Arrangement of Business
The Deputy Chairman of Committees (Lord Young of Cookham) (Con)
If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Public Authorities (Fraud, Error and Recovery) Bill
Monday 9th June 2025
(1 day, 19 hours ago)
Grand CommitteePublic Authorities (Fraud, Error and Recovery) Bill 2024-26 View all Public Authorities (Fraud, Error and Recovery) Bill 2024-26 Debates Read Hansard Text Amendment Paper: HL Bill 96-I(a) Amendments for Grand Committee (Supplementary to the Marshalled List) - (3 Jun 2025)
Baroness Finn
Member’s explanatory statement
This amendment seeks to probe where the Government expects it would be appropriate for the Cabinet Office to retain a recoverable amount which has been recovered on behalf of another public authority.
Baroness Finn (Con)
My Lords, our amendments in this group seek to understand the sort of relationship the Government envisage between the PSFA and other public authorities, how the PSFA is to be resourced and sustained, and how we can incorporate greater independent oversight into how the PSFA will cover its costs.
Last week, our discussions covered the effect of the costs of counterfraud investigations undertaken by the PSFA on other departments and public authorities. As our Amendment 8 recognised, the Bill’s current proposals permit the recovery of costs by the Cabinet Office from public authorities, which could potentially be to their detriment. As we and the noble Lord, Lord Vaux of Harrowden, pointed out, this could create a direct disincentive for those authorities to do the right thing and could lead them to fail to refer cases to the PSFA.
As it stands, the PSFA, as constituted under the terms of the Bill, cannot undertake proactive investigations into public authorities even if it has information which constitutes reasonable grounds for an investigation. This places a massive burden of trust on public authorities to refer themselves to the Cabinet Office before an investigation can begin. This burden of trust is often open to abuse, as my noble friend Lord Maude of Horsham demonstrated to the Committee in his interventions last week.
The Bill creates an additional and major disincentive for public authorities to do the right thing and invite an investigation because, under the its terms, it is likely that they will also be left out of pocket. As we will no doubt hear again in the spending review later this week, money is incredibly tight. Why would any public authority invite the Cabinet Office to undertake an investigation into fraud in its department, given that this would likely cost it money—something the Government have not denied and something they are unwilling to protect against? Amendment 23 seeks to understand this question further and is intended to provide the Government the opportunity to outline when they believe the Cabinet Office would seek to retain funds recovered on behalf of another public authority.
Can the Minister assure the Committee that if the money allocated to a public authority is retained by the Cabinet Office following a counterfraud investigation, this will not come at the detriment of any policies, programmes or schemes the authority in question was planning or already had in progress? Counterfraud investigations should deter fraud, combat wrongdoing and recover funds. If money has been allocated to a public authority, it seems both sensible and correct that any money recovered should be returned to the relevant authority and not siphoned off into the Cabinet Office.
I understand that Clause 10 states that agreement must be reached between the Cabinet Office and the relevant public authority before any money can be retained by the Minister. However, if a public authority has been subject to a counterfraud investigation, is the Minister certain it will have adequate agency in this discussion to make the case that it should have its money returned to it?
Let us imagine that a council has been subject to a counterfraud investigation by the PSFA. The money has been recovered; those responsible have been removed from office and have been subject to penalties under the terms of the Bill. There is no reason to suspect the council is at risk of being defrauded any further, but the reputational damage has been done. The council may even have lost money to the PSFA under the terms of the Bill, stretching its budgets even more tightly. The council is in a desperate situation, but it has done the right thing. The PSFA is asking to keep the money it has recovered.
Is the Minister certain that, in negotiating with the Cabinet Office over this question, a council in this state would have the capacity, resources and, crucially, agency and perceived legitimacy to do so? What are the reasons the Cabinet Office would give to justify why it needs this money? Would this be a conversation the council could expect to do well in or is this pretty much a done deal—the PSFA will keep keep the money it has recovered and the conversation would be more of a formality? Clarity on these questions now will help us and public authorities understand where they stand in these discussions and the extent to which the Cabinet Office will seek to augment its own budgets as a result of claiming funds originally allocated to public authorities.
In a similar vein, our Amendment 25 seeks to ensure greater oversight of the amounts that can be claimed by the Minister when undertaking their functions and exercising the powers provided for in the Bill. The Minister in the PSFA appears to be in a position to determine their own costs and to recover them under the powers outlined in Chapter 4 of the Bill. Our amendment seeks to incorporate greater oversight in this process, and to ensure that there is a check on the Minister’s powers to recover amounts, by introducing a role for a recognised judicial authority. Requiring a court or tribunal to award the reasonable costs incurred by the Minister will prevent the Minister charging potentially unreasonable costs without appropriate oversight. In our view, this is a sensible measure; we hope that noble Lords will support it and that the Government will adopt it as a sensible check on the power of the Minister under this part.
Our amendments in this group provide the Government an opportunity to address some questions that we have around where the money recovered from counterfraud investigations goes and whether the Government are confident that the discussion between public authorities and the Cabinet Office on this question will be a fair one that ultimately benefits the taxpayer. Furthermore, our Amendment 25 seeks to incorporate greater independent oversight over the amount of money that can be recovered as costs to the Minister to make sure both that this is proportionate and reflective and that there are safeguards on the power of the Minister; I hope that the Government will seek to incorporate it. I beg to move.
Lord Palmer of Childs Hill (LD)
My Lords, I see the first amendment in this group as a purely probing amendment to try to clarify matters; I trust and have every hope that, in the debates on the Bill, they will be clarified.
I ask the mover of Amendment 25 and the Minister to clarify something. I wonder about the change to the end of the amendment, which says
“awarded by a court or tribunal in relation to costs”.
I would have thought that that was covered already under Clause 13(2)(b)(i), which refers to
“costs that are awarded by a court or tribunal on or in relation to a claim for a recoverable amount”;
I agree with that. Then there is sub-paragraph (ii), which is about the Minister exercising their powers. Is that not covered by paragraph (b)(i) without adding it to (b)(ii)? This is a purely technical point because I think that it is there already.
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
Good afternoon, my Lords. I think that we are going to be as speedy as we were last week; the Chief Whip will continue to approve.
The amendments tabled by the noble Baroness, Lady Finn, and the noble Viscount, Lord Younger, would create additional burdens for the court system. They would also challenge the future viability of the PSFA and, therefore, its central mission of tackling public sector fraud.
Before I move on, I want to respond directly to a point made by the noble Baroness, Lady Finn. I believe that what is at stake and what is really being contested here is a matter of approach. As I said in Committee last week, being invited in to investigate by a government agency ensures a collaborative approach. We are hoping that, by working with government agencies rather than imposing ourselves on them—this is what we are learning through our current test-and-learn approach—the agencies will engage with us, meaning that we will be more likely to succeed in getting the evidence base that we need to determine the fraud.
On the specifics, the powers in the Bill let the PSFA investigate fraud against the public sector. A key rationale for this must be the deterrent effect. The PSFA must, therefore, be able to recover the money lost so that it can be used for public good and ultimately show fraudsters that their ill-gotten gains will not stay theirs for long. It is only reasonable that an element of costs recovery for the PSFA is part of this process. Amendment 23 would remove the ability of the PSFA potentially to charge for its services in future. The PSFA will act on behalf of other government departments, developing the expertise and capability required effectively to investigate fraud and recover the money lost. Providing the option to keep some of the recovered funds, subject to agreement with the public bodies concerned, will help fund the development of this expertise and will provide value for money for government and the taxpayer.
I reiterate this point to provide a level of clarity on the issue highlighted by the noble Baroness, Lady Finn. The PSFA would seek to recoup its costs and not necessarily to retain all the funds awarded. We will agree a portion with the public agency that we are acting on when the PSFA takes the case. That will be agreed in advance.
Amendment 25 limits how the PSFA can recoup reasonable costs incurred in exercising the Chapter 4 recovery powers, meaning that only a court or tribunal can award them. There is already scope in Clause 13 for courts and tribunals to award costs in relation to a claim brought by the PSFA, as highlighted by the noble Lord, Lord Palmer. However, this amendment would limit the operational flexibility of the PSFA and create extra burdens on the court system if we had to keep going back to the courts for all costs. A key aim of the Bill is to minimise the burden on the courts while ensuring that there are ample safeguards and protections in place. We already stipulate in the Bill that any costs charged have to be reasonable; we will be transparent about how we work out reasonable costs in our published guidance. However, we should always remember that investigating fraud and recovering losses is an expensive business for the Government. It is not fair that these costs are shouldered by law-abiding citizens. If you have committed fraud against the state, you should pay for this.
On how the PSFA wants to charge for its services, it is important that we recognise that, regarding money between departments and the impact on value for money, it is not uncommon for departments to charge each other for their services. The impact assessment sets out how the powers in the Bill will support the PSFA to recover up to £53.7 million over 10 years under current modelling. A significant proportion of this would otherwise have been lost to government. We create value for money by bringing funds lost to fraud or error back to government so that they can be used for public good. I hope that that explanation reassures the noble Baroness, Lady Finn, and that she will therefore not press her amendments.
Baroness Finn (Con)
I thank the Minister for her response. On the point raised by the noble Lord, Lord Palmer, we are looking at amending Clause 13(2)(b), on the relevant costs awarded in subsection (1) by a court or tribunal. The costs that are reasonably incurred by the Minister exercising powers in Chapter 4 are not determined by a court or tribunal, and the amendment seeks to see whether the tribunal should also play a role under subsection (2)(b).
As we conclude the discussion on this group, I return to the central questions that our amendments seek to address—how we ensure that efforts to tackle fraud in the public sector are not undermined by asymmetrical powers and make sure that the outcome from the processes set out in this part of the Bill benefit the taxpayer. We are all agreed that fraud against the public purse must be confronted robustly, but in doing so we must not create a framework in which public authorities are financially penalised for their co-operation, nor one in which the Cabinet Office is both investigator and beneficiary, retaining funds without transparent justification or sufficient oversight. As we have discussed, the PSFA cannot currently initiate proactive investigations and the burden falls heavily on public authorities to refer themselves, even when doing so may lead to reputational harm and financial loss. That is not a system that encourages good behaviour; it is one that risks disincentivising it.
Our amendments raise two practical concerns: first, that funds recovered through fraud investigations should as a matter of principle be returned to the authority from which they were taken, unless there is a compelling and transparent reason not to do so. We are concerned that, while agreement between the Cabinet Office and the public authority is required in the Bill, the agency and ability of a public authority to make a legitimate argument for retention of recovered funds may be impeded following a fraud investigation. Secondly, we wish to ensure that any costs that the Minister seeks to recover in undertaking these functions must be subject to independent oversight and not left to ministerial discretion alone. I totally take the point that the Minister made about the cost and burden on the judicial system, but there is also the principle of fairness and independence.
These are not abstract points. They go to the heart of whether this legislation creates a fair and credible system, one that public authorities can engage with in good faith and that the public can have confidence in. Our role in opposition is not only to make suggestions as to how the Government could improve their proposals but to ask questions of the Minister and to seek further clarification on the points the Government have considered. I urge the Government, therefore, to reflect on these proposals. They do not diminish the aims of the Bill but rather strengthen them by ensuring that the powers it creates are matched by the accountability and fairness that must always underpin public service. On that basis, I beg leave to withdraw.
“(a) the period for appealing mentioned in section 60(2)(a) has passed without an appeal being brought, or”Member’s explanatory statement
This amendment is consequential on my amendment to clause 60, page 32, line 25.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, before I outline the amendments in this group, I will refer to government Amendments 30, 31, 104 and 105, as your Lordships will have noticed that these have been withdrawn from the Marshalled List. Together, these amendments had sought to ensure that there was no conflict between the prohibition on a bank telling an account holder that it had received a deduction order information notice from either the PSFA or the DWP in respect of the holder’s account and any possible subject access requests, and would limit how long the prohibition had effect. Unfortunately, we found that the wording of these amendments did not achieve the desired effect. For this reason, they have been withdrawn but we will retable them once they are compliant.
I turn to the amendments in question. The current drafting of clauses in Parts 1 and 2 of the Bill may inadvertently prevent the First-tier Tribunal from exercising its right to extend the amount of time a person has to make an appeal, where there is good reason to do so. Therefore, government Amendments 26, 60, 63, 64, 86, 87, 100, 101, 119, 120 and 125 seek to prevent this from occurring and to clarify drafting across the Bill.
These amendments ensure that the First-tier Tribunal maintains its ability to extend the time limit for an appeal where there is good reason to do so, at the discretion of the tribunal. These amendments do so across the provisions in the Bill where there is a route of appeal available. This will ensure the proper consideration of appeals and that the system is focused on fair judgments. I beg to move Amendment 26 in the name of my noble friend Lady Sherlock.
Viscount Younger of Leckie (Con)
My Lords, I note the Minister’s remarks about the withdrawal of some government amendments. I will not go through them all. I look forward to their redrafting. I start by making the small point that there is an element of unpreparedness to the Bill. I realise that there is quite a lot of work in progress. My understanding is that it is an unusual approach to take, to withdraw and then redraft. The Minister will probably say that I am going too far, and I therefore look to a further explanation of that point.
Putting that to one side, the amendments that the Government have tabled appear at least in principle to be sensible changes, which permit a tribunal to extend the time limit for bringing an appeal about a direct deduction order. This relates to a DDO appeal in the public sector section of the Bill but also, as I understand it, in the DWP section, as it applies to the eligibility verification notice in respect of the agreed arrangements between the banks and the DWP. Here I refer to government Amendment 87 in particular.
However, this provides me with an opportunity to do a bit of questioning. Can the Minister outline some of the situations in which the tribunal could consider it “reasonable” to grant an extension to the review period? I suspect she will say that this is up to the tribunal to decide, but it would be helpful to understand the obvious reasons—and some of the less obvious reasons—why the tribunal could offer some leniency.
I presume that the appeal process would include an appeal not just on the DDO but to delay a payment of the DDO and to seek a reduction in the amount payable per week, with the total amount payable over a longer period. Is there an expectation that a longer period has a maximum length of time applied and a cut-off? Otherwise, it could be endless.
In the process of considering and drafting this amendment, I am sure that the Government have had regard to precedent and to how this provision has been used in other Acts. I am aware that similar provision exists in other statutes and, if the Minister could share examples with us of where extensions have been granted to individuals, why and for how long, it would help and allow the Committee to understand the practical ramifications of this amendment. I hope that the circumstances are exceptional, but the wording used in the amendment is for it to be seen as
“reasonable in all the circumstances”.
I hope that that adds to my argument.
Are there parallels to be drawn and lessons learned—for example, from the child maintenance system, for which I had responsibility—where the paying parent is defaulting on DDO payments and the tribunal system is therefore involved? Can some analogies be created?
As I said earlier, there is merit in seeking to allow greater flexibility in granting an appeal. Individuals should have adequate opportunity to exercise this right, but within reason. The amendment is, to that extent, well intentioned and it is something that we support. However, we must also be alive to the risk posed by so-called bad actors. We must ensure that flexibility does not come at the cost of action. We need to make sure that this appeal system allows those with genuine concerns to be heard and recognised, while minimising opportunities for vexatious complaints that are designed to delay and clog up the system, rather than use it responsibly. For example, it could be easy for an individual to claim that he is not able to fulfil his obligations to pay his DDO because, he states, he is suffering from mental health problems or has fluctuating psychotic episodes. What is the tried and tested system for tribunals to assess these claims thoroughly and have the necessary powers to refute or rebut what may be deliberate and vexatious claims?
In seeking precedent here, what is the experience of appeals to tribunals in other sectors—on the volume of cases, the exceptions and the knock-on effect on courts’ resourcing and delays to all cases in the pipeline? It would be most welcome to have some further clarity from the Minister about the considerations that she has towards the amendment, particularly in reference to precedent, which gives us some idea of how this is going to work.
I finish by echoing the words from my noble friend Lady Finn, who said on the last group—and she is right—that fraud against the taxpayer must be confronted robustly. My arguments on this group form the basis of that.
Baroness Anderson of Stoke-on-Trent (Lab)
I thank the noble Viscount for his comments, some of which, as he will appreciate, will be explored in more detail as we get to the DWP part of the Bill, Part 2. We will explore all these issues in more detail later in Committee, including some of the examples that he seeks about how all the powers in the Bill have precedent already, although I will touch on some.
However, I will start by querying the noble Viscount and pushing back a little on the suggestion that we were unprepared with this Bill. There was a genuine drafting error. Mistakes happen; human beings are known for making them occasionally. Given the late tabling of some of the amendments, a level of genuine solidarity and collaboration across your Lordships’ House, about how we work and move forward, may be better judged.
Regarding some of the points made, I will start with the specific point about what kind of circumstances would be reasonable to extend the timeframe for appealing an overpayment notice. In all circumstances, it is wholly up to the tribunal to decide what would be a reasonable extension from one month. There are recognised principles to guide the exercise of discretion to extend time periods, or not, which the tribunal will consider. A three-stage approach is applied to consideration of any extension: first, assessing the seriousness and significance of the failure to comply with the time limit; secondly, considering why the default occurred; and, thirdly, evaluating all the circumstances of the case to enable the tribunal to deal justly with the application.
I will address the point made about civil penalties and examples of how they are used from the position of the PSFA. We will address this in more detail with the DWP as we move forward. There is precedent across government for civil penalties to be issued to the civil standard by officials delegated to by Ministers, instead of penalties being issued by court. Examples include the Environment Agency and the APHA. In instances where penalties are issued in the above manner, it is also standard practice across government departments such as the Home Office, the Environment Agency and HMRC for appeals to be made to a court or tribunal as the final route of challenge should an individual feel that a penalty, including the amount, is unfair or incorrect. We are seeking to emulate those powers for the PSFA.
In instances where penalties are not issued by officials and are issued via courts, the courts have the right to extend the specified period within which an individual or business may appeal a decision. This is part of the civil procedure rules. The noble Viscount touched on the Child Maintenance Service. As we progress through Committee, I will use it in many examples regarding the powers of the PSFA and how we will seek to use the precedent already established by the CMS.
With that, I hope that noble Lords will appreciate that these amendments are important to ensure that the Bill as it stands does not interfere with the tribunal procedural rules. Those rules are in place for good reason. While it was not our intention to impact the discretion that tribunals have on appeal timeframes, we want to bring absolute clarity to this. This also creates additional protections for people who want to engage their appeal rights. I therefore hope that your Lordships will support these amendments, which I commend to the Committee.
Baroness Fox of Buckley
Member’s explanatory statement
This amendment removes the power of the Minister to make direct deduction orders and instead provides for direct deduction orders to be made only by a court following an application by the Minister to the court.
Baroness Fox of Buckley (Non-Afl)
My Lords, in moving Amendment 27, I will speak also to Amendments 29, 62 and 75, which relate to debt recovery and concerns about the proportionality, even constitutionality, of the Bill’s use of direct deduction orders. I thank the noble Lord, Lord Palmer of Childs Hill, for his support in this endeavour.
The purpose of these amendments, and those in the later group starting with Amendment 102, is to transfer the powers of the Minister in Part 1 and of the Secretary of State in Part 2 to make direct deduction orders and deduction from earnings orders to relevant courts, whether the county court in England and Wales or the sheriff court in Scotland.
Before I look at the substance of this issue, I note that Amendment 29 addresses Clause 19(2) and paragraph 3(2) of new Schedule 3ZA, inserted by Schedule 5 to the Bill, whereby the Minister or the Secretary of State are required only to believe that a person holds the bank account in question. Other provisions require such belief to be reasonable, so inserting the word “reasonably” before “believes” would impose a reasonableness test. Not having such a test removes the balance of proper scrutiny and any threshold for a belief. This needs to be addressed to prevent unscrupulous intrusion. Meanwhile, Amendment 62 probes the circumstances in which orders can be restarted where they have been suspended, because I am confused about why that is necessary.
To return to the fundamental principles at stake in Amendments 27 and 75 in particular, and the broad theme, for centuries the rule of law and the separation of powers have ensured that a person is innocent until proven guilty and cannot be punished by political diktat. The Executive cannot arbitrarily take action against a person, even a debtor, in the manner that the Bill gives the relevant Minister. The Bill allows the Minister to order a bank to supply sensitive information for the purposes of debt recovery, without either judicial oversight or individual knowledge.
On our first day in Committee, we heard from the noble Baroness, Lady Finn, the shocking details of how Clause 7 allows relatively junior civil servants in the Cabinet Office to apply for a warrant to enter and search premises and seize anything they have reasonable grounds to believe has been obtained in the commission of fraud. If handing police powers to civil servants was not chilling enough, here are powers that facilitate the state raiding bank accounts.
Lord Palmer of Childs Hill (LD)
My name appears on these amendments because I and my party are worried about powers being given to Ministers rather than to the courts. This puts the power in the courts because “the Minister” does not necessarily mean the Minister; someone quite low down in the Civil Service could make this decision. I think it is open to abuse.
I hope that when the Minister replies she can perhaps tell me how this fits in with a garnishee order on a bank. Garnishee orders have long been part of our legal system, whereby a debtor can collect money from the bank direct with an order from the court. I am amazed that we can have such a Bill here—I brought this up at an earlier meeting with the Minister—without “garnishee” appearing in it, because this is part of our current legal system. I invite the Minister and the mover of the amendment to incorporate that in their reply.
Baroness Finn (Con)
My Lords, the amendments proposed in this group by the noble Baroness, Lady Fox, and the noble Lord, Lord Palmer of Childs Hill, provide us with an opportunity to question the Government on the mechanisms they propose using to recover money. It is vital, as the noble Baroness said, that the powers provided for in this part are proportionate and sensible.
We are particularly interested in Amendment 29, which chimes closely with our belief that a reasonableness test should be incorporated as part of the exercise of powers. In this instance, the Minister must “reasonably believe” that a liable person holds an account with a bank before the bank can be served with an account information notice. We need to recognise that compliance with the provisions in the Bill, however proper and correct, will come at a cost to banks. This amendment seeks to impose a duty of due diligence on the Cabinet Office, which, as the party responsible for issuing the notices, should rightly be held to a high standard before it starts imposing responsibilities and costs on third parties.
As it stands, the Bill risks creating a situation in which the work that should really be done by the Cabinet Office is shifted over to banks. It is feasible that a civil servant in the PSFA, without the need to meet a reasonableness test, could send out information notices to dozens of banks and wait for them to come back to them to confirm whether or not the person in question does, in fact, have an account. I am sure that the Minister currently anticipates that civil servants will send out only a limited number of notices to the banks that they believe are relevant. However, it is not unrealistic to imagine that, during a busy period, someone in the Cabinet Office could be tempted to serve all the banks on their list with a notice and wait for them to revert, having done all the work. More importantly, there is nothing to prevent a civil servant from doing so. This is a serious point: it risks the workload being shifted from the Civil Service over to the private sector, burdening banks with non-profit-making tasks that they are legally obliged to undertake. The Cabinet Office’s civil servants must strive to reach the highest standards; the law should be clear on this point.
Amendment 62, also in the names of the noble Baroness, Lady Fox, and the noble Lord, Lord Palmer of Childs Hill, speaks to a principle that we have identified in our Amendment 55; namely, that a person against whom a deductions from earnings order has been served should not be held to an indefinite order if it has been suspended. The Bill, as it stands, would allow an order to be restarted at any point. For the liable person—and, in the case of orders against a joint account, for the other person with money in the account—this would create a great deal of stress and uncertainty. It also grants the Cabinet Office the ability to wield a great deal of power over the liable person, with few checks. The Cabinet Office should have the power to recover funds from the liable person that has engaged fraudulently, of course, but, in our submission, it should not have the power to threaten a liable person with a suspended deductions order for an unlimited period of time.
If it makes the decision to suspend an order, the Cabinet Office should be tied to a specific period of time in which it can restart the order. The Cabinet Office should be held to this standard, and the liable person should be protected adequately. We disagree with the noble Baroness, Lady Fox, and the noble Lord, Lord Palmer, that a suspended order should never be restarted, although we firmly agree on the principle that this power should be checked and should not be left open for an unlimited period of time.
I hope that the Government will consider these proposals as reasonable checks on the power of the PSFA in relation both to its ability to shift work over to third parties and to how it can wield these powers over liable people. We rightly expect the Cabinet Office to exercise these powers to a high standard. Ensuring that it does not outsource its workloads and that it concludes any checks or procedures within a certain time period are both proposals that speak to this high standard. I am sure that the Minister is confident that the officials in her department will meet these standards and, as such, that she will have no hesitancy in being able to back these proposals.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, given the tone of the debate that we have had so far, it may be helpful if I start by giving noble Lords some clarity on some of the issues that have been discussed.
Direct deduction orders are a mechanism by which public funds lost to fraud and error can be recovered directly from a liable person’s bank account. However, DDOs will be used only if the liable party has repeatedly chosen not to engage with the investigation and to come to the table. This is not the first and only mechanism for engaging to recoup funds; that is an important principle here.
At this point, it is also important for me to clarify exactly what is being said about junior civil servants. The people who will undertake this work are trained members of the counterfraud profession, and the PACE powers have to be approved by a magistrate. The appropriate safeguards are in place. While I am at it, I reassure the Committee that no algorithms will be used by the PSFA for anything to do with financial information gathering and the powers outlined here. I remind noble Lords that the liable person will be kept informed at the outset and throughout the process of a fund recovery.
Amendments 27 and 75 would, together, restrict the use of the direct deduction power, so that it can be used only following an application to the appropriate court. We agree with the sentiment that there should be protections in place to ensure that direct deduction orders are used proportionately and appropriately. However, this would place unnecessary and avoidable additional work on the courts, and reduce the effectiveness of the power and the amount of taxpayers’ money returned to the public purse. By this stage of the process, a liable person would have already agreed that the amount is recoverable or the courts would have made a final determination that it is.
Lord Vaux of Harrowden (CB)
The noble Baroness mentioned a moment ago that a direct deduction order can be made only when a person has already agreed that an amount is recoverable. Could she point out where that is in the Bill? I cannot find it anywhere.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I am assured that it is in the Bill. I ask noble Lords to bear with; as soon as that has been passed to me, I will highlight exactly where in the Bill it is.
It is in Clause 12. That was like magic.
Lord Palmer of Childs Hill (LD)
Could the noble Baroness explain again why a garnishee order—the collection of debt from a third party—is not mentioned in the legislation at all?
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, a garnishee order is used to obtain money directly from a third party. That is not the process that we are undertaking; we are regaining money directly from an individual, as opposed to a third party. I am happy to write to the noble Lord with more guidance on that, but that is my understanding.
I move on to Amendment 29, which would necessitate a “reasonable belief”, rather than a “belief”, that a bank account is held by the liable person prior to the PSFA requesting bank statements from the bank to inform decisions on direct deduction orders. In practice, the PSFA will already be operating at this level as it will already, through the course of its fraud investigation, have developed an overview of the liable person’s financial information.
In addition, having thrilled the Committee with my recitations from Managing Public Money last Wednesday, I am excited to be able to quote from another government page turner, The Judge Over Your Shoulder. All “public law powers” must be exercised with
“reasonableness or rationality—following a proper reasoning process and so coming to a reasonable conclusion”.
Making a Minister’s belief a “reasonable” belief therefore has no effect, because they are already subject to it.
In addition, Clause 19 lets the PSFA issue a general information notice to banks, which provides confirmation of the accounts that a liable person holds. The amendment is therefore not adding anything new.
Amendment 62 seeks to remove the ability to restart a deduction from earnings order once it has been suspended. For some context, a deduction from earnings order is a mechanism by which public funds lost to fraud and error can be recovered directly from a liable person who is not in PAYE employment. Having listened to the debate, I have some sympathy with noble Lords; however, it is important that the PSFA remains able to issue, vary, suspend and restart, or revoke a deduction from earnings order, for very human reasons.
We need to be able to suspend and restart a deduction from earnings order due to a temporary change in the liable person’s circumstances; for example, if they were temporarily hospitalised. People’s lives, as we know, can be messy; it is important that we have the flexibility to recognise that. Where it is more appropriate to revoke the order altogether, this is provided for in Clause 47.
The purpose of the amendment therefore overlaps with existing provision which gives the necessary flexibility while maintaining clear communication with both employers and liable persons, maintaining a fair and transparent debt recovery process. If this provision was adopted, an unfortunate consequence would be the end of such flexibility and the reluctance of anyone to suspend payments due to having to restart the process.
I hope that this explanation reassures noble Lords and that the noble Baroness will withdraw Amendment 27.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have a number of points. It was very interesting that the Minister concluded in relation to one of these amendments that “people’s lives can be messy”. It is precisely for that reason that in saying that DDOs will be issued only due to a lack of engagement, without any consideration of why that lack of engagement might happen, it might well be because people’s lives are very messy, to quote the Minister. So I am not convinced by that at all.
Baroness Anderson of Stoke-on-Trent (Lab)
To reassure the noble Baroness, efforts to engage with a liable person would not be just a one-off hit. There would be over a dozen attempts, under my understanding of the Act. So it is not just a one-time effort to engage with each liable person. By the time we got to the process of a direct deduction order, there would have been multiple efforts to engage with the liable person.
Baroness Fox of Buckley (Non-Afl)
It is quite feasible that I have missed the multiple efforts in the reading of the Bill. Maybe it is there—it might be another bit that I have missed. But I do not think that is clear, so maybe that could be clarified.
I am sure that this is the intention—the problem is the principle. We were given the explanation that I thought we would be given: we are doing this directly and not going for judicial authorisation because the courts just have too much work on. I always worry about an explanation that says that it will cause too much work for the courts. On this basis, we may as well cut out sending anyone to a court and put them into prison—because that court process is so darned long-winded for everything, is it not? But we do not say that, because the court system sets in place safeguards to ensure that people are not unfairly treated. We do not have a direct situation where a Government of the day simply decide that the courts are dispensable with. That is the principle that I was trying to raise here, so I do not think that is a satisfactory answer.
I was also unconvinced by the argument, which I will go through, that HMRC already has powers to deduct money directly from bank accounts under Schedule 8 to the Finance (No.2) Act 2015. Actually, there are statutory safeguards, including the requirement that HMRC retains £5,000 in the debtor’s accounts, and guidance about who HMRC should deem as at a particular disadvantage. That is not in this Bill. It is part of that Bill, which was cited as a reassurance to me.
The comparison with child maintenance is also a false comparison. Child maintenance is money owed by one parent to ensure provision for their dependant who does not live with them. That differs greatly from an individual claiming money from, for example, the social security system, who potentially has been overpaid—as I keep pointing out, through no fault of their own. I do not think those two things count as equivalences at all.
I was grateful to the noble Baroness, Lady Finn, for the amendment on stop-starting DDOs. I have some sympathy with her approach in terms of them being permanently never allowed to start again. My nervousness with it is that it feels so arbitrary. The explanation given was that people have messy lives, which is fine, but I do not want to be in a situation whereby I am nodding through a system that means that people could keep having their direct deduction orders stop and start because of the messiness of government. We are told that it is the messiness of people’s lives, but it is not clear that that would be the only reason why this would occur; it is not in the Bill.
Of course, I shall not press my amendments, but I imagine that I will return with some of them on Report.
Baroness Finn
Member’s explanatory statement
This amendment seeks to specify a reasonable period of time for the recovery of an amount from a personal bank account, so as to protect the partners of liable persons from having an amount deducted from their joint account after five years.
Baroness Finn (Con)
My Lords, our amendments in group 4 are designed to improve the system of debt recovery that the Bill seeks to establish to make sure that adequate protections are given to the liable person, and that the Cabinet Office is held to a high standard in the exercise of the powers it is being granted. It is essential that we recover debt and combat fraud—I think that we are all agreed on that—but we must remember that in this Bill we are creating a system that will engage with and be run by real people. In these amendments we seek to tease out the practical problems that those real people might come up against while using this system. As we have heard, real people might well have messy lives. We have identified several potential such problems, and in this group we want to flag them to the Government so that they can make any changes needed.
Our Amendment 28 seeks to clarify the standards used by the Minister when determining whether or not they should make a direct deduction order to a joint account. The decision to make a deductions order from a joint account is a serious one, as it directly affects a person who is not liable, unless in cases which fall under Clause 18(3). The Minister must therefore be clear that certain conditions have been met before such a decision is taken, so that those who hold a joint account with the liable person are adequately protected from such an order.
The formula outlined in Clause 20(2) is a blunt tool, which we feel will struggle to operate fairly and effectively in practical terms. The formula assumes that the liable person’s interest in a joint account is of a fixed proportion, meaning that if there are two people holding a joint account, the Government will assume that 50% of the funds in that account relate to the liable person.
This has some obvious pitfalls, not least that, upon being informed that they are subject to a direct deduction order, the other account holder could move most of their assets out of the joint account, into a separate one. Say two people had a joint account with a balance of £50,000, split evenly between the account holders. Upon being informed that they were subject to a direct deduction order, the non-liable person could remove £24,999 of their funds into a separate account, leaving £25,001 in the joint account. Under the mechanism provided for in the Bill, the Government are to assume that 50% of these funds regardless belong to the non-liable person.
This mechanism risks creating an obvious loophole, in which the liable person, could, in essence, protect 50% of their assets by keeping them in a joint account. Conversely, the formula could have the reverse effect of penalising the non-liable person, if that person is due more than 50% of the assets in the joint account.
While the Minister is required under Clause 18(1) to assess the liable person’s beneficial interest, there is no requirement that they apply the deduction order to reflect this. Indeed, the Minister “must” presume that the liable person’s interest is proportionate, in line with this formula.
Our amendment makes it clear that the use of the formula to work out a liable person’s beneficial interest must only be a last resort. The Minister must make a proper assessment of the liable person’s beneficial interest before they resort to using the mechanism in Clause 20(2), which has many attendant problems, some of which I have highlighted.
Our Amendment 34 seeks to tie the Cabinet Office to a duty to provide notices to all other relevant persons within seven working days. At present the requirement is that the Cabinet Office undertakes this duty within a time period that it can itself determine. While the recovery of funds is of course right, we must consider the impact that this will have on the liable person. Indeed, it is highly likely that a deduction order will affect not only the liable person but other third parties who are not directly involved. For a person with a joint account, this will be the case.
The Cabinet Office is responsible for ensuring that the liable person and other third parties affected by a direct deduction order are informed of the fact as soon as possible. The Bill currently states that the notice must be given to the liable person
“as soon as reasonably practicable”,
but we believe that the Government should comply with this duty within seven days. Allowing this period to be determined by the Cabinet Office itself is not a secure guarantee, and the liable person should have a right to be informed of this fact within an explicit timeframe, both for their benefit and that of affected third parties.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I welcome the opportunity presented by this group of amendments to talk about some of the safeguards in the Bill for the recovery powers. The liable person will always be provided an opportunity to voluntarily repay, as I said in the previous group. The Bill affords them rights of making representations, and review and appeal to a court or tribunal. There are set maximum regular deduction rates and we have written into the legislation that deductions must be fair and affordable. Vulnerability will be considered at every step of the way and action taken where appropriate to tailor our approach accordingly.
As the Government have developed this approach, we have had to balance necessary and proportionate safeguards against the requirement for operational flexibility to efficiently and effectively recover money that the liable person should never have had in the first place—money that could and should have been used for the public good. I firmly believe that we have struck the right balance here. Unfortunately, the amendments tabled by the noble Baroness, Lady Finn, and the noble Viscount, Lord Younger, while well intentioned, will negatively impact our recovery activity while not providing any meaningful additional protections.
Amendment 28 would limit recovery from joint accounts if the liable person had a sole account from which the full amount owed could be recovered within five years. To reassure the noble Baroness, Lady Finn, what this amendment misses is that recovery from a joint account is already limited to the beneficial interest of the liable person. I understand her concerns about how that would be allocated but we believe we have a responsible medium here. The joint account holder is able to make representations on this matter to ensure that the funds taken into consideration are solely those of the liable person.
The amendment therefore limits the operational flexibility of the PSFA to undertake recovery action and provides no further protection to joint account holders. The time taken to recover will depend on the facts of the particular case and on the amount being recovered—five years may be suitable for some amounts but may not be where the PSFA is recovering substantially larger amounts and is seeking to do so over a longer period.
There may also be circumstances where repayment needs to take place over a longer period; for example, for those who are vulnerable or face hardship but none the less have the money to make repayments. It is important that the PSFA retains the flexibility required to recover a wide range of debts of varying amounts and to tailor repayments to the liable person’s circumstances.
Amendment 33A would require the PSFA to try to establish the joint account holder’s beneficial interest before using the formula defined in the Bill. This is duplicative and already provided for under Clause 20(3), which states that
“the presumption does not apply where the Minister has reason to believe that the liable person’s beneficial interest is different from the presumed share”;
that is, on review of the statements obtained for the account in question. As mentioned already, all joint account holders will have the opportunity to make representations as to their beneficial interest before any money leaves the account.
Amendment 34 would require the PSFA to provide the direct deduction order notice to the liable person within seven working days of it being provided to the bank. However, the current drafting already stipulates that the order must be shared
“as soon as reasonably practicable”.
I cannot foresee many circumstances where this would ever be more than seven days; after all, we want the money back. It is also important to maintain an element of flexibility to ensure that the banks have sufficient time to put in place the restrictions under Clause 26. This is to prevent the liable person from moving money out of their account and circumventing the debt recovery process.
Amendment 50 relates to applications to vary direct deduction orders and would compel the PSFA to set out its reasons behind any decision. This amendment is duplicative. The PSFA would be doing this anyway as a matter of good public law. The liable person should know why applications have been agreed or rejected, and it is necessary they know why if they are then to take up their review and appeal rights. The PSFA would also publish guidance on applications to vary, setting out its high-level approach.
Amendment 53 relates to the unfortunate circumstance where someone dies while a deduction order is in place. It would compel the PSFA to write to the next of kin or estate to confirm the cessation of the order. The Bill already stipulates that the order ceases as soon as the PSFA becomes aware of a death. This simply creates another administrative burden for the PSFA as it would be expected to hold information on next of kin or personal representatives—information that the banks themselves are unlikely to hold as it is not mandatory for this information to be given to banks by account holders.
The suggestion in Amendment 55 is an interesting one. It would prevent suspended direct deduction orders being restarted after a period of 24 months. This would impact the discretion that the PSFA could offer to those who owe money but have experienced an impactful, if temporary, change in their circumstances; for instance, through losing a job or undergoing medical treatment. It would also limit the operational flexibility of the PSFA, which would still have a duty to establish the most appropriate way of responding to such circumstances, balanced against the duty to recover money lost to fraud and error.
For example, someone may come forward to the PSFA after a DDO has been put in place and seek to negotiate because of a change in their circumstances. They may seek to engage directly and to negotiate their payments going forward but then fail to see things through. This could happen over a period of two years; we would then have to start the process all over again. Moreover, the Minister will already have the power to revoke a DDO if the liable person’s circumstances necessitate it.
I hope that these explanations reassure noble Lords and that the noble Baroness will withdraw her amendment.
Viscount Younger of Leckie (Con)
There is one matter that occurs to me in respect of Amendment 53. In the event of somebody’s death, where the deceased has been subject to a DDO, could this be included in the “Tell Us Once” service? That is, where a next of kin registers the death with the registrar, could the DDO be highlighted as part of the “Tell Us Once” service? Of course, this would include the highlighting of that revocation.
Baroness Anderson of Stoke-on-Trent (Lab)
I thank the noble Viscount for giving me the opportunity to reassure him that, yes, it can and it will.
Lord Vaux of Harrowden (CB)
On Amendment 55, I understand that 24 months may not be the right number, but it cannot be right that an order can stay open indefinitely so that, 10 or 15 years later, the PSFA can suddenly start taking money from the account again. There must be some sort of drop-dead point; I wonder where that should sit.
Baroness Anderson of Stoke-on-Trent (Lab)
I beg the leave of the Committee to consider that; I will reflect on it and come back in due course.
Baroness Finn (Con)
I thank the Minister. I thank my noble friend for bringing up the “Tell Us Once” service. A lot of people have said that it has brought them a lot of comfort after a relative has died; if this service could be incorporated here, that would be very good indeed.
In this group of amendments, we have made the case that, although the objectives of recovering public money, tackling fraud and commanding support are not in question, as we have constantly reiterated in Committee, the mechanisms by which the Bill proposes to do so raise legitimate concerns that cannot easily be brushed aside. I emphasise that our amendments do not seek to frustrate the intent of the legislation; on the contrary, they are designed to ensure that the framework being created is legally sound and operationally effective.
We are talking about powers that will reach into people’s bank accounts and affect the relationships that they have with innocent third parties, whether they be joint account holders or dependants; I heard very clearly what the Minister said about joint bank accounts but there are still issues here that may have to be worked through or thought about. This is a significant undertaking on behalf of the Government, and it comes with a weighty responsibility to get the detail right.
