commend the noble Earl, Lord Attlee, for explaining his points in detail, as did the noble Lord, Lord Faulkner. I understand the points that the noble Baroness, Lady Thornhill, made about the difficulties faced in Malvern, but there are two points I would like to make.
First, the Malvern Hills really are of not just local, regional or even national significance but of international significance and importance. In a way, I suspect that, if a private Bill—which after all 140 years ago set up the trust—is to be used, it is being used because the Malvern Hills are so utterly important to our country. Like the noble Baroness, Lady Thornhill, I have served on private Bills in the other place. The Select Committees do a very thorough job and I have no doubt that the Select Committee which your Lordships will appoint to deal with this Bill will do an equally thorough job, and clearly it needs to do precisely that. Let us see what happens, but that is the mechanism we have in front of us and that is why it is such an important issue.
Secondly, I just want to touch for a few moments on why I as a Welshman am interested in the Malvern Hills: after all, we have a few hills of our own in Wales, including in my former constituency and where I live, my valley, Mynydd Maen. They rise to 1,500 feet above sea level—100 feet more than the Malvern Hills. I am not sure they are quite as beautiful as the Malvern Hills and I would not have said that when I was the Member of Parliament for that constituency.
The Malvern Hills are a wonderful part of our scenery in England. It seems to me that we are doing this, as I said, because of their huge significance and importance in our society. I fell in love with the Malverns in the 1960s, and indeed I was there during the last month on two occasions. I always remember the first time I approached those hills from Ross-on-Wye; you go up to Ledbury and see these magnificent Malvern Hills. But to me, they were always associated with my other love, Sir Edward Elgar, our greatest British composer in my view. Some of your Lordships might be—I am, certainly—old enough to remember Ken Russell’s black and white film on the life of Elgar. It opens with a young Elgar riding across the top of the Malvern Hills to the sound of the introduction and allegro. Every time I go, even now, after all these years to the Malvern Hills, that music is in my ears.
Remember that Elgar himself was a Malvern man. He lived for 76 years, and for 55 of those he lived in Malvern. His grave, and those of his wife and daughter, lie in St Wulstan’s Catholic church in the foothills, in Little Malvern. To those of us who love his music, I say that the “Enigma Variations” and the “Dream of Gerontius” were actually written, among other things, when he was within sight of the Malvern Hills. So I think there is an importance of acquainting or associating the work of this great composer and British music with these wonderful hills. That is why it is important to me.
There are all sorts of other reasons why the Malvern Hills are important. I cannot climb them; I walk them, I even ride a car across them—it is only eight miles. Nevertheless, to me, those hills are something so very special that something like this means that they deserve the sort of scrutiny and the sort of attention that a Select Committee of the House of Lords can give them.
I conclude by saying to your Lordships that in 1934, the year that Elgar died, not long before died, he wrote of his cello concerto:
“If ever after I’m dead you hear someone whistling this tune on the Malvern Hills, don’t be alarmed. It’s only me”.
Baroness Coffey (Con)
My Lords, I am delighted to contribute to this debate and it is a huge pleasure to follow other noble Lords. I think it has been an interesting exposure so far of not only the passion that people have for this wonderful part of our country but the interest in what has brought the Bill to this point.
The noble Baroness, Lady Bennett, talked about local people and the local area. Interestingly, the Malvern Hills Trust area is enveloped within an AONB but, as has already been pointed out, one of the reasons why we are in this rather unusual situation is that it was recognised, well over 100 years ago, that not only should this area be protected but that a levy needed to be created to help contribute towards that. We know that the 1949 Act allowed the creation of the national parks and AONBs, and there is something to be said here in thinking about the governance. It is not a suggestion I want to specifically recommend to this House or to the Committee, but one of the things that has come up in this situation is around governance: is it a charity, a public body or even a public authority? This special situation is why we have the Bill here today. This is not the first private Bill I have been involved in; as a Defra Minister, I was involved in the Middle Level Act 2018. It is interesting to see a DCMS Minister—the noble Baroness, Lady Twycross—here today, because of that link to the charity.
We should bear in mind that the trust itself says it became a charity in 1984 only because it was legally required to do so. The other thing that has not been set out to your Lordships today is that a different approach was considered a few years ago. In the two Charities Acts—in particular the Charities Act 2011—a process was initiated, and which went a long way, to consider whether some of these modifications could be changed, recognising the provisions that have been put in place thanks to Parliament to simplify some of this process. However, given the degree of concern and opposition, the Secretary of State at the time, through the Charity Commission, rejected the approach of taking it through the parliamentary procedure of the Charities Act, and said that it should come back as a private Bill to get the full scrutiny that the petitioners quite rightly expect.
I am very grateful to the noble Lord, Lord Faulkner of Worcester, for his expert navigation of the Bill so far, and to my noble friend Lord Attlee. I am conscious that the noble Lord has perhaps engaged more than I have in thinking some time ago about how to make the governance a particular focus of discussion. That has been a key issue which has been raised in several of the petitions.
I am also conscious of what the noble Baroness, Lady Thornhill, said, and she is right to raise those concerns. There is certainly trouble at mill. It is not a happy ship, and it should not necessarily need Parliament to be involved. However, recognising the situation we are in, and recognising that nobody wants this trust, this conservators’ body, to be collapsed and simply absorbed into the AONB, here we are. It is right that we have a Select Committee consider these important issues.
One reason I put my instruction in is because the private Bill is rarely used in Parliament. There are only a handful of other places in a similar situation, such as what happens with the Conservators of Ashdown Forest, and perhaps the New Forest—which has a far more ancient aspect of governance, but which was still put into statute. Then there is the much smaller, but still similar, Wimbledon and Putney Commons trust. What the Malvern Hills Trust has in common with the Wimbledon and Putney Commons trust is the ability to, in effect, require a levy. That is what lends itself to the governance, and to people being concerned that, under their own volition, and also by being part of the Charity Commission, the trustees, who are also the board of directors—they are holding the two posts simultaneously—are saying that they have to follow what the Charity Commission is saying, not necessarily the original status of what was put forward. That is why I understand why people are concerned that changes in representation could have an impact on the future of this very special part of our country.
As has been mentioned, there are other situations where a proportion of trustees or directors—whatever they are going to be called—are elected directly, and others are appointed. We seem to have almost a National Trust Council situation, where there is a balance. But I raise the point, which is also being put forward by some of the councils which have petitioned, that all the 29 appointed bodies today—apart from the Church Commissioners—are, I believe, elected in their own right, and will appoint somebody to do that. This is a changing point, which is why—as has been pointed out—it has attracted attention from a record number of petitioners on a private Bill. This Bill is not the same as a hybrid Bill, and HS2 certainly got more, but, according to the clerks, it received a record number of petitioners for a private Bill.
I am interested in this because it is a very special part of the country, and because, through my experience as a Minister, I understand how passionately people feel about a very special place where they live, and which they treasure and want to continue to be special. They are nervous about not only aspects of the governance but some of the clauses in the Bill. I do not know where the equivalent here of the under-gallery is, but I appreciate that the parliamentary agent is almost certainly going to be here somewhere. I am not suggesting that they are going to try to strike out a number of the petitioners, but we have already heard from the noble Baroness, Lady Thornhill, that some people who are currently on the board and have made a petition to express publicly their concerns are now in a particular procedure and process.
To that extent, one thing that can happen is that, if certain petitions are struck out, the Select Committee is not required to consider the issues that they may have raised. That is why the noble Lord, Lord Faulkner of Worcester, is accurate to say that I have basically copied and pasted—recycling is classic environmental stuff—the instruction of the departed Baroness Macleod of Borve for consideration today.
I deliberately did not put the commercial side in because I think that there is a lot of sense in trying to increase the opportunity for the trust to raise money itself in a variety of ways; at the moment, it seems somewhat constrained in that. I do not intend to go through all the different petitions, but there are some very valid discussions about aspects of the Bill. I am sure that the parliamentary agent will work with the promoters to tidy up parts of the Bill that just do not work today—there are references in it to subsections that do not exist. That is not necessarily a matter for the Select Committee, but it needs to be tidied up.
I come back to this key question about whether it is a charity or a public body. There is no actual legal definition of what a public body is. I am mindful that, in response to a question posed by my noble friend Lord Attlee, the Government said that it was not a public body. Meanwhile, the ONS has come forward to say that it is some kind of public body or public authority, and I am not surprised by that classification. I cannot think of another example—except potentially the Wimbledon and Putney Commons trust that I referred to—that can require a levy to be imposed on people and not be considered some kind of public authority. I do not want to get into the details about FoI and the like, but I notice that, on its own website, the trust refers to the fact that it is under obligation through public law regarding biodiversity. I know, because I wrote that obligation. I passed that regulation myself, and it is only for what are considered to be public authorities.
Although the Bill puts in a lot of powers to the Secretary of State, it is unclear right now—I would be grateful if, when she speaks, the Minister could clarify—whether that means it is the Secretary of State for Culture, Media and Sport or the Secretary of State for Defra who will make these determinations in the future. It is those sorts of things that, as a consequence, have got people’s backs up, because this is where part of the governance element comes through, when it is said, “You’re not here to represent areas; you’re here to do what the charity says”. This is why this really does need some careful scrutiny. My noble friend Lord Attlee has put down a perfect instruction. Mine might have been copied and pasted, but it was made with the intention of making sure that other issues that have been brought forward by the petitioners are carefully considered.
I am conscious that access is a really important matter of debate. There has been a recent Supreme Court ruling, again, linked to legislation in this House— I am of course referring to Dartmoor. That legislation and that Supreme Court ruling do not apply anywhere else in the country. They apply only to Dartmoor, and that is because of the wording of the Act. That is why, overall, I really am keen for the Select Committee to consider carefully all the factors that petitioners have raised, and why I have put forward an instruction to make sure, in spite of what other processes might go on in Parliament, that these are considered.
I do not intend to oppose the Second Reading of the Bill, and I hope that the Committee will give it fair consideration on behalf of all the petitioners and, importantly, on behalf of Parliament.
Lord Hampton (CB)
My Lords, in speaking in the gap, I apologise for not putting my name down. I did not think that I was going to have time, but it turns out that I do. I must also declare an interest that I grew up within sight of the Malvern Hills and I went to school in Malvern Link and in Malvern Wells.
The noble Baroness, Lady Thornhill, slightly took the wind out of my sails by quoting my father, but I will quote a little more of what he said at Second Reading on 8 March 1993:
“I love the hills as they are and I do not anticipate with pleasure any major change. I have not followed the arguments in the Malvern Gazette as carefully as perhaps I should have done. I was first alerted to the proposals by someone who said that the Malvern Hills conservators were seeking considerable extra powers to build houses, offices and warehouses, to make roads and to fence areas off”.
I will, if I may, also quote my cousin, Baroness Macleod, in the same debate:
“However, my noble friend will know that if the Bill goes through in its present form it is possible, and even probable, that the Malvern Hills will be ruined forever. That is one of my reasons for putting down the Instruction to the Committee. Worcestershire is the most lovely county and the Malvern Hills the most beautiful range of hills in the country … I start with Clause 3, which is the first clause that matters. It would empower the conservators to change the face of the Malvern Hills forever. They would have the power to build a McDonald’s, a Little Chef, and fish and chip shops. All of those eating places are welcome in the right place, but not on the Malvern Hills”.—[Official Report, 8/3/1993; cols. 864-70.]
We had dire predictions in 1993 but, when I was there last, the Malvern Hills were as beautiful as ever. There is always a suspicion of change when anything comes in but, as it is, this seems a very sensible Bill.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Baroness Twycross) (Lab)
My Lords, I am pleased to have the opportunity to contribute to an important and interesting debate on a much loved and important British institution—or rather, not necessarily an institution, but the hills themselves. I thank my noble friend Lord Faulkner for his explanation of the Bill and its importance to the Malvern Hills Trust. I am also grateful to the trust for preparing a briefing note for Peers on the Bill explaining its aims and key provisions. As my noble friend Lord Faulkner said, the Malvern Hills are a spectacular area rich in wildlife and much loved by local communities and visitors alike. As my noble friend Lord Murphy said, they are a wonderful part of our scenery.
As my noble friend Lord Faulkner outlined, and as was referred to by a number of other noble Lords, the Malvern Hills Trust has been endowed since 1884 with the responsibility of protecting and managing the iconic Malvern Hills—not only an area of outstanding natural beauty but one of only 159 national character areas as well as a site of special scientific interest. I note that the Bill will not alter the trust’s core charitable purpose of protecting, maintaining and conserving the natural aspects of the hills and keeping them unbuilt-on as an open space for public recreation.
The noble Baroness, Lady Bennett of Manor Castle, noted that the intention of the Bill is modernisation. DCMS will always welcome charities working to ensure that their governance follows the best practices of charity law and governance. It is clear from the number of petitions that there is significant local interest in the Malvern Hills Trust and the importance of observing open access to the hills for future generations. I particularly enjoyed the contribution of the noble Lord, Lord Hampton, in the gap. It must be unusual to have your father quoted in a debate from decades ago, and even less usual to be able to quote two close relatives from the same debate.
I also thank the noble Earl, Lord Attlee, and the noble Baroness, Lady Coffey, for the instructions they have tabled. These will ensure that the Bill receives detailed scrutiny as it proceeds to Committee. I thank the noble Earl, Lord Attlee, for asking about the implications of the recent Office for National Statistics decision to classify the Malvern Hills Trust as a public body. As the noble Earl said, the ONS recently announced that it has classified the Malvern Hills Trust as part of the local government sub-sector of the public sector for the purposes of economic statistics. I am grateful to the noble Earl for helpfully drawing this to my attention. It will be for the Malvern Hills Trust itself to consider what, if any, implications this classification decision has for the charity. In response to the point made by the noble Baronesses, Lady Thornhill and Lady Coffey, I can say that it is perfectly possible to be both a charity and a public body.
In answer to the noble Earl’s point about the extent to which the MHT will be subject to the Freedom of Information Act 2000, the ONS classification does not mean that the Malvern Hills Trust is subject to that Act. Separate legislation would be needed to bring the trust within the scope of Freedom of Information Act requests. The noble Baroness, Lady Thornhill, raised the number of complaints and petitions from local residents against the Bill, which was alluded to in a number of speeches, including that by the noble Baroness, Lady Coffey. It is clear that there is significant local interest in the role of the Malvern Hills Trust in preserving the Malvern Hills for the benefit of future generations. This level of public interest is to be welcomed. I note that a large number of petitions have been lodged against the Bill, and I would encourage the trust to work with petitioners to respond to their concerns and find workable solutions.
The noble Baroness, Lady Thornhill, raised the use of the general power in Clause 83, and asked whether it was required. General powers are very common in the charity sector. The Charity Commission’s published model governing documents for charities includes a general power. In relation to the Malvern Hills Trust, the general power could be used only to further the charity’s work in pursuance of its charitable objectives and would not alter anything in the way in which the sale of land and the granting of easements are dealt with.
The noble Baroness, Lady Coffey, asked why the changes proposed were not being made through secondary legislation. Given the nature of some of the charity’s proposals, coupled with the strong public interest locally, DCMS and the Charity Commission agreed that it would be more appropriate for those measures to be delivered through a private Bill. This approach allows greater scope for public and parliamentary scrutiny and debate than would be the case under a Section 73 procedure, whereby such measures are not always debated in Parliament. The noble Baroness also asked which Secretary of State was being referred to. It would be the Secretary of State with policy responsibility, so primarily Defra in most instances, but MHCLG in others.
As noble Lords will know, the Government do not adopt a position on private Bills unless a Bill contains provisions considered to be contrary to public policy. We take the view that this Bill does not contain any such provisions. Therefore, as is the tradition with private Bills, the Government will not be adopting a position on this Bill. I am sure, however, that the trust will want to reflect carefully on the points made by noble Lords in today’s debate as the Bill proceeds to Committee.
Lord Faulkner of Worcester (Lab)
My Lords, may I say how delighted I am by the tone and content of every speech made in this debate, particularly that of my noble friend the Minister? She answered a number of the issues raised by others as the debate has gone on, which I therefore do not need to repeat now. What I would like to do, though, is first to endorse what my friend Lord Murphy said about the international status of the Malvern Hills—the fact that it is wider than Malvern, wider than Worcestershire, wider than the West Midlands. They are an international icon, and it is the determination of everybody concerned with the trust in future to make sure that that goes on.
The noble Lord, Lord Hampton, talked about his ancestor—his father, I assume—and the dire predictions he uttered in 1993. It is interesting that the hills have not been ruined over the last 32 years: there is no McDonald’s or Kentucky Fried Chicken there. The hills are in as good a condition today as back in 1993, and the Bill today is to modernise the governance and levy-paying arrangements and to ensure consultation with local residents. I note what the noble Baroness, Lady Thornhill, said. She is a great critic, I think, of the trust and of the consultation, but it is fair to say that the trust went to great lengths—
Baroness Thornhill (LD)
I am a critic not of how the trust has managed the hills’ affairs—the general management —but of how it has managed the Bill process. I hope that that came across to everyone. I would not dream of commenting on that; I am not in a position to do so.
Lord Faulkner of Worcester (Lab)
I am grateful to the noble Baroness for her clarification, but she is presumably aware that 15,000 leaflets were distributed to households in the area. Posters were put up, businesses and cafes were leafleted, there were advertisements in the local press and on social media, and there were drop-in sessions. With an issue like this, you cannot please all the people all the time—which is, I think, almost exactly the words she finished her speech with—but I am certainly satisfied that it has done the best it could. I am certain that the points that have been made in the debate tonight will be taken on board by the Select Committee, which will look at the petitions and consider all the other points that have been made today.
The noble Earl, Lord Attlee, whose contribution I am delighted to pay tribute to—his interest in the formulation of the Bill deserves the highest praise—expressed concern about the possible dominance of single-issue candidates such as those, perhaps, who oppose further housing in their area. I imagine that the committee will consider this in detail, but there are one or two points that can be made in response. First, this could happen where there is a single electoral area, as proposed in the Bill, or, as now, where candidates are elected by individual parishes or wards. It is also worth bearing in mind that the exercise of democracy and the election of trustees has not been entirely without problems. One example is that under the present arrangements, most seats go uncontested: eight of 11 seats were uncontested at the last election. If interest in the election can be enhanced by the creation of a smaller board of trustees, then that change is worth while.