Today, we have raised not theoretical issues but practical, real-life scenarios where the Bill, as it is currently drafted, could cause confusion, injustice or unnecessary distress. We have heard how a blunt formula could allow assets to be shielded or, worse, wrongly seized. We have pointed to the risk of leaving innocent third parties in the dark. We have also highlighted the critical importance of transparency when powers are exercised and challenged. I should say that, in terms of the innocent third parties in the dark, the “Tell Us Once” commitment is most welcome.
It is not enough to say that the Cabinet Office will act reasonably. The law must require the Cabinet Office to do so. It must give people the right to be informed, the right to understand decisions made about them, and the right to challenge those decisions with the benefit of clear reasoning and evidence. We are not opposing the principle of direct deduction orders. We are simply asking for a system that reflects the complexity of real people’s lives and relationships, and that recognises that justice must not only be done but be seen to be done. We believe, therefore, that these amendments are proportionate, constructive and necessary. They would not weaken the Government’s ability to recover funds; they would strengthen the public’s trust in how that ability is used.
I say again: we support the aim of the Bill but, if we are to ask the public to accept a system of such reach and impact, we owe it to them to ensure that it is as fair, clear and humane as possible. I believe that our proposals today are a step towards achieving just that, and I hope the Government will give them the serious consideration they deserve. On that basis, I beg leave to withdraw.
Baroness Finn
“(11) In performing their functions under this section the Minister must have due regard to the operational and opportunity cost burden placed on the bank.”Member’s explanatory statement
This amendment would require the Minister to have due regard to the cost burden placed on the bank as a result of the use of powers granted to the Minister under Clause 19.
Baroness Finn (Con)
I apologise to your Lordships. The Committee will be fed up with hearing from me before the afternoon is out. No? Excellent.
We all agree that fraud against the public purse is wrong and must be tackled, but we must also be honest about who is being asked to do the work and at what cost. Banks are expected under the provisions in the Bill to dedicate staff, systems and time to support public sector fraud investigations or enforcement efforts. This may be in the form of complying with information notices, processing and applying deduction orders, or liaising with government departments. These activities are not core business functions for a commercial bank. They are not revenue generating. They do not serve the bank’s shareholders or contribute directly to its customers’ financial well-being. They are, in essence, a form of public service being performed by a private entity.
Here is the crux of the matter: every hour a member of the bank staff spends assisting with a public fraud case is an hour that they are not spending on risk management, product development, client service or revenue generation. That is a real and measurable opportunity cost: the bank is being asked to sacrifice its own commercial objectives to achieve a government policy goal. Regardless of the fact that this is a goal with which we all agree, we need to recognise that this is a burden on banks, even if it is in pursuit of a good objective.
Of course, banks have legal and moral obligations to help prevent criminal activity—and they do. However, we must be cautious about crossing the line between reasonable regulatory compliance and the outsourcing of state enforcement functions to private firms, without proper consideration of the attendant costs and effects that this could have.
It is also worth considering the cumulative effect. Banks are not only being asked to support fraud detection but simultaneously are dealing with sanctions enforcement and a growing raft of compliance burdens. The more we demand of banks in public service roles, the more we divert their resources away from their essential commercial purpose: financing the economy. So, while the fight against public sector fraud is essential, we must be alive to the costs that we are placing on others to carry it out.
Our Amendments 32, 38 and 54 would demand that the Minister has due regard to the costs that they are imposing on banks as a result of the exercise of their powers. We return to our core theme of proportionality: building into the Bill a regard to the cost burden on banks is a way that the imperative of tackling fraud is sensibly and responsibly balanced with the attendant costs that it imposes on private entities.
Further to this, our Amendment 33 would require the Minister to undertake a review of the costs being imposed on banks within 12 months of Clause 19 coming into effect. This amendment works alongside our Amendments 32, 38 and 54 in establishing the principle that the Minister must have due regard to the costs imposed on banks, and furthers this by demanding that the Minister undertakes a review of these costs a year after the provisions in the Bill come into force. In creating a duty to have due regard and combining it with the requirement for a review after a year, we have proposed sensible amendments which impose on the Minister an important obligation to the banks on which the Bill so heavily relies. We must make sure that, in our efforts to tackle fraud, we work alongside partners in the banking and financial sectors, not against them. These amendments will ensure that the Bill does that.
Finally, our Amendment 40 would ensure that the relevant bank is involved in determining the amount of money that it could recover to cover the costs incurred by complying with the demands under the Bill. At present, the Minister is able to unilaterally determine what a bank’s reasonable costs are. As I have outlined in my remarks, in complying with the Bill banks will incur not just an operational cost but an opportunity cost. Banks understand the complexity of their own systems; they know what it takes to divert staff from commercial roles to public service tasks. They are best placed to quantify the impact of compliance on customer service, internal risk management and technical infrastructure. To exclude them from this process of determining costs, to impose obligations without consultation or a mechanism for cost recovery, would be to create an asymmetric relationship in which the state demands and the private sector simply absorbs.
We are not asking for a blank cheque or for banks to name any figure they please, but there must be a structured and collaborative process, grounded in evidence, in which banks have a say in what their involvement truly costs and in how those costs are acknowledged and, where appropriate, reimbursed. This is therefore a sensible amendment which seeks to create that relationship between the Cabinet Office and the banks on which it relies. I hope the Government will consider it as a reasoned improvement to the Bill.
In conclusion, it is important that we do not overlook the practical realities of who is being asked to shoulder the burden of implementation. The provisions in this Bill place real and ongoing demands on the banking sector—not only in staffing and systems but in opportunity costs that affect banks’ ability to serve customers and grow the wider economy.
Our amendments do not seek to weaken the fight against fraud but to ground it in a framework of fairness, partnership and proportionality. By requiring that Ministers have due regard for the costs imposed, that those costs are reviewed and that banks have a say in assessing what they are owed, we introduce essential balance and accountability into this regime. These are moderate, practical and constructive proposals. If we are to maintain the willing co-operation of the banking sector in delivering the public good, we must also treat banks as genuine partners, not simply as instruments of policy. I hope the Government will take these amendments seriously, and I urge noble Lords to support them. I beg to move.
Lord Vaux of Harrowden (CB)
My Lords, I have amendments in later groups on the EVM section of the Bill with a similar effect to these, looking at the costs to the banks. This is not just about the impact on the banks, however. As many of us know from the experience of being politically exposed persons, when you put onerous responsibilities and costs on the banks that relate to a particular class of customers, you can create a disincentive for the banks to provide services to them. Most of us have probably had the experience of being PEP-ed, and it is not terribly pleasant. Here, if we are putting a load of costs on the banks that relate to benefit recipients, we make it less likely that those vulnerable people will be able to access banking services. The Government need to think about this quite carefully.
Baroness Fox of Buckley (Non-Afl)
My Lords, I was going to make a very similar point. We have to consider the serious consequences of the Government, in effect, turning banks into de facto government inspectors, as well as the unintended consequences such as those for politically exposed persons. Goodness knows that that has not gone well. It has created all sorts of chaos. I am very anxious about private institutions, in effect, being asked to do the Government’s dirty work in many instances.
I want to query, though, banks being able to charge for the hard work they do via new paragraph 8 in Schedule 5, in which there is a provision for the bank to be able to deduct a fee from the debtor’s account to meet its reasonable costs in complying with the order, which is a ridiculous situation. It amounts to state-backed approval of funds being taken directly from the bank accounts of private customers to deal with administrative retrieval of overpayments. By the way, the maximum amount that banks could charge would be set by the Secretary of State via regulations, which is also not reassuring. Although I do not want the banks to be used, I also do not want them to be able to charge their own clients to do the job that the Government have demanded they do. I feel very queasy about all this.
On the discrimination point, if these measures identify a range of types of bank clients who are causing more trouble than they are worth, the obvious decision will be to debank. It makes perfect sense that they would think, just like every other private sector organisation, “Do I really want people on benefits living in my house?” We have seen this discrimination time and again. There is a serious danger of unintended consequences here that the Government have to take seriously.
Lord Verdirame (Non-Afl)
My Lords, I did not speak at Second Reading, but the Bill has attracted my interest for the reasons a number of noble Lords have pointed out about procedure and due process. I share the concern about the risk of debanking en masse a group of individuals whom banks will view as not particularly good customers in terms of the money they deposit and as they now come with greater risks. I would also like to know what the Government’s thinking is on that issue.
Looking at this from the point of view of the bank, I am a bit concerned about the relationship between Clause 19(4) and Clause 19(10). Clause 19(4) says:
“The Minister may give an account information notice relating to an account only for the purpose of determining whether to make a direct deduction order in respect of the account”.
If the bank receives such a request for an account information notice, but for some reason considers there may be a different purpose in that request, what is the bank supposed to do? Clause 19(8) says:
“The bank must comply with a notice given under this section”.
However, Clause 19(4) puts a clear limit in terms of the lawfulness of giving an account information notice. Who is to assess whether there is any doubt as to the purpose of that account information notice?
In Clause 19(10), it says:
“Information given to the Minister in response to a notice under this section may be used by the Minister for the purpose of exercising the core functions but not for any other purpose”.
Of course, the core functions are wider than the purpose identified in Clause 19(4), which says that you can give an account information notice only for the purposes of determining whether to make a direct deduction order. But then, in Clause 19(10), that information may be used for wider purposes than enabling the taking of that decision.
That puts the bank in a bit of difficult position. It is told that it must comply with a notice but also that the notice must be only for the purposes of determining whether to make a direct deduction order. If it has any doubt, presumably it owes a duty to its customers and will have to consider how to behave in that situation. Further, it is also told that the information it will be providing may be used for wider purposes than simply the making of a direct deduction order. I would like to hear from the Government how they see the relationship between these various provisions in Clause 19, and where that leaves the bank in that kind of scenario.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, is it not always the case that you get the most difficult question just before you stand up? I am going to speak really slowly until I get a speaking note that gives me the appropriate answer.
I confirm that the Government are extremely mindful of the burdens this Bill places on business, including the banking sector. We want to ensure that it is not subject to disproportionate burdens or costs in complying with these measures. I will start by referring to the Bill’s published impact assessment, which sets out all the expected costs to businesses, including banks, of the PSFA measures. This has been green rated by the Regulatory Policy Committee and sets out the minimal expected costs to businesses where it has been possible to do so, including to banks for Part 1 of the Bill’s measures.
Throughout the development of this Bill, we have tried to strike the right balance between requiring actions from banks in a fair and proportionate way while achieving our policy intent of recouping vital public funds lost to fraud and error. This is why there has been sustained engagement with key representatives of the sector, including UK Finance, individual banks, building societies, HM Treasury and the Financial Conduct Authority. Some of this is reflected in government amendments that we will discuss later in Committee.
We know that the sector is supportive of the Bill’s objectives from the evidence provided by UK Finance in Committee in the other place. We have benefited from the sector’s operational insights, which have led us to table a number of amendments as a direct result to ease the implementation and delivery of the recovery powers. The PSFA and the DWP will, for their relevant measures, will continue to work closely with banks on the design and implementation of relevant measures, including consulting on relevant regulations.
Viscount Younger of Leckie (Con)
Can I just press the Minister a little more? I realise that, as she rightly said, we will explore these matters later in Committee—in particular, when we look at the DWP aspects of the Bill—but it would be helpful to have a bit more information on what the banks are thinking. What is their experience in terms of the work that has been undertaken so far? As the noble Baroness, Lady Fox, said—she is concerned about the so-called government inspectors approach taken by the banks—obviously, they are not doing this out of the good of their hearts. So it would be helpful to have a little more information, given that the work is by no means done; it is a work in progress. I have certainly been pulled up for calling this whole process a pilot scheme—I think that it is called “test and learn” or something—but some more information for the Committee at this early stage would be very helpful.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, it would be inappropriate for me to speak on behalf of the banks, and I do not think that noble Lords would want me to do so. But as far as I am aware—having said I will not speak for them, I am now going to—the banks are supportive of the approach we are taking. In terms of fraud, we are working very closely with them. The banks, however, want us to be as similar to HMRC as possible, and we are trying to do that. Given that those are regulations they currently work with in day-in, day-out, that is what we are trying to emulate. I think that is as far as I can go. The noble Viscount should be reassured that we are engaging directly with UK Finance regularly, and he might want to reflect on the evidence that it gave in Committee stage in the other place about how comfortable it was with this section of the Bill.
Baroness Fox of Buckley (Non-Afl)
I think it is fair to say that UK Finance and the banks, in terms of all the evidence that I have read, are obviously happy to sit down with Ministers to try and negotiate their way through this Bill. I do not think that is entirely fairly or accurately described as them being happy with this. They are being asked to do things by coercion in this Bill. I am not saying that word to be offensive. I mean they have not chosen to do it—the Government have told them they have to do it. In many instances, banks are required to do what the Government tell them in relation to their own customers or face penalties if they do not. Consequently, they are trying to negotiate the best of a bad deal. That is not quite the same as an enthusiasm for the Bill. I think that is worth noting, as we would not want to mislead.
Baroness Anderson of Stoke-on-Trent (Lab)
I remind the noble Baroness, Lady Fox, that what I actually said was that I did not want to speak on behalf of the banks. However, I find the word “coercion” a complete exaggeration and unnecessary. Just to clarify as well, the banks will not face penalties at any point in the Bill, unless I am to be corrected—and if I am wrong, I will correct the record. This is a process of trying to recoup government funds—taxpayers’ funds—to make sure that we get the money back. That is what we are trying to do and that is why this legislation is in place. We are working with the sector to make sure we can get our money back.
Baroness Finn (Con)
I think we all want to see a system that robustly tackles fraud against the public purse but that also recognises and respects the practical consequences of how it is delivered. The debate on the amendments in this group has shown that we need to be honest about the fact that in this Bill we are asking commercial banks to step beyond their core functions and dedicate staff time, infrastructure and internal resources to deliver outcomes for the state. When the public sector is asking the private sector to help to tackle public sector fraud, that is no small ask and should not be treated as such.
The noble Lord, Lord Vaux of Harrowden, and the noble Baroness, Lady Fox, have correctly highlighted the problems when you place onerous responsibilities on the banks in regard to a class of individuals. There is obviously a danger that it is going to make it less likely that vulnerable people can access services because the banks will just decide it is not worth the bother and will debank difficult or troublesome people. Those are very important areas to be worked through.
I really appreciate that the Government are still in discussions, but we are actually legislating here and now, and it is a bit uncomfortable that the discussions are obviously still ongoing while we are trying to refine the legislation. It would be good if we could keep this alive with what the banks actually want to conclude.
The amendments that we have proposed today on requiring due regard for cost, on ensuring review after implementation and on giving banks a voice in determining their recovery of the cost are all designed to introduce fairness, clarity and proportionality in what would otherwise be quite a heavily one-sided obligation. The amendments do not dilute the objective of the Bill, nor do they place unreasonable burdens on government. They recognise that the success of this policy depends on continued collaboration and good will from the financial sector, and that is something that cannot be taken for granted if banks are expected to absorb ever-growing public responsibilities without recognition or recourse.
We have heard much today about partnership in tackling fraud, but partnership requires reciprocity; it means listening, engaging and sharing responsibility—not simply offloading it. These amendments are an invitation to government to show that they understand that principle and to embed it in the Bill.
Before I finish, I thank the noble Lord, Lord Verdirame, for pointing the potential inconsistency in Clause 19, between subsections (4) and (10). We would be interested to hear how that will operate. This is not a question of principle—
Baroness Anderson of Stoke-on-Trent (Lab)
Before the noble Baroness—I hope—withdraws her amendment, I need to clarify something, as I misunderstood the advice that I received from my Box. I need to apologise to the Committee and to make it very clear that there are penalties up to £300 a day that could be on banks —but it is more likely to be £300 under Clause 53, which is why we are working with them on guidance and why there are ongoing conversations.
Baroness Finn (Con)
I thank the Minister.
To conclude, these amendments are not on a question of principle, because we all support the purpose. It is a question of practicality and fairness and maintaining a constructive relationship between the state and the financial institutions on which it relies. I urge the Government carefully to reflect on that relationship and urge noble Lords to support the amendments in the interests of a Bill that is both effective and equitable. On that basis, I beg to withdraw.
Member's explanatory statement
This amendment means that a regular direct deduction order given by the Minister for the Cabinet Office must specify the amounts to be deducted.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, these amendments all relate to the determination of deduction amounts for regular direct deduction orders. Government Amendments 35, 36 and 37 amend Clause 23 to ensure that a regular direct deduction order from the Public Sector Fraud Authority must specify the amounts to be deducted. Government Amendment 43 is a consequential amendment to Clause 26.
Government Amendments 110, 111, 112 and 115 make an equivalent amendment for regular direct deduction orders issued by the DWP under Schedule 5 to ensure that the order must specify the amount to be deducted. These amendments arise from the continued engagement that we are having with representatives of the finance industry, as I said in the last group, and seek to address their concerns.
In this case, concerns were raised that the Bill potentially placed an unnecessary decision-making responsibility on banks and financial institutions—specifically, a duty that they may be required to provide or make a calculation of the amount to be deducted when receiving a regular direct deduction order. They requested that we remove these implied duties if it was the Government’s intent to always specify amounts to be deducted. As this is the intent of the PSFA and the DWP, we agree with the proposed suggestion to remove the references to calculations and make it explicit that government should always specify the deduction amount. These amendments achieve that under both parts of the Bill, address this concern and clarify the duties on the banks when making a regular direct deduction. I therefore beg to move the amendments tabled in the name of my noble friend Lady Sherlock.
Baroness Finn (Con)
My Lords, the government amendments in this group are in principle welcome. They sensibly seek to simplify deduction orders and ease the operational burden they place on banks—which, let us be clear, are intimately involved in enabling the exercise of the provisions in the Bill. However, the real issue here is not with the content of the amendments but with the process that led to their necessity. These changes are not minor corrections, nor are they are clarifications. They alter the way in which deduction orders function and work operationally. They exist because the Government have belatedly taken on board feedback from banks and financial institutions—institutions that clearly, and surprisingly, were not properly consulted before the Bill was introduced. As I said in the debate on the previous group, this raises serious concern about how the Bill is being developed.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I appreciate the points raised by the noble Baroness, Lady Finn, specifically her questions as to why calculations for DDOs are in the Bill in the first place and why the need for this change did not come to light earlier. Referencing calculations is established practice in the context of employers making calculations for deduction from earnings orders, hence the drafting reflected here for direct deduction orders. Continued engagement with the financial sector has covered an array of content related to the Bill. As we have moved to discuss implementation, any issues raised have been considered and, where appropriate, acted on by officials in order to smooth the implementation of the powers.
This Government have been engaging extensively with the financial sector. It requested that we remove references to banks calculating amounts to be deducted through a regular DDO. This is because the banks felt that it would create an excessive burden that gave them too much responsibility for making decisions regarding deduction amounts. Utilising the deduction order information notices, the PSFA will already have a fuller understanding than the bank of the liable person’s total financial affairs. Along with its obligation to ensure that deductions are fair and affordable, it is right that the PSFA determines what the deductions will be, and it provides another safeguard. I therefore hope that your Lordships will support these amendments. I commend them to the Committee.
Member’s explanatory statement
This amendment is consequential on my amendment to clause 23, page 15, line 3.
Member’s explanatory statement
This amendment means that a lump sum direct deduction order given by the Minister for the Cabinet Office must specify the amount to be deducted.
Member's explanatory statement
This amendment, together with my other amendments to clauses 26 and 27 to the same effect, would replace the tag “first notice” with “pre-deduction notice”. This has no substantive effect but is intended to be easier to understand.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, this next group of government amendments seeks to bring further clarity to the process of engaging with banks on direct deduction orders. Government Amendments 41, 42, 44, 45, 47, 48, 49, 113, 114 and 116 seek to clarify the purpose of the previously named “first notice” by renaming it a “pre-deduction notice” for the PSFA and the DWP respectively. It is just changing the name, nothing more. These minor and technical amendments reflect that the Government are acting in response to feedback from the banking sector about the description of notices. It felt that the naming was confusing, so we have changed it. We appreciate the sector’s engagement.
Similarly, government Amendments 106, 107, 108 and 118 follow on from feedback from the sector for greater clarity on the approach to the issue and subsequent processing of the notices, and make the application of the powers easier for financial institutions to understand. They support the intention that all relevant parties impacted by the debt powers of the Bill are correctly notified of the action to be taken. I beg to move.
Baroness Finn (Con)
It is great to be having a dialogue with the noble Baroness. We welcome the Government’s amendments in this group which, taken together, amount to a series of technical clarifications and improvements to the Bill. As the noble Baroness said, they do not fundamentally alter the policy intent, but they help to tighten its operation, provide greater clarity and ensure that the provisions are more workable in practice. We broadly support these amendments and will not oppose their inclusion.
However, I note that even so-called technical amendments can have material consequences for those tasked with delivering the measures in the Bill—whether public bodies, private firms or individuals. It is important that any changes, however minor they may appear, are properly explained and fully understood by those affected.
I also take this opportunity to remind the Committee that, when a Bill is heavily reliant on secondary legislation and technical detail, as this one is, we must be especially vigilant in making sure that these fine-tuning amendments do not obscure bigger questions of transparency, proportionality and accountability. We will continue to keep a close eye on those issues as the Bill progresses. So, while we support this group of amendments, we urge the Government to maintain the spirit of openness and collaboration that they have shown so far as further changes inevitably arise, and to ensure that the cumulative impact of even minor adjustments is properly assessed. With that said, we are content to support these amendments.
Baroness Anderson of Stoke-on-Trent (Lab)
I take this opportunity to thank the noble Baroness, Lady Finn, for both her engagement and support for this group of amendments and her wider engagement on the Bill.
While these amendments alone are relatively minor, together they reflect the importance of the ongoing consultation with key stakeholders, which is intrinsically linked with a desire to ensure that the legislation is as clear, precise and straightforward to implement as possible. The PSFA has consulted departments, public bodies, academics and non-public sector groups over many years of policy work to identify and resolve gaps in debt management powers across government. The PSFA has continued to work with stakeholders to consult on these powers as they go through Parliament and is committed to continuing to do so during implementation. We have listened directly to feedback raised by the financial sector and are taking the steps necessary to bring the clarity it seeks. I therefore hope that your Lordships will support these amendments.
Viscount Younger of Leckie (Con)
In support of my noble friend Lady Finn and in the spirit of agreeing with what is going on, I just want to ask a probing question of the Minister that is perhaps a little unfair. As we have noticed, there are a number of government amendments here and there is work in progress. The agreement between the Government and the banks continues. Does she have any idea when this will end? In other words, as Committee progresses, should we expect further government amendments as the banks and the Government work together to nail down the detail of agreements concerning the Public Sector Fraud Authority and the Department for Work and Pensions?
Baroness Anderson of Stoke-on-Trent (Lab)
I thank the noble Viscount. I feel like these may be famous last words, but I am assured that we hope not to table any more government amendments in Committee.
Member's explanatory statement
See the explanatory statement for my amendment to clause 26, page 16, line 14.
Member's explanatory statement
This amendment is consequential on my amendments to clause 23, page 15, line 3 and clause 23, page 15, line 11.
Member's explanatory statement
See the explanatory statement for my amendment to clause 26, page 16, line 14.
Member's explanatory statement
See the explanatory statement for my amendment to clause 26, page 16, line 14.
Member's explanatory statement
See the explanatory statement for my amendment inserting a new clause after clause 36.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, we recognise that there can be extenuating and difficult circumstances where someone has to take over another’s personal and financial affairs, such as making a power of attorney. Government Amendments 46, 61 and 121 clarify the role of a legal deputy with regard to the direct deduction order provisions for the PSFA and the DWP. These amendments follow our ongoing engagement with the financial services sector, which sought clarity as to how it would carry out a direct deduction order where a legal deputy has been put in place. We have benefited from the operational insight of the banks and have tabled this amendment to ease the operationalisation of the recovery powers.
Government Amendment 61 inserts an additional clause after Clause 36 to ensure that the provisions about direct deduction orders in Part 1 operate effectively where a person acts on behalf of an account holder by virtue of a power of attorney or as a court-appointed deputy. The amendment has the effect that any direct deduction order provisions and requirements have to be carried out by any legal deputies of the liable person, ensuring that recovery action can still proceed effectively.
Government Amendment 46 is a consequential amendment to ensure that the restrictions to prevent someone frustrating the direct deduction order will also apply to a person acting on behalf of an account holder.
Government Amendment 121 makes equivalent provision for the DWP as government Amendment 61 does for the PSFA. This brings clarity to the financial institutions that have to deal with deputies. It also brings protections to the liable person, ensuring that they are not unfairly given a non-compliance penalty if it is in fact their legal deputy who is not engaging with us on repayment or attempting to frustrate a deduction order. I beg to move.
Baroness Finn (Con)
My Lords, we welcome the Government’s amendment to make provision for cases where an individual with liability under the Bill has a person with power of attorney appointed to act on their behalf. This is a pragmatic step recognising that in some circumstances an individual may not be capable of handling their own financial affairs, whether due to age, illness or incapacity, and that there must be a clear legal route for compliance and communication to proceed.
It is right that, despite these circumstances, we should continue to recover public money that has been gained through fraud, given that adequate safeguards are in check, which I and my noble friend Lord Younger will address later in Committee. We therefore support the principle behind this amendment. It brings a degree of clarity and certainty to what could otherwise be a difficult area and ensures that the processes set out in the Bill can still function effectively when a liable person is not acting for themselves.
However, we wish to raise a concern which we hope the Minister can provide reassurance on. While this amendment provides for cases where a power of attorney exists, it does not appear to make provision for what happens when no such power is in place. In reality, there will be vulnerable individuals who may not have granted a power of attorney and who may also lack the capacity to manage their affairs independently.
In such cases, how will the provisions about direct deduction orders, as set out in Part 1, continue to operate effectively? Who is to be regarded as liable under the provisions in the Bill? Who will be entitled to challenge a notice or a penalty? Without a mechanism to address this situation, there is a risk that enforcement could falter—or worse, that it could proceed inappropriately without proper safeguards in place for the individual concerned.
We would therefore welcome the Government’s thoughts on how such cases will be handled in practice and whether there are plans to issue guidance or put in place safeguards to ensure that vulnerable individuals without formal representation are not unfairly affected by the processes introduced by this Bill.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I thank the noble Baroness, Lady Finn, for raising those specifics and for the collegiate nature of her contribution, giving me enough time to get the appropriate reassurances from my colleagues. I also thank her because we have not yet really discussed the vulnerability protections that are in place, and this gives us an opportunity to do so. As we progress through Committee, there will be many opportunities to discuss this, but I welcome the opportunity to provide some level of reassurance now.
Existing government standards on vulnerability, such as His Majesty’s Government’s debt management vulnerability toolkit, will be utilised by the PSFA. Vulnerability assessments will be carried out at the start of each investigation. These will review any evidence of financial, social or personal vulnerability and then determine how best to engage with the personal impact and subsequent enforcement action. Vulnerability will be kept under regular review as a case progresses and the vulnerability assessment will be regularly updated. During debt resolution, the liable individual will have additional opportunities to identify vulnerabilities. Debt resolution policy will take vulnerable customers into account and there will be a range of adaptations and forbearances on offer to support them. We will publish further guidance on this issue related to vulnerabilities.
These amendments resulted from direct engagement with the finance sector. We have been keen to seek its insight on how to use these powers and to table amendments that bring clarity to its roles. However, these amendments also ensure that those who act as a legal deputy on behalf of an account holder must adhere to the terms of any deduction order put in place. They set out clear obligations for them and put protections in place for the liable person whose affairs are being looked after by such a deputy. I hope your Lordships will support these amendments.
Member's explanatory statement
See the explanatory statement for my amendment to clause 26, page 16, line 14.
Member's explanatory statement
See the explanatory statement for my amendment to clause 26, page 16, line 14.
Member's explanatory statement
See the explanatory statement for my amendment to clause 26, page 16, line 14.
Member's explanatory statement
This amendment removes an unnecessary requirement to seek representations from account holders before a direct deduction order is varied in circumstances where their consent is required in any event.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I turn to a group of amendments designed to remove duplication and bring greater clarity to certain parts of the debt recovery powers for the PSFA and the DWP.
Government Amendment 51 seeks to simplify drafting by removing an unnecessary requirement for the PSFA to seek representations on an application to vary a deduction order where, in order to make such a request, all account holders must have already consented. Government Amendments 52 and 117 seek to leave out redundant subsections to remove duplication. The subsections referenced outline that a bank must comply with a varied direct deduction order as per Clause 23(5) for the PSFA or new paragraph 7(5) in Schedule 5 for the DWP. However, Clause 23(5) and new paragraph 7(5) already state that a bank must comply with every direct deduction order. Government Amendments 98 and 99 remove unnecessary references to a payment or credit in Clause 85, both of which are within the relevant definition of “benefit” already as a result of Section 121DA(5) of the Social Security Administration Act 1992.
These amendments will help make the Bill as clear as possible, which I trust is welcomed by your Lordships’ Committee. I beg to move Amendment 51 tabled in the name of my noble friend Lady Sherlock.
Baroness Finn (Con)
My Lords, I will speak very briefly on this group of government amendments which make a number of technical and definitional clarifications to the Bill. We on these Benches broadly support the changes in this group. These amendments serve an important purpose in tightening the language of the Bill and ensuring that the provisions are legally coherent, internally consistent and practically operable. We recognise the importance of ensuring that statutory language is as clear and precise as possible, not only for those who will be responsible for implementing these powers but also for those who may be subject to them.
In some cases, these amendments address minor inconsistencies in wording; in others they bring greater alignment between different parts of the Bill or between this Bill and the existing legislation. These are the kinds of technical improvements that are important to ensure that legislation operates as intended and we welcome the Government’s attention to detail in this regard. It is, of course, always preferable for such clarifications to be made earlier in the process—sorry to spoil it; it was getting too friendly—but we appreciate that, particularly in complex Bills such as this one, a certain amount of refinement is inevitable as the provisions are examined more closely by Parliament.
While there is no need to dwell at length on what are by nature technical changes, we support the amendments in this group and are pleased to see the Bill improved through their inclusion.
Baroness Anderson of Stoke-on-Trent (Lab)
I thank the noble Baroness, Lady Finn. I simply end by stating again that the effect of these amendments is to clarify the drafting and remove redundant drafting that is already provided for. It is important that we have clear and precise legislation to aid implementation of these powers, all of which will be used to tackle the scourge of fraud against the public sector. Therefore, I hope noble Lords will provide their support to these amendments.
Member's explanatory statement
This amendment removes a provision that is redundant (because section 23(5) applies in relation to every direct deduction order).
Baroness Finn
Member's explanatory statement
This amendment would ensure reviews of decisions to make a direct deduction order are undertaken by an independent person.
Baroness Finn (Con)
My Lords, our amendments in this group seek to address an important point—the feedback loop which exists in the review mechanism for direct deduction orders. We believe that in order to have a legitimate review of a decision the review pathway has to be independent from the office which made the initial decision. We need to make sure that adequate checks and safeguards are in place so that the exercise of the powers under this Bill are both effective and fair. This is not only important from a political or constitutional perspective; it is the only way that we will create a legitimate and trusted system to combat fraud.
In practical terms, the Bill means that if a person affected by a direct deduction order or a joint account holder wishes to challenge that decision, the case is sent back to the very department that made it. This is not how we build confidence in public institutions nor how we meet the standards of fairness the public expect. This is, in essence, a legal framework which allows the Cabinet Office to mark its own homework. As the Government have made clear, the PSFA will remain a very small team for the foreseeable future. Under the system currently proposed in the Bill, close colleagues will be reviewing one another’s decisions. It is natural that one should expect this process to be independent but, based on the Government’s proposal before us, this can never be the case.
We on these Benches consider it an impossibility that a review system set up in the way the Government have set out can inspire confidence and hence command legitimacy. We have therefore tabled amendments in this group to give the Government the opportunity both to make these changes and to make the Bill operate with greater effectiveness and legitimacy.
Our Amendment 56 would compel the Minister to appoint an independent person to undertake a review of a decision when an application for a review is made. This amendment addresses the heart of our concern that, on receiving an application for review, the Cabinet Office should appoint an independent person to review what the Cabinet Office has decided. It should not be the case that the Cabinet Office reviews what the Cabinet Office has decided.
In our view, this is a common-sense amendment rooted not in politics but in principle. It reflects a widely accepted and fundamental tenet of good governance: those who exercise power should not also be the final arbiters of whether that power was exercised lawfully or fairly. Independent review is not a novel concept; nor is it controversial. To embed this principle here would be not radical but responsible—and it is essential if the Government hope to build public confidence in a new, far-reaching enforcement mechanism.
Building on that, our Amendments 57 and 58 would permit the independent person to reach a decision as to whether a direct deduction order should be upheld, varied or revoked. These amendments do not seek to hand the power to implement these decisions to the independent person; rather, they would ensure that they can make a determination on one of these three outcomes, which they must then communicate to the Minister, who must then share it with the applicant. We are not seeking to create a rival executive power or trying to strip the Cabinet Office of its authority. We are proposing a balance: the Government would retain ultimate responsibility, but that responsibility would be exercised in the light of a fair and independent review, not an internal second glance.
These amendments would ensure not only that the review process was made independent from the organisation that made the original determination but that the applicant would have sight of the decision that was reached by the independent person in relation to their case. This mechanism would ensure not only that the Minister, with their respective lines of accountability to Parliament, would maintain the power to implement a decision but that reviews of their actions would be truly independent and accessible to the liable person or joint account holder. Ensuring that the sweeping powers provided for in the Bill have proper, independent oversight mechanisms is fundamental to making sure that we balance the imperative of combating fraud with our responsibility to wield these powers proportionately and fairly. People must be assured that they can make a request for a review that will be independent and fair. This is the only way in which we can garner trust and create a system that is truly legitimate in the exercise of its powers.
Finally, our Amendment 59 sets out a proposal for how such an independent reviewer could be constituted as part of the Bill. As is made clear in proposed new subsection (2), the nominees for appointment to the position of the independent reviewer must, or should, undergo a pre-appointment hearing before the Public Accounts Committee; this would build in some accountability to Parliament ahead of the final appointment being made.
I emphasise that, although this amendment sets out just one vision of how the independent reviewer post could be formed, it speaks fundamentally in support of our view that the review mechanism built into the Bill must be independent of the Cabinet Office. The review process has the potential to impact significantly on how a deduction order is applied to a liable person or a relevant joint account holder. It is important that the process for review is effective, legitimate, independent and fair. The only way we can see this being achieved is through the incorporation of an independent review mechanism, a proposal for which we have set out in this group of amendments—Amendment 59 in particular.
Ensuring that liable parties can be assured of a fair review is a duty that we owe to those over whom Cabinet Office officials are exercising these powers. Providing a review process that relates back to the original body that made the decision is inadequate and, in our view, does not fulfil the obligation to provide effective avenues of appeal and redress. We must always remember that a person affected by a direct deduction order may have legitimate grounds to request a review of the decision. They deserve to know that, if they do so, they will be heard not by the same body that sanctioned them but by someone who is genuinely independent, impartial and fair.
The Government have argued that the powers in this Bill are necessary to tackle public sector fraud, but powers without independent scrutiny are at risk of creating overreach. If we are asking the public to accept strong measures in the name of fraud prevention, we must also guarantee that those measures will be exercised with proportion, accountability and justice. To allow the Cabinet Office to be judge and jury in its own cause does not meet that test. Our amendments, therefore, offer a sensible solution. They provide a pathway to restore confidence in the process—a pathway to fairness, legitimacy and the rule of law. I urge the Government to adopt them, and I urge noble Lords to support them. I beg to move.
Baroness Fox of Buckley (Non-Afl)
My Lords, I welcome the spirit of this group of amendments. I am not clear that I understand entirely how the independent review process might work, but I do understand the importance of having an independent review process; the case for this was made convincingly by the noble Baroness, Lady Finn.
Despite the fact that we are whizzing through these amendments at great speed, I do not think that it would be right to underestimate the huge amount of power that this Bill gives the Cabinet Office. There appears to be an atmosphere of consensual camaraderie, which it is pleasant to be involved in—it may be an atmosphere I am less used to—but I emphasise the amount of concern outside this Committee about the implications of this Bill. The people who are concerned are not all hucksters or fraudsters: they are ordinary people who have genuine fears around the possibilities of the absolutely unintended consequences of the Bill if we do not have adequate safeguards. So I am keen on anything that strengthens safeguards.
I hope, therefore, that the Government will consider these amendments seriously. I think that they are very helpful. I am particularly keen, of course, on the idea that liable persons, as they are described, deserve to have somewhere they can go to make an appeal. They deserve to know, as was suggested, that, if they have legitimate concerns, they will be heard. So much of what appears to be in this Bill happens behind the backs of liable persons, which creates an atmosphere of fear, suspicion and nervousness.
I do not think that people are just being paranoid here. Consider—this has been mentioned before and will no doubt come up again—the Horizon scandal. There is nothing more frustrating than feeling as though you have been treated badly somehow but you do not know where to go. You have nowhere to appeal to. It may be that you have a perfectly legitimate explanation for something. What we saw in Horizon was “computer says no”. What we could have here is the Cabinet Office, which has just imposed something on you, not taking any notice if you should go and complain. That is a very important part of this: people deserve to know that their concerns can be heard, and so on.
There is a danger in this discussion sometimes. I fear that, if one raises concerns about this Bill, there will be an inference that one is not taking fraud seriously. That is absolutely not the case. I have constantly made the point, for example, that I worry about the conflation of error and fraud. This does not mean to say, though, that, where there is genuine fraud, we should not want to clamp down on it as hard as we can.
But it is also fair enough that we need to have a system in which there is public confidence. To clamp down on fraudulent activity, we need a watertight, safeguarded Bill that targets fraud and does not pick up any number of non-fraudulent issues, which will undermine public confidence. The intention of these amendments is to help enhance public confidence that there is a mechanism through which an independent body can review a process that could be corrupted inadvertently by a department having the capacity to mark its own homework, and, in that instance, not always see the wood for the trees when people raise concerns.
Lord Verdirame (Non-Afl)
My Lords, I, too, have a few comments to make on these amendments. I very much support the intention behind them. I would like to understand a bit more about Clause 34 and how it will operate. Paragraph 219 of the Explanatory Notes says:
“This clause introduces a process for review of deduction orders by an authorised officer of a higher grade than the original decision maker upon application by relevant parties”.
As far as I can see, there is no mention in the legislative text of the authorised officer who conducts the review being of a higher grade. Perhaps I have missed it, and it is somewhere else; if so, I would be grateful to know where. If it is not somewhere else, it may be that the Explanatory Notes made that point on the basis of general principles of administrative law. Either way, it would be useful to know where that comes from.
My second point concerns the grounds for review, which are very narrow. Clause 34(4) says:
“An application for a review under this section may not be made on, or include, any ground relating to the existence or amount of a payable amount (unless the amount is said to be incorrectly stated in the order)”.
The grounds for appeal in the following clause are equally narrow. Is my understanding correct that the reason these grounds are so narrowly drawn is that there has already been a final determination of the payable amount by a court or tribunal—which was the reference to Clause 12 that we were given earlier on? Can the Minister give us some examples of grounds for review, given how narrowly drawn that provision is in Clause 34(4)?
Finally, I note that there is no time limit imposed on the Minister for carrying out the review. The applicant would have to put in an application within 28 days, but they might just sit and wait for the outcome of that review for an indefinite period. Would it not be a good idea to include a clear time limit on the reviewer—ideally the independent reviewer—or the authorised officer for that review to be concluded?
Lord Vaux of Harrowden (CB)
My Lords, I will say very briefly that I support the concept, at least, behind these amendments. It cannot be right that the Minister marks his own homework. The noble Lord, Lord Verdirame, talked about what it says in the guidance notes. I do not know whether this is the right mechanism but, at the very least, if a review is to be carried out by the department, it must be by somebody who was not at all involved in the original decision and is not answerable to anybody directly involved in the decision-making process. That needs to be set in stone somewhere, not just in guidance notes or whatever that can be changed at a whim by any future Government. This is one of the weaknesses throughout this. We have lots of safeguards, but they are all in codes of conduct, future statutory instruments or whatever; they are not set in stone in the law and therefore are not strong safeguards. That is a general thought.
I have a feeling that I know what the answer will be: if they do not like the outcome of the review, they can go to the First-tier Tribunal. But that is a big leap from going back and saying, “Can we have an independent review?”. A First-tier Tribunal is, effectively, a full legal process. We need something that works and in which people can have confidence at the first level, before needing to take it to the much more legalistic, costly and complicated process of the First-tier Tribunal. I think the Minister will say that that is the answer, but I am not sure that I agree.
Lord Palmer of Childs Hill (LD)
This is a popular set of amendments. I agree entirely that there should be an independent review. That is something that somehow has to be in the Bill. What worries me about the noble Baroness’s amendments is that they talk about an “independent person”. Those are the words in the amendment. An independent person is somewhat different from an independent review. I can see a wonderful job opportunity in having panels of independent persons who could be available to be appointed.