I do not intend to answer the question, “public body or charity?” The Select Committee will want to look at that, but it seems to me that it does not have the dire consequences that some people think.
As for the levy, which the noble Earl, Lord Attlee, mentions in his instruction, it is important to remember that the trust is under a constraint which means it cannot incur expenditure on promoting provisions in the Bill which are materially different from the existing levy legislation. The Bill brings together the existing levy arrangements into one clause with modern drafting and preserves the status quo.
The noble Baroness, Lady Coffey, briefly turned to the Dartmoor judgment, the question of open access and the freedoms which visitors on Dartmoor have. The trust has been studying the judgment and it will obviously take account of any elements that have implications in the drafting of the Bill; and it is something I imagine the Select Committee will want to hear about. However, the existing Malvern Hills legislation and the by-laws make provision to prevent camping on the hills, so I cannot see the Malvern Hills being turned into a giant campsite as a result of the Dartmoor judgment.
I hope that either the Minister or I have been able to address most of the points that are of importance to noble Lords. The promoters of the Bill have, as I mentioned earlier, continued to work hard to conserve the natural beauty of the hills, and I am delighted that so many of your Lordships have referred to their natural beauty. But the time has undoubtedly come to modernise the way the trust is constituted and to update and consolidate its powers.
Alluding to my predecessor in moving a private Bill on the Malvern Hills, the noble Viscount, Lord Colville, I hope that your Lordships will see that as a matter of principle, it is wholly reasonable to try to bring the legislation up to date, subject, of course, to getting it right. As a number of noble Lords have said, that is the point of a Select Committee procedure. I hope, therefore, that noble Lords will give this Bill a Second Reading and establish the Select Committee. I beg to move.
Earl Attlee
That it be an instruction to the Select Committee to whom the Malvern Hills Bill is committed that—
(a) notwithstanding that the promoters themselves are under a restriction which prevents them from promoting provisions in the Bill which would have the effect of changing the existing levy arrangements materially, the committee considers the provisions in the Bill relating to the levy paying area; and
(b) the committee considers the provisions in the Bill relating to the composition of the board of the Malvern Hills Trust and the proposed arrangements for electing and appointing trustees.
Baroness Coffey
That it be an instruction to the Select Committee to whom the Malvern Hills Bill is committed that—
(a) the committee considers to what extent if any the powers proposed to be granted by the Bill go beyond what is necessary for the Malvern Hills Conservators (to be renamed under the Bill as the Malvern Hills Trust) properly to manage the land within their jurisdiction; and
(b) the committee pays particular attention to the provisions which would impede or restrict public access.
Special Educational Needs: Dyscalculia
Baroness Bull
To ask His Majesty’s Government what provision is in place in schools for identifying and supporting students who have special educational needs, particularly dyscalculia.
Baroness Bull (CB)
My Lords, it is a privilege to introduce this debate, the first in either House to focus on dyscalculia, and I look forward to the contributions of all noble Lords on a range of educational needs and disabilities. I am grateful to the Dyscalculia Network, Michela Barbieri, Professors Brian Butterworth and Jo Van Herwegen and Doctors Kinga Morsanyi and Carla Finesilver, on whose work I will draw.
Two years ago, Rishi Sunak announced his “maths to 18” proposal, and my 10 year-old great-niece lost no time in explaining the impact it would have on pupils like her who struggle with maths. Till then, I had never heard of dyscalculia, and I soon discovered I was not alone. Everyone I asked returned the same blank stare. Dyslexia, yes. Dyscalculia? No.
I found no definition of dyscalculia on the DfE website and no guidance for parents and teachers, and no mention in the NHS A to Z of conditions, although dyslexia and dyspraxia are there. Hansard records that while 459 MPs and Peers have raised dyslexia, only 13 have ever mentioned dyscalculia. My biggest surprise was to find that teachers—even maths teachers—do not learn about dyscalculia while training, despite prevalence rates of one in 20 suggesting there is at least one dyscalculic child in every classroom across the UK. With similar rates to dyslexia and impacts as severe, dyscalculia’s low profile is hard to explain.
Dyscalculia is a specific neurodevelopment condition with a biological basis. You are born with it, and it lasts throughout life. Maths learning difficulties exist on a spectrum, but the 2025 SASC guidance says that the defining factor in dyscalculia is
“a pronounced and persistent difficulty with processing numerical magnitude”,
despite adequate intellectual ability and age-appropriate education. Put simply, dyscalculic pupils are more likely than typical learners to struggle to understand place values and the ordering and structure of numbers. This can affect their ability to recognise which of two numbers is greater, even when they are orders of magnitude apart, such as 100 and 10,000.
For most of us, this is hard to imagine; we take for granted that adding two numbers makes a larger one, but for someone with dyscalculia it is as nonsensical as suggesting that adding A to B results in a larger letter. They may also fail to intuit number-pattern links—for example, needing to count the corners of the square to know there are four. As a result, dyscalculics may rely on finger counting and struggle to remember number-based facts or estimate quantities. These challenges spill over into other subjects and everyday tasks such as managing time and money.
Without effective intervention, dyscalculia is likely to impact educational, career and even health outcomes, and it is not a massive leap to surmise that the well-evidenced effects of low numeracy could be even more significant for those with dyscalculia, particularly as they are so rarely diagnosed and supported. Most experts agree that targeted interventions improve outcomes, and the earlier they start, the more effective they will be. Mathematical development is like a staircase—each step depends on the one below.
But early intervention depends on early identification, and formal diagnosis is rare—a dyslexic child is 100 times more likely to be diagnosed. Dyscalculics say diagnosis helps them get the right support, understand their struggles and avoid the shame of being labelled “stupid” or “lazy”, but the £900 cost is often beyond reach. This points to school as the place where dyscalculia might first be identified, underlining the pivotal role of SENCOs and teachers.
The Government’s position is that all teachers are teachers of special educational needs. The new framework for initial teacher training and early careers deliberately does not detail approaches specific to particular additional needs but prioritises high-quality teaching as key to addressing SEND. Schools are required to identify needs and implement personalised support plans that meet the unique needs of individual pupils. In principle, this approach is laudable; in practice, it works only if all teachers and SENCOs can recognise specific learning difficulties and are up to date on interventions for support.
For dyscalculia, this is not the case. A 2023 study found that 43% of teachers were not familiar at all or only slightly familiar with dyscalculia, and both teachers and SENCOs are likely to harbour myths about the condition. A study this year found no relation between knowledge about dyscalculia and years spent teaching, indicating that knowledge is not required through daily work and highlighting the importance of CPD. This is doubly concerning, because while the new framework does contain more content relevant to supporting students with SEN, it implies that learning about specific needs will be covered primarily during school placements, whereas, as we know, knowledge and awareness are likely to be low.
This is not a criticism of schools and educators—rather, of the inherent logical lacuna in government’s approach. In a climate of low awareness, and absent any training on dyscalculia and how it manifests, how can this condition-blind approach to teacher training deliver a learning experience that meets the unique needs of dyscalculic pupils?
I ask the Minister: how will the Government review the effectiveness of the framework in delivering for pupils with specific learning difficulties? Will they consider dyscalculia screening alongside the year 1 phonics check to enable early intervention? Will they review the take-up of the relevant CPD and promote the use of educational resources such as UCL’s ADD UP toolkit?
Throughout the school journey, standard maths teaching and assessment unintentionally disadvantage dyscalculic pupils because of the sheer volume of content and pressure to get to the right answer fast. Research suggests that the best methods to teach dyscalculic pupils have no place in the classroom for typical learners: they take time, focus on fundamentals and often involve revisiting material the wider class covered years earlier. Assigning a teaching assistant to work one-to-one on what the others are learning en masse is unlikely to work. The TA may well not be aware of dyscalculia, and just trying harder is not the answer to a learning difficulty.
But perhaps the biggest barrier to the dyscalculic learner is maths GCSE, which functions as a gatekeeper to A-levels, to all manner of degree courses and even to careers in the Armed Forces. In 2024, 40% of students in England failed maths GCSE and, at resit, 80% failed again. This dispiriting cycle of repeated failure impacts mental health and creates barriers to opportunity that may even breach the Equality Act 2010. The case for reform has been made by the OCR exam board and the Science and Technology Committee of this House. Will the Government listen to growing calls to introduce accessible alternatives to maths qualifications that focus instead on functional skills and real-world numeracy?
In repeatedly highlighting differences with dyslexia, I do not suggest that one condition be prioritised over another but, rather, that research and understanding of dyscalculia lags 30 years behind. Will the Government commit to closing the funding gap between dyslexia and dyscalculia? Will the DfE move to collect differentiated data on specific learning difficulties so that we can see dyscalculia prevalence and co-occurrence? We cannot know what we do not measure.
Over the last two years, I have come to suspect that dyscalculia suffers because of a societal acceptance of poor numeracy that we would not countenance for literacy. We would never accept that a child could not learn to read and write, and yet being bad at maths is seen as normal. Literacy and numeracy are equally important to life chances, but literacy is so often prioritised. Indeed, the new teacher training framework has multiple mentions of literacy and nothing on numeracy. It is deeply ironic how often successive Governments point to the importance of STEM in addressing the challenges of growth, innovation and productivity, while failing to grasp the UK’s stubborn problem with low numeracy, which affects over half the adult population.
It is against this backdrop that dyscalculic children must try to have their needs identified, understood and met. Some have the great fortune of supportive parents or a teacher who gets it, but others do not. Even where there is support, we should not underestimate the isolation, stress and anxiety of learning with dyscalculia. I do not doubt the intentions of the Government or the commitment of schools and teachers, but unless steps are taken to increase the awareness and under- standing of dyscalculia among policymakers, educators and the wider community, dyscalculic learners will continue to have the odds stacked against them.
Some 17 years ago, the Government Office for Science recommended that, because of its low profile and high impacts, dyscalculia should be raised as a government priority. The Government then, and Governments since, have all failed to act. I ask the Minister: will this Government be the one that make the difference?
Baroness Thornton (Lab)
My Lords, I am very pleased to take part in today’s debate for two reasons, the first of which is personal. After 27 years in your Lordships’ House, I had not anticipated that I would talk about this. I failed my maths O-level four times and still managed to get good enough A-levels, including one in economics, to be accepted at the London School of Economics and Political Science. On reflection, I seem not to have had problems with concepts, but I did have problems with numbers. Nevertheless, the lack of a maths O-level means that, today, I would not even be allowed to take my A-levels, let alone be admitted to the London School of Economics.
When I was a Government Minister, I occasionally told my officials that any important numbers that I had to speak aloud needed to be put in words as well as in numbers, as I had a tendency then—and still do now—to reverse them. Telephone numbers are a particular issue. A close member of my family has long been diagnosed with dyscalculia as well as dyspraxia, with the two often going together. They had a maths tutor from the age of 11, whose job it was to get them through their maths GCSE—with success. But that of course is not open to most families.
Secondly, the article by the noble Baroness, Lady Bull, in the House magazine in March absolutely hit the spot. My friend, Emeritus Professor Brian Butterworth, is one of the founding fathers of the modern approach to mathematical cognition. His expertise in this area and that of his colleagues mean that we are all very well briefed indeed.
This is a timely debate and one that I hope will push the policy agenda forward. The priority here, as the noble Baroness, Lady Bull, has explained, is to seek recognition for those who struggle with maths in the same way in which we recognise the importance of support for children who have speech and language delay and for those who are dyslexic. This recognition needs to be built into our SEND programmes. I need reassurance from the Minister over the Neurodivergence Task and Finish Group, established by her department to provide advice and recommendations on how best to meet the needs of neurodivergent children and young people within mainstream education settings, which seemed at the outset not to include children with speech and language development challenges and, most relevant to this debate, children with developmental dyscalculia. Can my noble friend assure the House that this issue has been remedied?
The noble Baroness, Lady Bull, has explained eloquently what dyscalculia is, and surely the fact that this affects the numeracy skills of between 4% and 7% of children, thereby reducing the probability of them achieving five or more good GCSEs. That significantly reduces education and life chances, which highlights the inequality faced by this cohort of children, young people and adults. It is important and requires the Government to do several things. Fortunately, much of the research and work has already been undertaken. For example, in 2020, the paper Current Understanding, Support Systems, and Technology-led Interventions for Specific Learning Difficulties drew together for the Government’s Office of Science at the time a series of four rapid evidence reviews to help inform a project carried out by the then Prime Minister’s Council for Science and Technology. The paper explored how technology and research can help improve educational outcomes for learners with specific learning difficulties, including dyscalculia. The proposal for action in this paper and many other documents provides a good pathway for dealing with this challenge.
Does my noble friend the Minister recognise the need to give developmental dyscalculia legal status as well as an official definition in the UK? Will the Government be developing the policy framework from which action can flow—such as teacher training, special needs assessments and advice for parents, to name just one or two? Is any consideration being given to this issue in the SEND review taking place at the moment and as described by the noble Baroness, Lady Bull? Raising awareness of this condition, as Dyscalculia Day will do, is the first step towards creating an environment in which all children are given the support they need and deserve to fulfil their potential and live the life they want to lead.
Lord Hampton (CB)
My Lords, it is always a pleasure to follow the noble Baroness, Lady Thornton. Like everyone here, I thank my noble friend Lady Bull for her strenuous efforts to get this important topic debated and her thought-provoking opening speech.
As ever, I must declare an interest in that I still teach weekly at a state secondary school in Hackney. I am actually a teacher of maths—15% of the design and technology curriculum is maths based—and I have to admit that I did not know much about dyscalculia before researching for this. An irony here is that dyslexia is difficult to spell and dyscalculia is tricky to say. What is it about these learning disabilities that we have to give them such complicated names? I am told it rhymes with Julia, so I have to keep on remembering that.
At school, I talked to the head of SEND and was told that we assess for dyslexia but not dyscalculia. If there are concerns about dyscalculia, which are rarely reported and usually flagged by parents, as opposed to teachers, we usually advise that they self-refer through their GP. In maths, students are placed into sets according to their year 6 CAT scores, and additional support is then given according to need.
But there we have a problem: according to the recent letter from the House of Lords Science and Technology Committee to the Secretary of State for Education, the Government are
“failing to recruit as many maths teachers as it has targeted for over a decade, and almost half of all secondary schools needing to use non-specialist teachers for maths. It is part of a wider shortage in STEM graduates going into teaching (and being retained in the profession)”.
Once you have non-specialist teachers teaching maths, there is inevitably going to be a drop in levels of help for those who struggle most in maths.
The Dyscalculia Network puts it more starkly:
“In recent published data around Prison education 55% of prisoners who lack a maths qualification had a Learning Difficulty confirmed at their initial screening. Once identified, these people often went on to obtain maths qualifications, ranging from Entry Level through to Level 2. They experienced success. The issue is not in Prison education; the problem sits in lack of recognition of maths learning difficulties in previous educational settings”.
I return to the House of Lords Science and Technology Committee:
“Our witnesses argued that the rigid focus on obtaining a Grade 4 at GCSE in the current educational system disadvantages many students. There is an argument for the creation of a widely recognised, criterion-based, functional mathematics qualification in the UK that allows school leavers and adult learners alike to demonstrate the numeracy skills needed for life. This could be set up by dividing the GCSE curriculum into functional mathematics, with a practical focus on applying the basics, and more the abstract, pure mathematics required for further study, or through expanding and formalising existing criterion-based numeracy qualifications”.
This is actually what I teach in design technology, both at GCSE and A-level. All the maths problems are based on real-world product design issues: the amount of varnish needed to coat a table, the tessellations of a product to save material or the amount of sheet metal that you would have to order for a production run. This means that even those students who find maths boring or difficult can see how the maths will help them in their design—how different from a student who finds maths difficult or even impossible facing a double GCSE maths lesson on a Monday morning.
The maths curriculum needs to change, I have long argued that children should be taught how to build and populate a calculating spreadsheet in year 6. They would love it and see the point to it, rather than fearing Excel, as most adults do.
The Dyscalculia Network goes on to say:
“All citizens need foundational mathematics skills and general quantitative literacy for daily life, including personal finance and general employment. We need mathematics curricula that set people up for life and tools to support those that struggle”.
By insisting on a rigid maths curriculum, we are failing not only those with dyscalculia and many different types of neurodiversity, but anyone who thinks vaguely differently from the norm.
Baroness Coffey (Con)
My Lords, when I saw a debate about special educational needs and dyscalculia, I thought, “Wow, what a wonderful combination here”. The noble Baroness, Lady Bull, who introduced the debate today was kind enough to recognise the desires of my right honourable friend Rishi Sunak when he introduced the Multiply scheme. Unfortunately, the funding has ended for that. It was a genuine attempt to recognise that numeracy is not all about getting A-levels in maths and was really important to help people prosper in this country in their own lives and in aspects of productivity that have been referred to.
I have not heard of this before, but it has long been recognised that people, to some extent, reach a certain level in their capabilities on maths. As has already been eloquently said, we do not just assume that because people do not grasp instincts straightaway you do not try to help in that regard, such as how you work out whether something is a square or not.
It has to be said that sometimes it feels that in parts of our education, looking for differentiation by child, quite rightly, trying to recognise that there are seven different ways of learning can be quite a struggle when putting together a lesson plan, but it is important that teachers do that. I value not only what happened in my childhood but what I see in schools in different parts of the country.
It is good to see the noble Baroness, Lady Blake, in her place. Having been a council leader, she had not only the statutory duty for children but considerable knowledge of how to be practical in how we help children reach their full potential and recognise some of the challenges of special educational needs being mainstreamed, but also how wonderfully it can be addressed. I am delighted also to see my noble friend Lady Barran, because she and I discussed a particular matter which I will be raising regarding the future of a special needs school in Suffolk.
Going back to these challenges about numeracy, I was also struck by what the noble Lord, Lord Hampton, said about non-specialist teachers, in effect, and teaching CDT, I think he said. I must admit that I found numbers very easy when I was a child, but when I got to A-level it started getting a bit complicated. It was only when I went to university and I had an engineer as a tutor that I actually got the whole concept of mechanics. I wish I had had that, in a way, rather than the specialist maths teacher, with whom, however they tried in my sixth form, I just could not quite grab the concept on some of the points. There is an element to what he suggests—using practical solutions or examples is a good way to engage people who do not necessarily follow the traditional way of learning.