During the debate on this Bill, one has somehow to put flesh on the concept of an independent review, how it is set up and how people can make their complaints. One of the real problems of modern life is that, if you want to make a complaint, you have to be able to do it on a computer and use IT. Is there going to be a process whereby you do this in a letter form in some way or another? These amendments, in seeking to put right the lack of an independent review, latch on too closely to the concept of an independent person, which in my view is completely different.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I have lots of bits of paper, and they are all written in my handwriting, which means that it will be even harder for me to read them—so bear with me.
Amendments 56, 57, 58 and 59 would establish a new body with responsibility to conduct reviews of direct deduction order decisions. Under the current drafting, internal reviews can be requested to challenge, for instance, whether a direct deduction order is the most appropriate form of repayment or whether the deduction amount is fair and affordable. Internal reviews are important, as they provide a straightforward and affordable way for the liable person to present a challenge to direct deduction order decision-making. They are an impartial element of many review processes. Indeed, if we turn to cross-government precedence, we can look at Child Maintenance Service and HMRC deduction orders. Both of these include an internal review stage without necessitating the creation of another new body.
For DDO reviews, the reviewing officer will be a trained authorised officer of a higher grade than the original decision-maker. To answer the noble Lord, Lord Verdirame, that is in Clause 66(3) of the Bill. They would not have been involved in this case until a review had been requested. They may decide to uphold, vary or revoke the direct deduction order. This decision will be based on an assessment of the material held and any relevant new information provided by the liable person.
To reassure the Committee, as the noble Lord, Lord Vaux, anticipated, if the liable person disagrees with their decision, there are further appeal rights through the First-tier Tribunal. We specified the First-tier Tribunal for ease of access; no costs are awarded, and there is quick access to justice. We believe that that is a responsible option.
We believe that the amendments are duplicative, as there is already the right to independent review built into the legislation. Also, the proposals outlined in the Bill would not require the extra costs or resources that the application of these amendments would. I highlight Clause 64, which already creates the role of an independent person, who will have the responsibility of reviewing how the PSFA are using the powers and whether this is being done correctly, ensuring another layer of independence and safeguard.
On some of the specific questions, Clause 35 outlines the appeal process. The liable person can make representations before the DDO and then make appeals to vary the terms throughout engagement.
The noble Lord, Lord Verdirame, asked why the liable person cannot challenge the amount owed in the internal review. That was not quite his question, but this is the answer I have. All reviewing appeal options will clearly be signposted to the liable person throughout our interactions with them; the liable person will already have had opportunities to challenge the amount owed, either as a result of fraud, error or the application of a penalty, in the relevant court or tribunal proceedings. We believe that that provides more than ample opportunity to challenge.
While we want to let people present their positions, we also do not want them to be allowed to excessively frustrate the recovery process and cause unwanted delay in the return of vital funds.
Baroness Fox of Buckley (Non-Afl)
Maybe I should just clarify. I am not suggesting that the Cabinet Office is full of malign people out to behave badly, and I was not suggesting that they all need to be punished. I was more suggesting that the reason why it would be useful to have an independent review body was for exactly the reasons that fellow noble Lords have pointed out—that if people wish to challenge decisions that are made, it is very important they feel they can go to a body where they will not necessarily be working directly with the people who made the original decision, as has been described. No one is suggesting that there is an evil, scheming group there.
The comparison with the Horizon scandal that I was trying to make was about the sense of intimidation and fear when someone feels that they have been wrongly treated, then when they appeal or try and go to a body to sort it out and it ends up being the same people who punished them in the first place. Maybe I misspoke before, but it is this that I am concerned about—so I would like this independent review body to exist so that those who are liable have somewhere independent to appeal to, straightforwardly.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, in response to the noble Baroness, I state that there is the First-tier Tribunal opportunity, in terms of there being an independent process to go to. That is why we have put in place the additional safeguards with regard to the independent person who will be appointed to review all cases at their discretion, not at that of the Cabinet Office, as well as HMICFRS—so there is someone who has oversight. That is also why we are making ourselves subject to the IOPC for matters of complaints, as outlined in the Bill.
The noble Baroness raises a very important point about Horizon. I assure noble Lords that the Horizon scandal and how we ensure that it is not repeated has been central to this Government’s thinking on safeguarding. In light of the seriousness of events, the Government wish to proactively ensure the highest levels of oversight in new legislation, and that is why they exist in this Bill.
With regard to one of the points raised by the noble Baroness, Lady Finn, on the appointment of the independent person subject to a parliamentary pre-appointment hearing, the Government cannot commit to this at this stage. Cabinet Office guidance states that it should be discussed between the relevant Secretary of State and the chair of the relevant Select Committee. The Government want to make sure that the independent person is demonstrably independent and are exploring all available routes to achieve that. I hope that we will be able to discuss that further in due course, but with these explanations I hope that I have reassured noble Lords and that therefore they will not press their amendments.
Viscount Younger of Leckie (Con)
I just wanted a bit more clarity in terms of the Child Maintenance Service, which she alluded to. My understanding is that, if there is a problem with cases looked at by the CMS, they go up to a different level to ICE—the independent case examiner—and complaints are reviewed.
I am a little bit confused as to exactly what the Minister’s argument was. Backing up the argument from my noble friend Lady Finn, we are strongly looking for independence in the public sector. I was not quite sure whether the Minister was saying that it was okay because rather like the Child Maintenance Service there is an independence or if it is something else?
Baroness Anderson of Stoke-on-Trent (Lab)
I apologise if I was not clear. My point was that internal reviews are already a normal process within government. HMRC, the DWP and the Child Maintenance Service already adopt them.
Baroness Finn (Con)
I thank noble Lords and thank the Minister for her response. The noble Baroness, Lady Fox, may feel that this is consensual camaraderie. However, I can assure her that, while I am very grateful to the Ministers on the Bench opposite for their constructive engagement, I do not think there was very much consensual in what I said in my Second Reading speech on the powers of the Cabinet Office and various other parts of the Bill. I really did emphasise that I was very concerned about junior civil servants being granted sweeping powers, with the reviews and redress being carried out merely by a higher-grade official—the noble Lord, Lord Verdirame, made that point—within the same department and not by an external body. The concern has always been that the Cabinet Office is appointed as investigator, juror, judge and debt collector. The individual affected has limited power to challenge the decisions, and then only after the damage has been done. I have been very clear, I hope, on those concerns and will be clear as we carry on going through the Bill.
This debate has laid bare a crucial flaw at the heart of the Bill, one which speaks not just of good process but to the principle of fairness, accountability and trust in government. We cannot expect the public to accept that legitimate and fair review decisions as impactful as a direct deduction order can be undertaken by the same department that made the order the first place. Our amendments in this group offer a simple, reasonable and principled solution that, when a request for a review is made, that review must be carried out by an independent person or body.
I take the point made by the noble Lord, Lord Palmer, in this regard that we refer to an “independent person” but in Amendment 59 we refer to establishing a body to serve as an independent reviewer, so we are probing at the moment on how that might be set up, rather than being specific. The point is the independence of the body or the person. This should not be a colleague or a coworker and not someone in the same chain of command. No system of justice can command public confidence if it allows a single team to be judge and jury in its own cause.
Let us be clear. We are not seeking to tie the Government’s hands or strip departments of their operational roles; we are proposing a balanced and proportionate framework that keeps Ministers accountable to Parliament but ensures that the initial decision is subject to meaningful independent scrutiny. That is a safeguard for the individual and for the integrity of the system itself. This matters because the consequences of these powers will be real—they are sweeping powers, as I have repeatedly said—and immediate for the people affected. If those people are to have any confidence in the fairness of the system, they must know that their right to request a review is not simply a paper exercise. It is not good enough to say that this will be a small team and the risks are manageable. In fact, the small size of the PSFA makes the case for independence even stronger. Close colleagues reviewing each other’s decisions behind closed doors is a recipe not for fairness but for suspicion and mistrust.
Our amendments, particularly Amendment 56, place a simple duty on the Minister to appoint an independent person or body when a review is requested. Amendments 57 and 58 ensure that that person can reach a clear conclusion to uphold, vary or revoke the order and that the applicant is told what the decision is. Amendment 59 provides a model for how such a reviewer might be appointed, with proper parliamentary scrutiny.
If we truly believe in the legitimacy of these powers, we must also believe in the legitimacy of the mechanisms that hold them to account. A fair and independent review process is a necessity. This is not just a procedural issue; it is a test of whether this Government are serious about wielding these powers with proportionality, care and respect for the people over whom they are exercised. The public will not trust a system that allows the Cabinet Office to mark its own homework, and nor should they.
These amendments provide a path forward—a way to deliver a fraud prevention system that is strong but just, decisive but accountable, and both effective and legitimate. I urge the Minister to accept this principle of independence and to adopt these proposals or some version of them as important measures which would improve the system of review that the Government have presented. On that basis, I beg leave to withdraw.
(a) the period of 28 days beginning with the day after the day on which the person was notified of the outcome of the review, or(b) such longer period (if any) as the Tribunal considers reasonable in all the circumstances.”Member's explanatory statement
This amendment means that the tribunal can extend the time limit for bringing an appeal in relation to a direct deduction order of the Minister for the Cabinet Office.
Elections: Political Party Spending
(1 day, 19 hours ago)
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Lord Rennard
To ask His Majesty’s Government whether they have plans to regulate spending by political parties on elections further, including by applying a national expenditure limit every year, not just in the year before a general election, or by lowering the national expenditure limit.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
My Lords, robust party spending and reporting rules are already in place. The Government do not have current plans to review the spending limits, but we are committed to maintaining the level playing field and the integrity of elections. In line with our manifesto commitment, our focus is on safeguarding our democracy by strengthening the regulations on political party donations. We plan to set out further details on that in our strategy for elections, which we expect to publish this summer.
Lord Rennard (LD)
My Lords, last week Elon Musk claimed that, without his $300 million donation, Trump would have lost the election. Does the Minister accept that democracy in this country should not be for sale and that millions of votes should count for more than millions of pounds? Given their commitment to a level playing field, will the Government act to bring in a cap on the size of donations that can be made to parties? Will they reverse the 80% increase in national spending limits brought in by the previous Conservative Government and opposed by Labour when in opposition? Will they introduce spending limits that apply every year, not just in the year before an election?
Baroness Taylor of Stevenage (Lab)
My Lords, many things are said on social media, including by Elon Musk, and I am aware that he is a prolific user of his own platform. There has been much discussion of his words and their impact; I do not want to dignify them with any further reaction in this Chamber. On the capping of donations, those who participate in electoral campaigns must also follow the donation and spending rules set out in law. It is the responsibility of those receiving political donations to take steps to ensure they are permissible, and we will take any necessary steps to ensure those requirements are tightened and abided by. There is no current priority on capping donations, but we are very keen on strengthening the rules around how donations work.
Lord Hayward (Con)
My Lords, I welcome both the Minister’s initial Answer and her reply to the noble Lord, Lord Rennard. She will be aware that Reform, in announcing its policy on DOGE, said that it would cost the ordinary voter nothing because the expertise would be provided for free. That surely constitutes a donation of some form or another. On Saturday, Aubrey Allegretti reported in the Times that the head of DOGE in Kent had said that they had
“hired up to a dozen people, including forensic accountants”
and data scientists. Does the Minister agree that this either constitutes a donation, which should be looked at by the Electoral Commission, or, more likely, is a cost to the voters of Kent County Council of which they were not aware when they cast their votes only a few weeks ago?
Baroness Taylor of Stevenage (Lab)
The noble Lord makes a very important point, and, like many others, I have heard a lot about DOGE in Kent. Local government funding is incredibly complex and, if what I have seen in the press is true, it is very important that anyone looking into this has a very detailed understanding of the subject. We have our own regulatory bodies, including CIPFA, which do great work in that area.
On breaches of donations, the rules are a matter for the Electoral Commission or the police. The Electoral Commission already has the power to investigate and to impose civil penalties where it is satisfied there has been a breach. As part of our commitment to strengthening the rules on donations, which, very importantly, include donations in kind, we are also reviewing whether any changes are required to the role and powers of the regulator to make sure that rules across the political finance framework are effectively enforced.
Baroness Ramsey of Wall Heath (Lab)
My Lords, what plans does my noble friend the Minister have to tighten the rules on foreign donations to ensure that donations are made only from profits generated in the United Kingdom?
Baroness Taylor of Stevenage (Lab)
My noble friend makes a very important point, one that we have discussed in the Chamber before. I can assure her that the Government take the threat posed by disinformation and foreign actors interfering in our democratic processes very seriously. It is and always will be an absolute priority to protect the UK against foreign interference. While it is clear that foreign donations to political parties are not permitted, the Government recognise the risk posed by malign actors who seek to interfere with and undermine our democratic processes, which is why we will take all necessary steps to ensure that effective controls are in place to safeguard our democratic processes. As I said before, we plan to provide further details on our election strategy in the summer.
Lord Evans of Weardale (CB)
My Lords, I welcome the Minister’s undertaking to publish a strategy for electoral finance regulation. In so doing, may I encourage her to revisit the report by the Committee on Standards in Public Life, of which my colleague, the noble Baroness, Lady Ramsey, was also a member at the time? We worked on the basis of evidence and had cross-party support for the various recommendations we made. Regrettably, the Government of the time decided to accept none of them, so this is an opportunity for the current Government to put right that error.
Baroness Taylor of Stevenage (Lab)
As the work is being done to consider what needs to be in the electoral strategy, there have been a number of recent reports on elections and how they work. All the work done will be considered as we pull together the election strategy.
Lord Leigh of Hurley (Con)
My Lords, in her answer to the Question from the noble Lord, Lord Rennard, and the Michael Brown memorial question, the Minister referred to a strategy document that is being produced before the Summer Recess, but as of yet there has been no engagement with any other political party on this document. The last Conservative Government consulted the parliamentary parties panel, but the Labour Government have yet to do this. Will she commit so to do? I declare my interest as a treasurer of the Conservative Party.
Baroness Taylor of Stevenage (Lab)
The noble Lord is right that all political parties must be engaged in any consultation. The idea is to produce a draft strategy based on the reports that have been produced so far and then have an extensive consultation on that. I will reply to the noble Lord in writing if that is different.
Lord Wallace of Saltaire (LD)
My Lords, I have to take the Question on money flowing into British politics further. In the Russia report, we had some information on Russian money flowing primarily into the Conservative Party and associated organisations. We now have American money from extremely reactionary groups within the United States—not the American state—flowing into a range of third-party campaigns and potentially through unincorporated associations to political parties. What are the Government going to do to monitor that and make it transparent to regulators?
Baroness Taylor of Stevenage (Lab)
I agree with the noble Lord that this is a very important area. There are strict rules relating to unincorporated associations and the political contributions they make, including transparency requirements when making significant political donations. Currently, donations from unincorporated associations make up some 4.6% of the value of all reported permissible donations, but there is a risk there and it is very important that we take it seriously. As already stated, our department is developing policy proposals to meet manifesto commitments. As part of this, we are exploring recommendations from key stakeholders, including many that were made relating to unincorporated associations.
Baroness Scott of Bybrook (Con)
My Lords, during the passage of the National Security Bill, the last Conservative Government gave a commitment to this House to introduce voter information-sharing powers between relevant agencies and with political parties to help identify irregular sources of money. Why have the Labour Government done nothing to deliver on this sensible proposal? Is it not in the Labour Party’s best interests that it is given the heads-up, if it is taking money yet again from Chinese spies?
Baroness Taylor of Stevenage (Lab)
I do not think it at all helpful, when we are discussing an important issue concerning electoral law, to be throwing around political accusations about where the money has come from, because all parties have evidence of what other parties have done. We have to treat this issue with the seriousness it deserves, and we have to work on what our strategy is. Information-sharing is, of course, a very important part of what we are doing. I can assure the noble Baroness that, when we come to the strategy in the summer, information-sharing will play a key role in that.
United Nations International Day of Peace
(1 day, 19 hours ago)
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Lord Brooke of Alverthorpe
To ask His Majesty’s Government what plans they have to celebrate the United Nations International Day of Peace on 21 September.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office (Lord Collins of Highbury) (Lab)
My Lords, peace day falls at the start of the UN General Assembly high-level week, the annual gathering of world leaders to discuss matters of peace and security and, this year, to commemorate the UN’s 80th anniversary. Peace is the bedrock of the UN. As always, the United Kingdom will be at UNGA in full force, demonstrating our support for the UN, its charter, and the essential role of the UN in effective multilateralism and the international rules-based system.
Lord Brooke of Alverthorpe (Lab)
I am grateful to my noble friend the Minister for that Answer, which is much welcome. I thank him for the great energetic and principled service which he has given to this House and to the Government. Looking at the Question, I wonder whether there is a possibility that we might start thinking of shifting the focus marginally away from it simply being about international diplomacy and towards looking for better peace among ourselves, so that we might look for more inner peace, more intergenerational well-being and more community well-being. When we come to celebrate the day, might the Government think about sending a message to our 23,000 schools around the country that they should give some thought to those kinds of principles?
Lord Collins of Highbury (Lab)
I thank my noble friend for that question. He is absolutely right. One of the things that I have recently done is meet the new Secretary General of the UNA, who is actively involved in promoting the UN at all levels of community. I spoke about how we could reach out to all civil society groups to recognise the importance of the anniversary and the work of the UN, because it is not fully understood how important its role is, particularly in peacebuilding and peacekeeping. My noble friend is absolutely right. I will speak to my ministerial colleagues to see if we can reach out beyond civil society in recognition of the 80th anniversary and think about the role of schools and so on.
Lord Ahmad of Wimbledon (Con)
My Lords, does the Minister agree that one of the main reasons that the UN was successful in its early years was its role in intervening on conflict prevention and then peace accords? It is a tragic consequence of the modern age that, when we look around the world today, we see that probably a record number of conflicts are raging, yet we often find that the UN has not been able to play the convening role that it did previously. What assessment has the Minister made of strengthening the role of the UN when it comes to mediation, particularly on the major conflicts we see currently?
Lord Collins of Highbury (Lab)
I have a tendency to agree with the noble Lord on many occasions, and he is absolutely right. When he was Minister responsible for the UN, he took time to ensure that its peacebuilding efforts were fully recognised. We are absolutely focused on how we can improve support. I have been involved in meetings with Under-Secretary-General Lacroix during UNGA week, talking about how we can support that peacekeeping effort. More importantly, in April, I then met Under-Secretary Guy Ryder and Under-Secretary Nakamitsu to discuss not only how the UN reform programme can work but how it can be focused heavily on that peacebuilding effort. The noble Lord is absolutely right that we need to do more to promote such activity and to engage, but the convening role of the UN is absolutely vital. That is why, although we can feel frustrated with the role of the UN Security Council, it is really important that everyone is around the table.
Lord Purvis of Tweed (LD)
My Lords, the best way to mark peace day will be to invest in conflict prevention. It is regrettable that the Government are cutting to almost zero all conflict prevention work, especially—in the light of our issues here at home around migration—as there are an increased number of conflicts around the world that will lead to increased levels of migration. The Government continue to pay the profits of those hosting asylum seekers in the UK and to score out official development assistance. At the conference on 21 September, would it not be better to invest in peacekeeping and conflict prevention and not to allow profiteering as a result of conflict?
Lord Collins of Highbury (Lab)
Maybe the noble Lord has more information than me, but I reassure him that we are absolutely focused on using all the tools in our toolkit to promote peacebuilding, and that is certainly not limited to ODA. To reassure him, we are using this year’s peacebuilding architecture review to champion the women, peace and security agenda, ensuring that gender inequality and women’s participation is embedded at all levels of the United Nations. We continue to support the UN Peacebuilding Fund and have committed over £175 million since its inception in 2006. We continue to support the UN’s Complex Risk Analytics Fund, with £1.4 million last year and this year, which plays an important role in financing data and analysis to strengthen global risk foresight capabilities. I do not accept what the noble Lord is suggesting. There are more ways that we can focus on peacebuilding, and certainly we will continue to do so.
Lord Alton of Liverpool (CB)
My Lords, has the Minister had a chance to look at the reports I sent him over the weekend from Sudan, where over 100 mass graves were discovered in Khartoum and the surrounding area and where genocide continues in Darfur? Does he agree that there is an absolute link between peace and justice, and that if those who are responsible for atrocities, whether it is in Ukraine, the Middle East or Sudan, are not held to account, inevitably we see these things happen over and over again?
Lord Collins of Highbury (Lab)
I have to confess that I did not have time over the weekend—sadly, I was not in the country—but I accept what the noble Lord says. It is absolutely vital that accountability is part of the mechanisms that we have to use here. He is right that it is about how we prevent these atrocities, and one sure way of preventing it is to make it clear to people who are thinking about committing such atrocities that they will be held to account. I agree with the noble Lord, but, as he focused on genocide determination, I repeat that our differences over that do not prevent us as a Government taking action to call out and seek to address atrocities, and to work to build resilience in places where there are risks of instability and violence. Sudan is a priority for this Government, as the Prime Minister and the Foreign Secretary have made clear. We will certainly pursue whatever we can in holding people to account to prevent such atrocities occurring or to stop those that are going on at the moment.
Lord Callanan (Con)
My Lords, it is indeed a sad irony, given the number of appalling conflicts afflicting the world at the moment, that the International Day of Peace has a lot of heavy lifting to do. What assessments have the Government made of the impact of aid reductions on peacebuilding on some of the fragile and conflict-affected states, particularly in the light of this International Day of Peace?
Lord Collins of Highbury (Lab)
The important thing is not to take our eye off the ball and to focus on how we can achieve peace. A classic example of that is in the eastern DRC, where conflict is raging but we do not see too much attention being placed on it. I have been in constant touch with the President of Angola, who initiated the first ceasefire, and with President Tshisekedi and President Kagame about how they can approach it. We now have the Americans playing a critical role in Doha in bringing the parties together. We are absolutely focused on using all the tools in our toolkit to ensure peace. The most important part of that toolkit is our diplomacy and re-engaging on the international stage, which, sadly, was a little missing for the last 14 years.
Lord Sahota (Lab)
My Lords, now that India is the fourth or fifth largest economy in the world, does the Minister agree that it is about time that India was a permanent member of the Security Council?
Lord Collins of Highbury (Lab)
Noble Lords will have heard me stress the importance of Security Council reform. We have been at the forefront of arguing for two permanent seats for Africa on the Security Council, not least because, by 2030, a quarter of the world’s population will be African—that is really important. We have made the case for India—my noble friend is right—and we see Security Council reform as essential. It is always very difficult to focus on reform when people have the ability to stop it, but we are getting closer to the position where the extension of the Security Council is in sight, and we are working on it strongly.
Cluster Munitions Convention: Article 21
(1 day, 19 hours ago)
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Lord Godson
To ask His Majesty’s Government what assessment they have made of the risk of legal challenges when relying on the provision in Article 21 of the Cluster Munitions Convention allowing the United Kingdom to fight alongside states that are not party to that Convention.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office (Lord Collins of Highbury) (Lab)
My Lords, since ratifying the Convention on Cluster Munitions, the United Kingdom has regularly co-operated with non-state parties, including in combat. The Cluster Munitions (Prohibitions) Act 2010 sets out a clear UK legal framework for all UK military personnel and nationals engaging in military co-operation and operations with non-state parties to the convention. The Act enshrines the convention’s prohibitions in domestic criminal law, while providing a defence in the context of international military co-operation and operations with non-state parties.
Lord Godson (Con)
I thank the Minister for his response; I just wonder whether, in the light of the rapidly changing international situation and Russian lawfare, it is perhaps a little optimistic. The Government are trusting in the strength of Article 21 in the face of legal challenge. I refer the Minister to the Human Rights Watch and Harvard Law School study of 2010, which made it quite clear that Article 21’s interoperability carve-out, which the previous Labour Government obtained, does not in fact exempt signatory states from their Article 1 obligation not to “assist, encourage or induce” the use of cluster munitions. It concludes that the prohibition on assistance must apply at all times. Can the Minister therefore assure this House that the Government are certain that so eminent an interpretation of the convention is incorrect and so does not provide grounds for a subsequent successful legal challenge to our Armed Forces?
Lord Collins of Highbury (Lab)
The straight answer to the question is yes, I am satisfied. I will give the noble Lord a reason for that, but we should not forget that the CCM remains vital in protecting humanitarian norms. Cluster munitions continue to pose a threat to civilians. In 2024, the Landmine and Cluster Munition Monitor reported that civilians made up 93% of cluster munitions casualties in 2023. I have read the noble Lord’s report. Provisions for military interoperability between members of the CCM and non-members are clearly set out and enshrined in UK law and have functioned effectively since the CMM came into force. Since the convention came into force in 2010, UK Armed Forces have operated effectively, including in combat with all allies regardless of their membership of CCM, in line with the CCM provisions on interoperability under Article 21.
Lord Browne of Ladyton (Lab)
My Lords, I thank my noble friend for the comprehensive answers that he gave to the noble Lord, Lord Godson. However, there is a much simpler response to this Question, to be found in the 45 words of paragraph 3 of Article 21 of the convention, which states:
“Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties”—
which includes the United Kingdom—
“their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party”.
Is that not the answer?
Lord Collins of Highbury (Lab)
My Lords, it may be that my noble friend has saved me some time, but I repeat that since the CMM came into operation in 2010, we have done exactly that. We have co-operated with states which are not party to the agreement. My noble friend is right.
Lord Callanan (Con)
My Lords, the noble Lord, Lord Browne, highlights an important point. A number of fellow NATO states have withdrawn from the convention or never joined it in the first place. Russia did not sign up to it initially. There is an obligation under the convention, to which Gordon Brown signed us up, to make representations to non-member states. Have the Government done that formally to some of our closest allies?
Lord Collins of Highbury (Lab)
Absolutely; we are committed to it. During my time as a Minister, I have seen first-hand the positive impact of the United Kingdom’s involvement in this. I pay tribute to the fantastic work of the Halo Trust. When I was in Angola, I visited areas that were severely contaminated by such weapons, which impacted hugely on the safety of civilians and their ability to re-establish their economy after such a long period of war. To come back to the fundamental point about Article 21, I am not making a judgment. We work with our allies—particularly Ukraine, which is facing Russian aggression. Russia is also bombing civilian cities and attacking civilians and civilian buses. We are committed to defending Ukraine and its right to defend itself. However, we must be clear. The important point about the convention is how it tries to stop this huge impact of remnants of war. There have been 10 years of peace in Angola, yet people are still dying from these munitions.
Lord Purvis of Tweed (LD)
My Lords, I agree with the Minister regarding the Halo Trust and the very long legacy that exists because of the use of these munitions. The UK was the world leader in demining and in the stabilisation programmes in communities affected by them. Unfortunately, the scale of the ODA cuts is biting very hard, especially on initiatives such as humanitarian mine action and the stabilisation programmes. In the last Question, the Minister suggested that I was incorrect on the reductions. Can he prove his case by saying that these programmes will now be protected?
Lord Collins of Highbury (Lab)
I did not say the noble Lord was incorrect—I think Hansard would prove that; I said that he may have more information than I have. We are in the middle of a very detailed spending review. While the outlying figures are out, the department has to go through a programme-by-programme process to determine how we meet the commitment of ODA. I did not say that he was misleading. One thing I am determined to do is to ensure that we use all levers available to us. It is not limited to ODA, and it is not limited to our diplomatic efforts and working with allies. We should be more innovative in how we develop and deliver these programmes, including with the private sector.
Lord Faulks (Non-Afl)
My Lords, the Government have rightly made it clear that we should be prepared for conflict if necessary. Unfortunately, they, and indeed the previous Government, have gathered a reputation for so-called legal freeloading, in other words, being restrained by an interpretation of international law which has often made it difficult for our troops to perform in the way they would want. Can the Minister assure me that there has been a thorough analysis of our legal obligations in the face of the possibility of war, so that our troops, as well as facing difficulties that they are bound to face, do not find themselves walking into a legal minefield?
Lord Collins of Highbury (Lab)
Let me be absolutely clear to the noble Lord: ratification of the CCM and subsequent removal of cluster munitions from our inventory does not constrain UK military capability nor prevent interoperability with allies. The UK has successfully developed alternative systems and policies that have allowed for effective operation with our allies since ratification in 2008, including in combat. The strategic defence review was clear that the United Kingdom Armed Forces will be a more lethal, integrated force, equipped and ready for all future challenges.
Lord Dubs (Lab)
My Lords, I should declare an interest, as I was actively involved in the campaign to get these horrible weapons banned. Indeed, I was present in Dublin when word came through that Gordon Brown said that Britain should agree to the ban, which opened the door to other countries following suit. Given we have dealt with Article 21, is not the main onus on us to make sure that other countries do not withdraw from the convention and to use our influence as publicly as possible to urge them not to do so?
Lord Collins of Highbury (Lab)
My noble friend is right. As a committed member of the CCM, the United Kingdom continues to promote the norms of the convention and discourage the acquisition and use of cluster munitions by all states, irrespective of their status within the convention. We are absolutely undertaking what my noble friend suggests.
Social Care and Special Education Charities: Employer National Insurance Contributions
(1 day, 19 hours ago)
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Lord McColl of Dulwich
To ask His Majesty’s Government what assessment they have made of the impact of changes to employer National Insurance contributions on charities working in the social care and special education sectors; and what steps they are taking to mitigate that impact.
Lord McColl of Dulwich (Con)
My Lords, I beg leave to ask the Question standing in my name in the Order Paper and declare my interest as vice-president of the Shaftesbury Society and my involvement in many other similar charities.
The Financial Secretary to the Treasury (Lord Livermore) (Lab)
My Lords, the Government have had to take difficult decisions to repair the public finances and rebuild the public services. Giving careful consideration to and properly assessing the impact of these decisions is a priority. A tax information impact note was published alongside the introduction of the Bill containing the changes to employer national insurance contributions, which sets out the impact of the policy on individuals, businesses and civil society organisations. As I committed to your Lordships’ House during the passage of the Bill, we will continually monitor and assess the impacts and effects of these policies.
Lord McColl of Dulwich (Con)
The Government’s national insurance increase to 15%, plus lowering the threshold to £5,000, will cost charities an additional £1.4 billion annually. One in four employers are implementing redundancies as a result. This will drastically cut charitable services, which is akin to kicking in the teeth the most vulnerable in our society. Has any assessment been made of the impact on charities serving vulnerable young and old people?
Lord Livermore (Lab)
I am grateful to the noble Lord for his question. Of course the Government recognise the important role that charities play in our society as a trusted and independent partner to the public sector in helping deliver vital public services. We also recognise the work done by unpaid careers and welcome this week’s Carers Week as an opportunity to pay tribute to the invaluable work that they do throughout the UK. As I said in my opening Answer, we had to take a number of very difficult but necessary decisions, including on employer national insurance, to fix the public finances and restore economic stability. In doing so, though, we recognised the need to protect the smallest businesses and all charities, which is why we have more than doubled the employment allowance to £10,500, meaning that more than half of businesses, including charities, either gain or see no change in the amount that they will pay. As I also said in my Answer, we will continually monitor and assess the impact and effect of those policies.
Baroness Grender (LD)
My Lords, does the Minister agree that the Government have already published several comprehensive spending review announcements over the past week? Does he further accept that social care funding is inextricably linked to the NHS’s recovery? Will he therefore use this opportunity to reassure the House that social care will not be cut in the comprehensive spending review?
Lord Livermore (Lab)
I agree with the noble Baroness’s first statement of fact; we have already made several spending review announcements. She will know that the Government are making available so far £3.7 billion of additional funding for social care authorities in 2025-26, including an £880 million increase in the social care grant. This is part of an overall increase to local government spending power of 6.8% in cash terms. As for future years, she will have to wait for Wednesday to find out the details of the spending review.
Baroness Pitkeathley (Lab)
My Lords, in addition to their role in providing many social care services, charities perform a very important function in speaking up for patients, users and carers, enabling them to find their voice and claim their rights. Would my noble friend agree that this advocacy function is extremely important and should be supported and encouraged? I draw attention to my registered interests and thank the Minister for his acknowledgement of Carers Week.
Lord Livermore (Lab)
I am grateful to my noble friend for her question and I wholeheartedly agree with what she says. Civil society organisations play an absolutely vital role in speaking out and advocating on behalf of their beneficiaries. This role is a fundamental part of a thriving democracy. We have a rich history of charities campaigning for change in this country. Examples span the huge breadth of the voluntary sector, from the NSPCC on child protection to the RSPCA promoting animal welfare, international development charities tackling global poverty and inequality, environmental charities raising awareness of global warming, and many other examples.
Civil society’s campaigning and advocacy roles should of course be recognised and celebrated, which is why the civil society covenant framework, launched in October 2024, aims to establish a renewed partnership between the Government and civil society organisations. It outlines four foundational principles: recognition, partnership, participation and transparency. Following extensive engagement across the sector, we aim to launch the civil society covenant later this year.
Baroness Finlay of Llandaff (CB)
My Lords, given the worrying data from the National Care Forum that 73% of providers reckon that they will have to refuse new care packages from local authorities or the NHS, and that 22% plan to close their businesses entirely, what consideration are the Government giving to renegotiating completely the national insurance contributions, to ensure that those who provide direct care are not burdened with an expenditure that risks putting up the load and demand on the NHS itself and on local authorities, so that we get circular downward spiralling of excess expenditure?
Lord Livermore (Lab)
I do not think I can give a positive answer to the main thrust of the noble Baroness’s question. As she will know, and as I said already, the Government are making available £3.7 billion of additional funding for social care authorities in 2025-26. We will set out future years’ allocations in the spending review on Wednesday. As she knows, the Government will provide support for departments and other public sector employers for the additional employer national insurance costs.
Lord Leigh of Hurley (Con)
My Lords, in Committee on the national insurance Bill we put an amendment down to exempt hospices specifically from national insurance increases. The CEO of Thames Hospice, to which I declare I am a donor, said that, as a result of the proposed changes, more people will die in pain and agony than would otherwise need to be the case. What assessment have the Government made of the cost of these national insurance increases on hospices specifically, and what advice would he give to the chief executive of Thames Hospice?
Lord Livermore (Lab)
As the noble Lord knows, the Government recognise the vital role hospices play in supporting people at the end of their life and their families. The Government are determined to shift more healthcare into the community and ensure that patients and their families receive high-quality, personalised care in the most appropriate setting. Hospices will have a very big role to play in that shift. The Government are supporting the hospice sector with an additional £100 million for adult and children’s hospices, to ensure that they have the best physical environment for care, and £26 million revenue to support children and young people’s hospices.
The Lord Bishop of Southwark
The Minister will recall from the amendment I tabled in Committee to what was then the Bill that my twin brother was an early beneficiary of SEND transport. Will the Government monitor the impact of national insurance increases on the effectiveness and continuity of provision in this area and inform the House of such findings in due course?
Lord Livermore (Lab)
I am grateful to the right reverend Prelate for his question. The answer is yes; I think I committed to doing so during the during the legislative process of that Bill. As I said then, the Government do not expect the changes to national insurance to have a significant impact on home-to-school travel for children with SEND. The Government have increased funding for the core schools budget by £2.3 billion, increasing per-pupil funding in real terms in 2025-26, and £1 billion of this funding will go towards supporting the special educational needs and disabilities system. The Chancellor will set out funding for schools as part of the spending review on Wednesday.
Baroness Neville-Rolfe (Con)
My Lords, the fact is that these increases have devastated the charitable sector. For example, Noah’s Ark Hospice in north London said recently that the rise in national insurance represented
“basically a £100,000 tax on us that we hadn’t budgeted for”.
Yet the need for these services has never been greater, as the Minister has just acknowledged. Will he assure the House that the Government will not increase national insurance contributions again and that his review will look sectorally in detail at the effect on charities, hospices and social care before the next Budget?
Lord Livermore (Lab)
On the first half of the noble Baroness’s question, as she knows, as part of the changes to national insurance, the Government recognised the need to protect the smallest businesses and charities, which is why we more than doubled the employment allowance to £10,500, meaning that more than half of businesses with national insurance liabilities will either gain or see no change this year. The Government provide a great deal of additional support to charities via our tax regime, which is among the most generous anywhere in the world, with tax reliefs for charities and their donors worth just over £6 billion for the tax year to April 2024.
Lord Sikka (Lab)
My Lords, partners of big law and accountancy firms derive most of their income from one source but, despite that, they are not deemed to be employed by the firm. Therefore, the firms do not pay employer’s national insurance on the partners’ share of profits. The big four law firms are avoiding about £4 billion a year in employer’s national insurance contributions. Can I urge the Minister to look into this and bring forward reforms, so that we can have lots more revenue for the things that we need?
Lord Livermore (Lab)
I am very grateful to my noble friend for his suggestions, which I will always take very seriously.
Pension Fund Clearing Obligation Exemption (Amendment) Regulations 2025
Lord Wilson of Sedgefield
That the draft Regulations laid before the House on 17 March and 28 April be approved.
Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 5 June.
Israel and the Occupied Palestinian Territories
(1 day, 19 hours ago)
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Lord Callanan (Con)
My Lords, the events that we are seeing in Gaza, and that we have witnessed in recent weeks, are truly harrowing. It is evident that dramatic change is needed from the current situation; the level of suffering ongoing in the region on all sides is intolerable. We are clear that the deaths and casualties near aid distribution centres should never have happened. I note that public threats were issued by Hamas towards any civilians trying to access those aid points. Will the Minister inform the House what discussions have taken place with Israel about those events and the status of any investigations?
I am sure that the whole House is agreed that the Government should do all they can to try to stop and alleviate this humanitarian crisis, which is escalating in the region. Britain must leverage its influence to get more aid in, to see the hostages released, and to end the terminal situation with Hamas, to achieve a proper, sustainable end to the conflict. It is only after this work has been done that we can begin to progress towards a better long-term future for the Palestinian and Israeli people.
We must never forget those who remain in Hamas captivity. Some 58 hostages remain in the hands of this murderous terrorist organisation. They have now been in captivity for well over 600 days. We have always been clear that they must be released. We are aware of initiatives put forward by the United States, and that these latest proposals have been rejected by Hamas. So I ask the Minister: what pressure are the Government exerting on Hamas, perhaps working through sympathetic Arab Governments, to get them to reverse their opposition to those plans? What steps do the Government intend to take next to secure the release of the hostages? As I am sure the Minister is well aware, this is the only true way that we will ever resolve this conflict.
Turning to the West Bank, I am aware that the Government recently signed a memorandum of understanding with the Palestinian Authority. Can the Minister please provide an update on the Authority’s progress on reform and governance since that time? Strengthening credible governance will be essential to long-term peace. We need assurance from the Government that they are confident that these vital steps are being taken. It is, after all, essential, if we are ever to ensure that Hamas does not maintain a grip over the region, that the Palestinian Authority is strengthened and reformed. That is also the only way that we will ever reach a viable two-state solution.
I want to take a moment to speak about last week’s Gaza demonstration outside this House. Of course, I am proud that this is a free country. Everyone is entitled to protest and to make their point. However, there were numerous reports of Peers from all sides of this House being jostled, harassed, videoed and shouted at—including disabled Members of this House. A letter has been sent to the Lord Speaker regarding some of the security failings. That demonstration was attended and supported by about a dozen Labour Members of the other place. I would be interested to hear the Minister’s comments on whether he considers that sort of behaviour to be acceptable.
The gravity of the situation escalating in Gaza means that the Government must leverage all the influence that they have in the region to try to end the suffering that we are seeing. The UK has both the diplomatic tools and the moral responsibility to press for meaningful change. That means doing all it can to ensure that aid reaches those in need, that hostages are returned to their families, and that Hamas is prevented from continuing its campaign of terror. It also means supporting the reform and stabilisation of Palestinian governance as an essential foundation for a viable two-state solution. I hope that the Minister will be able to respond to these points in his reply.
Lord Purvis of Tweed (LD)
My Lords, we are witnessing both the systematic collective punishment and brutalisation of a civilian population combined with the weaponisation of food and medicine. A Government have made a decision to annex land that is not theirs and to put women and children, whose only sin is seeking aid, in the position of being at risk of literally starving to death. These are war crimes. Civilians are dying daily from gunshot wounds inflicted as they queue for food. Yesterday, the head of Save the Children US said it is reported that children who require surgery are waking up during that surgery because there is insufficient anaesthetic.
In the catalogue of horror in recent days, we know three incontrovertible facts. First, Prime Minister Netanyahu’s approach has not ended Hamas’s continued criminal and terrorist presence. The trauma of hostage families continues and now, for too many, it has turned into despair. Secondly, we see unabated the approach of extremist Ministers to forcibly and illegally occupy new territory. Thirdly, the sincerely meant and genuine concern of Ministers in the UK and elsewhere is having next to no effect in preventing it.
The time for timid behaviour is therefore over. These Benches have consistently called for the Government to take firm action, and they must do so now. We called for the sanctioning of extremist Ministers Ben-Gvir and Smotrich 18 months ago because we knew we needed clear preventative action. Given that the legal text of what we called for is on Ministers’ desks, why are the Government not implementing those sanctions, demonstrating that the UK will no longer tolerate calls for Palestinian dispossession?
We must cease all trade in the areas affected by these because Netanyahu’s Ministers claim that illegal outposts and settlements are Israeli land, which they are not. Why has the UK not expanded action to those Ministers and Members of the Knesset who support a continuation of the blockade of aid and call for annexation? Why has the UK not ceased all arms trading with the Netanyahu Government until they adhere to international humanitarian law?
The Minister in the House of Commons was asked last week our Government’s view of the ICJ advisory opinion on the Netanyahu Government that their
“policies and practices are contrary to the prohibition of forcible transfer of the protected population under … Article 49 of the Fourth Geneva Convention”.
He replied:
“We continue to consider the ICJ’s advisory opinion with the seriousness that it deserves”.—[Official Report, Commons, 4/6/25; col. 342.]
I remind the House that the opinion was in July last year. Surely the Government cannot any longer simply consider the opinion but should act on it. When Ministers tell me the Government act on the advisory opinion of the ICJ on the Chagos Islands but not on Gaza, I say to the Government that we must not have double standards.
As I said at the start of these questions to the Minister, we are a witness to history—one where we look with daily horror at the continuing unconscionable cruelty to children. But we are a Parliament, not just a witness. We must now, with urgency and clarity, provide action that is not too late to seek to prevent the annexation of Gaza and the West Bank, with the UK leading others in recognising the state of Palestine, showing beyond doubt the UK’s commitment to Palestinians’ right to self-determination and a two-state solution. With that and the other actions that these Benches have outlined, we might at least try to restore a process that a ceasefire could start and which could then be established and honoured, and there could be some respite for those being so terribly brutalised.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office (Lord Collins of Highbury) (Lab)
I thank both noble Lords for their contributions and questions. I say to the noble Lord opposite that the United Kingdom has been a close and long-standing friend of Israel. As the Foreign Secretary said yesterday, Israel suffered a heinous attack on 7 October and the Government have always backed Israel’s right to defend itself. We have condemned Hamas and its abhorrent treatment of the hostages, and we have stood with the families and demanded that their loved ones are released.
However, we also have a duty to condemn Israel’s latest action in Gaza. As the Foreign Secretary has said, the Israeli Government are
“isolating Israel from its friends and partners around the world, undermining the interests of the Israeli people and damaging … the state of Israel”.—[Official Report, Commons, 20/5/25; col. 924.]
We have been very clear in condemning the outrageous language in the comments of Ben-Gvir and Smotrich but, as the noble Lord knows, I will not be tempted into foreseeing or predicting future sanctions. We do not do that, and I am not going to do that today.
We have been absolutely clear that we will not speculate, but we have made it clear in our joint statement with France and Canada that if Israel does not cease the renewed military offensive and lift its restrictions on humanitarian aid, we will take further concrete actions. We have been very strong with our partners in opposing the expansion of Israel’s military operation in Gaza, and we have reaffirmed our calls for the Israeli Government to stop their military operations in Gaza and immediately allow humanitarian aid in. The Foreign Secretary announced sanctions on 20 May to target those supporting violence against Palestinian communities in the West Bank, following extremely concerning surges in this type of violence.
We have announced the formal pause of free trade agreement negotiations with Israel, effective immediately. This is because it is not possible to advance discussions on deepening trading relationships with the Netanyahu Government, who are pursuing policies that are damaging to the UK, the wider region and their own citizens. The Minister for the Middle East also summoned the Israeli ambassador to discuss our severe concerns at the situation. We are clear that if Israel does not cease the renewed military offensive and lift restrictions on humanitarian aid, we will take further concrete actions in response.
The noble Lord, Lord Purvis, also raised the ICJ. We are fully committed to international law and respect the independence of the ICJ. Despite what the noble Lord says, we continue to consider the court’s advisory opinion carefully with the seriousness and rigour it deserves. UK commitment to a two-state solution is, of course, unwavering—and I will come back to that point.
I say to both noble Lords—who I know share my concern—that we are absolutely appalled by repeated reports of mass casualty incidents in which Palestinians have been killed while trying to access aid sites in Gaza. Desperate civilians who have endured 20 months of war should never face the risk of death or injury simply to feed themselves and their families. We have called for an immediate and independent investigation into these events and for the perpetrators to be held to account, including during a meeting of the UN Security Council on 4 June. We do not support any aid mechanism that seeks to deliver political or military objectives or puts vulnerable civilians at risk. We call on Israel to urgently engage with the UN to ensure a return to the delivery of aid in line with humanitarian principles.
Israel’s proposals to deliver aid to Gaza via private companies is dangerous for civilians and aid workers and cannot possibly deliver aid to all who need it. We endorse the plan for the delivery of aid put forward by the UN on 16 May, which is based on humanitarian principles, has built-in mitigations against aid diversion and uses established mechanisms to deliver aid at scale, which is required. Hamas must allow humanitarian assistance to be distributed without interference. I think all noble Lords understand and appreciate the seriousness of the situation. Working with our allies, we are very focused on trying to see what leverage we can bring to ensure that a solution is found as soon as possible.
The noble Lord is absolutely right about the demonstration. We can be proud of our country, which allows the right to association and the freedom to demonstrate. I think that all of us in this House respect opinions that do not necessarily agree with our own, particularly on this subject, but I accept that it is wrong for people to interfere with others who are going about their business. Certainly, I join the noble Lord in condemning such action, which is not acceptable at all.
Baroness Blackstone (Lab)
My Lords, the Statement makes reference to the importance of a two-state solution if we are to get security for both Palestinians and Israelis. In the light of that, what action—that means more than condemnation; it really does mean action—are the Government taking, given the decision by the Israeli Government to build 22 new settlements on the West Bank? These settlements are illegal and will make it more and more difficult to have a two-state solution. If the Minister can give the House some hope that we will take action that goes beyond simply condemnation on this matter, I would be grateful.
Lord Collins of Highbury (Lab)
I hear what my noble friend says, but since we came into office this Government have taken action. We stopped the export of arms that could be used in Gaza and we are determined to take further action, particularly with the discussions on the free trade agreement. This is a Government who have taken action, but it is not just about punitive action; it is about working with allies to achieve that goal of a two-state solution. That is why we are very committed to ensuring that the conference co-hosted by France and Saudi Arabia is a success. If we can focus all international allies, including those in the Middle East, on the importance of delivering a two-state solution, this Government will be taking not just punitive action but positive action towards a peaceful solution. I say to the noble Lord opposite that the only real secure future, for both Palestinians and Israel, is a two-state solution where both communities can live in peace.
Lord Pickles (Con)
My Lords, if there is to be a recognition of a Palestinian state, will the Minister tell us what its boundaries will be? Will he give an assurance that any recognition would ensure that all parties recognise the right of the Jewish people to have a state?
Lord Collins of Highbury (Lab)
I think the noble Lord knows the answer. For those who have advocated a two-state solution and support parties towards it, obviously a precondition is the security of the State of Israel. We are absolutely committed to that. On the progress towards a two-state solution, we have been working with the Palestinian Authority, which does recognise that, and we have had progress in the past. But we want to ensure that we support those in the Palestinian Authority who can deliver that two-state solution that the noble Lord referred to. So I do not disagree with him; I just think that he implies—and I strongly say—that we see recognition as part of the process towards the establishment of a two-state solution. We do not see it as the end in itself. When the time is right to do that, it will be when we can deliver a more secure basis for that solution.
Lord Walney (CB)
My Lords, the situation in Gaza is horrendous, and any new settlement building is completely wrong. Can I press for a greater understanding of the Government’s position on aid delivery? I follow the logic of what the Minister says—that aid should not be delivered to further any political or military objective—but then what do the Government think of the way that aid has got in until now? When the Minister sees massed Hamas gunmen on top of aid trucks and sees the Hamas operatives threatening death to anyone who takes aid that is not through that route, surely the Government understand that that route is also fundamentally compromised.
Lord Collins of Highbury (Lab)
The only word my noble friend uses that I disagree with is “fundamentally”. We have been working with all UN agencies and with NGOs to ensure that Hamas does not interfere with distribution. We have made that absolutely clear, and we have strongly condemned such interference. But the simple fact is that we know that the delivery of aid via private companies is dangerous for civilians and for aid workers and cannot possibly deliver aid to all who need it. That is why we continue to press the Government of Israel to permit the full and unhindered resumption of aid flow into Gaza, and that should take place immediately. By far the most effective way to meet the desperate needs of the Gazan people at the speed and scale that is needed is via overland routes, with the UN agencies and NGOs that we have supported delivering that aid.
Lord Grocott (Lab)
My Lords, for as long as most of us can remember, Ministers such as my noble friend have been talking about the two-state solution as the holy grail that gets us all out of the difficulties. But is it not now time to recognise that the simple truth—which I ask him to confirm—is that the present Government in Israel, and indeed almost any reconfiguration that we could imagine, are implacably opposed in principle to any suggestion of a Palestinian state? Indeed, as the noble Lord, Lord Pickles, helpfully reminded us, there is no boundary that could be seen to provide one at the moment.
We need to try to unlock that hopeless position of the Israelis vetoing any independence whatsoever for the people of the West Bank or east Jerusalem, and take the opportunity of the Saudi Arabian and French initiative to make some movement towards breaking the logjam by saying that, yes, we—the UK Government with allies—will recognise a Palestinian state. Until everyone, including the Israelis, recognise the imperative requirement of that, there will be no peace.
Lord Collins of Highbury (Lab)
If only it were a question of the United Kingdom recognising the Palestinian state. Of course, our long-standing position, as my noble friend knows, is that we will do so. We will recognise a Palestinian state at a time that is most conducive to the peace process and to the realisation of a Palestinian state. It is one thing to say that we will recognise it, but it is another thing to see a secure situation established whereby the Palestinian people can live securely and in a neighbourly way with the State of Israel, as the noble Lord, Lord Pickles, said. Therefore, we will recognise it when it is conducive to delivering that objective. Everyone in this Chamber has had their hopes raised for peace in the Middle East, certainly since 1948. We absolutely must renew our efforts to deliver that because, with the humanitarian situation, those extremists in the Israeli Government have shown what they can do. The situation in Gaza is evidence of that, and we must not tolerate it.
Lord Ahmad of Wimbledon (Con)
My Lords, I draw attention to my entry in the register of interests. I listened very carefully to my noble friend Lord Pickles, and I would say that there are plans, and there are people in Israel and in the Palestinian Authority—people in all communities—who want peace and want it now. We all agree on that, as one, irrespective of the need to get aid in. I have said to the Minister before that we should unblock and use the air routes and work with the United States, Egypt and Jordan to get aid delivered. We must work with all sides to ensure that aid gets in.
My question is a specific one. There is a peace plan from a former Prime Minister of Israel, Prime Minister Olmert, and a former Foreign Minister of the Palestinian Authority, Nasser al-Kidwa. It works on the two-state solution, including on the definition of boundaries, but recognises, importantly, that east Jerusalem is a sacred place for the Jewish community, the Muslim community and the Christian community. There are plans and there are people who wish to engage. Can the Minister assure me that he will make sure that His Majesty’s Government engage with all these key parties, because ultimately, peace, as Menachem Begin said, is inevitable?
Lord Collins of Highbury (Lab)
The noble Lord is absolutely right about the people of Israel. I am very careful to draw a clear distinction between the people of Israel and the current Government of Israel. It is the current Government of Israel who are pursuing this awful policy in relation to Gaza. The noble Lord is also absolutely right to draw attention to a range of options in terms of the peace discussions. That is why the initiative by France and Saudi Arabia is really important—because it can convene people. We talked in the earlier Question about the convening power of the United Nations, which is vital. I do not think that we can take an exclusive approach to the peace process; it has to be as inclusive as possible, but we are determined to support the reforms within the Palestinian Authority, to strengthen their work and to strengthen their credibility among the Palestinian people.
On the noble Lord’s question about aid, he knows that if we could have airlifts, we would explore every such mechanism to get aid in. But as he repeatedly assured me when I was in opposition and he was the Minister, there is only one real, successful way to get the amount of aid that is needed into Gaza, and that is through the road routes. We are determined to ensure that that is the case.
Lord in Waiting/Government Whip (Lord Leong) (Lab)
My Lords, we have plenty of time. We will hear from the bishop first and then the Lib Dems.
The Lord Bishop of Southwark
My Lords, I am grateful to the Minister and to His Majesty’s Government for the Statement on Israel and the Occupied Palestinian Territories. May I press the Minister on two things? The first is the attack by Israeli forces on the compound of the Anglican al-Ahli Hospital in Gaza, killing five, including three journalists and a father escorting his son to the surgical unit for treatment for prior injuries. This is the latest in a number of attacks by the IDF on church hospitals and churches, in defiance of international law. Will the Minister accept that specific actions are now required, since reasoned pleas have been ignored?
Secondly, in light of what the Minister has said about the UN conference from 17 to 20 June and the conducive time to recognise Palestine, will he confirm that a bold and clear statement will be made at that conference of the Government’s firm intention to recognise the state of Palestine?
Lord Collins of Highbury (Lab)
I say to the right reverend Prelate that I have been clear about when we will recognise the state of Palestine, and that is when it is most conducive to that two-state solution. We will work with allies to ensure that we can create those conditions. The conference is part of that, but not the sole part. He is absolutely right to condemn the actions in Gaza and the Occupied Territories in terms of the use of violence; I think we can all be very concerned.
It is frustrating if it appears that we are not doing anything. We are absolutely determined to work with our allies so that the Government of Israel fully understand our concerns. Of course, we voted on 4 June in favour of the UN Security Council resolution focused on the humanitarian situation in Gaza. We highlighted that the Israeli Government’s decisions to expand its military operations in Gaza and severely restrict aid are totally unjustifiable, disproportionate and counterproductive. With our allies, we have called for an end to restrictions on aid. We believe that UN and other humanitarian partners must be allowed to operate, and we must be able to get back to a situation where we can get aid to where it is most needed.
On 19 May, we released a joint statement with Canada and France calling for Israel to cease its renewed military offensive and lift restrictions, so we are using what mechanisms we can. We are also using specific actions bilaterally against the Government of Israel. The initial one was the restriction of arms sales; another concerned the trade agreement. We are absolutely committed to ensuring that we work with our allies to make sure that the Government of Israel know our deep concern about this situation.
Baroness Janke (LD)
My Lords, what is the Government’s response to reports claiming that thousands of items listed under the category “bombs, grenades, torpedoes, mines, missiles and similar munitions of war” were exported from the UK to Israel, as well as four shipments described under customs codes as “tanks and other armoured fighting vehicles”? They were all reportedly delivered after the Government suspended licences for equipment that could be used offensively in Gaza in September. Will the Government take firm action to ensure that weapons from the UK are not being used to commit war crimes in Gaza and the West Bank and Occupied Territories?
Lord Collins of Highbury (Lab)
I absolutely reassure the noble Baroness that the UK is not arming Israel’s war in Gaza. We can categorically say we do not export any bombs or ammunition for use in military operations in Gaza. As I have repeatedly said, one of the first acts of this Government was to review and suspend export licences for weapons that could be used by the Israel Defense Forces in Gaza. We have successfully implemented that suspension and continue to refuse all relevant licence applications.
I have also seen the press reports; we do not recognise the suggestion that arms exports from the UK to Israel increased following 7 October 2023, which covers a period under the last Government. The Government took decisive action in initiating a review of international humanitarian law on that day, so I can categorically say that we are not exporting bombs or ammunition for use in military operations.
Lord Singh of Wimbledon (CB)
My Lords, every day during prayers in this House, we pledge to put aside personal interests, prejudices and partial affections—that is, so-called friendships. Yet, we look in a benevolent way to the Israeli Government, who are accused of genocide, war crimes and the weaponising of hunger against Palestinians in Gaza and the West Bank. Unbelievably, we continue to supply arms and intelligence to Israel. Does the Minister agree that, in the 21st century, it is imperative that we look beyond politics, friendship or economic gain and base our foreign policy on the Christian and Sikh teachings of looking to the wider well-being of all, including Palestinians?
Lord Collins of Highbury (Lab)
Well, I think I gave in response to an earlier question an absolutely categorical reassurance that we are not arming Israel with bombs and ammunition that could be used in Gaza. We are faced with a situation here. Israel has the right to defend itself. What the Government of Israel do not have the right to do is deny humanitarian aid into Gaza. We have made that position absolutely clear. We are absolutely focused on ensuring that that aid gets in.
As we have debated many times, the real solution will come when we can create a situation of peace. I believe that is what the majority of Israeli citizens want: they want peace, they want to live with their neighbour and they want a secure state. But so do the Palestinians. The two-state solution is something we should be aiming towards. That is the condition for peace: living side by side with neighbours in a peaceful way.
Baroness Berger (Lab)
My Lords, I draw attention to my entry in the register of interests. The humanitarian situation in Gaza is desperate, with many thousands of civilians needing food and medical supplies. Access to aid must be safe and rapidly expanded. I discussed these issues in Israel with opposition leaders the week before last, and they are clear that this war must stop and that the hostages need to come home as a top priority. An election will take place in Israel next year, and every poll since 7 October points to Netanyahu and his right-wing coalition being ejected from office. What steps are this Government taking to strengthen Israelis and Palestinians who are serious about the compromises necessary for progress towards peace and the two-state solution that we all want to see?
Lord Collins of Highbury (Lab)
Of course, the Government of Israel is a matter for the people of Israel to decide. However, I am confident that the majority of people in Israel want peace and the things that my noble friend mentioned. The most important thing that our Government can do is to work with our allies, particularly in the Middle East, to ensure that the agenda for the conference on the two-state solution is absolutely focused on the means to deliver it, so that we can create the conditions that my noble friend described.
Children’s Wellbeing and Schools Bill
(1 day, 19 hours ago)
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Baroness Grey-Thompson
“Mandatory reporting of child sexual abuse(1) The Children Act 2004 is amended as follows.(2) After section 16LB insert—“16LC Reporting of child sexual abuseSubject to the provisions of section 16LD(7), (8), and (10) and section 16LF, providers of any one or more of the activities set out in Schedule 1A, who know of, or have reasonable grounds for suspecting the commission of, sexual abuse of children in their care, must, as soon as is practicable after it comes to their knowledge or attention, report it to—(a) the Local Authority Designated Officer (LADO),(b) Local Authority Children’s Services, or(c) such other single point of contact with the local authority as that authority may designate for that purpose. 16LD Process(1) If the report under section 16LC is made orally, the maker of the report must confirm the report in writing no later than seven days thereafter.(2) Section 16LC applies whether or not the activities are defined in any enactment as regulated activities involving children.(3) Section 16LC applies whether a commission of sexual abuse takes place, or is alleged or suspected to have taken place, in the setting of the activity or elsewhere.(4) For the purposes of section 16LC the operators of a setting in which the activity takes place and staff employed at any such setting in a managerial or general welfare role are deemed to stand in a position of trust and are deemed to have direct contact with children in their care whether or not such children are or have been attended by them.(5) For the purposes of section 16LC all other employed or contracted staff or voluntary staff and assistants are deemed to stand in a position of trust only if they have had direct contact with and have attended such children during their time in such a position.(6) For the purposes of section 16LC children are or are deemed to be in the care of the providers of the activities set out in Schedule 1A—(a) in the case of the operators of any setting in which the activity takes place and of staff employed by the operators at any such setting in a managerial or general welfare role, for the period of time during which the operators are bound contractually or otherwise to accommodate or to care for such children, whether such children are resident or in daily attendance wherever the activity is provided, and(b) in the case of all other employed or contracted staff or voluntary staff and assistants, for the period of time only in which they are personally attending such children in the capacity for which they were employed, or their services were contracted for.(7) The Secretary of State may, in exceptional cases, issue a suspension document to rescind or temporarily suspend the duty referred to in section 16LC in the case of any specified child or children if it appears to the Secretary of State that the child’s welfare, safety or protection would be prejudiced or compromised by the fulfilment of the duty.(8) Where it appears to the Secretary of State that the welfare, safety and protection of children is furthered, they may exempt—(a) any specified organisation that works with children generally, and its members, or(b) any specified medical officer,from compliance with the duty referred to in section 16LC provided that no allegation is made against that entity or person.(9) The Secretary of State may make regulations varying or adding to or deleting from the list of activities in Schedule 1A, whether or not such activities are defined in any enactment as regulated activities involving children.(10) A person who makes a report under section 16LC in good faith, or who does any other thing required by sections 16LC to 16LF, may not by so doing be held liable in any civil or criminal or administrative proceeding, and may not be held to have breached any code of professional etiquette or ethics, or to have departed from any acceptable form of professional conduct. (11) Reports under section 16LC and the identities of the persons making them must be received and held by their proper recipients in confidence.16LE Offences(1) Failure to fulfil the duty set out in section 16LC following the procedure described in section 16LD before the expiry of the period of seven days of the matter, allegation or suspicion first coming to the knowledge or attention of the provider or of any person whose services are used by the provider as defined in section 16LD is an offence.(2) A person who causes or threatens to cause any detriment to a mandated person, being a person placed under the duty to report pursuant to section 16LC above, or to another person, either wholly or partly related to the mandated person’s actual or intended provision of a report under section 16LC, is guilty of an offence.(3) Detriment includes any personal, social, economic, professional, or other detriment to the person.(4) A person guilty of an offence under subsection (1) is liable on summary conviction to a level 5 fine on the standard scale.(5) A person guilty of an offence under subsection (2) is liable on summary conviction to a level 4 fine on the standard scale.16LF DefencesIt is a defence—(a) for any person to show that the Secretary of State acting pursuant to section 16LD(7) has issued a suspension document;(b) for any person employed by or operating as an organisation that works with children or for any medical officer to show that the Secretary of State has by a suspension document, whether temporarily or permanently, exempted it and its members or any medical officer from compliance with the duty in section 16LC; (c) to show that a report of the commission of the known or suspected child abuse has been made by any other party to the body or person under section 16LC(a) to (c) before or during the seven days referred to in section 16LE(1).16LG DefinitionsIn sections 16LC to 16LF—“children” means persons under the age of 18 years;“operators of a setting” , in the case of schools, sixth form colleges, and colleges of further education in private ownership, includes the proprietors, members of governing bodies, and board members in the case of ownership by a limited liability company;“providers of activities” has the same meaning as in section 6 of the Safeguarding Vulnerable Groups Act 2006.”(3) After Schedule 1, insert—“Schedule 1AREGULATED AND OTHER ACTIVITIES1 Education including—(a) schools;(b) sixth form colleges;(c) colleges of further education;(d) pupil referral units;(e) residential special schools;(f) hospital education trusts;(g) settings of education other than at schools;(h) private tuition centres. 2 Healthcare including— (a) hospitals;(b) hospices;(c) GP surgeries;(d) walk-in clinics;(e) outpatient clinics.3 Others including—(a) child nurseries and kindergarten provision;(b) childminders and childcare providers registered on the early years register or the compulsory or voluntary part of the childcare register;(c) registered social care providers and managers for children;(d) children’s homes;(e) children’s hospices;(f) youth offender institutions;(g) the Probation Service;(h) private institutions contracted by public bodies to provide services to children;(i) organisations providing activities to children, such as sports clubs, music, dance or drama groups, youth clubs, and Ministry of Defence cadet forces including Sea Cadets, the Volunteer Cadet Corps, the Army Cadet Force, the Air Training Corps and the Combined Cadet Force, Fire Cadets;(j) organisations providing holidays for children or supervising children while on holiday;(k) churches, mosques, synagogues, temples, and other places of worship and religious organisations, and other organisations holding non-religious worldviews;(l) services offered to children by local authorities outwith their statutory duties;(m) services offered to children by the police outwith their statutory duties; (n) transport services including taxis and coaches commissioned by the providers of the regulated activities in this Schedule.””
Baroness Grey-Thompson (CB)
My Lords, Amendment 66 is in my name and those of the noble Baroness, Lady Walmsley, and the noble Lord, Lord Moynihan.
This is a probing amendment, the core aim of which is to further protect children. In January this year, this House debated my Private Member’s Bill on mandatory reporting of child sex abuse. It ties in very well with Amendment 107B, which is also in this group, tabled by the noble Lord, Lord Watson of Invergowrie. We are all very keen, I think, to see the IICSA recommendations implemented in full. I will not prejudge what the Minister will say, but I expect to be told that there is another vehicle for this amendment; none the less, I think this is worthy of debate.
From Rotherham to Rochdale, there have been far too many children who have been abused and too few perpetrators brought to justice. We must continue to learn from our past mistakes. This amendment is a step towards ensuring that positive changes are being made. This amendment seeks to ensure that adults in positions of authority over children in regulated activities would have a legal requirement to report any suspicion of or knowledge of child sexual abuse. Regulated activities include those in education, healthcare, sports and others, which are fully listed in the proposed new schedule. I recognise that this is the Children’s Wellbeing and Schools Bill, but I am keen that protection goes much wider than just schools. I am very keen to hear what the noble Lord, Lord Moynihan, might say on the duty of care.
Baroness Walmsley (LD)
My Lords, I strongly support this amendment and thank the noble Baroness, Lady Grey-Thompson, for tabling it.
I would like to quote from a speech I made on 26 June 2014, soon after the terrible crimes of Jimmy Savile had been analysed in the Lampard report. Our campaign for the mandatory reporting of child abuse went back at least a decade before that, but the Savile case showed clearly what happens when people who know do not tell. I realise, as the noble Baroness does, that the Minister might tell us this is the wrong Bill to explore this issue, but I have always taken every opportunity to raise it, and that is why I am doing so again today.
On that occasion, I said:
“I have always felt that a child is his or her own best protector. We can do what we can to protect a child, but we cannot sit on her shoulder all the time. This is why it is so important that children are taught in every school, through a balanced PSHE course, how to protect their own personal integrity … They also need to be taught what a healthy, non-abusive relationship looks and feels like, and who to turn to in case of fear or of actual abuse”.
I still believe that this is every child’s right. I went on to say:
“We must then minimise the opportunity for perpetrators to reach vulnerable children”,
and to talk about the shortcomings of DBS checks, which
“are not enough, as they only identify those who have offended before, and are no use against first-time offenders or those who are clever enough to avoid detection”.—[Official Report, 26/6/14; cols. 1418-19.]
This is still the case.
In that situation, the knowledge or suspicion of abuse by adults around the child is a vital ingredient of protection. We need to ensure that those who know or suspect what is going on report what they know to an appropriate and responsible person. I mentioned that lawyers who acted for dozens of Jimmy Savile’s victims had told me that the most shocking revelation of all was the number of victims who had reported what had happened at the time to someone in their institution, only to be ignored and their claims covered up. One girl in Stoke Mandeville told a nurse what Jimmy Savile had done, only to be told, “You’re making a mountain, you silly girl. Do you know what he does for our hospital?”—how shocking.
That is why I believed then, and I still believe 11 years later, that we need a clear and comprehensive system for the mandatory reporting of child abuse which would make it an offence—with clear penalties—for those in a position of trust in a regulated activity to fail to report knowledge or reasonable suspicion of abuse. The person making the report need not know for sure that abuse was taking place; that is for the competent authorities to decide after investigation. Reasonable suspicion is all that is needed.
The amendment before us refers to regulated activity as defined in the Children Act 2004 and the Safeguarding Vulnerable Groups Act 2006, both of which I well remember—though the definitions would need amending to exclude such confidential helplines as Childline. These measures have been successfully in operation in Australia for years, so I do not believe that it would be a problem here. I am grateful for the advice of Professor Ben Mathews—who also advised IICSA—about the Australian system. The idea that there would be a lot of mendacious reporting did not occur in Australia; in any case, one cannot fail to lift a stone for fear of the slime one might find underneath.
Childline advisers will often encourage children to report the abuse themselves to a trusted adult. In that situation, the child must be able to have confidence that, if they do so, their disclosure will be properly dealt with, and no concern about reputational damage should get in the way of that adult doing the right thing by the child. The only way children can have that confidence is to make failure to report abuse an offence. When a child gets up the courage to confide in a trusted adult about abuse, they do so because they want it to stop. Imagine how that child feels when nothing is done.
The intention of the amendment is not to put people in prison, except in the most egregious cases, but to change the culture. I believe that it would help workers to report abuse if they saw it as a public duty and not as telling tales. There is considerable public support for this. In an independent poll of the public in 2014, 96% of people supported it. I am not sure what the figure would be now, but, in the years since then, given the revelations of mass grooming gangs abusing young girls for years and nobody believing the children, I would think the figure might be even higher now. I urge noble Lords to support this amendment.
Lord Moynihan (Con)
My Lords, this amendment is both necessary and important. It is a credit to the noble Baronesses, Lady Grey-Thompson and Lady Walmsley, who eloquently introduced it, and for years fought for the mandatory reporting of child sexual abuse to be firmly placed on the statute book.
Child abuse, whether in the form of physical, emotional or sexual mistreatment, whether through lack of care, or whether leading to injury or harm, is offensive and detestable. I welcome recognition by the movers of this amendment that the amendment should capture the importance of child sexual abuse in schools and sport clubs, as covered in proposed new Schedule 1A.
Within sport, each case of sexual abuse among children is one case too many. In sport, it is compounded because it takes place within a relationship of trust or responsibility; it is an abuse of the power and it is a breach of that trust. The influence that a sports coach or physical education teacher has over children is disproportionately compounded by the physical nature of proximity in sport and the near total control which can be exercised over an ambitious child seeking success in the world of sport. We have seen how prevalent this is in the worlds of gymnastics, football and athletics, to name just three sports which have witnessed the ugliness of child sexual abuse.
Taking each in turn, for decades this was a problem that was festering at the heart of gymnastics. For far too long, some coaches and teachers have been able to act with total impunity, forcing young children to experience extreme training programmes while bullying and humiliating dissenting voices into silence. Some coaches have abused their power and authority to commit terrible crimes against the children they should have been caring for, leaving lives destroyed in their wake. In the wake of the #MeToo movement, numerous prominent gymnasts spoke out about the bullying, discrimination and abuse that they experienced in the sport at schools and in clubs. As a result, the Whyte review was commissioned, and an independent report examined the allegations of mistreatment in the sport of gymnastics. Predatory coaches and teachers were allowed to move from school to school and gym to gym, undetected by a lax system of oversight, and predatory coaches and teachers worked to conceal abuse.
In football, a child abuse scandal involving the abuse of young players at football clubs began in November 2016, and by the end of 2021, 16 men had been charged with historical sexual abuse offences, 15 of whom were tried. One was head of PE at a school in Birmingham, another a secondary school teacher. In athletics, the documentary “Nowhere to Run” in the UK concerned the sexual abuse of athletes by a coach and how the athletes tried to deal with the impact of the abuse.
The current situation in law, as noble Lords in this Committee know, is that while child safeguarding requirements are mandatory for all schools and colleges in the UK, a duty is legally enshrined in the Education Act and various statutory instruments, which are welcomed. However, we need to go further. Those measures did not deter many of the cases that have come to light, and there is no law that compels everyone to report child sexual abuse. Despite the promises for action within the Crime and Policing Bill, there is no criminal sanction for failing to report child sexual abuse under the mandatory reporting plan. We need to go further than a duty to report that “may be referred” to a
“professional regulator (where applicable) or the Disclosure and Barring Service, who will consider their suitability to continue working in regulated activity with children”.
I join the noble Baronesses in their view that there should be professional criminal sanctions for failing to report or covering up child sexual abuse, which they have put in the amendment they have tabled.
The noble Baroness, Lady Grey-Thompson, has led work on a duty of care and safeguarding; I have been privileged to support on it for over 20 years. We have sought to create a sports ombudsman, or a sports duty of care quality commission, who would also have duties of care within all schools. We have sought to develop an independent benchmark survey to measure duty of care, to monitor whether duty of care policies are working, and to inform future policy and investment decisions, and we have sought to ensure that there is a duty of care guardian—one in every school, I hope—with responsibility for engaging with participants in school sport, as well as with young people across the talent pathways and in community sport.
Today we can go one step further. We can rectify the position of the absence of a well-designed, mandatory reporting law at the heart of the safeguarding shortcomings in institutional settings such as sport and recreation at schools. Let the lessons of the past protect the children of tomorrow, and let those of us who I hope one day will vote for this amendment, if it is not accepted by the Minister today, take the lead for future generations.
Baroness Finlay of Llandaff (CB)
My Lords, this is an extremely important amendment. I have a slight concern that the Minister in replying may say that the Crime and Policing Bill is the place for such an amendment, but the problem with the proposals in that Bill is that they are based on age, whereas this amendment is much more subtle in responding to the emotional entrapment that goes on in grooming, the activity that goes on in grooming, and the difficulty of sexual abuse being perpetrated at all ages.
There are five areas that I think would have to go along with this—a public health awareness over the dangers of the early stages of emotional entrapment, leading to grooming that leads on to sexual abuse and the pressures that children are under. Therefore, there must be an awareness overall across society that none of this is acceptable, with training and support of all those who have any responsibility for children, and, when there is suspicion, clear pathways to people who can really deal with this sensitively.
One of the situations that comes to mind is the child who goes in to see their GP, perhaps a teenager seeking contraceptive advice. They may actually be in a sexual relationship where they have been coerced, pressured and emotionally groomed, and entrapped with the person who is abusing them, even if that is somebody who is also very young. There may be an imbalance in that relationship, particularly if it is a child who is desperate for love, affection and closeness altogether in their life.
When legislation is introduced, which it must be, it will also need good scientific evaluation—not just a tick-box review but a proper study to see how it is working. I was glad to hear the noble Baroness, Lady Grey-Thompson, say that this was a probing amendment, simply because there is a change I would like to see to it. The amendment refers to healthcare, including in GP surgeries, and I would like that to be extended to primary care services, given that a lot of primary care services occur out in the community. District and community nurses are going into people’s homes, which may well be places where they pick up that something is not right, particularly if there is one parent, or sometimes even two, who are ill and need input.
Lord Meston (CB)
My Lords, I too support Amendment 66 and the proposed introduction of a mandatory reporting requirement for sexual abuse, in accordance not just with the speeches we have heard but with the carefully reasoned recommendation of the Independent Inquiry into Child Sexual Abuse. In simple terms, failure to report known or reasonably suspected abuse puts the child concerned at future risk, and it can make a person failing to report complicit in what has happened and in what may later happen to the victim of that abuse and, indeed, to others.
Moreover, a failure to report prevents proper and prompt investigation of alleged abuse and can deprive the victim of appropriate treatment and support. A failure to report is a failure to protect. All that is obvious, but it is a complex area. There are only a few cases when it can be truly known that abuse has occurred, because it is largely an unwitnessed crime. Accordingly, under the terms of this amendment, the person expected to report must have reasonable grounds for suspicion. If the child is young, that suspicion could well depend on the adult’s understanding of what the child has said or tried to say, or on an interpretation of the child’s behaviour. That may not be easy, particularly if the person concerned does not know the child well or the structure or dynamics of the child’s family.
These difficulties should not be made worse for victims of child sexual abuse by failures to report and by deflection of evidence of abuse for the sort of reasons and excuses so clearly described by the report of the independent inquiry—in particular, a misguided desire to protect the alleged perpetrators or institutions. In the sort of cases dealt with in the family court, schools can often be the first to realise that there may have been some type of abuse, and some school staff can, understandably, be nervous of the reaction of angry family members if allegations are made. I recall a case in which the teacher admitted not acting when he saw obvious injuries to a child simply because he was reluctant to get involved in making the statements and reports that might be required.
If there is to be a duty in law underpinned by criminal sanctions, as the amendment proposes, it will be particularly important that it is made known to all who will be subject to that duty and that, where possible, they have guidance on how to record and manage disclosure and evidence of possible sexual abuse. It can be crucial to avoid inappropriate and repeated questioning of a child.
Changing the focus slightly, towards cases arising in the family context, I should mention that the Child Safeguarding Practice Review Panel’s cogent and disturbing report in November 2024, I Wanted Them All to Notice, stated that:
“Over the past 20 years or so, the light on the sexual abuse of children within families has gradually dimmed. We have witnessed a worrying evaporation of the skills and knowledge that professionals (leaders and practitioners) must have to work confidently and sensitively in this complex area of practice. This dilution of focus and expertise may be partly explained by the greater public and professional attention on the sexual abuse of children in institutions, by ‘famous’ people and on the sexual exploitation of children outside their home. This was undoubtedly urgently required, but it may also have drawn our eyes away from the more common experience for children, of sexual abuse in their families”.
It goes on to suggest that the
“moral outrage that can accompany media attention on extra-familial sexual abuse has perhaps distracted attention from the more commonplace nature of familial abuse. In turning our attention away from the latter, we have undermined the confidence and capability of professionals to identify and respond to sexual abuse in families”.
The panel called for a national strategic response. Approval of this amendment would be an important step in that response. There should be a mandatory duty to which all professionals should adhere.
Baroness Butler-Sloss (CB)
My Lords, I strongly support this amendment and agree with everything that has been said so far, particularly the very important and valuable contribution by the noble Lord, Lord Meston. He, like I, tried many child abuse cases. It is a sad part of the work that family judges do that there are so many sexual abuse cases of children, from babies to the age of 17, and they are all absolutely terrible. It is important to remember that there are two sorts of sexual abuse—that within the family and that without. As the noble Lord, Lord Meston, said, there has been less of a mirror on abuse within families as on strangers abusing children.
It is extraordinary in some ways that we do not already have mandatory reporting, since it is so obvious and so important. There are so many people out there, certainly members of families, who know what is going on but do not know what to do. I am talking about siblings, aunts, uncles, grandparents, because this is a very serious part. I do not know whether noble Lords realise that the majority of sexual abuse is within the family, although there is far too much by outsiders. If it is within the family, it becomes increasingly important that those around the child, who do know but do not know what to do, are told that they have an obligation to do something effective.
I hope that the Minister recognises that this is long overdue. It must come into this Bill or into the Crime and Policing Bill—preferably both. One group of people who have not so far been referred to are the police. If it is an obvious case of sexual abuse, the local authority employee must go immediately to the police. Let us not forget that any sexual abuse of any child, of any person, is a crime.
Lord Bichard (CB)
My Lords, as someone who has been involved with child abuse issues and child protection down the years, I thought it necessary to add my voice to support the amendment. It may be that we want to talk about the vehicle, it may be that we want to talk about the drafting, but it is really important that the House makes absolutely clear that there is agreement on the principle around mandatory reporting, because that has not always been the case, and that is the first massive step to dealing with this issue.
I otherwise wanted to say only how pleased I was to hear the contribution from the noble Lord, Lord Moynihan. In 2012, when I spoke in this Chamber against the watering down of vetting and barring, I was told roundly that we should have an exemption for all sports clubs and societies because they were exemplars. The last 12 years have shown us how wrong that would have been; they have also shown us how important the amendment is.
Lord Watson of Invergowrie (Lab)
My Lords, I rise to speak to Amendment 107B, which is in my name. The purpose of this amendment is to ensure that the same legal rights would apply to a child in care as those which apply to children living with their families. In that sense, it is linked to Amendment 69AB, which I shall move later today.
In 2022, the final report of the Independent Inquiry into Child Sexual Abuse, henceforth referred to as IICSA, highlighted the fact that the family court can limit parents’ exercise of their parental responsibility, but the court is unable to intervene in the same way with corporate parents. The report recommended a new
“route by which children in care can apply to the family courts for orders to mandate or limit a local authority’s exercise of its parental responsibility”,
which is what this new clause seeks to achieve.
There are many recognisable harms in the children’s care system, some of which have been identified by noble Lords already, among them: children being moved from settled homes; children being sent many miles from their home area; siblings being split up; children forced to move areas ahead of critical GCSE or A-level exams; children desperately unhappy at where they are living but being told there is nowhere else for them to go; and children approaching their 18th birthday woefully unprepared for life ahead of them. As incredible as it sounds, it is still common for children in care to be told that they must register as homeless once they reach their 18th birthday. It is not difficult to understand why that often causes unbearable stress and anxiety, affecting all areas of the child’s life.
The family court is able to intervene in how parents exercise their parental responsibility, yet it has no equivalent power in respect of corporate parents, when looked-after children are the most vulnerable children in our society. As IICSA’s final report explained:
“Courts can make decisions about children who are not in care, but only local authorities can make decisions about children who are in care”.
That is an inconsistency that I believe needs to be confronted and brought to an end.
IICSA considered the role of the independent reviewing officer, the ability of children in care to apply to discharge care orders, bring claims under the Human Rights Act 1998 and to bring judicial reviews, and it found each of these systems of protection to be insufficient. IICSA foresaw children in care having a straightforward legal mechanism on a par with children in the community, whereby the exercise of a local authority’s parental responsibility could be put under the spotlight and subject to restriction and instruction where necessary.
This new clause would implement IICSA’s recommendation 6 by giving children who are the subject of a care order the legal means of challenging their corporate parent’s actions and, perhaps equally importantly, inactions. When a child in care is suffering, or at risk of suffering, significant harm, this new clause would enable the family court to make an order to prohibit the local authority from taking action that could be harmful to that child. The family court would also have the power to make an order to require the local authority to take particular action
“to safeguard or promote the child’s welfare”.