I was also struck by what the noble Baroness, Lady Thornton, said about, I think, her fourth attempt to pass her O-level—I assume it would be, although I do not wish to be ungracious to her. I think there is something here about what we do in setting qualifications. One of the challenges when I was at the DWP—we went through this in quite a lot of detail with employers when we were trying to get people back into work, particularly after Covid—is that when we were engaging with employers, routine job descriptions would normally include two things. Everybody had to have a driving licence, and everybody had to have GCSE English and maths. Quite regularly, we would say, “Why? That job does not need you to drive, and you may need to be numerate and do other things, but does it really require you to have a specific qualification?” The noble Lord, Lord Hampton, referred to qualifications. I think there has been developed a practical qualification that is equivalent to a GCSE, and that is a good thing and something we should continue to stress.
I am conscious that there has been a significant increase in awareness of children with special educational needs, and we have been through a variety of phases of what has happened about so-called mainstream schools—they are just schools, as far as I am concerned, for a neighbourhood; ideally, equipped to teach every child in that community—and how we try to accommodate those children who do not fit the norms, as has already been adequately said.
The vast majority of people in this country really struggle with anything to do with maths beyond the basic GCSE. That is why we should be reconsidering how we continue to support the strengthening of teaching that is available—particularly, I would say, in primary school, not just in secondary school—thinking about how we build those foundations and why I hope that the Government will reconsider aspects of something like the Multiply programme in recognising the opportunities that will bring for prosperity for all.
I turn finally to the situation in Suffolk. I respect that the current Government have to assess programmes, but in the town where I live, a school that had acquired a specialist interest in special educational needs was also a free school, and it ended up that it just was not viable in quite the way that it had been. My noble friend Lady Barran agreed, after careful consideration working with officials, that a particular site—the site of Saxmundham Free School—should become a special educational needs school for provision for the east of Suffolk. There is another one in Felixstowe run by the same trust.
It is my huge disappointment that, although that school closed in the summer of last year, there was quite a lot of deliberation about whether a new school needed to be built on a site that was there. The clear intention was that there would be a school ready to open this coming September. I am sad to say that there is no such school. I posed a Written Question to the Department for Education on this and it is still saying, “We’re still considering this”. There are a lot of children who desperately need some specialist support, as well as children in neighbourhood schools. I would really encourage the Minister to take back from this debate my real concern about the children in east Suffolk; I hope that that Saxmundham school site can be opened as quickly as possible to provide special educational support for those children who desperately need it.
Baroness O’Loan (CB)
My Lords, I thank the noble Baroness, Lady Bull, for bringing this debate before your Lordships tonight. It is profoundly important. As we have heard, dyscalculia is a profoundly difficult condition that has many different consequences for the child who suffers from it. In many cases, dyscalculia is accompanied by other conditions such as dyslexia and dyspraxia—or DCD, as that is sometimes called.
In these few minutes, I will concentrate for a moment on the impact of some of the less well-known consequences of dyspraxia. Dyspraxia is often described as clumsiness or, more specifically, the inability to manage gross and fine motor movements: the child who cannot carry a cup of tea to his mother without spilling it, who has difficulty riding a bike, who falls regularly, whose handwriting is difficult to decipher and looks very untidy, sometimes with bits of the words missing. The United States National Center for Learning Disabilities says that dyspraxia
“can interfere with virtually all areas of a child’s life: social, academic, athletic, pragmatic. Difficulty with fine motor integration affects a child’s writing, organization on paper, and ability to transition between a worksheet or keyboard and other necessary information which is in a book, on a number line, graph, chart, or computer screen”.
Dyspraxia is caused by neurological difficulties that disrupt the usual pattern of brain activity so that messages from the brain are transmitted in a disordered way, often leading to major difficulties, particularly in the classroom. Children may suffer from audio and visual processing disorders. Children with dyspraxia are often highly intelligent and develop coping strategies but, really, they need help. I will give noble Lords an example. A little child with dyspraxia does not necessarily hear what is said to her in the manner in which the sentence is spoken. If a teacher says four things, the child may hear, “Open your book. Look for the words which are nouns”. Because of the condition, they may be incapable of receiving and restoring the end of the instructions: “Draw a circle round each noun, then look for the adjectives and do the same thing”.
What often happens then is that the child asks the person sitting next to them what the teacher said. That child will tell them—maybe fully, maybe not. Then the child cannot do the work properly, so they have to ask again, or perhaps look at what the other child is doing to make sense of what they are being asked to do. In many cases, such children are described as disruptive, lacking attention and possibly having ADHD. The child knows that they are not capable of doing what is being asked of them and can become very discouraged, affecting their whole educational progress.
A child may be able to read a book, but dyspraxia can affect their ability to read off a whiteboard or a blackboard. The child may be simply unable to understand what is on the board and what they are being asked to do there. For some children, dyspraxia is accompanied by dyscalculia. For others, it is accompanied by dyslexia. For some, it is both. Imagine being a little child sitting in a classroom where what is going on is shrouded in mystery, confusion and incompleteness.
The Dyspraxia Foundation reports that children with dyspraxia are less likely than their peers to achieve five or more grades 9 to 4 at GCSE. The link between qualifications and earning potential is very well known to all of us. Parents seeking help will eventually want to acquire an EHCP—an education, health and care plan, formerly a statement. This is a long, difficult and complicated process. If the child is given an EHCP, it will specify what is required and funding may even, but not always, be provided to the school.
The problem for many parents is accessing the diagnosis of these conditions. A child can wait years to see an educational psychologist, a paediatrician or an occupational therapist. What plans do the Government have for improving access to diagnostic facilities and thereby enhancing the experience of a child with these difficulties, both in and outside school?
Occupational therapy is key to providing help and identifying the impact of the condition on each child. However, a recent survey by the Royal College of Occupational Therapists showed that 86% of therapists reported an increased demand for OT services within the preceding 12 months, and 79% reported that people were presenting with more complex needs because of delayed interventions. This is another regrettable example of our failing and broken healthcare provision. What plans has the Minister to enhance the level of provision? Even getting a private assessment is very expensive: around £900 outside London, maybe £1,000 inside London.
Teachers need additional resources, and very often those resources are not available. Inclusiveteach.com gives a list of ways to improve the learning experience of children with dyspraxia. They include adapting your teaching methods; breaking down tasks into small steps, so that children with dyspraxia can remember and work through them; providing additional time; using assistive technology such as speech-to-text software; encouraging peer support and providing peer buddies to give assistance with tasks, et cetera; and, probably most importantly, promoting self-esteem and emotional well-being, so the child is not frustrated and does not lack confidence because of their difficulties, and celebrating their achievements and helping them understand that everyone has difficulties and challenges in life.
Much work has been done to identify processes which will assist the child to realise their full potential. Often, the adjustments are not very costly, but the recognition of the problem and the identification of its impact on a child is hard to access. Left unassisted, these children may even abandon education; helped, they can achieve much. Increasing provision for helping children is not only an investment in their future but may well enable them to make the contribution to society of which they are capable and which society needs.
Lord Mott (Con)
My Lords, I would like to take this opportunity to thank the noble Baroness, Lady Bull, for securing this important debate but, more importantly, for making me aware of the many challenges that thousands of schoolchildren suffer from every single day.
I am taking part in this debate not only as a parent but as someone who has dyslexia. I was pondering whether I should make a confession after the noble Baroness, Lady Thornton, made hers a little earlier. I only managed to take my GCSE maths exam three times. I never quite managed to get to the fourth occasion—but, who knows, in later life I might decide to take GCSE maths for a fourth time.
The challenges that I faced in my early days at school, when I spent time in what was described then as a special class, were a bewildering and confusing experience. I am very pleased to say that, since then, special educational needs provision has changed for the better. The experience I faced growing up helped me understand my eldest daughter’s journey, as she is dyslexic. I was able to see the early signs—the confusion, frustration and the quiet resilience needed to thrive in an education system that was not built with her in mind—and help to support her.
But I have also seen what happens when support is in place. Her confidence grew, her ability shone through and the label of difficulty became a gateway to understanding. Much of the support came from her parents, who are often forgotten in the journey but are, in my view, fundamental. That journey taught me something deeply personal: if it is recognised and supported, difference does not need to mean disadvantage.
Today I want to turn to a specific learning difficulty that affects the ability to understand numbers and carry out basic arithmetic. It is often described as the mathematical equivalent of dyslexia, yet in terms of awareness and support, it lags far behind, as we have heard this evening, and that is what I want to focus on. I can say to the Minister that I will not be asking for huge amounts of extra money, but I have one or two suggestions that may start to make a difference to children, families and our communities.
Up to 6% of the population may be affected by this learning difficulty—roughly one child in every classroom—but it remains underidentified, misunderstood and rarely provided for. Although the SEND code of practice recognises it, in practice many teachers are not trained to spot it, as we have already heard. We must ensure that initial teacher training and ongoing professional development include strategies for recognising and supporting children.