On 16 January in another place, the Home Secretary made a clear statement that the Government would set out a plan for implementing all 20 of IICSA’s final recommendations. Their Tackling Child Sexual Abuse: Progress Update issued in April very helpfully set out how children in care’s access to independent advocacy services will be strengthened through the publication of revised national standards and statutory guidance.
However, this is a long way from implementing IICSA recommendation 6, the purpose of which is to give children in care a new legal mechanism to challenge the actions and inactions of their corporate parent when these are causing or are likely to cause the child significant harm. Such a measure will go hand in hand with effective independent advocacy services, because it is likely to be independent advocates who assist children in care in accessing this new legal safeguard.
We all know that IICSA was a seven-year public inquiry that heard devastating evidence of the ways a whole host of institutions consistently failed vulnerable children. Its recommendations must be taken seriously and, as I said, the Government are on record as being committed to implementing all its 20 recommendations. As the noble Baroness, Lady Finlay, said, my noble friend may well suggest that the Crime and Policing Bill is a more appropriate vehicle for this amendment. If so, why does it not appear in that Bill? I believe it is a very important step. I hope my noble friend will be a bit more positive than that and be able to offer a commitment that she will return on Report with a government amendment to make children in care legally the equal of children in the community.
Baroness Benjamin (LD)
My Lords, I will very briefly illustrate the importance of Amendment 66 from the noble Baroness, Lady Grey-Thompson. As I was making a speech in Hull in 2017, when Hull was the City of Culture, a woman came in and, when she saw me, she almost fainted. She buckled. I thought, “That’s very strange”. Anyway, I finished my speech and after everybody had asked for a selfie and an autograph, the woman came towards me and said, “Floella, I’m sorry I reacted that way, but when I was eight, I was fostered. My foster parents had two sons, and every day they used to come home and sexually abuse me. The only thing that got me through it, Floella, was seeing your smiling face. I so wanted to scream out and tell you, but I knew someone out there loved me. I’m now a 48 year-old woman, and every time I go through a dark period in my life, I think of you and so wish I could have told you back then”. That is why it is important that children should know that there is somebody they can speak to about the kinds of abuse that 48 year-old woman is now reliving, because, as I always say, childhood lasts a lifetime.
Lord Lucas (Con)
My Lords, I have Amendment 69A in this group. It speaks for itself. I look forward to the Minister’s response.
Baroness Berridge (Con)
My Lords, I will speak briefly to Amendment 66, having spoken on the noble Baroness’s Private Member’s Bill. I also gave evidence to the independent inquiry. If I remember correctly, I believe that the Government’s position at that time was that this recommendation from IICSA was under consideration, so I am grateful to see that it is being taken forward, as well as the recommendation for a child protection agency, which is the subject matter of a later amendment.
I wish to make two brief points. First, it is important to remember, as the noble Lord, Lord Moynihan, said, that disciplinary processes already exist in some settings, such as large institutions, but many of the organisations outlined in proposed new Schedule 1A are probably more appropriately called out-of-school settings, which are often not even incorporated charities. Even if they are a charity, the only obligations and duties are those of the trustees and they can be stand-alone charities that are not part of any wider network. It is important to put this mandatory reporting obligation on those involved in an increasing number of charities, which do excellent work but sometimes stand in a very vulnerable governance situation.
My second point, which is connected to that, is that there have been previous discussions in your Lordships’ House, I think with the noble Lord, Lord Hanson of Flint, on a suggestion that has been floated over the years of some kind of confessional exemption in the context of religious institutions. I think the days when we could nail down which religious institutions those are—maybe some synagogues, a few nonconformist churches and the Catholic Church—are long gone. I hope we can hit this on the head: how can we have any confessional-type exemption if we have such a wide variety of institutions nowadays?
Increasingly within the Christian community, although the Catholic Church is seeing a resurgence, young people are going to independent churches that may not be a member of any network. I do not see how practically that can work nowadays. I would hate for any confusion around that to halt an important amendment that is way overdue.
Lord Sentamu (CB)
My Lords, when I was a vicar in Tulse Hill in the early 1980s, five young women came to see me. Four had been abused by their fathers. The youngest was eight at the time it happened. Working with them, listening to them, finding help that would restore who they truly were was a very long journey, but I am glad to say that all of them have now taken on professions that I did not think were possible. One of them has had the courage to report her father, who is now doing a quite a long sentence. I come originally from Uganda. I never imagined that a father could abuse an eight year-old girl. I just thought in terms of culture that that was just outrageous, but I listened, and we had to find a way of helping them.
Most abuse of young children happens in the home by family or friends. We need to work hard to make the message quite clear. I am reminded of those wonderful words by the noble Lord, Lord Bichard; noble Lords have heard him speak about the Soham murders. He did an inquiry into the Soham murders. One of his wonderful phrases in that report, which has sustained me in my work dealing with people who have been abused, was that we will never succeed in preventing child sexual abuse, but we can make it very difficult for abusers to do it.
For me, mandatory reporting is an important reality. When I appeared before IICSA, I was asked a question, and I said mandatory reporting must happen, because the only way that we are going to make it difficult for those who want to carry out their heinous crimes is if they know that it will not remain hidden. As most of it is in the home—at least in my experience—we have got to find a message that can remind a perpetrator of that, even though they may be behind closed doors in an apparently loving home where people’s lives have been blighted. I support Amendment 66. I hope the Minister will say something that can capture the imagination of this nation. We must not look at just the big organisations, but at what happens in the home.
Lord Storey (LD)
I thank the noble Baroness, Lady Grey-Thompson, for putting this amendment down. We can talk in parliamentary language, but it is when we hear the example that my noble friend Lady Benjamin told us about that we know the appalling effects that child abuse has on children and young people. They often carry that for the rest of their lives, and they carry it in silence. Somebody said, and I think it is absolutely right, that this is about changing the culture, where the responsibility is not to sort of pretend “I’m title-tattling” or “I’m not sure” or “It’s a friend of mine” or “I shouldn’t say this”; if you suspect that child abuse is happening, you have to do something about it.
Recently, we have heard about all the problems that the Church of England has faced, and we have heard various clergy say, “Well, I didn’t think it was that important”, or “I did do so and so”. If we had had this in law, those prominent clergy would have had a responsibility in law to speak out and those abuses over many decades of young people, not at school but in various holiday camps, I understand, would not have taken place.
We think that, by ticking the box on CRB checks, or now on the data-barring service, it is all sorted in schools. It is not. When we come to the schools part of the Bill and look at unregistered schools—particularly, I have to say, religious unregistered schools—it is worth noting that examples have come to light of children who have been abused in unregistered settings. Again, people will say, “I don’t think this has really happened; I’d better not blow the whistle on this”, but it is the case, and various Members of this House know that.
This is a very important amendment. I do not care which Bill it comes in, but we need to make sure that it passes into law.
Baroness Barran (Con)
My Lords, the noble Baronesses, Lady Grey-Thompson and Lady Walmsley, made a predictably powerful case for the mandatory reporting of child sexual abuse and highlighted its terrible scale, impact and extent. I do not disagree with them when they say that the system is currently failing the victims. My noble friend Lord Moynihan also gave very powerful examples from the world of sport.
In my experience, this is one of the most difficult areas in which both to legislate and to implement legislation effectively. We know from a range of terrible cases, including, of course, the rape gang scandals of recent years, that even when a disclosure is made—whether by a child or when a professional makes the disclosure directly to the police or local authority—it is not always listened to. We also know from international research that mandatory reporting has led to enormous increases in recorded incidents. That may be an important contributor to the culture change that, as the noble Lord, Lord Storey, rightly identified, is so badly needed; but there is still, of course, an enormous gap between recorded incidents and the prosecution of the offenders concerned.
I have a couple of concerns about the amendment. One is volunteers, who play an important role, and the amendment perhaps affecting their willingness to take on voluntary and unpaid activity. Perhaps most importantly, we should think through the issues where there are suspicions rather than disclosures. As we have heard, the majority of child sexual abuse happens within families. We need to think through how suspicion is handled in practice, and the implications of children being taken into care while allegations are made against a parent or step-parent, or a sibling or step-sibling. I am not saying that, where abuse has happened, that is not important to do, but we need—and the Government need—to think through very carefully the implications and the disruption and fracturing of important relationships in children’s lives.
I note that, through the Crime and Policing Bill, the Government plan to introduce mandatory reporting where there is a disclosure or where abuse has been observed. I have some sympathy with that as a starting point, but I hope very much that we can keep a lens on this terrible issue. My noble friend Lord Moynihan says that he has been working on this issue with the noble Baroness, Lady Grey-Thompson, for over 20 years. I have the greatest respect for their tenacity and patience on such a difficult subject.
The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)
My Lords, this group of amendments has enabled us to hear a consensus in this House about the enormously difficult, tragic and appalling instances of child sexual abuse over the years, and that it is no longer good enough for us not to take important action to protect children in the most appalling circumstances. That is why this Government are committed to protecting children from harm, including from the horrors of sexual abuse, trafficking and exploitation. Measures included in the Bill and the significant programme of reforms already under way will help to protect children at risk of abuse and stop vulnerable children falling through the cracks in services.
I shall speak to the detail of the amendments. As we have heard, Amendment 66, tabled by the noble Baroness, Lady Grey-Thompson, seeks to insert into the Children Act 2004 a mandatory duty to report child sexual abuse. I wholly understand why noble Lords have taken the opportunity today to raise this issue. As the noble Baroness, Lady Walmsley, said, we should take every opportunity to raise it and to emphasise the determination of this House and indeed this Government to take action. We have heard from the noble Lord, Lord Moynihan, alongside the noble Baroness, Lady Grey-Thompson, about the specific issues relating to sport. We have also heard from the noble Baroness, Lady Finlay, the noble Lords, Lord Meston and Lord Bichard, and the noble and learned Baroness, Lady Butler-Sloss, about their experience and the pressure they have rightly put on the Government to make progress.
Noble Lords knew that part of my response would be that the Government are already taking forward a new mandatory duty to report child sexual abuse for individuals in England undertaking regulated activity with children, as well as, crucially, a new criminal offence of obstructing an individual from making a report under that duty. This duty is included in the Crime and Policing Bill, which is currently in the other place.
That is the most appropriate route to debate the detail of a mandatory reporting duty, but I have no doubt that colleagues in the other place—and those of my noble friends who will be responsible for taking that Bill through this House—will have listened carefully to the specific points and challenges raised by noble Lords during the course of the debate on this group, and on Amendment 66 in particular. I will draw this debate to their attention because, while we might disagree over the details, we can agree that any new duty must ensure that the words of children who are seeking help are heard and apply the strongest possible measures to anyone who seeks to cover up abuse of this kind.
I will respond to a couple of points on the mandatory duty. On criminal sanctions, there may well be differences, partly because of the sensitive and careful balance here, which the noble Baroness, Lady Barran, identified. The Government have not attached criminal sanctions in the Crime and Policing Bill to a failure to report. However, there will be criminal sanctions for anyone who obstructs an individual from making a report under that duty. This is because millions of people in England take part in regulated activity with children and young people. Many of them will be teachers, nurses, social workers and other qualified professionals, but a significant proportion will be volunteers giving up their time to support, for example, their child’s sports team.
Those volunteers are the lifeblood of many opportunities on offer to our young people. They should comply with the duty, but we do not think it would be proportionate to create a criminal sanction for failure to comply with it. That could create a chilling effect where people are reluctant to volunteer or even enter the professions, because they fear being criminalised for making a mistake. I know that this is a delicate and difficult area and I am sure that it will be subject to further debate when the Crime and Policing Bill comes to this House.
The purpose of mandatory reporting has to be to improve the protection of children. As the noble Lord, Lord Storey, emphasised, the aim is to create a culture of support, knowledge and openness when dealing with child sexual abuse. In working through the details of how this mandatory duty works, we must be careful that we do not do the opposite to that. Mandatory reporting will create a culture of openness and honesty, empower professionals and volunteers to take prompt, decisive action to report sexual abuse and demonstrate to children and young people that, if they come forward, they will be heard.
Amendment 69A was tabled by the noble Lord, Lord Lucas. Given the amount of work we have to get through on the Bill, I thank him for his brief but effective introduction to his amendments. I recognise the importance of safeguarding children from the risk posed by parents who have been convicted of serious offences, including those involving domestic abuse, child abuse and child sexual abuse. Ensuring their safety and well-being must remain at the heart of our family justice system. This amendment seeks to allow the High Court to curtail or remove parental contact where a parent has been convicted of domestic abuse, child abuse or child sexual abuse. It would also require the High Court to publish annual statistics on how many times they have removed or curtailed rights to parental contact.
However, we do not believe that new legislative provision is required, because existing legislation already serves to protect children from the harms associated with abusive parents. This is undoubtedly an issue where the courts should consider enormously carefully the potential damage that could happen to a child through contact with people in the sorts of circumstances that this amendment references. Section 1 of the Children Act 1989 already states that the child’s welfare must be the court’s “paramount consideration” when making a decision relating to a child’s upbringing. That section already includes a list of factors, known as the “welfare checklist”, which the court must take into account when deciding whether to make a child arrangements order for a child to spend time with or otherwise have contact with a person. This already includes considering the likely effect of any change of circumstances on the child and any harm that the child has suffered or is at risk of suffering. It follows that, when determining whether parental contact with a child is appropriate, legislation already gives the court the powers set out in the first subsection of this amendment. The court must already consider any potential risk or harm to the child, and this of course includes the very serious risks associated with domestic abuse, child abuse and sexual abuse.
The noble Lord’s amendment would also require the High Court to publish data on the number of times parental contact is curtailed or removed. Although I understand the call for accountability, it would not in fact be possible for the Ministry of Justice to collate this information without consulting each individual judgment. Of course, many of these judgments will be made in the family court, and therefore it would be very difficult to go through each individual judgment in order to collate the information that the amendment asks for. This is not to undermine the significance of the point being made by the amendment, but I hope that the noble Lord will see that there is already, within the law and in fact within the practice of the courts, the ability to ensure that this protection is available for children.
Amendment 107B was tabled by my noble friend Lord Watson of Invergowrie. It seeks to enable courts to prohibit or enforce specific local authority action where children in local authority care are experiencing or at risk of significant harm. I wholly share my noble friend’s objective here; we recognise the necessity for children and young people to be protected from harm, to have their voices heard and to challenge aspects of their care, especially when they have concerns about their safety. But of course, if a child is at risk of harm, they need swift and responsive action from the professionals around them, not a court process to navigate. The system of children’s social care is purposefully designed to protect and safeguard children, and there are numerous existing mechanisms through which any concerns can be escalated.
That does not mean that there is no room for improvement here, as I will outline. But, for example, there are many professionals who surround children in care, each with a specific duty to promote the child’s best interests. They include social workers, independent reviewing officers and advocates. In children’s homes, they are required to report serious incidents and abuse allegations to Ofsted, which will investigate and, where necessary, has powers to take appropriate action. There are also legal routes to challenge local authority actions where there are serious concerns about misconduct. We are, of course, aware of cases in which children have been harmed while in care, which is completely unacceptable. We know that strong, trusted relationships surrounding the child are key to keeping children safe, which is why we are already taking further action, as I say.
First, we are improving advocacy for children in care by publishing new national standards and statutory guidance for advocacy later this year. Secondly, we are introducing new post-qualifying standards for social workers that clearly set out the need to be agile and timely in adapting plans and intervening to keep children safe. We are creating a new local authority designated officer—LADO—handbook to improve consistency and information sharing across local authority boundaries. We are improving qualifications, standards and access to training for staff in children’s homes to ensure that children are receiving the high quality of care they need. We are in dialogue with the sector, including children and young people, to consider how effectively professionals around the child work seamlessly together.
Lord Watson of Invergowrie (Lab)
I thank my noble friend for the points that she has made. She referenced the update that came out in April, but that does not go far enough to meet recommendation 6 of IICSA, which talks about access to courts. It seems to me that there is an inconsistency between that and what the Home Secretary said in January about implementing all 20 recommendations, if the update is—if I understand my noble friend correctly—as far as the Government are prepared to go in this aspect of it at this stage.
Baroness Smith of Malvern (Lab)
In relation to recommendation 6, in very big consultation with the sector, the objective of the Government is to deliver on the intention of the recommendation while recognising—this is something that professionals have also raised—that, for the reasons I have outlined, a new legal route here not only is not necessary but would risk making children’s ability to have their voice heard and for the professionals around them to support them less likely to happen. It is the Government’s view that this is a more effective way of delivering the intentions behind recommendation 6.
Between existing safeguarding mechanisms and planned improvements, this Government set a clear expectation that children are safe, their voices are heard and professionals work together to take immediate action in response to issues or concerns. I thank noble Lords for the range of issues that have been raised on this group of amendments. I hope that I have been able to provide some assurances and that noble Lords will feel content not to press their amendments.
Baroness Grey-Thompson (CB)
My Lords, I thank the Minister for her response—it was perhaps not unexpected. I also thank all those who spoke in this debate. I am really pleased that there is consensus on mandatory reporting, but perhaps the wording requires a little more work. I understand why His Majesty’s Government think that another vehicle might be more appropriate—perhaps this is a useful rehearsal for that future debate. I do not think what the Government are currently proposing goes far enough, but the Minister is absolutely right that we need to use every opportunity we can to discuss the protection of children.
I thank the noble Baroness, Lady Walmsley, for the decades of work that she has done in this area. She has had a couple of attempts at a Private Member’s Bill and I am following her footsteps.
The noble Baroness raised the absolutely abhorrent case of Jimmy Savile, who was given complete, unfettered access to vulnerable people based on the fundraising that he did. As a child, I spent lots of time at Stoke Mandeville and at other sports events in places where he turned up. I remember one event when I was probably about 12 years old. He arrived to a great fanfare and lots of people said, “Jimmy’s here, Jimmy’s here; you have to go and see him”. I was not particularly keen to do that. There was one adult who said to me, very quietly, “No, you don’t need to go”. I asked why—“Everyone is saying we have to go and see Jimmy”—and she said, “No, no; you can just stay here. You don’t need to go”. I did not think anything of it or tell anyone. I was chatting with my friends, and I thought she probably thought that chatting with my friends was more important than going to see him.
That was one adult who had a suspicion and was uncomfortable about behaviour, but there was nothing I could raise and nobody I could complain to. I was just told, “You don’t need to go near him”. It reminds me of how easy it is for adults in positions of power or trust to groom and to coax and to then lead to abuse, and how adults have an amazing position, where they can get into really uncomfortable situations. But adults also have incredibly positive relationships with children. I note the words of the noble Baroness, Lady Barran, and recognise her extensive work in volunteering. I do not want this amendment in any way to stop people volunteering or to make them feel that they are not able to or that there is undue pressure on them, but I wonder whether there is a form of words, or whether the right training and regulations could be put around it, that would enable people to feel more comfort. Again, a lot of youth organisations and other organisations have very positive relationships with young people.
I thank the noble Lord, Lord Moynihan. We have worked together for a long time on duty of care. I have to say that the idea for an ombudsman that was in my 2017 government report on duty of care was actually borrowed from him and the noble Baroness, Lady Hoey, from the early 1990s. I think we both agree that sport, at its best, is absolutely amazing. It can give people a very positive life. I have benefited hugely from my time in sport, but whether it is teachers or coaches, those who want to access children live on their reputation. I have heard a number of times, “But they are a good coach”, or, “They are good at their job”, and they are able to slip through the net.
I also pay tribute to the survivors of football abuse, who I have met several times over the years. A number of them came into Parliament about 18 months ago to talk about their experience and how it was just ignored by so many people around them because there was no legislation in place. Again, they fell victim to, “But they are a good coach”. Abusers were able to tie into these young boys’ dreams of wanting to play professional football. That leads me to the words of the noble Baroness, Lady Walmsley, and my noble friend Lady Finlay: we have to be better at defining what a healthy relationship is, and educate children at an appropriate age about that. In a sporting context, there is far more that we can do on the athlete pathway and as people graduate through to performance levels. My noble friends Lord Meston and Lord Bichard and my noble and learned friend Lady Butler-Sloss have extensive experience of these issues, very sadly, and we should listen to them.
Like my noble friend Lord Bichard, I argued against the watering down of DBS checks, because it would allow those who want access to children to be able to get it too easily. I am reassured by some of the statements made about sharing information between LADOs, but I do not think they go far enough.
I would support the amendments from the noble Lords, Lord Lucas and Lord Watson of Invergowrie, if they brought them back at another time. The IICSA report took seven years. I believe strongly that all its recommendations need to be implemented. It is not just about the intention of the recommendations; they should be implemented in full. With that in mind, I recognise that I probably need to do some more work on drafting and have further discussions on this amendment. At this time, I beg leave to withdraw.
“Abolition of common law defence of reasonable punishment(1) The Children Act 2004 is amended as follows.(2) In section 58 (reasonable punishment: England), omit subsections (1) to (4).(3) After section 58, insert—“58A Abolition of common law defence of reasonable punishment(1) The common law defence of reasonable punishment is abolished in relation to corporal punishment of a child taking place in England.(2) Corporal punishment of a child taking place in England cannot be justified in any civil or criminal proceedings on the ground that it constituted reasonable punishment.(3) Corporal punishment of a child taking place in England cannot be justified in any civil or criminal proceedings on the ground that it constituted acceptable conduct for the purposes of any other rule of the common law.(4) For the purposes of subsections (1) to (3) “corporal punishment” means any battery carried out as a punishment. (5) The Secretary of State may make regulations for transitory, transitional or saving provision in connection with the coming into force of this section. (6) The power to make regulations under subsection (5) is exercisable by statutory instrument.(7) This section comes into force six months after the day on which the Children’s Wellbeing and Schools Act 2025 comes into force.58B Promotion of public awareness and reporting(1) The Secretary of State must take steps before the coming into force of section 58A to promote public awareness of the changes to the law to be made by that section.(2) The Secretary of State must, five years after its commencement, prepare a report on the effect of the changes to the law made by section 58A.(3) The Secretary of State must, as soon as practicable after preparing a report under this section—(a) lay the report before Parliament, and(b) publish the report.(4) The Secretary of State may make regulations for transitory, transitional or saving provision in connection with the coming into force of this section.(5) The power to make regulations under subsection (4) is exercisable by statutory instrument.””Member's explanatory statement
This new clause would abolish the common law defence of reasonable punishment in relation to corporal (physical) punishment of a child taking place in England, amend certain provisions of the Children Act 2004 relating to corporal punishment of children and place a duty on the Secretary of State to report this change.
Baroness Finlay of Llandaff (CB)
My Lords, the long title of this Bill starts by stating that it is to:
“Make provision about the safeguarding and welfare of children”.
The Bill’s focus on well-being will be undermined if we allow intergenerational cycles of violence towards children to remain perpetuated. Amendment 67, along with the consequential Amendment 505, seeks to closes a loophole in the safeguarding provision for children; a loophole that was closed in Scotland in 2019 and in Wales in 2020 but not yet in England and in Northern Ireland.
Children need the same protection from assault as adults, yet lack protection because the law’s amendment 20 years ago left a loophole. When children are hit, the assaulting adult can claim that it is “reasonable chastisement”. There is no legal definition of what is reasonable; it depends on the circumstance. The line between lawful punishment and unlawful abuse is open to interpretation.
Paediatrician Professor Andrew Rowland, child protection officer at the Royal College of Paediatrics and Child Health, pointed out that he is
“regularly faced with difficult situations where it is alleged that physical punishment has been used against a child”.
Last year’s practice review in Worcestershire into nine year-old Alfie’s death flagged up the difficulty in distinguishing
“between what is lawful and proportionate and what is harmful and abusive”.
The preceding year, Norfolk’s review into the death of child AK concluded that the current law is confusing.
These risks are reiterated in safeguarding practice reviews, particularly as bruises are more difficult to see in skin of colour or when the child is extensively covered by clothing. The 2018 report from AFRUCA on safeguarding children in black and ethnic communities in London and Manchester found that complexity and ambiguity in England leaves many families unclear on the law, particularly those who have recently arrived in the UK.
The UN Convention on the Rights of the Child, to which the UK has signed up, commits states to protect children from all forms of physical violence, including corporal punishment within the family. The UN committee has explicitly stated that physical punishment is a violation of a child’s right to protection and should be banned. Around the world, 68 countries have now prohibited physical punishment and have shown a drastic reduction in the number of children being subject to severe corporal punishment.
There is clear evidence that physical punishment has no positive outcomes for children, as reported in the Lancet in 2021. The review of 69 studies found that physical punishment consistently predicts increases in child behaviour problems and mental health issues and in escalating physical abuse over time, increasing the need for child protection for more severe violence. The behaviour of control by hitting becomes externalised, with ever-worsening behaviour. These associations between physical punishment and detrimental outcomes are robust across child and parent characteristics: the more that children are hit, the worse the child behaviour over time.
Hitting children hurts on the outside and on the inside; it damages emotional development. Eight in 10 child runaways cite family violence as a cause. As one child said, “I was sick of my dad and his girlfriend hitting me”. Last year’s report from the Royal College of Paediatrics and Child Health shows that those who experience physical assaults in the name of punishment are two and a half times more likely to experience mental health problems and twice as likely to go on to experience significant injury and damage through more serious forms of physical abuse. Children subject to being hit in the name of discipline are more likely to bully others and to repeat the cycle of violence over and over again once they become adults.
The Children’s Commissioner for Wales, alongside the other three children’s commissioners, supports extending equal protection for all children in the UK. This amendment does not seek to prosecute parents. In Wales and Scotland, there has been no evidence of a significant increase in prosecutions following this change. It is about behaviour and culture change. If I hit a noble Lord, they would rightly accuse me of assault. However, England allows adults to hit a child, who will be much smaller than them, with a much more vulnerable body and emotional make-up. It is a way to vent their anger when they—the adult— cannot cope.
Baroness Tyler of Enfield (LD)
My Lords, I will speak to Amendment 173 in my name, and I thank my noble friend Lady Walmsley for adding her name to it. I am extremely supportive of Amendments 67 and 505, which were very powerfully introduced by the noble Baroness, Lady Finlay.
My amendment seeks to require the Government to prepare and publish a national neglect strategy to galvanise a sustained focus on neglect. For far too long, neglect has been absent from or underplayed in our conversations about supporting children and families. The role it can play is critical in reducing the number of children in care, which will be central to many of our discussions on this part of the Bill. The scale of neglect is significant and its impact on children far-reaching. Neglect is the most common form of maltreatment reported as the initial category of abuse on child protection plans. It was also the main reason for adults reaching out last year to the NSPCC helpline; indeed, new research from the NSPCC underlining this point will be published this week.
Neglect has some of the most profound negative and long-term effects on a child’s behaviour, educational achievement, emotional well-being and physical development. It impacts every area of a child’s life. Unaddressed, it prevents children developing their full potential and puts them at serious risk of harm. That it is the very antithesis of well-being, which is what Part 1 of the Bill is all about. However, unlike other forms of maltreatment, there is no national strategy for neglect, and existing practice guidance rarely refers to neglect-specific approaches and models. The NSPCC has reported that professionals have concerns about the lack of a national focus on neglect and how this has left many children without the right support at a time when family pressures are at an all-time high.
Requiring the Government to prepare and publish a national neglect strategy, as my amendment would, would make sure that we provide greater protections and support for children and families, better understand and address common drivers of neglect, such as poverty and insecure housing, standardise the use of evidence-based neglect tools to identify and respond to neglect and improve information sharing across agencies. Taken together, that package could be very powerful.
While neglect is prevalent in child referrals and assessments, a lack of action being taken to address it has become the norm. Indeed, so commonplace is neglect that it can be easy for professionals to either stop noticing it or become desensitised to its potential severity. Neglect is a complex harm, and it requires a great deal of professional skill to understand and assess its impact. I know that many professionals feel they are simply underprepared and underresourced to do so, and there are limited specialised professionals or interventions for them to draw on.
Indeed, research last year found that 83% of professionals in healthcare, the police, children’s social care and education believed that there was not enough service available to provide support for children experiencing neglect. Equipping professionals to identify concerns about neglect early, enabling parents to reach out for support in a non-stigmatising way and ensuring there are available sources to respond effectively to neglect are all vital to reducing the devastating impact it can have on children and—this is absolutely critical—to reducing the number of children going into care, which is currently at an all-time high.
With neglect being such a prominent category of abuse and often the earliest sign of mistreatment, surely it should, and indeed must, form the cornerstone of early intervention, which I think we all agree is so important. If we are serious about supporting families and helping children as early as possible, as I know we are, preventing and tackling neglect must become a central plank of our policy response. The need for a national neglect strategy needs to be given very careful consideration. I hope it is possible to do so during the passage of the Bill and I very much look to hearing the Minister’s response.
Baroness Lister of Burtersett (Lab)
My Lords, I am very pleased to add my name to Amendment 67, so ably introduced by the noble Baroness, Lady Finlay of Llandaff.
For me, this is very much a question of children’s rights. As the noble Baroness, Lady Finlay, said, Article 19 of the UN Convention on the Rights of the Child makes it clear that children must be free from violence and that Governments must do all they can to protect them from violence, using all appropriate legislative, administrative, social and educational measures. This amendment would ensure that the whole of the UK, not just Scotland and Wales, complies with the UN convention. Moreover, if we are taking children’s well-being seriously, we cannot continue to allow them to be subjected to physical assault. They are the only group, as the noble Baroness said, who are not legally protected from it.
Ministers say they are open-minded but want to see the review of evidence from Wales and from a range of voices. But, as already noted, we have ample evidence, from numerous countries, both of the negative impact of physical punishment on children’s well-being and the positive impact of its prohibition in terms of it having the desired effect of reducing the use of physical punishment. If she has not seen it, I would refer my noble friend the Minister to a recent article in Children and Youth Services Review which brings together much of that evidence.
As has already been noted, the evidence is sufficient for all the Children’s Commissioners, including from Wales, to be calling for reform. Indeed, they call the current law “outdated and morally repugnant” and reject the argument that it would lead to the criminalisation of parents. Polling shows consistent support among the general public for reform and new polling shows a majority of safeguarding professionals in support of change. Over half of social workers and teachers said the current law makes their work of safeguarding children more difficult.
I fear that the “waiting for Wales” argument is becoming a legislative form of “Waiting for Godot”. How long will we have to wait for another Bill that would provide such a perfect opportunity for reform? The Children’s Commissioners and a range of health and social care organisations are calling for urgent action now. Surely, we should be listening to them and stop prevaricating.
Lord Jackson of Peterborough (Con)
My Lords, I rise to oppose this amendment in the name of the noble Baroness, Lady Finlay of Llandaff, and its consequent Amendment 505. I believe it is an egregious interference in family life by the state and an intrusion. It is an attack on family rights and it will encourage a childish disrespect for authority. It is disproportionate and heavy-handed and it risks criminalising good and caring parents, as well as overloading children’s services departments.
The law as it stands is sensible. It outlaws violence, abuse and unreasonable chastisement. Crown Prosecution Service guidelines are clear that, if the actions of a parent cause anything that is more than transient or trifling, it is unlawful. This has been the law since 2004, when Parliament narrowed the scope of the reasonable-chastisement defence. The reasonable-chastisement defence simply permits parents to use very mild physical discipline, like a tap on the hand or a smack on the bottom, without being charged with assault. By definition, the defence allows only reasonable behaviour. Therefore, if the defence is removed, it is only reasonable behaviour that will become unlawful.
“Reasonable chastisement” is common and harmless. The Welsh Government admitted in 2021 that there was
“no definitive evidence that reasonable physical punishment causes negative outcomes for children”.
Research recycled by activist academics campaigning for a ban fails to distinguish between reasonable chastisement and beatings. The recent press statement calling for a ban by the Royal College of Paediatrics and Child Health, which appears to have become an annual event, included the claim that
“now is the time for this Victorian-era punishment to go”.
This kind of highly loaded language must bring into question whether the college was engaging in scientific debate or merely exaggerated polemic. Victorian-era punishment conjures up images of beatings that were outlawed long ago. Either the college is uninformed about the law or it is deliberately exaggerating.
Those who defend loving parents who use mild physical punishment within the context of a warm, nurturing relationship are opposed to child cruelty. The reasonable-chastisement defence will never prevent a court bringing in a conviction in a case of abuse. There is not a single reported case where this has occurred. As stated, the legal defence cannot be used where a parent causes anything that is more than transient and trifling. An example of the law in action took place in Torbay in 2018, where a stepdad was successfully prosecuted for smacking his four year-old daughter too hard. He had left a handprint on her bottom and the judge ruled, quite rightly, that he had acted unlawfully.
A core objective of the Bill is to address the concern that children at risk of abuse are falling through the cracks of our safeguarding system. However, a smacking ban would exacerbate this wrong by increasing the likelihood that genuinely at-risk children are overlooked. It would be a tragedy if major cases of abuse were missed because vital staff members were needlessly occupied with innocent parents. Those in genuine need will suffer while resources are wasted on cases where there are no real problems. Social workers will be even busier than they are already and, as a result, some vulnerable children will not get the help they obviously need.
Everyone wants the state to intervene to protect children who are in danger of abuse, but, if that is to be done effectively, the limited resources available need to be focused on identifying and helping those at risk, not investigating innocent, loving parents because the law of assault has become politicised by activists who do not agree with reasonable chastisement.
Making trivial smacks a criminal offence will cause misery for parents and children. Parents will be required to be treated as suspected child abusers by police and social services when they know they do not deserve to be treated in that way. We do not help victims of real abuse by creating injustice in families where there is no abuse. Some children will be removed from their parents; some will have to give evidence in court against their mother or father. This entirely unnecessary and unjust process would be devastating for the child and their parents, and it runs counter to the Bill’s stated aim to keep children and families together wherever it is safe to do so, as set out by the Minister at Second Reading.
Baroness Walmsley (LD)
My Lords, I am very sorry to hear the speech of the noble Lord, Lord Jackson of Peterborough. I believe he totally misunderstands the point of the amendment so ably introduced by my noble friend Lady Finlay. He used “smacking” quite a lot. I will never use that word myself, because it trivialises what we mean. We are talking about a hit—about a physical assault on a child. The reasonable chastisement defence is only ever likely to be used in a court of law, and it has been.
As I think we know, the rationale is that every battery of a child starts with a hit, but not every hit of a child leads to battery. One recent case illustrates the point. On the first day of the trial of the killers of Sara Sharif in 2024, the prosecutor, Bill Emlyn Jones, told jurors that Urfan Sharif called British police, having fled to Pakistan after Sara’s death. He said:
“He used what you may think is an odd expression. He said: ‘I legally punished her and she died’”.
I wonder where he got that phrase. I can tell your Lordships: it appears in Section 58 of the Children Act 2004, and for the last 20 years, I and others have tried to delete it. The presence of those words in the law sends a message that it can be lawful to beat a little child.
Back in 2002, the Adoption and Children Act acknowledged the damage done to children from witnessing violence in the home. So long as the reasonable chastisement defence remains, babies and children who witness violence still have greater legal protection than those who are directly assaulted.
Emlyn Jones said that Urfan Sharif also told the police:
“I beat her up. It wasn’t my intention to kill her, but I beat her up too much”.
An intention to kill is not necessary. An intention to cause serious harm is sufficient for a murder conviction if death ensues. The prosecutor said that a note in Urfan Sharif’s handwriting was found next to his daughter’s body, which read:
“I swear to God that my intention was not to kill her. But I lost it”.
Sara had more than 70 injuries to her ribs, shoulders, fingers, spine and brain, and a burn from a domestic iron to her buttock. She had numerous bruises, scald marks from hot water, restraint injuries, and human bite marks. These injuries did not occur on one occasion when her father “lost it”.
This sort of case is not new. When Maria Colwell died in January 1973, she had black eyes, fractured ribs and brain damage. This was inflicted by her mother and stepfather, William Kepple. Kepple was convicted of Maria’s murder in April 1973, but the charge was later reduced to manslaughter. Officials repeated the mantra: “It must never happen again”. But it has, and it does.
Victoria Climbié, who died on 25 February 2000, was rushed to hospital suffering from hypothermia, weighing just three stone and ten pounds and suffering 128 injuries.
In arguably one of the most notorious child deaths, Peter Connelly, known in the media as baby P, died in London on 3 August 2007, aged just 17 months, after suffering more than 50 injuries. He had been seen 60 times by healthcare professionals and social workers.
On 3 March 2012, four year-old Daniel Pełka died after being severely battered by his mother and her partner. Daniel had suffered 22 injuries, including 10 to his head.
Arthur Labinjo-Hughes was murdered after months of abuse in 2020. Arthur, aged six, was tortured to death by his father, Thomas Hughes, and stepmother. After months of horrific abuse, he was starved and poisoned with large quantities of salt. When he died, his skeletal body was covered with 130 bruises and he suffered 93 different areas of injury.
On 22 September 2020, Savannah Brockhill caused baby Star Hobson catastrophic injuries after inflicting months of brutal abuse alongside her mother. Medics said that her injuries were usually seen only in car crash victims. Boris Johnson vowed that action would be taken to stop such shocking and heartbreaking tragedies in future, but it has not been taken. Many other fatal cases have hit the headlines, and there have been hundreds of beaten children who did not die but were marked for life by their experience. Briefings we have received from the Royal College of Paediatrics and Child Health have made it clear that hitting children is not harmless; it is harmful.
Yes, there were serious shortcomings in the actions or inactions of various public services in the cases I have just outlined, but the social workers and police did not kill these children; their parents and carers did. They did it because they thought they could get away with it. Every terrible beating started with a single hit, a single physical assault: the sort of thing that recently lost an MP his seat and his liberty.
The reason why these children died was that they did not have the voice or ability to stop it and they were not sufficiently protected by the law. If the early stages of any one of these cases had been perpetrated on an adult, the attacker would have been imprisoned long before the pattern of assault became fatal. The fact is that children do not have equal protection against assault under the law, because of the excuse expressed in the chilling words “reasonable punishment”. These assaults are not reasonable by any measure, and they are not punishment either.
No child was ever naughty enough to deserve such abuse. It is not punishment; it is an expression of the anger, hatred and frustration of the perpetrator, leading to actions that should be classed as criminal, without mitigation. These children are calling from the grave to make them so. Let us do it at last by carrying this amendment.
Lord Hampton (CB)
My Lords, I rise to speak to Amendments 67 and 505 in the name of my noble friend Lady Finlay of Llandaff, to which I have added my name and to which she spoke so eloquently. I am afraid that I am unable to comment on the speech of the noble Lord, Lord Jackson of Peterborough, because my cerebral cortex received so many messages of complaint that it shut down quite early on.
I have lived on this planet for 60 years, I have been a parent for 20 years, a cricket coach for 15 years, a teacher for 10 years and a kinship carer for over a year, and I have never hit, slapped or smacked anybody, except one unfortunate time in a tour game against Tredegar Ironsides, and the opposition scrum-half started it.
As has been mentioned, this is the children’s well-being Bill, but it is quietly going on its way without mentioning a fundamental problem of well-being: legalised violence against children. That is what we are talking about. Not a quick clip around the ear, not a short, sharp shock that teaches them right or wrong. Not something that was done to us and we are no worse for it. No, we are grooming our children to believe that violence is acceptable by the powerful against the weak for their own good. That is not an acceptable message.
I believe that the results from Wales and Scotland are showing no major increase, if any, in prosecutions. I suspect that, for most people, it will not be a surprise that hitting a child is a bad idea, so a change in the law would remove the defence only for those who really aim to harm children. The rule of thumb is an urban myth. It has never been acceptable to hit women. Why do we still allow violence against children?
Baroness Whitaker (Lab)
My Lords, I am disappointed to be speaking again. The first time was 21 years ago. This time, I speak in support of Amendment 67, again in support of the noble Baronesses, Lady Finlay and Lady Walmsley, now joined by my noble friend Lady Lister and the noble Lord, Lord Hampton. As such telling arguments have just been made, I will simply emphasise again that, since 2004, when I first spoke, very many more countries have come to the conclusion that children are of equal worth to adults—a view, it seems, not shared by the noble Lord, Lord Jackson of Peterborough. It is even clearer that the legacy of physical punishment of children is more violence in society and worse mental health. As the noble Baroness, Lady Finlay, said, there is no definition of “reasonable punishment”. Surely it is time to agree that physical punishment is the reverse of reasonable and get it out of our common understanding of discipline.
Baroness Longfield (Lab)
My Lords, I, too, support the amendment and thank noble Lords for putting it forward. This is not a new debate: I called for this change in law many years ago, including when I was Children’s Commissioner for England. I have not changed my view. As we have heard, Sweden outlawed smacking in 1979, and I can remember when the last Labour Government faced the same calls those 20 years ago. We did, of course, banish corporal punishment in schools a long time ago. The moves in Scotland, in Wales and in Ireland over very recent years have all been about closing the loophole, because they all recognise that the defence of reasonable chastisement is outdated and wrong. I believe it is time for England to follow suit: making sure that children have equal protection from adults.