The awareness now common with dyslexia must be extended to mathematical learning difficulties. Parents often face lengthy delays accessing assessments, or they are told that their child’s struggles are not severe enough to qualify. In some areas, no assessment is available at all. That is totally unacceptable.
I recently had the pleasure of meeting a company based in west London, delivering its EHCP tool to local authorities in the SEND and education space. The tool brings together insights from professional reports, analyses them using AI and drafts personalised high-quality EHC plans, cutting down the time spent on manual writing and giving SEND teams more capacity to focus on children and families. Educational technology can play a key role. Tools now exist to help detect related problems and tailor learning to each child. These platforms can flag up issues early before a child reaches crisis point, and offer multi-sensory, scaffolded approaches proven to help. But schools need access to these tools and training to use them effectively.
Sadly, many parents are left to navigate the system alone, with inconsistent advice and little clarity. We need better signposting, clearer communication from schools and consistent local support. Parents must be seen as partners, not obstacles, in the process of identifying and meeting children’s needs. In supporting parents with more information, I believe that we can start to make a real difference. It was my own experience that helped me support my daughter, but many others were able to understand. Awareness takes the pressure away from our schools and our teachers. They must play a key role, but I want parents and grandparents to understand how they can not only provide support but understand the signs and start the early intervention that is required at home.
Awareness is the foundation of change. Without it, this problem remains invisible to educators, policymakers and, too often, the children themselves. A survey in 2023 of UK teachers highlights the problem, with over 40% not being familiar or slightly familiar with it. Let us compare that with dyslexia, where just 15% were in the same position. This is not a surprise, as awareness around dyslexia is strong. I am looking forward to attending an event tomorrow evening that Channel 4 is hosting to hear more about Jamie Oliver’s struggle with dyslexia. I also look forward to the noble Baroness, Lady Bull, perhaps hosting an event next year with Channel 4, to which we could invite Bill Gates, Robbie Williams or perhaps even Cher.
I urge the Government to support a national awareness campaign, in partnership with educational charities and neurodiverse advocates. This could include training for all school staff, public information materials and visibility at leadership level. Let us give teachers the tools, parents the clarity and young people the confidence they deserve. With understanding comes opportunity—let us offer both, to every child in every classroom.
Baroness Hunt of Bethnal Green (CB)
My Lords, I join others in thanking the noble Baroness, Lady Bull, for securing this debate and for her relentless efforts to raise awareness and understanding of this most overlooked of subjects. I share some of the difficulties in pronouncing it, but I will do my best: dyscalculia. I refer to my register of interests and declare that my King’s College intern, PhD student George Kinkead, a maths teacher for over a decade, has told me about his experiences and what might help. I reflect his views in this contribution.
When considering this debate, I was shocked to discover that despite dyscalculia being as common as dyslexia, dyslexia is 100 times more likely to be diagnosed. I am dyslexic and I was lucky—I went into a small room with a lovely woman who tried to teach me to juggle. We did things differently in Wales. I remember the matter-of-fact way it was established that my reading up and down a page rather than across, my difficulty following a sequence of instructions, and my ongoing need to hold my left hand up in an L-shape to establish which was the left side, simply indicated that I worked in a particular way.
My love of stories broadened my vocabulary, so the apparent problem I have with simple word recognition was alleviated. Old English posed some challenges in my first year as an undergraduate, but I suspect they were exacerbated by the access to a subsidised bar that came into my life at the same time.
My point is that a diagnosis of dyslexia was helpful. It helped me, my teachers and my parents alter our approach to my learning, and it meant I did not lose my confidence when I took a different route to get to the same place as my peers. I suspect that the lack of stigma around dyslexia that perhaps existed for my generation has led to some of the creative solutions we have seen to it. My computer is well equipped with different packages that enable me to type and read in a different way. I have had acetates to lay over things since I was quite young. The same innovation has not happened around dyscalculia.
It is clear from what we have heard so far in this debate that the woefully inadequate diagnosis of dyscalculia is exacerbating the lifelong exclusion that children can experience if their challenges are simply dismissed as ineptitude. My clever PhD student, George, explained to me that, as the noble Baroness, Lady Bull, said, maths is hierarchical. Unlike other subjects, each topic builds on foundational skills. Missing even a short period of instruction can prevent future learning. If one finds long division in primary school utterly baffling, the quadratic equations that come in year 8 will be a complete mystery: failure builds on failure. A simple diagnosis and a shift in approach as a result can help children. Instead, as we have heard, children feel incapable, tell themselves that they are useless and are ruled out of careers because of it.
The pressure on teachers is immense and requests for additional training seem never-ending. But it seems that even a most cursory introduction to dyscalculia would be of benefit to pupils and teachers, support early diagnosis, and help to restore confidence to those pupils who are ruling themselves out at a young age. In 10 years as a maths teacher, George has never received any statutory training on dyscalculia.
It is also clear that the transition from primary school to secondary school creates another risk for pupils. Research conducted by Glencross and Wallen in their 2020 study on transitions from primary school to secondary school found that informal personal knowledge about individual learning support is often lost, which can be especially challenging for students with neurodiverse conditions.
I wonder whether an opportunity is presented by the proposed introduction of the single unique identifier in the Children’s Wellbeing and Schools Bill. The Government are rightly taking care to think about what data about children should be saved and shared, and it is perhaps possible that sharing information about neurodiversity, including dyscalculia, can help schools support children to keep working through those mathematical hierarchies even if they change schools.
I hope that the noble Baroness, Lady Bull, achieves her aim of ensuring that dyscalculia becomes a government priority. It has historically been a low-profile issue that is perhaps now slightly higher profile as a result of her efforts and this debate. But it is clear that some simple arrangements can make a significant difference to young people in this country.
Lord Shinkwin (Con)
My Lords, I congratulate the noble Baroness, Lady Bull, on securing this debate. I also thank her for educating us. I have to confess that I had never heard of dyscalculia before preparing for tonight’s debate. If the excellent briefings produced by our Library and the Dyscalculia Network are anything to go by, I am in good company.
I relate to the issue on two levels, both personal. First, as a disabled pupil today, I would probably be assessed for SEN support. As a child in the 1970s and 1980s, such provision was not available, at least not to my knowledge. What was not so much available as expected was that all disabled children should be sent to special schools and segregated. I mean no criticism of special schools, but I will always remember my mother, who spent a lifetime in teaching, being horrified when the headmaster of one special school boasted that, the year before, a pupil had achieved one CSE.
My limited time at that special school, when I had to use a wheelchair full-time following yet another fracture, made an indelible impression on me. Even as a 10 year-old, I was aware of the low expectations. It was just assumed that disability was synonymous with underachievement. Indeed, the title of the noble Baroness’s article on PoliticsHome of March this year,
“Dyscalculic children have been let down for too long”,
could so easily have been applied to children with disabilities generally. They were let down by the system. Helping children with SEN realise their potential simply did not come into the equation.
I like to think that the damaging culture of low aspiration which informed such attitudes then is being challenged by teachers and SEN co-ordinators now. I want to put on record my recognition that they do incredibly important work, and I take this opportunity to thank them for responding to what, at the end of the day—and I know from my parents that a day in the classroom is often long and always demanding—has to be a vocation. Ultimately, a good teacher answers a vocation to help shape a child’s future and instil in them a belief that they can make a worthwhile contribution to life, especially beyond school.
Secondly, I relate to the issue as someone who got an A in Latin O-level and a C—just—in maths. Indeed, my maths teacher had so much confidence in my innate ability with figures that he decided he would enter me for both O-level and CSE. I scraped a pass in both, but he obviously was not taking any chances. As with the noble Baroness’s nieces, my heart sank when a previous Prime Minister made great play of his plan for all children to be required to study maths beyond GCSE. My own experience—and, I believe, the experience of other noble Lords who have spoken in tonight’s debate—is that, however much we would wish otherwise, our brains are wired differently. Maths is simply not for everyone.
That would appear to be especially the case for children with dyscalculia. As someone who really struggled with anything numerical at school and knows what it is like to have one’s confidence undermined, both because of the unkind taunts that go with the territory of living with a disability and, specifically, because of finding maths so challenging, I hate to think of how much the one in 20 children with dyscalculia must suffer, and, worse, how much their suffering is compounded unnecessarily by ignorance.
Of course, teachers and SENCOs are not to blame if they are not aware of dyscalculia, but surely that only underlines the strong case that noble Baroness, Lady Bull, has made for improved support, particularly the call for mandatory training in dyscalculia for teachers. Does the Minister agree that these children need to be taught that dyscalculia is not their fault and that they have potential worth realising? It seems to me—and, I suspect, to other contributors in tonight’s debate—that their life chances depend on it.
Lord Tarassenko (CB)
My Lords, I too congratulate my noble friend Lady Bull on securing this debate and making such a strong case for action in just under 10 minutes.
On Monday, we released the final report of the Maths Horizons Project, which I have had the privilege of chairing for the past eight months. This project has taken an in-depth look at the maths curriculum and assessment, with a view to informing the Government’s review chaired by Professor Becky Francis.
The abilities of children in our schools for any characteristic follow a Gaussian distribution, probably better known as a bell curve. In the Maths Horizons Project our aim has been to try to identify strategies that would help not only those in the top two deciles for mathematical ability but those in the bottom two deciles—the bottom 20%—who would have failed to get a grade 4 in maths GCSE even after multiple resits.