I think that we have moved on considerably in this country over recent years on the issue and that views have changed. It is no longer a particularly contentious issue, I do not think. Most parents no longer believe that hitting children is the right way to improve behaviour or to discipline children: it is much better to support and help parents to support their children with positive behaviour. We should not see this as either a complex or controversial issue or debate. It is not the nanny state or the Government interfering in how parents discipline their children. This amendment makes a sensible and long-overdue change that does no more than provide children with the same right as adults not to be the victims of assault.
Baroness Benjamin (LD)
My Lords, I rise to support Amendment 173 and the passionate speech on child neglect by my noble friend Lady Tyler. Neglect can affect a child right through into adulthood, and we need to address this by giving support to the protection of our children. I also support Amendment 67 in the name of the noble Baroness, Lady Finlay, who spoke so powerfully, and in the name of other noble Lords. In doing so, I declare my interest as vice-president of Barnardo’s.
As we have heard, Barnardo’s, the NSPCC and the Royal College of Paediatrics and Child Health, together with over 20 other organisations, including UNICEF, have called for a complete ban on smacking. Almost 70 countries have banned smacking, leaving no ambiguity in the law: it is never okay to “reasonably punish” a child. It is time to join those countries and end physical punishment against children.
There is no evidence that smacking is effective or that it prevents bad behaviour or that it teaches positive behaviour. It can lead to mental health issues in later life and develop a pattern of behaviour of a child learning to use violence to solve problems, to get what they want or even to become a bully.
Smacking can damage parent-child relationships and lead to resentment and fear rather than respect. I have spoken to so many adults who tell me how much they hate their father because of the physical violence that they suffered as a child. It is not only fathers whom they hate but mothers who have inflicted violence on their children.
It is much better to talk a problem through with a child, reason with a child through role play and set good behavioural examples. The earlier that this starts, the better it is in the long term for a happy childhood experience. I wholeheartedly support this amendment.
Lord Carlile of Berriew (CB)
My Lords, I support the amendments ably introduced by my noble friend Lady Finlay.
They make laws slightly differently in Germany. When a law is made relating to something that affects children, for example, they sometimes insert something in their constitution. I note that in 2000, when the parental right to spank was rescinded in Germany, a new phrase was introduced into the German constitution:
“Children have a right to an upbringing free of violence. Corporal punishment, emotional harm and other humiliating measures are not permissible”.
That has happened, and similar steps have been taken in 75 countries to date where smacking is not permitted. Many of those countries are in Europe. Almost the whole of Europe forbids smacking. We stand out as an exception in the map of Europe where it is illustrated. Just as Germany, Spain, Norway, Sweden, Finland and Denmark are not worse places as a result of the banning of smacking, the same will be the situation in the whole of the United Kingdom when England follows Wales, Scotland and, hopefully, Northern Ireland.
Section 58 of the Children Act 2004 is predicated by opposition to smacking, not by encouragement of smacking. As has already been said, it was banned in schools but has been allowed to continue in certain very restricted circumstances in homes. As early as 2007, the Crown Prosecution Service issued a report in which it was opposed to banning smacking altogether but observed that the defence was being used in inappropriate situations and in the wrong kinds of cases. There is absolutely no evidence that the banning of smacking would have any dramatic effect on parents who, like the parents in the countries that I have named, have simply been told, “You can’t smack your children anymore”. I believe that people are ready for that in this country.
The noble Baroness, Lady Walmsley, in an extremely powerful speech, gave several examples of cases in which the terrible violence that eventually was used against children probably started with the first smack. It is quite wrong that we should allow that sort of situation to develop.
I listened with great care—my synapses were operating in overdrive—while the noble Lord, Lord Jackson, was speaking. However, he is now a bit historical in this argument. I treat his points with respect, of course, but I prefer those that have been made by other noble Lords in this House. Between the noble Lord and the Royal College of Paediatrics, I prefer the royal college.
Baroness Bennett of Manor Castle (GP)
My Lords, the case for Amendment 67 and the associated Amendment 505 has very powerfully been made. I add a couple of additional points that might perhaps inform the House and be useful. I note that more than 30 MPs in the other place supported a similar amendment and that there it was driven by the honourable Labour Member for Lowestoft and my honourable friend the Member for North Herefordshire. It is not that we are suddenly bringing this up in your Lordships’ House—there is strong support in the other place as well for government action here.
I moved an amendment along similar lines to end the defence of reasonable chastisement during the Domestic Abuse Bill. I was quite new to your Lordships’ House and learned along the way that many people had been working on this for decades longer than I had been. I heard from the then Conservative Government, “Oh, it’s not the time now; we’ve got to see what happens in Scotland and Wales”. I would very much like to think that we are not going to hear the same thing this evening, although I am not terribly optimistic.
Like others, I listened very closely to the noble Lord, Lord Jackson. I say a couple of things in direct response to the noble Lord. He cited Professor Larzelere, who would best be described as a “controversial” academic. I point noble Lords to an article responding to some of the work of Professor Larzelere in the journal Marriage & Family Review in 2017, “Researchers Deserve a Better Critique” by George W. Holden et al. The authors say that Professor Larzelere had profoundly misunderstood the description of positive parenting and was very misinformed about the whole academic field.
You could feel a visible sense of shock around the House when the noble Lord, Lord Jackson, suggested that smacking was harmless. That is a disturbing label to put when we know from the Royal College of Paediatrics that children who have experienced physical punishment are 2.6 times more likely to experience mental health issues. We know what a mental health crisis we have in our society. They are up to twice as likely to experience further forms of abuse, sometimes leading to the cases that the noble Baroness, Lady Walmsley, presented to us so powerfully. The college makes a really important point that children who have experienced physical assault are more likely to believe that violence is accepted and encouraged in society. We want to protect the vulnerable children, but we are also addressing the question of what sort of society we are.
We have had a number of international comparisons, but I believe that Thailand is the most recent state to have banned physical abuse of children. I happen to know quite a bit about Thailand. I was technically a Thai civil servant in the 1990s when I was there as an Australian volunteer abroad. I follow Thai politics quite closely and know quite a lot about Thai society. This is a big step for Thailand to take. Thailand has had a great deal of political difficulties in recent years but has regarded protecting its children as so important that it has ensured that there is legal protection. It is interesting when you look at the government announcements around this that this is a need to support parents as well as to ensure the protection of children.
I have one final point to make and a question for the Minister. The NGO Article 39 sets out the historic background for the reasonable chastisement offence, which arises from a criminal case in 1860, R v Hopley, about a head teacher found guilty of the manslaughter of a 13 year-old child with learning difficulties. The head teacher had beaten the child with a stick for more than two hours. Looking at the judge’s words on which this whole “reasonable chastisement” is based, the judge said that a parent or schoolmaster
“may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment”.
That is the origin of what has got us to where we are today and what we are trying to change with this amendment. It is a reflection of how out of date the current legal situation is.
Finally, my question to the Minister arises from the Article 39 briefing. We have all focused on parents, but the briefing says that the defence
“has also not been removed from part-time educational settings (including those operated by religious organisations), children’s health settings or supported accommodation for looked after children aged 16 and 17”.
Can the Minister—either now or I will understand if she wishes to write to me—set out whether that briefing is indeed correct and there is still that allowance of violence against children in other settings as well?
Baroness Barran (Con)
My Lords, I rise slightly nervously to respond to this debate, which follows and covers a number of very important and thorny issues. But one of the reasons I am anxious—I double-checked, hence my looking at my telephone— is I felt that, at points, the Committee was talking about slightly different things.
I accept absolutely the very valid point made by the noble Baroness, Lady Walmsley, that in every terrible serious case review of child death at the hands of their parents the issue has started with a single hit, but she would also accept that, thank goodness, those are very much the exception rather than the rule, and that the overwhelming majority of parents who may or may not smack or use physical discipline towards their child do not end up anywhere near those kinds of tragedies.
The reason I pulled out my phone was just to check that I had understood correctly. The reasonable chastisement defence applies only in cases of common assault and battery since the Review of Section 58 of the Children Act 2004 and the implementation of that review in October 2007. With the leave of the Committee, I will read a couple of sentences from the advice produced by the department in October 2007:
“Therefore any injury sustained by a child which is serious enough to warrant a charge of assault occasioning actual bodily harm cannot be considered to be as the result of reasonable punishment. Section 58 and the amended Charging Standard mean that for any injury to a child caused by a parent or person acting in loco parentis which amounts to more than a temporary reddening of the skin, and where the injury is more that transient and trifling, the defence of reasonable punishment is not available”.
So, I am sorry for whatever having to listen to my noble friend Lord Jackson of Peterborough has done to the brain of the noble Lord, Lord Hampton, but I think my noble friend made a very fair point. Noble Lords and parents around the country may or may not agree, but this advice is absolutely clear that where chastisement amounts to more than a temporary reddening of the skin, or where the injury is more than transient or trifling, the defence is not available. It is fair to ask—and it would be interesting to hear what the Minister has to say, and the noble Baroness, Lady Finlay, who I know has thought about this long and hard—that we understand what difference this is going to make to the kinds of cases that have been cited in the Committee this afternoon.
My other concern is about non-physical chastisement. I spent the first six years of my time in your Lordships’ House never mentioning domestic abuse, and I do not think I have stopped talking about it since we started the Bill. We know that in many abusive relationships—and this applies to children as well as adults—you do not need to use physical violence; coercion and fear and control are incredibly harmful. Figures were cited about the harm of physical violence, and I do not question those for a second, but I wonder where the law then goes. If we were to adopt the noble Baroness’s amendment, which obviously has significant support in both Houses, where do we then go in dealing with what, I would argue, is perhaps much more toxic and damaging for a child’s mental health and their physical health, given what we know about the links between the two in terms of emotional abuse and psychological harm to children? I look forward to noble Lords’ comments on that.
We also need to address—as ever, I am surrounded by people who know much more about this than I do—the reality that, if a parent is accused of smacking, hitting or slapping a child, not the kind of severe physical violence that was cited but the violence that would fit under the defence of reasonable chastisement, they may enter a slow, stressful and ultimately quite harmful criminal justice process, during which time they may be prevented from having contact with their child and that child might be removed into care. We need to balance the impact of the kind of chastisement as set out in Section 58 with the kind of harm that that process would bring to children. In no way do I endorse violence—
Baroness Walmsley (LD)
I hope the noble Baroness, Lady Barran, will excuse me for picking up one point that she has just made. The law, as it stands, is extremely confusing and unhelpful to parents. For example, she talked about reddening of the skin. I do not know about the noble Baroness, but if I was going to hit a child, I would not know what level of pressure was going to raise a red mark on that child’s skin and which would not. How can a parent possibly know? So, the law is confusing and unhelpful. It is certainly discriminatory; as has been mentioned, you cannot as easily tell when a bruise is arising on a skin of colour as on a paler skin. Those are just a couple of examples where the law is confusing and it needs clarifying.
Baroness Barran (Con)
I am not sure that I entirely agree with the noble Baroness on the spirit of the law. It talks about “trifling”—where the chastisement is of a trivial nature—and, while different parents might interpret that in a different way, the kinds of abuse that were cited in the debate that we have just listened to were not trifling; there was no question that they were trifling.
I will turn now to Amendment 173 in the name of the noble Baroness, Lady Tyler of Enfield, which seeks to introduce a national strategy to address neglect of children. As we heard the noble Baroness explain—from her own professional experience, she brings great expertise on this matter—neglect is too common a feature in too many children’s lives. I commend her for bringing this to the attention of the Committee, and I would support her assertion that many practitioners lack confidence in how to respond to neglect. The approach set out in the amendment is practical in terms of sharing best practice and supporting both professionals and parents to understand and address neglect. My question to the noble Baroness, and potentially to the Minister, is whether it is wise to try to separate neglect from abuse, since we know that in most cases they will coexist, and therefore I imagine one would want practitioners to go in with their eyes open to both.
Baroness Smith of Malvern (Lab)
My Lords, the Government are putting children at the heart of everything we do. This is evident in the far-reaching child protection and safeguarding measures in the Bill.
The amendments in this group were tabled by the noble Baronesses, Lady Finlay and Lady Tyler. They relate to the defence of reasonable punishment and what the Government are doing about neglect.
I will speak first to Amendments 67 and 505, in the name of the noble Baroness, Lady Finlay, on removing the defence of reasonable punishment in legislation, which has been the basis of most of the contributions in this group. Let me be completely clear: the Government do not condone violence or abuse of children, and there are laws in place to protect children from this. Violence against children is not only unacceptable but illegal. The Crown Prosecution Service guidance referenced during the course of this debate is very clear that only the mildest form of physical punishment can be used to justify discipline. Child protection agencies and the police treat allegations of abuse very seriously; they will investigate and take appropriate action, including prosecution, where there is evidence of an offence having been committed. Local authorities, police and healthcare professionals have a clear duty to act immediately to protect children if they are concerned that a child is suffering or likely to suffer significant harm.
The noble Baroness, Lady Walmsley, identified terrible cases that we must all take note of. Much of Part 1 of the Bill aims to address precisely these types of cases. But it is important to emphasise that cases where children have been abused or murdered by their parents—children, in fact, who experienced abuse far short of the terrible cases she identified—even in cases where their parents claimed to have been legally disciplining them, would not be covered by the reasonable punishment defence. To suggest otherwise is simply wrong. I am not convinced that it really was simply a reasonable punishment that led to the terrible outcomes in those cases; I think it was something far more profound, dangerous and worthy of attention—in fact, attention would be legally required.
We have heard that other countries have made these changes. We are looking closely at changes in Scotland and Wales and continue to build our evidence base, but we do not want to take this important decision yet. Wales will publish its report at the end of the year, looking at the impact that the change in legislation has had.
It is important that, in making any decisions, we consider all voices, including those of the child, trusted stakeholders and those who might be disproportionately affected by removing the defence. I certainly accept some of the examples used by noble Lords about the support that there is for removing this defence. I do not think it is quite as straightforward and completely categorically clear as some noble Lords have suggested.
Most parents want what is best for their children and they should be supported. It is right that we protect all children who are at risk of harm, but it is also right that we do not intervene in family life when children are safe, loved and well supported. This is why I agree with noble Lords who identified the need to find more positive ways to parent. I do not think that most parents who resorted at some point or another to a smack feel that that is the most positive way they could parent their children.
That is why we are rolling out national reforms to multi-agency family help and child protection—backed, as we have said previously, by over £500 million of funding—and, importantly, providing parenting support in 75 local authorities through family hubs. Parenting is difficult. Any of us who has done it understands the challenges of choosing the right ways to promote the positive development of our children. The recent publication of our practice guide for parenting services for parents of zero to 10 year-olds is a positive way to help parents identify how to do that very difficult job most effectively.
Lord Jackson of Peterborough (Con)
I warmly welcome the Minister’s remarks, because at the heart of this debate there seems to be a mischaracterisation and misunderstanding of Section 58 of the Children Act 2004 and a conflation of mild admonition with assault by beating, which obviously should be subject to the full force of the law. For the avoidance of doubt, and just to sum up, would she agree with the words of her colleague the Minister of State, Catherine McKinnell:
“As the law stands, quite frankly, any suggestion that reasonable punishment could be used as a defence to serious harm to a child, or indeed death, as has been asserted, is completely wrong and frankly absurd”?—[Official Report, Commons, Children’s Wellbeing and Schools Bill Committee, 6/2/25; col. 464.]
Baroness Smith of Malvern (Lab)
I hope I did make that clear earlier, but I am very happy to reiterate. It would be wholly wrong. It would not be in line with the law for the types of cases that we have heard about in this debate to be subject to the defence of reasonable punishment. The Crown Prosecution Service has been clear, as professionals are clear, that that would get nowhere near to this defence. I know that noble Lords will be disappointed, with the exception of the noble Lord, Lord Jackson, with the response of the Government, but I think it is a reasonable recognition of the very strong action taken when children are subject to violence and the need to learn from those who have recently changed the law. That is a sensible and appropriate way to go forward in this case.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to all those who have who have spoken in support of this amendment. I am slightly disappointed that it leapt straight into the court end of things. I did not recognise being categorised, as was said, as an activist parent. I am not an activist parent, and those who have spoken are not activist parents.
One of the problems—and that is why I am grateful to the noble Baronesses, Lady Lister of Burtersett, Lady Whitaker and Lady Benjamin, who have been with me on this journey for such a long time—is that violence and assault against children happens insidiously. Children learn that this is the way to get control over other people, and it escalates. As the noble Baroness, Lady Walmsley, said, parents lose it. When they have lost it, it is often associated with alcohol, drugs or other stresses in the home. They do not deliberately set out to beat up the child; it just escalates, and it becomes more and more common.
I am grateful to the noble Lord, Lord Carlile, for pointing out the change in the constitution in Germany towards children and to the noble Lord, Lord Hampton, for his extensive experience with children. I think his experience may mirror mine. When I was doing paediatrics and admitting children, I was told, “Oh no, I just smacked them and they fell over”. When we investigated further, we found multiple fractures: old fractures, new fractures, all kinds of injuries that nobody had noticed before because they thought this had just been a gentle smack. I have yet to find a family who declare that they are wilfully not a loving family, but loads of families declare they are loving families and they clearly are not, and they have many problems.
The emphasis on positive parenting is certainly a theme from this Government. It has been a theme from the Government in Wales. It is terribly important. The last thing that I will say is that I have seen this at first hand with one family where the father certainly smacked his children remarkably often—and when he had had a drink, it was even more often. When he was told by the others in the family, “You can’t do that any more, you’ve got to stop”, his behaviour changed. Interestingly, the children’s behaviour improved dramatically. They went from being quite disturbed and disruptive to being quite well behaved, because of the positive parenting that went with being told why what they were doing was not good rather than just receiving a clout. That is what we are trying to do. The defence is used at the end of the road. For somebody seeing a child who is told “Oh, that was just reasonable punishment”, it is very difficult to unscramble it in the school or the GP surgery as you cannot do a bone scan. You have to take things at face value.
I shall just comment on the issue of skin colour. You do not see bruises nearly as easily in highly pigmented skin. That is just a fact. I advise noble Lords to look at a textbook of dermatology. All these things were written based on white skin, and they have finally woken up to the fact that in pigmented skin all kinds of things look different, and that includes injury and so-called “superficial injury”. So to say that you must not leave a mark does not hold water in a country where we have people from all over and a wonderful richness there.
So for the moment, I will withdraw the amendment, but I am very tempted to come back to it later, because I am not convinced by what I have heard today from the Government, and I feel much more convinced by my home country of Wales and my other home country of Scotland. I beg leave to withdraw the amendment.
“Duty on local authorities to provide family support services for children and familiesAfter section 19 of the Children Act 1989, insert—“19A Duty on local authorities to provide family support services for children and families(1) A local authority has a duty to provide, so far as is reasonably practical, family support services to all children and parents residing in their area. (2) Family support services provided by a local authority must—(a) be provided within the authority area,(b) seek to improve the health and educational outcomes of children in the relevant area, and(c) seek to reduce the number of children in their area who suffer ill treatment or neglect.(3) In this section, “family support services” refer to services which provide children and parents with—(a) advice, guidance or counselling,(b) social, cultural or recreational activities, or(c) accommodation while receiving services provided under subsections (3)(a) and (b).(4) In fulfilling its duty under subsection (1), a local authority must have regard to—(a) the availability of and demand for family support services in its area,(b) the availability of and demand for family support services in its area which are capable of meeting different needs, and(c) the location of family support services and the equality of access across the authority area.(5) A local authority must publish information about family support services—(a) on the authority’s website, and(b) in all public libraries in the local authority area.(6) The Secretary of State may by regulations make provision relating to the provision of family support services by local authorities.(7) In this section—“children and parents” means—(a) a child under the age of 18;(b) a young person aged 18-25 who has a diagnosis of special educational needs;(c) the parents of a child or young person;(d) a person who has parental responsibility for a child or young person; or(e) a person who is pregnant.“local authority” means—(a) a county council in England;(b) a district council in England;(c) a London borough council;(d) the Common Council of the City of London (in their capacity as a local authority);(e) the Council of the Isles of Scilly;(f) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;””Member’s explanatory statement
This new clause would introduce a requirement on local authorities to provide family support services for all children and parents in their area.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to move Amendment 68 and to speak to Amendment 171 in my name and to Amendment 169, to which I have attached my name. In the interests of time, I am going to constrain myself to those three amendments.
Amendment 68 introduces a new clause to require local authorities to provide family support services for all children and parents in their area. This very much follows on from what the Minister was saying on the previous group about the desire to provide support for parents. Unfortunately, that is not what has largely been happening. We have seen a massive increase in spending on crisis intervention services in the past decade. It is up 67%, and £4 in every £5 spent is going into late intervention. At the same time, the number of children in residential care has increased by 79%. Spending overall went up in that decade by 61%, but there was a 46% decline in early intervention services. That is what this amendment seeks to address.
We know that investment in early interventions will reduce the demand for high-cost, later interventions. More families can stay together in healthy ways, in stable and loving homes where children can grow up peacefully, and fewer young children will experience neglect, abuse and harm. This amendment is again, I am pleased to say, following the work of my honourable friend the Member for North Herefordshire. She and others made the case in the other place.
What I think lots of people are saying about this Bill, with lots of amendments, lots of attempts, is that there is a huge amount in it to deal with improving care for children who need to live with a foster family or in a residential home, and of course that is terribly important. But, to improve significantly the conditions of children in this country, we need to start far earlier, and that is what is lacking in this Bill. I am not particularly attached to the detailed drafting here, but certainly I would like to see some movement from the Government and the intention to make sure that the Bill covers earlier intervention.
Of course, the governing party has a proud record in this area with the Sure Start centres that were first established in 1997, and more than 3,500 of those children’s centres were developed. It has been crucial that they have supported families in a welcoming, non-stigmatising way. You do not have to be a problem or have a problem to visit; it is just something that is there to support you. The reality is, and I should perhaps declare my position as a vice-president of the Local Government Association, that at this moment we know how incredibly cash strapped local authorities are, and these services are too often seen as a “nice to have” or even a “we desperately want to keep it, but we just cannot find the money” service, and so they have disappeared.
I stress that this clause introduces a requirement for local authorities to provide sufficient family support services. I acknowledge that the only way that local authorities would be able to do this is if there was support funding from the centre. If we take, for example, the Welcome to Parenthood programme run by the children’s charity Barnardo’s, it is calculated that the benefits return £2.44 for every £1 spent. We could be saving significant amounts of money here.
I move now to Amendment 171, also in my name, which, again, was originally tabled by my honourable friend in the other place. This is to ensure that every school has a bereavement policy. I declare a personal interest here, as I was 23 years old when I was in a car crash in which my mother was killed. I was not a child, but I was a young adult and I know how utterly wrenching and destroying that experience was. Also, at university, I was in a small group of about 20 students, one of whom was killed in a car crash. I know what a shock it was to that group of students.
Baroness Benjamin (LD)
My Lords, any parent will tell you that raising children is a difficult job. It is important that all families have access to the support they need to help parents be the best they can. That is why early intervention matters; yet, too often, family support services, such as family hubs or centres, are the first things to be closed when funding is tight.
Recent analysis by Pro Bono Economics, on behalf of Barnardo’s and other leading children’s charities, shows that spending on Sure Start centres has been reduced by £1.4 billion since 2010, resulting in the closure of over 1,000 centres. This is why I support Amendment 68, moved by the noble Baroness, Lady Bennett, to which I have added my name. It would place a duty on local authorities to provide sufficient family support services, including family hubs, for all children and families. This has been recommended by Barnardo’s and Action for Children, but these charities believe that such a change in the law must be backed by sufficient funding. Otherwise, we will be letting down a whole generation of children and their families, and any hope for their well-being.
Lord Farmer (Con)
My Lords, I will speak to Amendments 68, 68A, 68B, 169 and 171 in this group. I added my name to Amendment 68 in the name of the noble Baroness, Lady Bennett, because it has been my long-standing position that every community in this country needs preventive family support for social flourishing, in the same way that they need GP surgeries and schools.
When the welfare state was founded in the late 1940s, there was a recognition that health and education would not be able to defeat disadvantage without it. Some 80% of children’s educational attainment is determined by pupil-level factors such as family and community, and only 20% by school-level factors. Health-wise, in 2015, Citizens Advice published a report called A Very General Practice, which found that 92% of GPs said that patients raised personal—often family relationship—problems during consultations. This was the top non-health issue they dealt with, and only 31% of GPs felt able to advise at all adequately in this area.
In 1949, one of the architects of the welfare state, Michael Young, called for child welfare centres to fulfil Beveridge’s principle of the preservation of parental responsibility and deal with the emotional cost to children of high post-war levels of family breakdown. These costs persist today. Compared to those who do not experience family breakdown, children who do are at least twice as likely to be homeless as adults, to be in trouble with the police or spend time in prison, and to underachieve at school.
Young’s child welfare centres began to emerge as family centres in the 1980s. These helped parents of all-aged children, mainly in disadvantaged areas, to prevent the need for social services, or they worked collaboratively with those services. Many were run by voluntary organisations such as National Children’s Home, now Action for Children, and many had significant involvement from local authority social services departments.
Promising beginnings led to the requirement in the Children Act 1989 that local authorities should provide family centres. These would have been a base for local authorities to work from in delivering family support. Buildings on their own are not enough but, even in this digital age, there needs to be a focal point in a community where people can find out about the full range of services and support available.
Family centres paved the way for the national programme of Sure Start and children’s centres, which began in the late 1990s and focused on the pre-school years. Although children’s centres were immensely helpful to many parents at this life stage, the cut-off at the age of five became increasingly contested, with a greater emphasis on early intervention throughout childhood. Finally, in 2020, family hubs became official government policy. After 70 years, the family support infrastructure envisaged by Michael Young as being so important for families of children of all ages seems to be emerging. I declare here my interest as a guarantor of FHN Holding, the not-for-profit owner of the Family Hubs Network Ltd.
I have given this potted history to show that good and well-reasoned intentions several decades ago have been frequently revisited but family support still seems to be on a precarious footing, as we have basically heard already. We await the granularity of the spending review later this week. Moreover, a proper family support system in a local authority is so much bigger than the family hub and the network of buildings, people and services around it. The hub has to sit in a bigger web of relational practice that guides how all support for families, including children’s social care, is run.
The Government have made promising progress in implementing the independent review of children’s social care, with the Families First Partnership programme of preventive family support. The programme aims to transform the whole system of help and protection for families so that the right help is there for every family when needed, and it has a strong emphasis on early intervention to prevent crisis. The Families First (FFP) Partnership Programme Guide gives family hubs a good profile as a place where universal services and community-based early help are delivered, and where emerging problems can be identified at an early stage. My aim in supporting the amendment is to get more information from the Government about how they will ensure a rebalancing away from crisis spending towards early intervention across the age range nought to 19, and nought to 25 for those with special needs, and how they will ensure that prevention becomes embedded, cannot be unravelled and is further developed.
I turn to Amendments 68A and 68B in my name. In the Family Hubs Network’s work with local authorities, we talk to many people who are locally leading the family hubs and Start for Life programme who say they have been somewhat held up by having to implement Start for Life instead of being able to press on with integrating services across the age ranges nought to 19 and nought to 25, as I have said. One council said the family hub part of the programme gets overlooked as the focus has been on Start for Life and on delivering its tight specifications. Some told us that prior to this programme they were doing well on the early years as a legacy of their children’s centres, many of which are still running, albeit that Start for Life funding has enabled them to strengthen this further.
Due to how the funding is structured, some LAs have been in danger of only really shoring up provision in the early years. For family hubs, the greater goal is the provision of family support from pregnancy to 18, 19 or 25 if SEND—as I have said—or care leavers. Boosting family support beyond the early years, vital though these are, must be a key goal, delivered through a range of settings and organisations, the public sector and VCS, with some private sector too, and personal professionals backed by well-trained volunteers.
Amendments 68A and 68B would mean that local authorities with a proven track record were granted more flexibility in how they used central government funding to deliver in their family hubs. Implemented well, family hubs involve a transformation in family support through system change, yet the requirements of the current programme do not adequately prompt local authorities receiving funding to implement system change. They put the focus on funding a minimum offer rather than on a system changed to embed new ways of working using an integrated approach. Collocating services, while beneficial, is not the same as system integration. Without system change, what happens when the funding stops? Mainstreaming any of the funded programmes requires system change.
Another key aspect of family hubs is using funding more effectively, particularly by combining funding pots. Westminster City Council, a pioneer of the first family hubs prior to central government funding, was able to deploy troubled families programme money to develop family hubs because it had earned autonomy from the tight strictures of that programme’s payment-by-results model. If the Government extend funding for family support to the rest of the country beyond the 75 in the family hubs and Start for Life programme, which I very much hope they will, good learning from the original programme suggests that an earned-autonomy approach would greatly help facilitate the desired transformation.
I also support Amendments 169 and 171, already mentioned, as post-removal support for parents to prevent future removals and bereavement support services for children need to be key elements of family support, but they are either vanishingly rare, hard to find or both.
Baroness Tyler of Enfield (LD)
My Lords, Amendment 167 in my name is very much about early intervention, which has been a key theme of this group. I support Amendment 68 tabled by the noble Baroness, Lady Bennett.
I also want to say how important Amendment 169 in the names of the noble Baroness, Lady Barran, and others is. I remember, in a previous life when I was chair of Cafcass, visiting various Pause projects. I was so impressed with the work they were doing and how it was preventing young mothers who had already had one or more children taken away from them and put in care from repeating that. I remember hearing the story of a mother whose eight children had all been taken into care. It was only when they were part of a Pause project that this terrible cycle stopped repeating itself. I am enormously supportive of that amendment.
My amendment is fairly important, if not as exciting as some of the others, because it would basically require local authorities to report annually on early intervention services for children and families in their area and report back to the Secretary of State. Frankly, we have already heard the context. We know that early intervention services are crucial for the healthy development of babies, children and young people, in particular giving them and their families access to the help they need before problems escalate and families reach crisis point.
We have heard the figures, so I am not going to repeat them. Local authorities have faced severe financial challenges. They have not been able to deliver nearly as many of those early intervention services as I am sure they would like, because their money has, frankly, been taken up with crisis and child protection services that they are under a statutory duty to provide.
We have heard about what has happened over the last decade and the reducing numbers of children’s centres, family hubs, family support services, youth services et cetera, so I am not going to repeat that, but I will just say that I felt the impact of this was starkly and clearly set out in Josh MacAlister’s independent review of children’s social care back in 2022. That review made such a powerful case for a stronger focus on early intervention and on giving families the help they need before problems get out of hand. I was lucky enough to hear Josh MacAlister talk about his review last week, in the context of additional help for children in care and care leavers. Who knows? We may even hear something—I live in hope—about additional money for early intervention in the spending review. Let us wait and see.
Both the economic case and the moral case for investment in early intervention are incredibly clear, so I am not going to set them out again. From all the discussions that I have been part of in this Chamber over the years on children’s social care, I know that ensuring that children and young people get the right support at the right time is widely supported across the political divide—I do not think it is a contentious issue politically—so I really hope we hear some welcome news in the spending review.
The nub of my amendment is that I contend that too little is known about the services currently available in the field of early intervention. The amendment is really designed to promote data collection on these services to create greater awareness of what is available. It would help the Secretary of State to respond to the needs of local authorities, ensuring that sufficient services were being provided across England, as well as better information on the numbers of families who were accessing them and demographic information about the children receiving support. It would measure how effectively the services were working. Put simply, to understand how we can better support children and target funding to help the most vulnerable, we need to know more about what the current picture really looks like. My amendment would simply be a first step in helping us to ensure that children and young people did not fall through the cracks of ineffective service provision and that they got the right support at the right time.
The Lord Bishop of Manchester
My Lords, I am grateful for the Bill as an opportunity to address a number of what we call adverse childhood experiences. I suspect that, given the lateness of the hour, we are not going to reach some of my amendments on care leavers that are scheduled for later. This group, particularly Amendment 171, deals with children who have experienced bereavement. Not much has been said about that in this short debate, so I will say a few words.
I was in that position. My dad died when I was 14, leaving me, my younger brother and my mum. It made my mum the only wage earner in the house at the same time as she was coping with her huge grief at losing her husband at the age of 43. She had two children—boys of 14 and 11, who are not the easiest to cope with. I still do not quite know how we coped. I think I coped by burying it for the next 10 years; my little brother coped by having stomach pains for the next few years. It damaged his education. I sometimes wonder whether having to go through that at that early age led to me feeling that I had a calling to be a pastor; I may have had a silver lining. But there were no bereavement services to turn to and there was nothing to support me.
As the eldest son of the family, I felt I was trying to hold the family together when everybody else was falling apart. I would have so appreciated there being somewhere I could have turned to; some signposting to where I could have looked for something outside the family—for people who were not grieving as I, my mum, my brother, my father’s parents and others were all grieving: somewhere I could have turned to get some support. If the Bill and Amendment 171 can, in a small way, help us create better bereavement services for children so that those who are in the position I was in all those years ago are not left with nowhere to turn, that would be a great thing for us to do.
Lord Meston (CB)
My Lords, I strongly support Amendment 172. I do so in preference to Amendment 169, although I see that both are directed to the same wretched problem of successive removals of children and babies from mothers. Quite simply, much more needs to be done to support parents, particularly mothers, after a child has been removed into care, to reduce the risk of a further child being removed from the same mother.
The sad statistics have already been mentioned by the noble Baroness, Lady Bennett, but the fact is that at least one in four women who has already had a child removed will return to court. Too often they have reacted to the removal of their child with an ill-considered or unconsidered decision to have another baby, with all too often the same consequences. These are truly wretched cases for the courts to deal with, particularly if it is impossible for the court to find any real improvement since the previous removal, and particularly if the mother has become mistrustful and finds it difficult to seek and accept help.
As things stand, once the previous proceedings finish, the mother may receive no further attention or support from the local authority until the next pregnancy is made known, by which time it may be too late. The evidence collated and presented by the Nuffield Family Justice Observatory on the frequency and impact of recurrent care proceedings and removals is compelling, if depressing. The Nuffield Observatory points out that services are available in some areas but describes them as “few in number” and “mostly small in scale”. The work done by the specialist charity Pause—already mentioned by the noble Baroness, Lady Bennett—shows that, with the right work and support, the cycle of recurrent removals can be broken.
The human cost of successive removals, in terms of misery and grief, is all too obvious. The financial cost to local authorities of successive care proceedings leading to fostering and adoption is enormous and, I would suggest, avoidable. When Sir James Munby was president of the Family Division, he encouraged judges to persuade local authorities in their area to adopt the work done by Pause. Many of us tried to do so, but it was not easy, because local authorities were nervous of the cost, thinking only in terms of the current year’s expenditure rather than the potential budgetary benefits in years to come. Accordingly, post-removal support remains unavailable in more than half of local authority areas. That is why primary legislation is needed.
I note that previous attempts in November 2016, similarly presented by the noble Baroness, Lady Armstrong of Hill Top, were not accepted for reasons that were, I have to say, frankly inadequate. I hope that this Government will do better and accept Amendment 172.
Lord Elliott of Ballinamallard (UUP)
My Lords, I will make a brief intervention in and around Amendments 68 and 167, which are both about early intervention. I know that situations are often different in Northern Ireland, where the local health trusts look after young people and young people’s services, whereas in England it is the local authorities. However, the principle of the issues is the same, and dealing with the young people and early intervention is hugely important. My issue is that it should not be just about early intervention; it should be an ongoing process.
The one aspect that is not looked at in the Bill—I wonder whether it could be included at some stage—is around the rights of parents. I have worked with looked-after children for many years and am an adoptive parent. Really significant issues with young people can sometimes manifest into wider family difficulties, particularly when a young person is a refuser. Maybe they refuse to take on counselling or refuse to go to school. Then, because that child or young person will not attend either counselling or school, the pressure of maybe facing a court hearing or legal proceedings returns to the parents. Quite often there is then huge pressure on the family, because the law is on the side of taking the family and the parents to court; that is not often a good prospect for family proceedings and family support.
All I am trying to say in this brief moment—I know there are other amendments on the same issue coming up at a much later stage that I will also hopefully speak to—is that, while early intervention is very important, there needs to be ongoing intervention as well.
Baroness Butler-Sloss (CB)
My Lords, I very much support not only early intervention but intervention at various levels when the family absolutely needs it. As the noble Lord, Lord Meston, said, there is a financial advantage to local authorities—not, of course, short term, but long term, because the more a local authority intervenes in a troubled family, the less the chance, with any luck, that the children will go into care.
As has already been said, when one child has gone into care, it is particularly important to make sure that the next child—there nearly always is a next child—will not also have to go into care. As the noble Lord, Lord Meston, has said, it is a very sad situation for judges when you really cannot help the mother and her second, third or fourth child—sometimes more—because she has never had any help each time she has lost a child. So there is a genuine financial advantage to stopping children going into care, which is obviously far more expensive in the long term.
I will add a short word following on from the sad story of the right reverend Prelate. My son, aged 50, died of cancer, five years ago, with teenage children. Their mother, my daughter-in-law, was brilliant, but the children’s loss of their father at early teenage was absolutely devastating. I am glad to say that they have succeeded extremely well and have coped, but it is a moment when I have no doubt at all that my daughter-in-law—she lives in Los Angeles, so the wider family were unable to help—would have gained enormously, as indeed would the children, if there had been somebody there in a similar situation in this country. This bereavement amendment is particularly important.
Lord Hampton (CB)
My Lords, I will briefly speak to Amendment 172, to which I added my name. My noble friend Lord Meston and my noble and learned friend Lady Butler-Sloss have said it far better than I possibly could. I know the amazing work of Pause and I commend its work to the Committee. I have full faith that the noble Baroness, Lady Barran, will say anything that is missing.
Baroness Barran (Con)
My Lords, I will speak to Amendments 169 and 172 in my name and to comment on the other amendments in this group. I thank the noble Baroness, Lady Bennett of Manor Castle, and my noble friend Lord Farmer for their support on Amendment 169, and the noble Lords, Lord Hampton and Lord Meston, for their support on Amendment 172. As has been noted, they seek to do similar things.
Amendment 169 is a narrower version, focusing on support for mothers who have had a baby removed into care at birth. Like the noble Lord, Lord Meston, I prefer Amendment 172, which is broader and would create an obligation for local authorities to offer an evidence-based programme, such as the Pause programme, to mothers who have had a child removed from their care and who, as we have heard, very often immediately get pregnant again. From a human point of view, one can absolutely understand why, after all the attention that they may have received from children’s services prior to the child being removed and then the deafening silence that surrounds them once the child is gone. Very often, that void is filled by another pregnancy. I prefer Amendment 172 because it is a real issue and is broader, but the evidence for Amendment 169 is crystal clear. Almost half of newborns subject to care proceedings are born to mothers who had previously had a child—an older sibling to the newborn—removed through those proceedings. The near inevitability of that seems very powerful.
I am not sure whether it is on my register of interest, but I did a period of volunteering for Pause before I joined your Lordships’ House, so I have seen the quality of its work first hand. Since 2013, over 2,000 women have completed the Pause programme who, prior to working with Pause, collectively had had more than 6,200 children removed from their care—that is just over three children per woman. This is not a competition for how many children a woman has had removed, but Pause was founded by a social worker, Sophie Humphreys, and a district judge, Nick Crichton, after they worked together on a case where a 14th child was removed from the same woman. It is grounded very much in the experience of women.
I suggest to the Minister that this amendment is similar in spirit to Clause 1, which puts family group decision-making processes on a statutory footing, in the sense that some local authorities offer these programmes and some do not. The delivery is inconsistent and patchy and, as the noble Lord, Lord Meston, said, the funding for it is not always available. Also in the spirit of the Bill, which seeks to support those in the care system, we know that 40% of women who have taken part in the Pause programmes were themselves in care.
The Minister will know that the DfE’s own evaluation of this work saw significantly improved outcomes for mothers, reduced rates of infant care entry and very significant savings to children’s social care, with the department’s evaluation suggesting that every £1 spent on the Pause programme resulted in a saving to children’s social care of £4.50 over four years and £7.61—that seems remarkably accurate—over 18 years. I am not sure whether that is the net present value of £7.61, but anyway—that is a 7:1 return. From the point of view of the mother and the children, and from the financial perspective, these amendments deserve the Minister’s serious attention.
More broadly, this group has been focused on the important subject of support for families, both at a relatively early stage and at crisis points, such as when a child is removed into care. The purpose behind Amendment 68, in the name of the noble Baroness, Lady Bennett of Manor Castle, and my noble friend Lord Farmer, is to ensure that there is universal provision of family support services. There is no question that such services are valued by the families who use them and can make a great difference to the lives of children and to their parents. We support the spirit of the amendment, which keeps universal services separate from those that are voluntary but targeted to more vulnerable families, as the noble Baroness knows from our earlier debates on Clause 3.
Amendments 68A and 68B seek to introduce the concept of earned autonomy for family support services, which is again something that we are very sympathetic to. I have the greatest respect for my noble friend Lord Farmer for his extensive work in this area, particularly in relation to family hubs. I look forward to hearing what the Minister might say about the expansion of family hubs, which the Government have described as
“a non-stigmatising gateway to targeted whole-family support”.