Our second recommendation—out of seven—we believe will help both groups. It is:
“Rebalance content from upper primary to lower secondary, allowing more time for knowledge to be secured when it is first introduced”.
Giving more time to teachers to focus on core concepts in early primary school would provide children the opportunity to develop and embed the foundations they need.
The better balance of content between upper primary and lower secondary will also enable high attainers not to become bored and lose interest in maths during key stage 3, as often happens today, when much of the current teaching focuses on revisiting key stage 2 content. The main benefit, however, will be for those children who struggle with mathematics for more general cognitive reasons. Although it is unlikely to be sufficient for children with severe number-processing difficulties—and I have waited that long to introduce dyscalculia—we identified this group as a special group in our Maths Horizons Project.
Three numbers have kept coming up in this debate. With a prevalence of about 5%—the first number—it is likely that there is at least one child with dyscalculia in every class of 30, the second number. Although the prevalence of dyscalculia is similar to that of dyslexia, a child with dyscalculia is 100 times—that is the third number and probably the most shocking—less likely to be diagnosed. But it is encouraging to be able to report some recent progress here. A member of the executive group for the Maths Horizons Project, Professor Camilla Gilmore from Loughborough University, has been part of a working group developing an up-to-date evidence-based dyscalculia diagnosis methodology. This was released in March this year by the SpLD Assessment Standards Committee.
This enables a solution to the issue of diagnosis but does not deliver it as there is a lack of suitable training for dyscalculia assessors. Most current SpLD assessment training courses leading to an approved qualification focus on literacy skills and the identification of dyslexia, with very limited content on mathematics, so I urge the Minister to intervene to ensure that approved qualifications also include the identification of dyscalculia.
Another recommendation of the Maths Horizons Project would increase the likelihood of diagnosis. Our fourth recommendation is to introduce
“low-stakes gateway checks of fundamental knowledge, to be administered nationally at specified points in new knowledge-progression maps”.
A low-stakes gateway check at key stage 1 would allow teachers to identify at an early stage those children who are struggling to grasp foundational concepts in mathematics, meaning that a diagnosis of dyscalculia could be made between the ages of five and seven. Of course, we should acknowledge—as has been pointed out—that problems will persist, even with high-quality specialist intervention following a diagnosis.
When a child with dyscalculia reaches secondary school, the interventional strategies could include apps that run either on a smartphone or a computer tablet, such as an iPad. Earlier, it was my pleasure to meet some people with dyscalculia here in the cafeteria, and some of the young ones told me that they do use apps to help with their dyscalculia. The Maths Horizons Project team was broadly in favour of digital tools for education, provided that these are introduced in the classroom in the right way, at the right time and in a carefully sequenced progression.
If you look on the web, you will see there are plenty of apps to help children with dyscalculia that can be downloaded from the Apple App Store or the Google Play Store, but only those that are high quality and evidence-based should be used. A simple measure that the Department for Education could take would be to establish a working group to make recommendations that will help parents and teachers identify suitable apps.
As we have heard, we have made huge progress over the last 20 years in diagnosing and supporting children with dyslexia. For a child with dyscalculia to thrive, early identification is also likely to be crucial. Low-stakes gateway checks at key stage 1 would help to spot those in need of an up-to-date assessment. This would require one or two teachers per school to be sent on training courses to gain an approved qualification that focuses on dyscalculia. Simple, low-cost intervention strategies with counters can help children at primary level who have had a diagnosis, before they are supplemented or replaced by evidence-based digital tools at secondary level. It is now time for children with dyscalculia to be given the same opportunities to progress through our education system as children with dyslexia.
Lord Addington (LD)
My Lords, first, I declare my interests: I am dyslexic, I am president of the British Dyslexia Association and I am chairman of a company that deals with assistive technology. Having done that, I welcome two more Members to the “mafia of misspelling”. We would take over the world, but one of us would jot down the name of where we had the first conspiracy wrong and the other one would misread it—so you are comparatively safe for a bit.
When she started this debate, the noble Baroness, Lady Bull, put her finger absolutely on why this is important: the gateway subjects to progress in this country are GCSE maths and English, and this has driven much of our recent education policy. If we ignore that reality, we are not going to get anywhere. The noble Lord, Lord Hampton, mentioned that we are now moving back towards more practical-based, relevant knowledge-based subjects. Everything he said about maths being a practical subject has been said to me about English. It may have been a great original thought, but I am afraid he has friends out there.
I thought that I was the going to be first person to speak about technology and apps, but no, somebody has beaten me to it. I am not sure whether this is irritating or reassuring, but there is a degree of consensus here. We have to work around this problem. If we still take these two subjects as roadblocks, we are going to have problems. It is also fair to say that, in our society, it has been more acceptable to be bad at maths than bad at English.
Those are the two gateway subjects, but you used to be able to get around it and say that it was fine and did not matter. Good old sexism also kicked in: we do not spot girls with special educational needs as easily because they tend to handle the classroom better and do not kick off as much. All these are reasonably accepted factors. However, to deal with this, if we accept that we need education to happen, we have to start taking the maths side more seriously. The first thing the Government could do is to say that dyscalculia is the appropriate word or come up with another one, because it is not recognised at the moment. That is a small change, but if the Minister could address that in her answer, it would be very helpful. I would like a reason why it has not happened yet, because it is just a word.
If noble Lords think that this does not matter, let me take them to a conference. It is a dyslexia conference but, hey, the BDA does cover dyscalculia on its website and does work on it, so we are not all bad; it is not often that I say that we have come across as the big bad bully who gets all the attention. Had noble Lords been with me at this conference, we would have got to the great bane of the modern education system—the lawyers, making presentations about how you get your education, health and care plan. This was at the start of the process, because we needed them to fight through. This lawyer said, “Oh no, you don’t need that, because dyscalculia is a special educational maths problem”, and he went on for about half an hour. Of course, everybody is going to learn that, are they not? One word really would help. If it is not dyscalculia—I thought I had problems with pronunciation, but it would appear that I have cracked this one and others have not—could we come up with another one or a better definition?
Knowing and having a reference point will help, because you will know what to refer back to. Saying that it is “dyslexia with numbers” does not help. As it was explained to me, it is about finding the actual concept of mathematics very difficult—the difference between one and many and everything in between, or having problems with counting backwards. You cannot do it, and you have to start again; you just do not get the concept.
Although the Government have made this wonderful statement that every teacher is a teacher of special educational needs, if they do not know what they are doing then I would wish that they were not. Sticking with English and maths, they will have already failed in these two basic subjects. If you have already failed in a classroom and the help is more of the same, you will get more failure. We must remember that we need specific help for this; we cannot use the same apps or the same teaching techniques. We must address that. If we are to have this wonderful change, with everybody teaching special educational needs, where is the training? Where is the focus? Where is the training to do no harm—to borrow from medicine? Let us not compound failure. I thought I might make a joke about it taking me only three attempts to pass maths, and mine was only a CSE, but let us forget about that.
We have to think about how to address this problem properly. It is not about having more of the same, and it is not “Try harder”—I am very glad that nobody here has said that. As the noble Lord, Lord Shinkwin, put it, it is about expectation. We need to make sure to move the barrier to allow somebody to have realistic expectation. I have not said anything about dyspraxia; we will save that for another day. Making sure that the teachers know what they are doing is the first step.
Baroness Barran (Con)
My Lords, it is a pleasure to speak in this debate, so ably introduced by the noble Baroness, Lady Bull. She rightly brings the House’s attention to the important issues of SEND in general and dyscalculia in particular. Maths is of course a vital area for securing economic growth, and I would like to pay tribute to the work done by the Maths Horizons Project, chaired by the noble Lord, Lord Tarassenko, on maths education in the age of AI.
Nationally we have seen great progress in recent years in our international rankings for maths, being a top country outside south-east Asia, and with a marked improvement in the last 30 years in the standard pass rate for maths at GCSE to around 80% by the age of 19. But when we turn to the wider issues facing children with special educational needs and disabilities, the situation is much less rosy.
The system we have created to respond to children with SEND is a product of the Children and Families Act 2014. Before the 2014 reforms the SEND system was widely criticised for being fragmented: education, health and social care operated separately in different silos. It was described as bureaucratic and slow, parents suffered lengthy delays, and it was very complicated to get any support. Families felt disempowered and unable to input into decisions that affected their children. As my noble friend Lord Shinkwin said, the system was low in ambition; there was a culture of low expectations.
As we know, the Act introduced education, health and care plans, support to the age of 25, the concept of co-production with families, and the requirement for local authorities to publish comprehensive information about available SEND services. I labour these points for two reasons. The first is that across this House we all know that the system we have today is not working well, but it is a function of these reforms. They look so sensible on paper, yet in practice they have created a set of incentives that ended up pointing in the wrong direction.
I dwell on this also because the Government are currently taking action. We are debating, in the Children’s Wellbeing and Schools Bill, major reforms to safeguarding systems, and I know they are planning to bring forward further reforms in relation to special educational needs. I think that will be later this year; maybe the Minister can confirm the timing.