In normal-speak, I think that is a good thing.
Amendment 167, in the name of the noble Baroness, Lady Tyler of Enfield, would require local authorities to report annually on early intervention services for children and families in their area. As the noble Baroness acknowledged, local authorities have annual reporting requirements, including in relation to their multi-agency safeguarding work. As I understand it, this amendment would make that more explicit in relation to early help. I just wondered whether this would not naturally fit as an update to the Working Together to Safeguard Children statutory guidance, as opposed to being in the Bill.
It is hard to argue with the spirit of Amendment 171, in the name of the noble Baroness, Lady Bennett of Manor Castle. I was sad to hear of her loss and that of the right reverend Prelate the Bishop of Manchester. I am sure that, across the Committee, we are very grateful to those charities that offer great support to children, and their families, who have been bereaved. When I was in the department, I remember meeting the team at the Ruth Strauss Foundation—indeed, I went on to recommend it to extended family members, who benefited from its support. In some cases, when perhaps a parent has cancer, the death can be anticipated and support can happen pre bereavement as well as post bereavement, if the family wishes, but in other cases, such as cases of domestic homicide, the child in effect loses both parents—one parent has been killed and the other parent is in prison. Effective support in all these cases is to be encouraged. If accepted, this amendment would make the task of finding the right support so much easier for bereaved or soon-to-be-bereaved children.
Baroness Smith of Malvern (Lab)
My Lords, I thank noble Lords for highlighting in this debate very important issues aimed at ensuring that children and families can get the support that they need at the right time. That is an enormously important theme of the Government’s reforms to children’s social care. In doing that, we are already taking forward recommendations from the independent review of children’s social care, mentioned by several people today, particularly the aim to rebalance the children’s social care system towards earlier intervention and supporting more children to stay safely with their families.
I shall speak first to Amendment 68, in the names of the noble Baroness, Lady Bennett, and the noble Lord, Lord Farmer, which raises the important issue of family support services. I appreciate the noble Lords’ intention with this amendment and confirm that the Government are already investing in the provision of family support nationally. I also accept the point made by the noble Baroness, Lady Benjamin, that there is a need to ensure that there is that investment. The noble Baroness outlined the fall in investment since 2010; for example, in the Sure Start programme. It took me back to one of the very last interventions that I made in the other place before I came starkly up against the electorate in 2010. I expressed concern that a different Government might not continue to support the development of family support services and Sure Start in a way in which that Government had. There was heckling and jeering, as tends to be more the case at the other end of the building than here, but I am afraid that what we saw in the intervening years was a reduction in support for precisely the sort of services that noble Lords today are, quite rightly, pushing the Government to ensure that we both develop and fund. That is why, as we have frequently referenced—I do so again—that this Government have provided over £500 million to local authorities to roll out the national Families First Partnership programme, which aims to prioritise earlier intervention and ensure that families can access the right support sooner.
To turn to some of the more detailed points, I note the amendment from the noble Lord, Lord Farmer, regarding earned autonomy status for local authorities to not follow prescriptive criteria in determining the services to be delivered. This is a challenge: how do we enable local authorities to have the autonomy to build and link the services in a way that makes sense to them in their circumstances, while also ensuring that additional investment placed into preventive services is spent on that? I have considerable sympathy for the idea that there needs to be that flexibility. That is why the Government are not mandating the delivery of specific family support services by any local authorities through the programme. They all have flexibility to respond to need in their areas, taking account of available resources, and they are supported in thinking about what might be appropriate and what would work best by reference, for example, to the programme guide that the Government have issued and the work of foundations that are developing information about what is most effective and working well. It is of course important, as I say, that we are clear that the additional money allocated for this work is spent on it. Grant funding is therefore ring-fenced to ensure that it is spent on a range of preventive services. Within that ring-fence, there should be—and there is—flexibility for local authorities to think about the nature and combination of the services that they are providing.
Before I move on, I want to respond to the point that the noble Lord made not only about flexibility, as we have talked about, but about combining funding pots. It is an important point. While local authorities funded through the family hubs and Start for Life programme have the flexibility, as I have said, to tailor services to meet programme expectations and address local needs, combining funding is also an important bit of that flexibility. Many local authorities are combining funding with other funding sources to enhance support for families. It is important that they are enabled to do that, notwithstanding the accountability point that I have made.
Baroness Barran (Con)
I would be grateful if the Minister would agree to go back and talk to her ministerial colleagues about this again. She is absolutely right that some of the effective targeted help and Section 17 types of help that she was talking about, set out in the Families First pathfinders, can be useful to some families, but these cases where a woman has already had multiple removals do not typically fit into that bracket; they go straight to care proceedings. The case load, if I remember rightly, is that each full-time Pause practitioner works with three women, so it is super-intensive and I think is complementary to this. I would just be grateful if she did not close the door on that as an option, particularly as I know that her noble friend, the noble Baroness, Lady Armstrong of Hill Top, previously put this down as an amendment—I feel strengthened in that knowledge.
Baroness Smith of Malvern (Lab)
I have been persuaded in the course of this debate about the significance of this issue. I had some experience in previous work that I did in children’s social care about this, so I will certainly undertake to go back and talk to my colleagues about some more specificity around the particular requirements in these cases. Perhaps I can return to the noble Baroness with a bit more detail about that.
Amendment 171 in the name of the noble Baroness, Lady Bennett of Manor Castle, seeks to establish a duty on local authorities to improve access to bereavement support services for children. Like others, I recognise and respect the noble Baroness for talking about her own experience of bereavement, as we also heard from the right reverend Prelate the Bishop of Manchester, identifying the enormous pressure that falls on families and particularly other children at the point at which they are bereaved. It is for this reason that the Government continue to consider how to improve access to existing bereavement support. There is a cross-government bereavement group, chaired by the Department of Health and Social Care and attended by officials from the Department for Education, the Department for Work and Pensions and the Home Office, continuing to look at how we can improve access to support.
Following discussion by this group of opportunities to improve signposting of support—and as the right reverend Prelate the Bishop of Manchester said, I would have appreciated being signposted to some support outside the family—we have recently added links to bereavement support specifically for children and young people on GOV.UK. Schools increasingly talk to their pupils about mental health and where to access further support, both as part of the curriculum and through their wider pastoral duties. The relationships and sex education statutory guidance specifies that teachers should be aware of common adverse childhood experiences, including bereavement. I hope that, bringing those things together, we are enabling an improvement in the support that we provide for children who have suffered bereavement. I hope that this, along with the continued investment in services for children and family support, reassures noble Lords that we are taking action on that.
In all these areas, I hope that I have provided, after a useful and important debate, some reassurance about the acceptance by the Government of all the issues identified during the course of the debate, but also about the action that the Government are taking to commit to and invest in improving outcomes for children and their families through effective support services. I hope that noble Lords will feel able not to press these amendments, but I will certainly come back on the specific points and reflect on the case made in what I think has been a very important and helpful group of amendments.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the Minister for her comprehensive response to this group of amendments and everyone who contributed to what I think has been a very rich debate marked by a—I was going to say remarkable, but I think I am going to say astonishing—degree of consensus from all corners of the Committee. I am afraid I do not have time to run through all the contributions. I will just very briefly thank the right reverend Prelate the Bishop of Manchester and the noble and learned Baroness, Lady Butler-Sloss, for sharing their personal experiences.
Lord Watson of Invergowrie
“Parent-equivalent care by local authoritiesIn section 22 of the Children Act 1989 (general duty of local authority in relation to children looked after by them), after subsection (3)(a) insert—“(aa) to provide care as would be reasonable to expect a parent to give to them; and””Member's explanatory statement
This amendment seeks to ensure that the nature and level of parental care expected for children within their own families also applies to corporate parents and to the children’s care system. It replaces amendment 146A.
Lord Watson of Invergowrie (Lab)
My Lords, I always think there is something rather sad about an amendment that sits on its own and forms a group of its own. It looks almost afraid to speak its name. However, I prefer to think of group 4 today as being small but perfectly formed, and I will speak to Amendment 69AB on that basis. The purpose of this amendment is to ensure that the same kind of parental care expected within families applies to corporate parents and the children’s care system. In that sense, it has echoes of Amendment 107B, which I spoke to earlier.
Section 31 of the Children Act 1989 provides that a court may make a care order in respect of a child only if it is satisfied that the child is suffering, or is likely to suffer, significant harm and this is attributable to the care received by the child not being what would be reasonable to expect a parent to give to them. There are all sorts of issues, and we have heard many of them this afternoon and evening, about the failures of birth parents. None the less, this amendment would equalise the position of looked-after children and children who live with their parents with no social care involvement. Corporate parents would be required to provide the kind of care which it would be reasonable to expect a parent within the community to give to their child. Surely it is reasonable to expect that the state’s care of children should be at least to the level expected of parents. It should certainly drop no lower.
Under the Children Act 1989, a local authority must safeguard and promote the welfare of every child in its care—that is, those who are the subject of an interim care order or a care order—and every child for whom it provides accommodation for a period of more than 24 hours. Amendment 69AB would add the requirement that the local authority—as the child's corporate parent—must provide care that it would be reasonable to expect a parent to give to their child. This would strengthen and give legal clarity as to the primary duty of local authorities in their vital and privileged role of corporate parent: to safeguard and promote each child's welfare and to provide care that would be reasonably expected from a parent.
Statutory guidance issued in 2018 for local authorities on implementing the corporate parenting principles in Section 1 of the Children and Social Work Act 2017 says:
“A strong corporate parenting ethos means that everyone from the Chief Executive down to front line staff, as well as elected council members, are concerned about those children and care leavers as if they were their own. This is evidenced by an embedded culture where council officers … do all that is reasonably possible to ensure the council is the best ‘parent’ it can be to the child or young person”.
It was the late and much missed Frank Dobson, in his role as Secretary of State for Health, who first articulated the legal and moral responsibility of being a corporate parent. In a letter sent to every local authority councillor in September 1998, he said:
“For children who are looked after, your council has a legal and moral duty to try to provide the kind of loyal support that any good parents would give to their children”.
That applies no less today than it did all those years ago.
Despite many important amendments made to the Children Act 1989 over the years, aimed at improving the wellbeing and future life opportunities of looked after children and care leavers, it may surprise noble Lords that there is still no clear, unambiguous requirement that looked-after children receive the same level of care from their corporate parents as would be deemed acceptable for them had they remained with their birth parents. The High Court in March 2022, in a judicial review brought by the children's rights charity Article 39, found there is no provision in the Children Act 1989 which requires
“care to be provided in situ or as part of a placement”.
A child can be the subject of care proceedings through the family court until the age of 17 where they have suffered, or are at risk of suffering, significant harm and this is deemed attributable to their parents’ care not being what it would be reasonable to expect a parent to give to them. Yet once they are removed from their parents and become looked after, there is no express duty on their new corporate parent to provide care within their new placement, which is their new home. How can that situation be defended? I do not believe that it can. It is the equivalent of a local authority saying, “Don’t do as I do; do as I say”, and it must not be allowed to continue. Were that to happen, it would help to transform the children’s care system.
If my noble friend cannot give me a positive answer today, I ask that she consider what I have said and perhaps come forward on Report with a proposal. I believe this is a lacuna, which this Bill has the opportunity to fill. I beg to move.
Baroness Spielman (Con)
My Lords, I speak to oppose Amendment 69AB, well-intentioned though it clearly is. I have several levels of concerns about the imposition of yet another duty. I believe that the expectations for looked-after children are generally well understood—whether they are actually carried out in practice is another matter. This particular amendment has some obvious holes. For example, there are kinds of intimacy in normal, healthy parent-child relationships that absolutely would not be appropriate between local authority staff and children.
More generally, there has been a proliferation of duties in legislation in recent years. For example, I became chair of Ofqual 14 years ago. After a particular duty was raised in my first board meeting, I asked my legal director for a session to talk me through all the duties that applied. To my astonishment, I discovered that we already had 28 duties, with a handful more in the pipeline; I am sure it is a lot more since then.
This imposition of duties as the go-to solution has several problems. First, it creates problems of overload. Normal human beings simply cannot hold so many different duties in their thinking simultaneously. Secondly, they get imposed in isolation. They are usually added without reference to previous duties, with which they often overlap but sometimes push in different directions. How do you reconcile them? They can lead to skimping. If duties that have been imposed need resource but are not funded, you can end up with everything being done less well—not only the thing that the duty is aimed at but all the other functions—which reduces the quality at the receiving end. It takes away the ability of public services to prioritise intelligently. It can divert resource away from the main purpose that the duty is intended to protect and towards the kinds of activities that demonstrate compliance with the activity.
Finally, if there is a surplus of duties and an impossibility of giving full effect to them all, a sort of cynicism builds up that can corrupt an organisation’s culture. When everybody knows that they are really only paying lip service to an enormous list, people stop believing in the ability of the organisation to fulfil its real purposes.
Tempting as it is to think that another duty is the great solution that will protect children from all the awful harms that have been talked about today—they are a great salve to all our consciences—we need to resist and make sure that we get to the essence of the things that will do the most to help children.
Baroness Barran (Con)
My Lords, I will speak very briefly to this group of amendments. The noble Lord, Lord Watson, again reminded the Committee that vulnerable children in the care of a local authority do not always receive the care that they deserve. We should never lose sight that that should be our goal. My noble friend Lady Spielman put it very well in her remarks and I will pick up on what she said. Local authorities understand their duties in this area. The noble Lord himself cited some of the legislation and guidance on the spirit of their responsibilities. The question, as ever, is around implementation, and I share my noble friend’s concerns about adding yet another duty to local authorities.
Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
My Lords, I will speak to the single amendment in this group, Amendment 69AB, in the name of my noble friend Lord Watson of Invergowrie. I reflect the concern that has been expressed about the care and support that some of the most vulnerable children receive. The noble Baroness, Lady Barran, acknowledged that too many children have been let down over the years, and I believe that this Bill is a real opportunity to set things on a more constructive path.
I recognise that the amendment has been tabled to add a legislative requirement to ensure that the nature and level of parental care that families strive to provide for their own children is provided by local authorities for looked-after children. A local authority is a corporate parent in two senses: first, it has corporate parenting duties; and, secondly, it stands in the parents’ shoes, having parental responsibility for the children in its care.
As I said, I wholeheartedly agree with the amendment’s goal, and we want to ensure that our looked-after children received the highest possible quality support. However, existing legislative and regulatory frameworks mean that local authorities should already care for looked-after children as good parents would. Sections 22 and 22A of the Children Act 1989 already set out the duties owed by a local authority to any child who is looked after by it. These include duties to provide accommodation for the child, to safeguard and promote their welfare, to promote their educational achievement and to help them access a range of services. I notice that the noble Baroness, Lady Spielman, is giving me a look, but I did check that that is indeed the case.
Lord Watson of Invergowrie (Lab)
My Lords, I thank my noble friend. Her last point—about the proposal in my amendment having little to no effect—carries considerable weight coming from someone with her considerable experience as the leader of one of England’s largest city councils; something which she did with some distinction, to put it at its lightest. Her words carry weight. She also talked about—as did the noble Baroness, Lady Spielman—the addition of further duties. The question is whether those duties are appropriate and whether they fill any void that experience shows must be filled.
You can talk in generalities, but there are a number of occasions that have been referred to earlier today about local authorities. I do not doubt for one moment that any local authority sets out to do anything other than its best. But there are situations, such as those I mentioned in the debate on my earlier amendment, where local authorities move children out of their area, separate them from siblings, and, on certain occasions, move them just before they are due to sit GCSEs or A-levels, which can have such disruptive effects, and put them into foster care or adoptive care and then do not provide the resources for that care to be properly effective. There are ways in which councils can say, “We’re doing our best”, but, in actual fact, that might not be enough.
I am slightly troubled by the point from the noble Baroness, Lady Spielman, that “We’re just adding extra details and duties on to local authorities”. I know she has had experience at Ofqual and Ofsted, but that sounded more like a comment coming from the business part of her career, because it sounded a bit like corporate jargon—not to add on extra duties for the sake of it. The question is, are those duties looking to prevent what can sometimes go wrong in the council’s care of children? I would argue that they can, otherwise, there would not be the sorts of stories that we get all too regularly about local authorities or those funded by local authorities putting vulnerable children in some pretty dire situations.
While I bow to the experience of those who have spoken in the debate, there are issues here that need to be looked at further. In introducing this, I asked: why should it be that a local authority can take a child away from their birth parents, become their corporate parents and yet then not have the same responsibilities for them? That just does not seem right.
I thank those who contributed to the debate, and I beg leave to withdraw my amendment.
The Earl of Effingham
“(iii) kinship families.”Member’s explanatory statement
This amendment would ensure the needs and experiences of all members of kinship families are considered and those family members are able to access the support they need, so children can thrive in safe, loving homes within their family network.
The Earl of Effingham (Con)
My Lords, I will speak to Amendment 69B in my name and in the name of the noble Baroness, Lady Stedman-Scott, as well as the other amendments in this group. Amendment 69B seeks to ensure that children in kinship care and their carers can be referred to as a “kinship family”. Using the term “kinship families” would allow for the correct dignity, respect and acknowledgement that they are indeed a family unit. Currently, the use of “kinship carers” and “children in kinship care” does not fully recognise that they are a family unit. This amendment seeks to ensure that the whole family is able to access the necessary support, as set out by the local authority.
Amendment 71 seeks to ensure that, when a local authority updates its kinship care offer, it proactively consults kinship families. These kinship families play an integral role in understanding the effectiveness of the local offer, as they are the ones in situ who are receiving the support and as such, their opinion and understanding of such delivery is essential to enhance the overall service as and when required.
This amendment would also require the offer to be reviewed annually rather than from time to time. We believe that such a vague timescale opens up the possibility for local authorities, which are dealing with a multitude of tasks at any one time, to allow, through no direct fault of their own, such a review to remain unaddressed for a material amount of time without the subject matter being considered, which would negatively affect the kinship families in that local area.
To be clear, and as referenced by the noble Lord, Lord Watson, in the previous group, local authorities are always trying to do their best—that is not in doubt. But this amendment cements best practice to ensure that the kinship care offering can be continually improved in line with feedback.
As drafted, the Bill does not make reference to any details surrounding how a local authority must review and update its kinship care local offer, so this amendment provides further detail about how and when such a review must be conducted.
Amendment 70, in the name of the noble Lord, Lord Hampton, seeks to include legal support and family decision-making on the list of services a local authority can provide to support the local kinship families. This amendment seems entirely sensible as there may well be situations in which kinship families need these services. When family group decision-making processes are taking place, it is right that the kinship care family should be aware.
Amendment 72, also in the name of the noble Lord, Lord Hampton, seeks to require local authorities to publish the comments they receive and how they have addressed these comments. It is similar to my Amendment 71 as it recognises the importance of understanding how local families interact with the care offer and their opinions on its effectiveness, which should be a good thing.
Amendment 103, in the name of the noble Lord, Lord Storey, seeks to extend the pupil premium to children in a kinship care arrangement. While we understand that kinship placements are an essential part of the social care system, a decision such as this would potentially involve a significant commitment from the Treasury, and as such would require a full financial impact assessment before further decisions could be made.
Amendments 104 and 146 in the name of the noble Lord, Lord Storey, seek to extend the rights of kinship carers so that they receive an allowance and are able to take leave in a similar way to other employees. It is certainly important that the attractiveness and prospect of becoming a kinship carer is not reduced because of financial difficulty, and it is vitally important to recognise the importance of kinship carers and ensure that the system works in practice. We would urge His Majesty’s Government to consider ways to reduce barriers to entry for kinship carers so that the number of children in children’s homes can be reduced. I beg to move.
Lord Hampton (CB)
My Lords, I will speak to Amendment 72 in my name and remind the House that I am a kinship carer of twin 13 year-olds. I also thank Kinship for its help in this.
The Bill recognises the vital role that kinship carers play and strengthens welcome reforms which improve support for kinship carers. However, some of the Government’s stated policy objectives associated with the Bill’s provisions are unlikely to be realised without additional reform and the Bill ultimately falls short of delivering the vital education on the mental health support that children in kinship care urgently need.
Making the kinship local offer a legal requirement through new legislation is welcome. In Kinship’s 2024 annual survey, a third of kinship carers rated the information provided about kinship care by their local authorities “very poor”, and only 7% of kinship carers said in 2023 that they had seen their local authority’s existing family and friends care policy—something local authorities have been required to deliver since 2011.
A new legal duty and more comprehensive guidance around the content and delivery of this information should help kinship carers to better understand and access available support. However, as outlined by Kinship’s associate director of policy and public affairs when providing oral evidence to the Education Committee last month, the local offer’s impact will be to magnify the lack of support available to kinship families, particularly those with informal arrangements or where a legal order was made in private proceedings.
Baroness O'Neill of Bexley (Con)
My Lords, I rise in support particularly of Amendments 69B and 71. From my experience—and it is an experience that some others in this Chamber would have—kinship care arrangements are often needed as the result of an emergency situation. It is often sad, leaving the young person involved feeling particularly vulnerable. The fact that the proposed kinship carer or carers already have a relationship with that person for whom the kinship care is being considered could help them at a time when they need it, not least because the carer might be experiencing and sharing exactly the same situation. However, it should be noted that, due to the nature of kinship care, it is unlikely that the proposed kinship carer would have been seeking to take on the role. Therefore, there would not be the same lead-in time that you might have to prepare them as you would with a foster carer.
Dependent on the circumstances, there is also the potential for conflict with an original parent as well as an impact on the wider family of the kinship carer. This situation means that appropriate support might be required at speed for the proposed kinship carer and their wider family for the benefit of the young person. That support probably would not be the same as for fostering arrangements, due to the uniqueness of the situation, and that makes these amendments important.
On Amendments 104 and 146, I am sure that your Lordships will not be surprised to hear what I am about to say. It is worth noting that kinship allowance and kinship leave, while they make sense, would be an additional cost to the local authority. As my noble friend said earlier, there would need to be consideration by the Government as to how they might be funded, but I support the amendments.
Baroness Sanderson of Welton (Con)
My Lords, I would like to speak to Amendments 69B, 70, 71 and 72 in this group. It is terrific that kinship care will be defined in legislation for the first time. It is a significant step, and one that we should admit is long overdue. I could never understand why kinship care was always so overlooked when it is very often the best solution to a child’s care. When I say, “best solution”, I mean that very much in the sense of the interests of the child, for one other thing that is overlooked—and underestimated—is the huge sacrifice that family members and friends make when they take on such a responsibility. While many do so willingly, the system does not exactly make it easy for them. That is why Amendment 69B, in the names of my noble friends Lord Effingham and Lady Stedman-Scott, is a sensible one in that it acknowledges the role of the whole family. I also hope that the Government will consider Amendment 70 in the name of the noble Lord, Lord Hampton.
Another significant step in this Bill is the duty for local authorities to publish a kinship local offer. However, there is an error of omission in that there is no reference anywhere to the different forms of kinship care. We know that different frameworks have different levels of financial, health and therapeutic support, depending on whether you are kinship fostering or have taken on responsibility via a special guardianship order, and whether the child you are taking on has or has not been in care previously. The only problem is that, very often, the potential kinship carers—for the reasons explained by my noble friend—do not have a clue about any of this. Why would they?
I will give some examples of what this means in practice, and this is courtesy of the very good charity, Kinship. Fiona’s grandson was taken into foster care at birth, and she was told that, unless she applied for a special guardianship order to look after him, he would stay in the care system. She said she felt pressured and pushed into this, because she did not have a clue what her options were. As she says, “I took social services at their word that this was the best for me and my grandson”. That was six years ago, and she was then 59 years old. She had to give up a well-paid career, and now survives on benefits and relies on food banks, eating only child-sized meals herself to get by. She has also struggled to get her grandson the assessments and support he needs, which would have been much easier had she been a foster carer.
Similarly, Sue, a former social worker, now 60, took care of her three granddaughters and one grandson. She was told by the local authority that she had to sort out all the court work and pay for all the solicitors’ fees to arrange the care of the children and get a special guardianship order. She and her husband were on benefits, but as guardians, they were means-tested and they received £17 per week per child. Sue, now a widow, had to complain to her local councillor, the Children’s Commissioner and the ombudsman before receiving an uplift.
Finally, Rebekah, 63, is raising her two grandchildren on benefits after the death of their mother, but what she did not realise was that she would not get any support from the local authority because the children had not been in care. She is now struggling and in debt. As she says, “Fortunately I’m resilient and resourceful, but it’s been a huge challenge. We’ve been flying by the seat of our pants, with no support or guidance or anything”.
The upcoming pilot on a financial allowance will, I hope, address some of these inequities, but it seems essential that potential carers are given explicit information on any legal support available. I think we can all see from the examples given that it would have probably helped the three women I have just mentioned.
I really hope that the Government will consider Amendment 70, which is a small change but could have a big impact. Can the Minister give us any further details on the pilot, which is an incredibly good thing but obviously comes too late for this Bill?
I hope the Government will also consider Amendment 72 in the name of the noble Lord, Lord Hampton, which also covers the issue raised in Amendment 71 from my noble friend Lord Effingham. As the noble Lord, Lord Hampton, has said, it would simply put the kinship care offer on a par with other offers, such as for SEN and disability. I am interested in the requirement in both amendments to guarantee the involvement of children and carers in the development of kinship care offers.
Working with the Grenfell community, the victims of child sexual abuse and infected blood over the years, it has become clear that local and national government is just not always very good at meaningful engagement. I once asked a civil servant what engagement they had had with regard to a specific policy, and I was explicitly told that there had purposely been no direct communication because it was incredibly important to keep a distance between those developing the policy and those who would be affected by it.
Things have improved since then but probably not as much as they should have done, and so I genuinely believe that embedding engagement into legislation, where appropriate, is the only way that we will drive the necessary culture change. We should not forget that a really important benefit of that engagement is that it builds empathy into the system. Too often, empathy is an afterthought—such as when certain television dramas might evoke a public outcry—when really it should be there as a given.
So, while explicitly involving children and families in the development of kinship care offers may seem a small matter, I really do believe it would have a far-reaching effect in helping to make the state work better for the people who need it.
Lord Russell of Liverpool (CB)
My Lords, I will speak to Amendments 69B to 72, and I declare my interests as a governor of Coram and as a trustee of the Foundling Museum, both of which organisations do a huge amount of work with children involved in these amendments.
We do not realise how lucky we are with kinship care. The figures speak for themselves. When you compare the fact that we have 153,000 children being kept in kinship care with the numbers officially in the care system, which is approaching dangerously near 100,000, and the relatively small number of children who are fortunate enough to be adopted, we are incredibly lucky to have kinship care.
A lot of the history of kinship care as it has evolved and grown has been really about taking it for granted and assuming that is what families or extended families do—and, to a large extent, being inordinately grateful that they are there to take these children on and feeling that one probably needs to devote slightly less time and attention to helping those kinship carers do the best they possibly can by comparison with, let us say, children who are conventionally going through the care system. That is clearly a major imbalance.
A particular sentence jumped out at me from the briefing that the organisation Kinship provided in preparation for this stage:
“Given the long and troubling history of poor compliance with kinship statutory guidance, it is imperative that government does not simply take the approach that these matters can be attended to in guidance alone”—
tempting as that is.
With 153,000 currently in kinship care, we have in theory an enormous amount of data to identify where it is being done well and where it is being done less well. So I did a bit of interrogation of the artificial intelligence tool that we are provided with here, courtesy of Microsoft, and an example that jumps out several times when I interrogated it, as a local authority or city council that has best practice in this area, is the city of Portsmouth. I have no idea whether people knew that, or to what extent the department or the Bill team have looked in detail at what it is that Portsmouth is doing that is clearly shooting the lights out compared with a lot of other cities or local authorities. But it is possible to identify what is being done well now, to learn from that and to try to see the best way to put that either into legislation or into guidance so that we are not effectively reinventing the wheel. This is happening at such a large scale that there must be incredibly rich qualitative and quantitative data that we can learn from. I just hope that during the course of the Bill we can drill down, look at that in more detail, try to identify some of those elements of best practice and perhaps bring that back to the discussion on Report.
Lord Storey (LD)
My Lords, I will start using the mantra of the Minister: on a number of occasions she has said that it is about getting children and families the right support. I very much agree with that.
I will start by talking generally about the care system. I met a young man whose name is Tristan, and when he was a child he was put into care. When I was chatting to him I was genuinely shocked when he told me he had been in nine different care settings throughout the country. Imagine this child going from one care setting to another. I do not know the reasons why, but that happened. He was lucky enough to end the care placements by being fostered by parents in Liverpool, who eventually adopted him as their son. That was the happy outcome after all the trauma that went on before. He is now at Liverpool John Moores University, studying law.
Baroness Tyler of Enfield (LD)
My Lords, briefly, I lend my support to these amendments, particularly Amendments 103, 104 and 146 in the name of my noble friend Lord Storey. As we have heard, it has been a very interesting group about the role that kinship care is playing. Okay, the number is somewhere between 100,000 and 142,000 or 153,000: it is an awful lot of children who, because they are in kinship care, are not going into the care system, with all the costs that we know that can bring with it. As the noble Baroness, Lady Sanderson, said in her very interesting and insightful contribution, kinship carers are often doing this at great sacrifice to themselves. Very often—most times—they are doing it out of love, but they are stepping up at a time of crisis to provide that love and care to children who would otherwise be in the care system.
I just want to underline the point that the period when the child moves in can be incredibly difficult and require a lot of support. Often the kinship carer, who would not have planned to have taken on parental responsibilities for one or more children, would have to spend time attending meetings with children’s services, be involved in court proceedings, maybe find a nursery, make arrangements with the children’s school, the GP or whatever. The list just goes on. They are all things that tend to need to be done during the day, during working hours, and they all take time and money, which is why I feel that a kinship care allowance and extending the pupil premium is so important and, most particularly, an entitlement for an individual to be absent from work on care leave at the moment when those arrangements are being set up is critical.
When I was looking at the very helpful briefing that I have been sent, I was reminded that a right to paid employment leave for kinship carers was recommended by the cross-party Parliamentary Taskforce on Kinship Care, the Independent Review of Children’s Social Care, which we have heard about this afternoon, and indeed by the House of Lords Select Committee doing post-legislative scrutiny on the Children and Families Act, which I actually chaired. I remember that we came forward with that recommendation, and I think it is incredibly important that we take this opportunity to do something about it.
Baroness Blake of Leeds (Lab)
I start by saying how touched I am, and I really want to welcome the comments that have been made about kinship care in the Chamber this evening. It is such an important area, and I think we all have to put our hand on our heart and say that it is a set of relationships that has not been given its due recognition. The noble Lord, Lord Russell, talked about areas of good practice. I think we could all add areas where we know that places are getting it right. The noble Baronesses, Lady Sanderson and Lady O’Neill, talked about the general background and trying to imagine the situation when you know that a family member is getting into difficulties. As they quite rightly say, this becomes a moment of crisis when the risk to the children we are talking about is at its absolute highest.
The recognition of the importance of focusing on the outcomes for children and young people is to be welcomed and needs to be at the forefront of everything that we do. From a local authority perspective, we know that too many children are going into care. As we have heard tonight, this can have a detrimental effect on their prospects and outcomes over a long period. It also has an enormous impact on the budgets of councils, in particular where money could be invested into setting up more support networks in this area.
We are talking about supporting children to stay within their family and friend network, where that is safe and right for them. This is a priority for this Government. There is a general recognition that the support that kinship families have received to date has not been sufficient. We are working hard to address this. It is quite extraordinary that, until now, there has been no legal definition of kinship care. Changing that is something that we can all come together to welcome. As we have heard, access to information for the families involved can be a postcode lottery. Clause 5 is a significant step towards ensuring greater parity in information on the support that is available to kinship carers by requiring local authorities to publish a kinship offer.
Amendment 69B, tabled by the noble Earl, Lord Effingham, and supported by the noble Baroness, Lady Stedman-Scott, seeks to ensure that information on support for kinship families, and not just children and carers, is included in the duty to publish a kinship local offer. I reassure the noble Earl that there is mention in the Bill of a review. New Section 22H(7), to be inserted by Clause 5, states that local authorities “must review” and keep up to date their kinship information. We agree that a whole-family approach is absolutely vital, but amending Clause 5 as proposed is not necessary. The list of information about services that can be included in a kinship local offer under Clause 5 is non-exhaustive. This has been done for a reason, and it already includes services relating to relationships which will assist kinship families more broadly.
The kinship care statutory guidance states that local authorities should empower families by prioritising family-led solutions, working collaboratively with family networks to support parents or carers to make and sustain positive changes, leading, we hope, to de-escalation of need or no further involvement with statutory services. Local authorities should engage with family networks, from early help and at every point through the children’s social care system, as set out in Working Together to Safeguard Children 2023.
There are other policies dedicated to families in need of support, which we have heard about already this evening, such as the family help programme, which aims to improve children’s outcomes and respond to needs and the circumstances of the family as early as possible to enable children to thrive and families to remain together. With a stress on family help, multi-agency child protection family group decision-making reforms are being rolled out across England through the Families First Partnership programme, with over £500 million of direct funding for preventive support for children and families.
Amendment 70, tabled by the noble Lord, Lord Hampton, is on the categories of information listed under Clause 5. We agree that it is important that a kinship local offer should encompass information about the full range of support that is available in the local area. However, amending Clause 5 as proposed is not necessary, for the reasons that I have outlined. Clause 1 already sets out that family group decision-making will be offered, so to add it here would be unnecessary. As I have mentioned before, the listed categories of information about services for the kinship local offer are non-exhaustive and broad, meaning that local authorities can respond to their local strengths and local circumstances, and bring in services available in their area.
The kinship care statutory guidance sets out the expectation that a kinship local offer should set out the legal support that may be available to kinship carers and potential kinship carers, including the eligibility and extent of that support. This involves local relationships—the power of place—and health providers working with local authorities, bringing together all the possible solutions to a particular situation. As the noble Lord, Lord Hampton, has suggested, practical emotional support is absolutely key. We know that there is more work to be done. We need to look at the areas that are doing it well, learn from their experience, and make sure that it is taken up and expanded in every local authority area around the country.
Lord Russell of Liverpool (CB)
I welcome an awful lot of what the Minister said and what His Majesty’s Government are trying to do. My heart sank slightly when I heard the piece about relying on statutory guidance, which was obviously written for her beforehand. I have worked very closely on a variety of Bills over the past four or five years with the Children’s Commissioner, the Victims’ Commissioner and the Domestic Abuse Commissioner. If the Minister were to sit down with each or all of them and ask them about the experience they had of overreliance on statutory guidance, she would get some very mixed messages.
Statutory guidance is effective only if the degree to which it is complied with is monitored; it is of no use whatever if the organisations that are meant to carry it out know that nobody is looking over their shoulder or calling them to book if they do not comply. This again comes back to the variation in practice across the country. So I ask the Minister, her colleagues and the department to talk to some of those commissioners, to understand the historical and the live experience they have in dealing with some of the statutory guidance we have put into some of the legislation that has come through the House in the past three or four years, to see how effective it is and what we can learn from it.
Baroness Blake of Leeds (Lab)
I thank the noble Lord for his contribution and reassure him that I was not just reading out a script. I have put a lot of thought into this. I have been in the place of delivering on this agenda, so I do have the experience.
We have to be careful that we are not too prescriptive at every level, because that can absolutely confound and take up more resource. But I do acknowledge that statutory guidance has to be adhered to, monitored and dealt with with the same seriousness across the piece and, where it has not been adhered to, it has to be called out. The most important thing that all of us can do is make sure that there is an awareness of the rights and responsibilities of the different organisations involved and that they live up to them and, as we have said all the way through, put the needs of some of the most vulnerable children in our communities at the heart of everything we do.
The Earl of Effingham (Con)
My Lords, I thank all noble Lords who made valuable contributions to this group. The noble Lord, Lord Hampton, talked about improving the visibility of kinship care, and he is absolutely right. My noble friend Lady Sanderson talked about acknowledging the role of the whole family in terms of kinship families and gave us three live, worked examples of why this group is so important. The noble Lord, Lord Russell, reminded your Lordships’ Committee that there are 153,000 children in kinship care and that we are so lucky to have kinship carers—which I believe all noble Lords would agree with and which emphasises again why this group is critical. The noble Lord, Lord Storey, referred to kinship carers as a priceless asset and he is entirely correct. I believe several of these issues merit further discussion on Report, but, for the time being, I beg leave to withdraw the amendment standing in my name.
Baroness Barran
“Removal of unregistered status for approved kinship carersNotwithstanding the provisions of the Care Planning, Placement and Case Review (England) Regulations 2010 (S.I. 2010/959) and the Children Act 1989, no placement of a child with a kinship carer that is approved by the Director of Children’s Services, shall be considered an unregistered placement.”Member’s explanatory statement
This amendment would allow local authorities to place a child with a kinship carer without needing to meet the fostering placement standards, where it is judged by the local authority to be in the best interests of the child, as a registered placement, including for the purposes of Ofsted inspection.
Baroness Barran (Con)
My Lords, I rise to speak to Amendments 73, 74, 75, 76 and 76A in my name, and I thank the noble Lord, Lord Hampton, for adding his name to these amendments. I apologise to those waiting for the regret Motion, but my speaking notes are quite lengthy on this group, because it is quite complicated and important. These amendments all seek to update the approach to the approval of kinship carers, which currently broadly mirrors that for stranger foster carers—I apologise if that is the wrong term. These amendments have been prompted by conversations I have had with leaders in local authorities and the family justice system. I put on record my thanks to the charity Kinship for its advice and explanation of the current position of kinship carers.
My amendments aim to recognise that placing a child with someone other than their birth parents requires balancing a number of risks and safeguards. Kinship carers have the obvious strength of a long-standing, usually lifelong, relationship with a child in the way that a stranger foster carer, however compassionate, does not. However, they may not meet the full standards required by a foster panel in order to be formally approved as the permanent home for a child.
Currently, there is no ability to balance these considerations. In a world where the Government understandably want to see an increase in the use of kinship care, including through family group conferencing, this could be unhelpful at best and potentially damaging for the child at worst.
Baroness Evans of Bowes Park (Con)
I support the amendments in this group in the name of my noble friend, which, as she set out, aim to simplify the process for approving kinship carers, balancing the importance of robust safeguards with greater flexibility and discretion within the process to speed it up in the best interests of the child.
As we heard in the previous group, kindship carers are an essential part of our care system, and their benefits are well known. Research indicates that, on average, children in kinship care achieve higher GCSE scores compared with those in non-kin foster care, and significantly higher than all looked-after children or children in need. Children in kinship care also experience better mental health and overall well-being compared with those in other out-of-home care settings, with the familial environment contributing to these positive outcomes. In addition, children in kinship care are more likely to remain in the same area and school, maintaining continuity in their social and educational environments, and are more likely to experience better long-term outcomes, including reduced involvement with the criminal justice system and improved employment prospects.
However, as my noble friend set out in her opening remarks, under the current system, many of those wanting to provide this form of care face significant hurdles because the assessment frameworks for kinship carers are modelled largely on foster care standards and can include checks and interviews that can feel invasive or inappropriate in the context of family caregiving.
While, of course, there needs to be a careful balance and assessment made between the benefits of placing a vulnerable child with kinship carers, with whom—as we have heard—they will already have had a long-standing relationship, and a clear-headed evaluation of any potential risks and safeguarding issues, the current approval process can be unduly slow, causing delays in placing children with family during critical early moments. As we have heard, this means children may be placed informally for long periods with no proper support while assessments drag on, creating significant delays and exclusions. Some of the criteria around housing and income in particular can lead to the exclusion of willing, loving relatives being able to provide care for vulnerable young people within their kinship group.
With the inclusion of the new kinship offer in the Bill, it is clear that the Government recognise the value of kinship carers and are looking to provide greater support and continuity of support to them. I hope the Minister will carefully consider my noble friend’s amendments, which, taken together, offer a thoughtful, balanced reappraisal of the current process and, I believe, would enhance the impact of the measures already contained in the Bill.
Amendment 76, which would require the Secretary of State to carry out a full review assessing the effectiveness of the current pathways for approval within 12 months of Royal Assent, would also provide the Government with the opportunity to look at the practical impacts of these amendments, so that they can be changed or built on, depending on the effects they have had.
Lord Hampton (CB)
My Lords, I will speak very briefly to Amendments 73, 74, 75, 76 and 76A in the name of the noble Baroness, Lady Barran, to which I have added my name. I am in that dangerous position where I am between your Lordships and supper, so I am going to keep it very short, given that I spoke at length about kinship care in the last group. These are extraordinarily sensible amendments that would speed things up and make it easier for kinship carers to be kinship carers. I heartily approve.
Baroness Sanderson of Welton (Con)
My Lords, I will also speak incredibly briefly to the amendments in this group. Obviously, we need protections in place, but I think that across the Chamber we are all agreed that we want to make kinship care a viable option for as many people as possible. These amendments help to do just that by removing some of the hurdles and hoops, and I am very much in support of them.