Whether in relation to the broader reforms or to specific interventions for dyscalculia, it is important that we test and pilot and really are confident, and that we focus on implementation. The importance of that cannot be overstated. The noble Baroness, Lady Bull, has rightly focused this debate on the resources in schools to identify special educational needs and to support students with a range of needs. She mentioned some of the changes made under the previous Government to the early career framework and the support for early-career teachers. Those were bolstered by an investment in early years SENCOs and a revised practical SENCO qualification.
Some of the problems that we still face go beyond those reforms. I will touch briefly on two areas in particular. First, most of the discretionary funding in the system is available for children with an education, health and care plan, and there is no real incentive for successful early intervention to support children with special educational needs and integrate them into mainstream education without an EHCP. Because of the shortage of places in specialist schools, which my noble friend Lady Coffey mentioned, we need to be able to integrate more effectively and incentivise schools to deliver effective early intervention.
Secondly, there is no equivalent of the National Institute for Health and Care Excellence for SEND. I am told repeatedly by school leaders that some of the support suggested for children, including those with dyscalculia, has literally no evidence base to support it—but if it is on the plan they have no choice but to deliver it. All too often we see the least qualified members of staff in a school being allocated to a child with complex needs, when actually that child needs much more specialist support. I would grateful if the Minister could comment on whether that is on the shopping list of things that the Government might consider in their reforms.
In closing, I echo some of the questions that have already been put by other noble Lords. Will the Government consider a formal definition of dyscalculia? Will they respond to the call by the noble Baroness, Lady Bull, to track the incidence of cases and indeed the impact of interventions to support those children? As my noble friend Lord Shinkwin said, this is all about securing opportunity for children—something that, across the House, we can all support.
Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
My Lords, I begin, of course, by expressing my gratitude to the noble Baroness, Lady Bull, for opening this important debate on supporting children with special educational needs and disabilities generally and particularly those with dyscalculia. I know she is a champion in this space, and for all those who struggle with maths, and obviously has personal experience. She has raised this on several occasions, and we all thank her for that, and I know that she is not going to give up either. She has identified herself as a real champion and I am sure there are many people who are grateful to her for that.
I thank all noble Lords who have contributed to the debate. I will not be able to respond to everything in the short time I have, but I value the richness and, in particular, the honesty from lived experiences, which make these debates so real and so important. We are talking particularly about children, about their progression into being young people, into the world of work, into adulthood, and we should always keep that at the absolute centre of everything we do.
Just referencing a couple of very quick points, I think that the insights of the noble Baroness, Lady O’Loan, on self-esteem were critical, as was the personal testimony of the noble Lord, Lord Mott—I think he has set something in motion, with a potential event in the future. The noble Baroness, Lady Hunt, spoke about juggling; I am going to keep that in my mind’s eye going forward, although it certainly would not have worked for me, I have to be honest.
I thank the noble Lord, Lord Shinkwin, so much for his honesty about his experience with maths. Maths can be tough in many different ways and there is that whole issue of making sure that we instil confidence and make young people realise that so many things are not their fault. I thank the noble Lord, Lord Addington, as always: we await with interest to hear about additions to his mafia.
I want to be clear from the start that this whole area around SEND is an absolute top priority for this Government, and I hope that the announcements that the Government have been making have made that clear. I appreciate the honesty from the noble Baroness, Lady Barran. I think we can all see that the SEND system is on its knees, and we have to be honest about that. Children’s needs are not being met. Parents are forced into a position of fighting for support. As a local authority leader, I know that only too well, as well as all the issues around funding that go with it.
We have put at the centre of our plan for change making sure that we restore the trust of parents and making sure that schools in particular have the tools to identify and support children before things get to a crisis point. We want to commit to ensuring excellence for everyone in every area that we cover, and nowhere could be more important than that. I hope that that is appreciated and that it is reflected in the extra funding that we have been able to put in thus far, both on the teaching side and on the capital side, which of course is incredibly important.
Our ambition reflects the many reports that have highlighted the challenges facing the SEND system. It is difficult for parents, carers and young people to navigate, and outcomes for children can be very poor. I am pleased that the Education Select Committee is undertaking its own inquiry, which is underscoring the significant challenges we face.
I repeat that it is a priority for the Government that all children receive the right support to succeed in their education and lead happy, healthy and productive lives. I reassure the noble Baroness, Lady Coffey, that special schools will always have a place in this system. I cannot go into detail about specific sites, but there will be many, and they are all of course being looked at and worked out in terms of priorities.
We know that it takes the whole school workforce to help children and young people thrive in education. I mean the whole range, from teachers and teaching assistants to support staff, special educational needs co-ordinators, early years educators, and as we have heard from the contributions, allied health professionals. We are investing to improve outcomes and experiences right across the country. Of course, specific professional development training will be key to this.
I agree with the noble Baroness, Lady Bull, and my noble friend Lady Thornton on the importance of early intervention. It is critical to prevent unmet needs escalating. This is often referred to for early years educators, but early intervention with any problem as it arises is critical. We have to address emerging needs through early years work. We have launched new training resources to help them support children with developmental differences and announced further training places for early years SENCOs, for example, targeted at settings in the most disadvantaged areas.
I am sure Members will be aware of the work around the national professional qualification for SENCOs, to make sure that they get the additional knowledge and skills that they need. We are supporting the kind of teaching that will support children with SEND, including those with dyscalculia.
High-quality teaching is critical, as we know. Recruiting and retaining expert teachers is fundamental. We cannot get away from this, which is why we are committed to recruiting an additional 6,500 new expert teachers across secondary and special schools and in our colleges over the course of this Parliament, and, as I have said, introducing a range of training reforms to ensure that teachers have the skills to support all pupils, including those, I stress, with dyscalculia. It is an area which will move up the agenda as we talk about our general approach to SEND.
I thank the noble Lord, Lord Tarassenko, for sharing his experience in the important project that he has been involved in. We are also funding the maths hubs programme, a school-led network aimed at improving the teaching of mathematics for all pupils in publicly funded schools. This includes training and making sure that learning is sequenced coherently so it makes sense to pupils. That is what has come across, and through that, recognition and understanding of the needs of children with dyscalculia are going to be fundamental.
The noble Lord, Lord Hampton, raised the importance of maths in transition. We need to make sure that we have the appropriate online provisions as well. The noble Baroness, Lady Bull, mentioned the key point about qualifications linked to the curriculum assessment that is happening in the review we are undertaking, which will come out in the autumn.
We are well aware that support given across the system is variable and we want a consistent, inclusive approach to supporting neurodivergent children and young people in mainstream education. That is why we are delivering the PINS programme, deploying specialists from both health and education workforces to upskill primary schools to support neurodivergent children—I hope that answers the points raised by the noble Baroness, Lady O’Loan, and the noble Lord, Lord Mott.
The whole-school approach is so important, so we are not reliant on a specific diagnosis. That has come up several times and we must recognise the support and the range of needs that are out there. Not waiting for a diagnosis and getting early support in right across the system—effective early identification—are absolutely key to this.
Our Neurodivergence Task and Finish Group will be building on this and providing further insights on what provision and support in mainstream educational settings will look like within an inclusive system. We have been gathering evidence from across the piece. Professor Guldberg, the chair of the group, recently met stakeholders with lived experience, particularly representatives of those with dyscalculia and the Dyscalculia Network.
I thank the noble Lord, Lord Hampton, again, for his contribution to the teaching profession and his dedicated interest. It is important to hear this. Just picking up one of his points: in all of this drive to improve teaching, AI should be seen as a really valuable tool in helping us go forward.
I could say a lot more on the curriculum and assessment review, but we will get other opportunities to move that forward. Responding to my noble friend Baroness Thornton, I agree with her analysis, and that of the noble Baroness, Lady Bull, that dyscalculia has not received the same recognition or attention as dyslexia or those who struggle with speech and language. I also agree that parents should not need private capital to pay for specialist maths teachers and they should get the support as a right. That is why we are investing in the school workforce, to meet the needs of all children, including those with neurodivergence such as dyscalculia, and we are investing in our maths hubs and early intervention, with the needs of children at the heart of it.
I am very conscious that my time is coming to an end, but, in closing the debate, I will say that we must recognise those working across all of the systems, in the interests of our children and young people. The knowledge and understanding of children with SEND are increasing.
I want to reinforce the reason we are reforming the SEND programme. I cannot be specific about when that will come, but it is urgent. Another important aspect is that we want to make sure that we pull together children with lived experience and put their voices at the heart of everything we do. We are committed to an approach rooted in partnership, with all our work across the piece being guided by this, making sure that front-line professionals, leaders and experts listen to children and their families. We will work together in an integrated way going forward. We can transform the outcomes of all young people with SEND only if we listen and work together on solutions.
Again, I make a special plea. We all know that effective early identification and intervention can reduce the impact of the special need or the disability in the long term. There is so much evidence around this. We all have an obligation to move forward, working within the community, and improving inclusivity and expertise so that we can move forward. Again, as well as the noble Lord, Lord Hampton, I would like to pay tribute to those professionals who have worked tirelessly to help move this forward. We have several reviews coming forward and I know we all look forward with interest to making sure that our part of that interest is reflected in the reforms that we need to make, improving lives and improving the life chances of so many young people.