Lord Meston (CB)
My Lords, I do not want to join the competition for brevity, but I will do my best. There is now consensus that preference should, if possible, be given to the placement of children with relatives or those who have some pre-existing connection with the child and are able to offer commitment to care. Kinship carers, like foster carers, are a precious resource, and therefore I support these amendments.
However, as the noble Baroness, Lady Barran, said, we should not lose sight of the fact that the Law Commission has recently undertaken a review of the law concerning kinship care, with a view to improving its efficiency and simplicity. That has become necessary because of the great range and variety of situations in which kinship care can arise and might be required—from the temporary and informal arrangement to the longer-term or permanent that can involve foster care, special guardianship or other forms of order.
It has been suggested by some that, rather than have a scattered legislative and regulatory regime, kinship care should now have a separate and distinct regime. That is something that may emerge from the Law Commission. That is not to say that improvements cannot be made to the present piecemeal structures, and that is why I support these amendments. They will make procedures easier for kinship carers or potential kinship carers, without inappropriately cutting corners.
Baroness O'Neill of Bexley (Con)
My Lords, I will be even briefer, because much of what I intended to say has already been said. Obviously, I deal with this pretty much on a daily basis, back at the base in Bexley. As explained earlier, kinship care tends to have to be done much more quickly than a foster care placement. A foster care placement can go through a due process that will take much longer and will be very thorough, but kinship care tends to have to be much quicker.
There are things that you might need to look at for a kinship care placement that you would not for foster care. Obviously, the kinship carer is seeking to look after a child they know. They are not looking to foster any child, which would mean that they would have to have a wide range of experience and therefore, no doubt, training to go with it. They may already be in a home that they will take the child or children into, so the accommodation might not meet the needs that a foster care panel might want it to. They may have a job, as has been said, and that will need to be worked around. They will not necessarily have made arrangements to take on a child, especially if it is a grandparent at an older age. All these things need to be considered.
Frankly, kinship care and fostering arrangements are very different, which is why I support these amendments. This really needs to be looked at in a different way. I promised brevity, so I will now sit down.
Baroness Blake of Leeds (Lab)
My Lords, I appreciate noble Lords’ concerns about ensuring that children grow up in safe, stable and loving homes within their family network. I reaffirm that the Government are firmly committed to enabling children to remain safely with their family whenever it is in their best interest, and, alongside that, to removing unnecessary barriers that may prevent this from happening. I recognise the assessment of the noble Baroness, Lady Evans, of the contribution of kinship carers, which adds to our debates earlier in Committee.
I turn to amendments relating to the removal of unregistered status and requirements under fostering regulations for kinship carers: Amendments 73, 75 and 76A, tabled by the noble Baroness, Lady Barran. We agree with the noble Baroness that we must tackle the barriers that currently make it harder for people to become kinship carers. We fully appreciate that that process of becoming a formal kinship carer can feel intrusive or burdensome at times, and we recognise that there is room for improvement in how these assessments are carried out. It is vital that they are conducted in a way that is supportive, respectful and sensitive to the unique circumstances of kinship families. At the same time, these assessments play a crucial role in ensuring that children are placed in safe, stable and nurturing environments. They also help local authorities identify the right support for carers so that they are not left to manage alone. Getting this balance right is essential.
Whenever a child can no longer live safely at home with their parents or anyone else with parental responsibility, the local authority has an obligation to complete a robust safeguarding assessment. The approach to doing this is set out in the Care Planning, Placement and Case Review (England) Regulations 2010 and the Fostering Services (England) Regulations 2011. Removing these assessments, as suggested by Amendments 73 and 75, risks undermining the assurance of the safety and well-being of children moving into kinship care arrangements.
However—to address some of the concerns that have been raised—the kinship care statutory guidance makes it clear that fostering panels should not make negative recommendations solely based on prospective kinship foster carers not meeting the fostering national minimum standards during the assessment. If the placement aligns with the child’s best interests, the prospective kinship foster carer should still be considered for approval to foster the child and then supported by the fostering service to attain the standards. Statutory guidance recognises that the assessment of kinship foster carers may differ from that of mainstream foster carers. Local authorities are permitted to adopt a tailored approach in presenting assessment reports for kinship carers, taking into account the unique dynamics of family relationships, safeguarding considerations, accommodation suitability and any relevant criminal history. Additionally, fostering panels reviewing kinship care applications are expected to include members with specific expertise in kinship care to ensure informed decision-making.
Regarding Amendment 76A, in the name of the noble Baroness, Lady Barran, specifically, the requirement for temporary kinship foster carers to be fully assessed as a foster carer is not a barrier but an important safeguard. It ensures that the placement is not only safe in the short term but sustainable and well supported in the long term. Under Regulation 24 of the Care Planning, Placement and Case Review (England) Regulations 2010, local authorities may grant temporary approval for a connected person to care for a looked-after child for up to 16 weeks, where it is necessary to place the child urgently and the carer has not yet been fully assessed. This provision allows for flexibility in emergencies, but it is time-limited by law to protect the child’s welfare.
Temporary approvals are intended to facilitate urgent placements but must be followed by a full assessment to ensure that the child’s needs are met and the carer is properly supported. This includes a thorough evaluation of the carer’s capacity to meet the child’s needs in the long term; ensuring that the carer receives the same entitlements as mainstream foster carers, including financial support, training and an allocated social worker; and establishing a clear and stable care plan for meeting the future needs of the child. Removing this requirement unnecessarily increases the chances of a breakdown in the kinship placement. This is because it removes important safeguard checks for children placed with a kinship foster carer and removes an opportunity for the services to build a clear understanding of the kinship foster carer’s strengths for tailoring the right support—resources that are vital to enable carers to provide safe and effective care.
It is important to recognise that kinship foster care is not the only route to kinship care. Many children are successfully supported through other legal arrangements, such as special guardianship orders or child arrangements orders, which can offer greater stability and permanence outside the care system. These routes can be less stigmatising and more empowering for families, and we are committed to ensuring that all kinship carers, regardless of legal status, receive the support that they need.
On this basis, and reflecting on the comments that have been made, I kindly ask the noble Baroness to withdraw her amendment.
Baroness Barran (Con)
I thank all noble Lords who contributed to this debate. I must say that I was a bit more optimistic about the noble Baroness’s response because none of these amendments would cost the Government any money. They simply seek to improve the system that, as we have heard from practitioners and others—including my noble friend Lady O’Neill, who deals with this on a daily basis—is not working as well as it could. The noble Lord, Lord Meston, rightly raised in his remarks the position of the Law Commission review. There is no reason that one could not sunset these clauses if, in however many years’ time, the Law Commission comes forward with a more coherent plan.
Forgive me if I missed it, but I was not sure that I heard responses to my Amendments 74 and 76. Maybe the noble Baroness and I can both look at Hansard and double-check.
On Amendments 73, 75 and 76A, the noble Baroness said that these need to feel like supportive assessments for foster carers. The point really is about finding the balance between the familiarity and security of someone you have known all your life versus any shortcomings that they might have personally, where they live, or any of the points I raised earlier.
In reality, we know that directors of children’s services are having to make choices today to leave children with a kinship carer where they judge that the fostering panel would not exercise the discretion that the noble Baroness outlined, thereby putting themselves in a pretty impossible position vis-à-vis Ofsted. No director of children’s services wants to be in that position.
In relation to Amendment 75, we need to take great care over approval, but the point of Amendment 75 is that the family group decision-making process has already agreed that the kinship family or the member of the child’s extended family is suitable to care for them. The question is why we have to do that twice.
I will go away and reread what the noble Baroness said about temporary placements—I think that that may have been more reassuring. I did not pick up, and forgive me if I missed them, her remarks on the other two amendments, particularly Amendment 74, but we can follow that up separately.
The only other thing I would challenge, with respect—I know that the noble Baroness has enormous experience from her previous roles—is that I do not think one can describe either a child arrangements order or a special guardianship order as more secure and more stable, certainly in relation to parental responsibility. They are not as secure or stable as other alternatives.
We all want the same thing. I thought that these amendments were a simple, constructive way of taking steps forward on some of the things that have been flagged as the most problematic from the point of view of practitioners and leaders. I hope that the noble Baroness will go away and reflect on that. In the meantime, I beg leave to withdraw the amendment.
Official Controls (Plant Health) and Phytosanitary Conditions (Amendment) Regulations 2025
(1 day, 19 hours ago)
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Lord Frost
That this House regrets that the Official Controls (Plant Health) and Phytosanitary Conditions (Amendment) Regulations 2025, laid before the House on 8 January (SI 2025/13), provide for further constitutional separation between Northern Ireland and the rest of the United Kingdom.
Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee
Lord Frost (Con)
My Lords, the regret Motion standing in my name tonight is on a very technical piece of legislation, but one that raises huge matters of principle for this country. That is why I thought it right to ensure, however belatedly, that the issues are debated and are not lost from public or parliamentary view. In speaking tonight, I want to do three things. The first is to set out my concerns about this specific legislation. The second is to set it in the context of the wider Windsor Framework arrangements. Finally, I want to speculate and to ask the Minister a few questions about the implications for the Windsor Framework of the SPS agreement reached, at least in principle, with the EU on 19 May.
First of all, in brief, the legislation updates in various ways the controls that apply to the import of plants into Great Britain to protect against certain high-risk plant pests. I will not go into the detail. I thank the Secondary Legislation Scrutiny Committee for highlighting it as legislation of interest; the committee did so on the back of a memorandum from the honourable Member Jim Allister in the Commons and a response from Defra. Mr Allister’s memorandum, the concerns of which I entirely share, and the Defra response, which seems to largely miss the point, together set out the core problem.
These regulations, as I say, provide for new controls on the import of plants from other countries, including the EU, which for these purposes includes Northern Ireland. In other words, Northern Ireland is in a separate SPS zone from Great Britain. The implications of this are significant. The legislation says that there is a new list of pests from which HMG want to protect Great Britain. Yet, Northern Ireland is part of the UK as well. Why do the Government not wish to protect Northern Ireland, too? The answer, of course, is that they cannot do so; they must, in fact, rely on the EU’s own biosecurity controls, which are the only controls in force in Northern Ireland. The British Government have no legislative or legal control over biosecurity in Northern Ireland.
In any world, biosecurity is an essential state function of any country, for it must be performed by the state. Article 1(2) of the Northern Ireland protocol says that it
“respects the essential State functions”.
In this case, however, that state function is outsourced to another state. Many might argue that itself is not compatible with the operating of the protocol. The Government attempt to deal with this problem by arguing that the EU’s controls are just as good as ours and therefore we have no reason to be concerned by the situation. Indeed, when we were last debating this, on 29 January, the Minister said:
“I want to stress that the EU takes its biosecurity responsibilities for something like foot and mouth extremely seriously”.—[Official Report, 29/1/25; col. 360.]
She was effectively admitting then that those responsibilities are not ours but the EU’s.
I do not know whether it is true or not that the EU takes its responsibilities seriously. In one sense, it does not matter; there is nothing we can do about it. We can try to persuade the EU through the joint committee process to put similar rules in place in Northern Ireland, if it has not done so in the whole of the European Union, but it is only persuasion; we have no power and we are supplicants to the EU in this and many other areas. In short, we can legislate for GB but not for Northern Ireland. That remains the situation, and it is a very unhappy one.
This brings me to the second area I want to discuss, which is the broader picture into which this legislation fits. Tonight’s SI is a specific case of the general problem, which is the Windsor Framework. Under this arrangement—which, regrettably, the previous Government agreed to—a process is under way which is contributing to the separation between Great Britain and Northern Ireland. That is what is happening, and that is at the root of the political problem.
To look back a little, the Windsor Framework ultimately stems from the 2017 joint report between this country and the European Union, and the commitment that was made in that report to align Northern Ireland with the EU single market and customs in default of any other solution. Once that commitment had been made, it then became inevitable that the EU would never try to find any other solution. That is why the original Northern Ireland protocol had to be agreed in 2019, effectively under duress, as the only way of delivering the referendum result, once the option of leaving the EU without a deal had been closed off by Members of this Parliament.
Two directions of travel were then possible. The first was that the protocol arrangements would be seen to be difficult to work in practice, would come under pressure, would not last and the protocol itself would end up being removed or overridden. The Johnson Government, both when I was responsible for this issue and under my successors, sought to achieve this, first by negotiation and then by the Northern Ireland Protocol Bill. As we know, that Bill fell and with it fell any effort—for the time being anyway—to deal with the legal situation created by the protocol.
The other possible direction of travel was the one that has been taken since that point, whereby British Governments have reconciled themselves to the protocol arrangements and actively supported them. That is what the Windsor Framework represents. The British Government are now actively committed to defending these arrangements—a situation in which another entity decrees what must happen in part of our own country.
Not only is that intolerable in itself on that basis; it has two consequences. First, this new reality, in which our Government actively support these arrangements, leads to a different future because other actors start adjusting to it. For example, on trade, between 2020 and 2023 the value of goods purchased by Northern Ireland from Ireland went up twice as fast as the value of goods purchased by Northern Ireland from Great Britain. There is persistent evidence that companies in Great Britain are less inclined to supply Northern Ireland because of the complexity of the rules. The Northern Irish companies are finding suppliers in Ireland instead, and therefore trade diversion is taking place. I note that trade diversion is an explicitly specified reason in the protocol for the use of the safeguards in Article 16.
The second consequence is that it leads to a situation that is well known but needs to be dwelt on: British Governments are inhibited from legislating differently from the EU in areas covered by the Windsor Framework for fear of opening further the gap between Great Britain and Northern Ireland. There is plenty of evidence that this is happening. It was part of the reason why the previous Government were so reluctant to remove, fully and completely, retained EU law from the statute book and it was part of the inspiration behind the product regulation Bill, currently going through the Commons, which will allow Ministers to align us further with the EU by legislative fiat.
This is the heart of the political and legal problem, and all attempts to mitigate it—including, I am sure, in the important work of the noble Lord, Lord Murphy, and his review of the protocol—will come up against this central fact: the willing agreement of the Windsor Framework was a serious mistake. I am afraid that it has caused profound damage to our national interests and will continue to do so.
I know that some noble Lords with an interest in Northern Ireland—and others with a broader interest in Northern Ireland politics—regard this view as intolerably simplistic. They say that the only way to make things work in Northern Ireland is to live with complexity, to accept ambiguity and to be resolute for equivocation. They say that the only way to keep viable the political arrangements created by the Belfast/Good Friday agreement is to pretend to believe they can do two things at the same time: be simultaneously a route to Irish unity for some and a guarantee of Britishness for others under unionism. Maybe you can do that in words, but you cannot do it in real life. Every political, economic and legal development affecting Northern Ireland tilts the balance one way or the other between—to use the jargon—east-west and north-south. But I am afraid that nothing has tilted it more than our acceptance, in the Windsor Framework, of the fact that laws in Northern Ireland are not made by people in Northern Ireland or anywhere else in the UK.
I feel that, in the long run, these arrangements will have to go. One day, a different route will have to be taken and something like the proposed mutual enforcement arrangements will have to be put in place. The Windsor Framework will have to be ditched, and UK laws will have to apply in Northern Ireland as they do anywhere else. I do not think that the current arrangements can stand.
I turn to the third area I want to discuss. I have previously made points like the ones I have just made, as have many others. But since I last made them, one important new element has been added to the situation: the 19 May reset deal and the proposed SPS agreement between us and the EU. I will speculate a little about what this might be and what implications it might have for the legislation we are discussing tonight and other such legislation in the same series. I ask the Minister to respond to some questions.
It is said in the communiqué that the putative agreement
“would result in the vast majority of movements of animals, animal products, plants, and plant products between Great Britain and the European Union being undertaken without the certificates or controls that are currently required by the rules … These same benefits would be extended to the movements between Great Britain and Northern Ireland, through the interplay of the Windsor Framework and the SPS Agreement, so long as the SPS Agreement is fully implemented”.
It goes on to be quite clear about the legal basis for this dynamic alignment: that the UK must accept EU legislation in the SPS area without any formal say in the matter. In other words, the arrangements that are so unacceptable democratically and legally in Northern Ireland are to be extended to the rest of the United Kingdom as well. That is a huge price to pay in national sovereignty and control.
The phraseology of the declaration is important. What the UK has to do is clear; what the effect will be is less so. The Government have at times given the impression that there will be unfettered agri-food trade once the agreement is in place, but that is not what the words say. Agri-food is not all food: it does not include certain processed animal or plant products and many drinks—for example, Scotch, our biggest food and drink export. The Windsor Framework’s arrangements themselves cover more than just SPS movements.
I ask a few questions to conclude my remarks. First, the reset text says that “the vast majority” of movements of SPS goods will be covered by the agreement. Can the Minister say which goods are not covered and will therefore be covered by the existing Windsor Framework arrangements?
Secondly, for goods that are covered by the new arrangements, will the other non-SPS aspects of the Windsor Framework process remain in place for movements from GB to Northern Ireland? Specifically, can the Minister confirm, either now or later in writing, that the customs arrangements required under the Windsor Framework will remain in place, as surely they must unless we are joining some sort of customs arrangement as well. SPS movements will remain secondary customs movements as now, and therefore even when this new arrangement is in place for SPS goods, there will still remain a process and customs barrier between Great Britain and Northern Ireland.
Finally, can she confirm—to help us understand the difference between now and the future—whether the specific piece of legislation we are discussing tonight would be needed in future when the SPS agreement is in place? If not, is that because in future the biosecurity not just of Northern Ireland but of the whole of this country will be protected under EU legislation rather than our own?
I conclude that the Windsor Framework is leading this Government and this country into deeper, more dangerous waters with every day that passes. It must one day be removed, and one day I hope it will be. I beg to move.
Lord Hannay of Chiswick (CB)
My Lords, I will address principally the arguments that the noble Lord, Lord Frost, used in the third part of his speech—the ones that relate more generally to the SPS agreement that on 19 May our Government and the European Union agreed to negotiate.
When I listened to the noble Lord introducing his regret Motion, I hardly noticed any recognition of the fact that we would not be discussing this tonight were it not for his dereliction as a negotiator, when the negotiations were being carried out, to find any protection for the extremely valuable agri-food exports that we make to the other countries of Europe. Nothing was done about that when he was a Minister in the Johnson Government, and no attempt was made to negotiate provisions in the trade and co-operation agreement with the EU aimed at protecting those valuable exports and the people who produce them.
It seems to me that he was also, apparently, unaware of the fact that the SPS agreement, if negotiated successfully—which the Government agreed to attempt to do on 19 May, as did the European Union—would have many additional aspects that could be of great value. Those, of course, are the ones that relate to Northern Ireland, because it is rather clear that if there were an SPS agreement, quite a lot of the problems that have arisen in the operation of the Windsor Framework and the arrangements for trade between Northern Ireland, the rest of the United Kingdom and the rest of Europe would simply fall away. They would not be necessary. That in itself is surely a major prize to reach for.
Baroness Hoey (Non-Afl)
My Lords, I congratulate the noble Lord, Lord Frost, on praying against this. It is really good to see someone from the Conservative Party actually praying against these regulations. In his wide-ranging contribution, he highlighted some of the real issues that we should be discussing. Perhaps it might be helpful if sometimes we were not discussing these issues so late at night. I also congratulate him on his patience, because I think he prayed against this some months ago and, of course, the regulations are already in place.
These regulations are hugely controversial because they undermine the territorial integrity of the United Kingdom, giving effect to the division of the UK into two parts. Although it is correct that, for epidemiological purposes, Northern Ireland has been treated on the same basis as the rest of the island of Ireland since before the imposition of the Irish Sea border, the idea that this somehow neutralises the problem associated with the border and these regulations is just unsustainable. There is all the difference in the world between the effects of being treated as part of the same epidemiological unit as the rest of the island of Ireland, while remaining within the international SPS borders of the United Kingdom, and being treated as part of the same epidemiologist unit as the rest of the island of Ireland, while being moved from within the international SPS borders of the UK into the international SPS borders of the EU.
What makes these regulations really toxic to me and to others is the fact that they have been given effect through the SPS border enforcement framework provided by the Official Controls (Amendment) Regulations 2024. As such, not only do they divide the UK by means of an international SPS border but they do so on the basis of a justification that their enforcement mechanism sweeps away, pulling the rug from beneath the feet of the entire Irish Sea border project.
The Government’s justification for moving both the customs and the international SPS border from the international border was that the only way we could have such a border was as a hard border and they did not want a hard border on the international border and therefore agreed to the movement of the border to the Irish Sea.
However, the enforcement mechanism for the regulations before us today demonstrates that the border can be enforced without SPS infrastructure on the border, so the Government’s justification for moving the border disappears, making the constitutional ramifications of the regulations before us today very toxic and controversial.
When I raised this problem on 29 January in the debate on the Official Controls (Amendment) Regulations that provide the framework for the enforcement of the regulations before us today, the Minister stated:
“I was also asked why SPS checks and controls take place away from the border between Northern Ireland and Ireland. This was obviously part of the Windsor Framework and was approved at the time by Parliament. We cannot unpick that through this SI, but, again, these things can be looked at by the work that the noble Lord will be carrying out if the committee is interested in doing so”.—[Official Report, 29/1/25; col. 359.]
But that is incorrect.
Although the movement of the SPS border from the international border to the Irish Sea was obviously part of the Windsor Framework, the removal of the central justification for moving the border, by means of the way in which the regulations before us today will be enforced, was not in the protocol, nor in the amendments that resulted in it being renamed the Windsor Framework. That is the whole point.
It is with the demonstration that the border can be enforced through an SPS infrastructure away from the border, through the enforcement regime for the regulations before us today, which has become apparent only this year, that the whole justification for moving the border has been removed.
On 4 March, the honourable Member for North Antrim raised the very same point in another place. Interestingly, on that occasion the Secretary of State said:
“The answer is this: as a sovereign country, it falls to us to decide how we check goods that arrive in our territory … It is for sovereign countries to determine what checks they apply. The same truth applies to the European Union; it has a single market”.—[Official Report, Commons, 4/3/25; cols. 253-54.]
What the Secretary of State was saying simply has the effect of saying that the problem highlighted is indeed a reality, but seeks to validate this on the basis that the way the border works is the decision of the UK Government for goods moving from Northern Ireland to GB and of the EU Government for goods moving from GB to NI. As such, it simply acknowledges the current situation but does not engage with the problem that it presents.
The point is that doing this completely removes the justification always given for taking the extraordinary step of agreeing to move the customs and SPS border from the international border to the Irish Sea, namely that this was the only way to avoid having a hard border, when our Irish Sea border arrangements demonstrate that this is not true. So I ask the noble Baroness again: who is right, she or the Secretary of State in the other place?
This is a huge issue, because of the costs associated with moving the SPS border away from the international border, even, as we know, as that border serves as the border for tax and excise purposes, for purposes of currency, for many other legal purposes and indeed more recently for immigration purposes, because the Republic now carries out immigration checks along the border. So it constitutes the most extraordinary reversal of democracy.
We are aware of countries that are not democratic and we want them to become fully democratic. But what has happened in Northern Ireland, by contrast, because of the needless movement of the customs and SPS border, is really extraordinary. We have seen the disenfranchisement of 1.9 million people in 300 areas of law—not just bits of law but areas. This makes the Government’s position completely unsustainable. They cannot say, as the Secretary of State said, that it is fine to agree to move the border when the operation of the Irish Sea border, GB to NI, demonstrates that the only justification for doing so does not exist.
In truth, no self-respecting country should agree to any arrangement that involves the disfranchisement of all its citizens in 300 areas of law, for any reason. However, to do so in a context where one’s own arrangements demonstrate that this is completely unnecessary suggests that the United Kingdom has become the first country in the world that is prepared to prioritise acquiescing to the requests of other countries that its own arrangements demonstrate are needless when the price is trading the citizenship of its own people.
I have to say that the Secretary of State himself bears a unique responsibility, because he brought before Parliament what became the Benn Act, the effect of which was to greatly weaken the negotiating position of the then Government. Had he not tied their hands, it is highly unlikely that we would have ended up with the protocol, because there is no doubt that the European Union would have feared the implications of a no-deal Brexit and might not have been quite so unreasonable.
Nevertheless, as the noble Lord Frost said, many of us thought at the time when all of this went through that it would only be temporary. I am very sad that the incoming Government have not seized on the opportunity with this so-called reset to actually try to get the European Union to see sense. The Secretary of State’s intervention ensured that there had to be a deal, without the risk of no deal, and the price of that, which he and others certainly wanted, was that the people of Northern Ireland have become a commodity, traded to give the people of Great Britain the assurance of the trade and co-operation agreement.
The regulation before us today puts in focus once again the abandonment of 1.9 million people of the United Kingdom. I am not going to go over it again, but last time I read out the letter from young people from Northern Ireland who talked about the Government lecturing young people about the importance of active citizenship, only to argue that they did not actually have active citizenship in that part of the United Kingdom. I would also say that they are very grateful that the noble Baroness, Lady Anderson, has now agreed to meet them, and they are looking forward to that.
All of what is being said now and will be said by others has huge implications for the review by the noble Lord, Lord Murphy, which is required by paragraph 7 of the unilateral declaration of 2019 to consider both the operation of the Windsor Framework and the implications of moving away from it, which is possible only if we all consider the alternatives to the current arrangement. The noble Lord, Lord Murphy, must consider the alternatives in detail, including, as the noble Lord, Lord Frost, said, mutual enforcement, which was originally what the EU favoured back in 2019, but things have moved on since then.
We have had to come to terms with the very destructive impact of the operation of the Windsor Framework on democracy, trade and the diversion of trade—why has Article 16 not been invoked?—the effect of those wishing to buy goods from GB businesses and, most importantly, driving a wedge between one part of our country and another. As the noble Lord, Lord Frost, said, this cannot continue. It cannot be sustainable. Mutual enforcement can be a solution to address the UK/Republic of Ireland land border challenge. While it may have been passed over in 2019 because some people felt that it was not the solution, now that we have seen what was the solution, mutual enforcement most certainly represents the best available option in 2025, and discussing these kinds of regulations and the effect on people in Northern Ireland really should make noble Lords sit up and think that something has to change.
Lord Dodds of Duncairn (DUP)
My Lords, it is a great pleasure to follow the noble Baroness, Lady Hoey. I agree with virtually every word that she has said. I congratulate the noble Lord, Lord Frost, on bringing this regret Motion before your Lordships’ House this evening. It is extremely important, as I have said on numerous occasions during these types of debates. I welcome that, while it is not a great turnout, it is a much better turnout than we normally have for these statutory instrument debates. We are privileged to have so many people taking an interest. We guarantee that there will be such opportunities in the future, as we examine European legislation.
Lord Lilley (Con)
My Lords, I congratulate my noble friend Lord Frost on bringing this regret Motion against these regulations. It is extraordinary that this House is only now considering them months after they came into effect, but that makes it all the more important that we consider their implications, both in practice and in principle.
I want first to respond to the remarks made by the noble Lord, Lord Hannay. He wants an SPS agreement. I have good news for him: we have an SPS agreement. It is called the WTO Agreement on the Application of Sanitary and Phytosanitary Measures. It follows on from an agreement that I helped negotiate—the Uruguay round—which created the WTO, which then led to this. It says that SPS measures
“shall not be applied in a manner which would constitute a disguised restriction on international trade”.
In particular:
“Members shall accept the sanitary or phytosanitary measures of other Members”,
of the WTO,
“as equivalent, even if these measures differ from their own”.
Our measures, of course, are very largely identical. None the less, they have not been accepted by the EU because the EU likes to use phytosanitary measures—in direct conflict with the agreement it has signed—as a protectionist measure to impose what one EU negotiator referred to me as their desire to be a regulatory hegemon. “We are a regulatory hegemon”, he said, “and we intend to remain so in our area”. They try to impose it on Switzerland and they would like to impose it on us.
I know that the noble Lord, Lord Hannay, is a fanatical enthusiast for international law and hates any breach of it, except when the EU is in breach, as it is on multiple occasions on this very issue of sanitary and phytosanitary measures, and has been found to be so by the WTO. I am sure he will welcome the fact that we have this agreement and will do his best to persuade the EU to live up to the agreement it has already entered into, rather than request we make further concessions for it to agree to something it has already agreed to.
I do not fully understand the Government’s position on these specific measures. I look to the Minister to illuminate them and explain them to me; I may well have not understood them. They seem to relate to two bugs or diseases. The first is Heterobasidion irregulare; I am sure noble Lords are thoroughly familiar with it. The impact of the controls will be that:
“Host material imported into Great Britain from EU Member States, other than any EU Member State where Heterobasidion irregulare is known not to occur … will need to be free from this pest and compliant with the additional import requirements. This pest will also be subject to increased awareness raising, surveillance and action on detection within Great Britain to protect biosecurity”.
Is Ireland free from this bug? If it is, why do we need any checks?
Lord Empey (UUP)
My Lords, to some extent, as previous speakers have said of this set of regulations, it is almost preposterous that we are debating it several months after its implementation. But I would have to say to the noble Lord, Lord Lilley, that there is nothing as permanent as the temporary; he will, sadly, be familiar with that phrase.
On the idea of protecting our plant life and so on, there will not be a word of discontent around the Chamber about our trying to do that; it is common sense. However, we are dealing here not simply with the regulations that are in front of us; we are dealing with the circumstances in which they have been brought forward. Other speakers have drawn attention to this.
Going back to the beginning, after the decision to leave the European Union, my party was uncomfortable with that at that time, simply because we could see that this sort of thing was going to happen. We triggered Article 50 far too soon. We had not negotiated and worked out among ourselves what we were going to do, and that showed up very quickly in the negotiating process. We accepted the fundamental top three things that the EU had agreed before we even sat down at the table. The first was leaving citizenship out of it, on which I think there would be no argument. We agreed on payment, so we decided to buy a house before we knew what it was going to cost, and we then agreed to take the Irish question out of the trade set-up and put it into a political context. That had to be done before we even got started. So, to some extent, you were fighting a losing battle from that point onwards. If anybody was to renegotiate the situation today, I do not think they would even contemplate such a proposal.
I also suspect that we are also in a totally different context from when the noble Lord, Lord Frost, put in his bid for this Motion. He referred to 19 May and the reset. However, this is a skeletal set of agreements. There is no substance or detail in any of those agreements with the EU, and anybody who knows anything about the European Union knows that it is good at the small print. So we may have these high-level ideas of reset, but the minutiae is where the European Union is at its best and we are at our worst.
I have argued for some time—I hope the Minister will look at this, and I think I have said it in other debates—that, given that the review of the trade and co-operation agreement is due next year, the United Kingdom should be working today to work out what proposals we want to put to the European Union in those negotiations. It is perfectly obvious that the European Union will want to compress that renegotiation to the minimum and the reset will play into that, but it is an opportunity. It is written into the agreement that its operation will be reviewed in 2026. We should be preparing a position now and not end up crashing in at the last minute with a few things jotted on a piece of paper. We need to know what it is that we want.
Fundamentally, the problem of us in Northern Ireland being half in the European Union and half out of it is insoluble. Even if you have all the fundamental technical solutions—there are many now that are applicable and could work, as has been referred to—if we are in one trading bloc and the European Union is in another, that is a politically insoluble position to be in, because we are under a totally different regime, subject to different laws with no impact on or say in what the laws should be.
I have to say that things are changing. All of a sudden, people in Great Britain are saying, “How awful is this? People are going to be making our laws and we’ve no say over them”. Well, I have to say, “Folks, wakey wakey”. We have had to live with this for some years. Now it appears that, in part, people in Great Britain are going to be in the same boat. Looked at that way, “dynamic alignment” is a significant term. We have had expressions of what that actually means. I draw the House’s attention to the fact that, if people are uncomfortable, since many Benches have by and large been empty when we have been discussing these issues, they may not be quite so empty in a year’s time when some people have to take a dose of their own medicine.
Personally, I believe that we as a nation could have avoided a lot of this. I think we negotiated and handled things badly after the people took a decision, and we are living with the consequences of that. Thereafter we have been mitigating, trying to ease the pressure and trying to make things easier for traders and businesses to operate. However, as the noble Lord, Lord Dodds, referred to, not one scintilla of the Windsor Framework has been changed.
I want to ask the Minister about a particular issue that has not really got above the parapet yet: the new European Union customs processes. The European Union is undertaking a massive review. Like the Americans, it has had a situation where the movement of goods of small monetary value does not require any paperwork. I think there was a limit of about €125, and in the United States context it was about $850. That is coming to an end. Every single thing, irrespective of its value, will have to have a number and will be under the new regulations that will come in in the European Union in the next few years. That will apply to the whole of the United Kingdom in significant measure, but I have not seen or heard any comment in Parliament about it. Is the Minister aware of that? Do she and her colleagues have anything to say about it and what the implications would be for the movement of products of a very low value?
Of course, that will hit the very small businesses. It will make life more difficult for individuals who may be bringing things in online, or in whatever mechanism that is used. As the Minister knows, we have a parcel issue. We are in the process of spending £200 million on border inspection posts. People are saying, “The new reset means we don’t need them”, but that is not the case. We will continue to need them, and the European Union is insisting that we have them.
Lord Lilley (Con)
I am very grateful to the noble Lord for bringing this up. I am sure he will be able to remind me of the clause in the Northern Ireland protocol—to which the EU signed up—that says the EU will use its best endeavours to ensure that there is no need for checks and border posts at the ports and airports of Northern Ireland. Now it is insisting that they exist, rather than trying to find ways of doing without them.
Lord Empey (UUP)
I suspect that the answer will be, “We need them there just in case there’s an outbreak of disease and we have to inspect animals and get back to crawling under tractors to see if there is any Scottish soil underneath”, and so on. There will be an answer. As the noble Lord is aware, there is always an answer.
Can the Minister tell us what the implications of the new customs rules that are coming down the track—which our committee is aware of and looking at—will be for the situations we are facing tonight? I think they mean that intrusive interference will be coming down to a very low level—to the level of an individual. Maybe Members do not realise that the Select Committee to which the noble Lord, Lord Dodds, referred—and of which he and I are members—is the only committee in this Parliament that is looking at EU regulations and laws that apply to Northern Ireland. Nobody else is looking at them. There is nothing down at the other end. I think that is an outrage; the House of Commons should be looking at these things. Ours is the only committee in Parliament that is looking at these matters; maybe that says a lot about what people’s priorities are.
I ask the Minister to refer to the customs issue, because I think that is going to come very much to the fore. Can she also tell us what preparations are being made for the 2026 renegotiation of the trade and co-operation agreement? Are the Government preparing and working with other interested parties to decide the best way forward and to see whether, while we cannot solve these problems in their entirety—and certainly not constitutionally—we can perhaps mitigate them further to at least alleviate some of the obstacles that are in the way of business?
Lord Bew (CB)
My Lords, it is with considerable regret that I rise to oppose the regret Motion from the noble Lord, Lord Frost, because I respect enormously the work that the noble Lord did on this question when he was in government. I wish to stress in particular tonight that the introduction of unilateral grace periods was the beginning of the fight-back against the authoritarian implications of the 2017 EU-UK agreement. That was of considerable importance and helped to give us space for further developments—developments with which, I understand from listening to him, he is now radically dissatisfied. I am not satisfied; I am rather less dissatisfied.
It is crucial to understand that the 2017 EU-UK agreement is the core of the ideas that are then to be found in the protocol—that is absolutely clear. It is important to understand also that that agreement involved a flouting of key elements in the Good Friday agreement. Strand 3 of the Good Friday agreement insists that there be harmonious mutually beneficial relationships between Northern Ireland and the rest of the UK. Nobody could see how those mutually beneficial relationships could remain in the full implementation of the 2017 EU-UK agreement. One of the key themes of that agreement is that the British Government were compelled to commit themselves to supporting an island economy.
Look at the Good Friday agreement and the frame- work document that precedes it: it is explicitly about co-operation between two economies on the island of Ireland. To the surprise of many economists who believed that there should be more of an island economy in the early years of the 20th century, suddenly there was a thing called the island economy. By the way, in certain respects there is: in electricity, the dairy industry and so on. But there is not, overall, an island economy—there is absolutely no question about that—and the two economies on the island of Ireland remain a profound reality.
Funnily enough, in recent weeks, as a result of Donald Trump’s probings—is that the right word?—of the Irish economy, the indignant insistence all over the Irish press and media that there are two economies on the island of Ireland has become explosive. But the island economy, and the British Government’s commitment to support it, was one of the great problems in the 2017 agreement and the protocols—both the May and the Johnson versions. It is based on a very unrealistic assessment of the realities of the island economy. In the Gallimard edition of Michel Barnier’s memoir, around pages 137 to 140, there is a discussion of Ireland that is largely mythical. None the less, these mythical concepts became the heart of policy and, more importantly, a British Government were compelled to support that.
If the Windsor Framework has been treated very dustily tonight, there is one thing it does: it calls a stop to that. It says no, and the European Union agrees. It is absolutely explicit. The island economy driver of policy for the British Government and the dynamic alignment that people have talked about are dispelled by the Windsor Framework. That is one of the achievements of the Windsor Framework and why it played a role in the return of Stormont.
This was followed by the Safeguarding the Union document, the importance of which was to demonstrate, on the subject of the Irish Sea border, that, for large parts of the history of the union—for many decades—there has been an Irish Sea border of one sort or another. It is absolutely explicit—it reproduces the documents. You cannot say that the Irish Sea border as such is corrosive of the union; the union somehow survives. The phenomenon known as the Irish Sea border is in a different form today, but what is not in doubt is that it is not corrosive of the union as such. That, again, is one of the important things about the Safeguarding the Union document.
The other important thing is that it lays out the first declaration of something that is now commonplace in debate in this House: the necessary role of the Northern Ireland defence industries in the protection of the United Kingdom. It makes this absolutely clear, and it is the first signal of something that this Government have taken up very strongly. One of the reasons why I mention this is: where is the dynamic alignment with the Irish Republic, when we are emphasising above all the importance of the defence industries of Northern Ireland in the defence of the United Kingdom? It is important to remember these realities.
As I listened, I pictured the frustrations of life with the Windsor Framework. There are many such frustrations. The new SPS agreement may help, and I hope it does. One thing is clear, and the noble Lord, Lord Empey, made the point: one can no longer say in Northern Ireland that we alone are rule takers from the EU. The whole of the rest of the United Kingdom will now be rule takers from the whole of the EU in a different sense. The reason why it is fundamentally democratic is that this Parliament has a right to make these decisions.
Traditional unionism always accepted that. In the 1930s, when traditional unionism disliked the 1938 agreement, it still said, “Nothing to do with Stormont’s decisions. It is up to this Parliament to make these decisions, even if we are uneasy and dislike the various provisions of a particular trade agreement”. That is what traditional unionism stands for: the idea that this Parliament has a right to make these decisions. They are often very difficult and, it so happens, often very unsatisfactory in Northern Ireland.
There are difficulties. The University of Ulster economist Dr Esmond Birnie has been quite right to insist—other speakers have mentioned it tonight—about the fall-off in trade from Great Britain into Northern Ireland, particularly smaller concerns. The paperwork has put off smaller concerns exporting from the rest of the United Kingdom into Northern Ireland. There is absolutely no question that this is a problem, but there is also no doubt, for example, that many Northern Ireland businesses enjoy dual access and enjoy the access to the Irish Republic. There is no doubt that the Ulster Farmers’ Union seems increasingly relaxed, especially in the context of possible new SPS arrangements, about the Windsor Framework.
So, while it is perfectly correct that there are many unsatisfactory aspects of the current reality—Dr Esmond Birnie in particular has drawn careful and precise attention to this, and I hope the Government will pay attention to the various scholarly papers that he has produced—and while there is no doubt that these possibilities exist, there are also areas of success. The services industry in Northern Ireland is doing far better than anybody expected at this point. It is protected in the Windsor Framework quite explicitly and is doing far better than anybody—certainly myself—expected at this particular point in history.
Finally, I will say something on the point of phytosanitary arrangements. Back in the days of the BSE crisis, Dr Ian Paisley, leader of the DUP, went into No. 10 and said to Tony Blair, “I need to tell you that my farmers are British but my cattle are Irish”, because he wanted to make special arrangements. BSE was not so marked a feature in Northern Ireland as it was in the rest of the United Kingdom and, basically, he wanted a privileged relationship for Northern Irish farmers—“My farmers are British, but my cattle are Irish; respect that they currently do not have the same levels of BSE as they have in Derbyshire”. The logic behind this legislation is, “My gardeners are British but my plants are Irish”. It is hard to dispute or argue with it.
Finally, the noble Lord, Lord Frost, talked about those who suggest that you have to live with ambiguity and compromise in Northern Ireland. He expressed doubt and said that some of these compromises had been very unsatisfactory in the past 25 years. I am absolutely certain that there is no way that Northern Ireland can survive as part of the United Kingdom without compromise of the sort that has been made. He mentioned, for example, the logic of the Good Friday agreement. I am also clear in my mind that the union is never going to be available on exclusively unionist terms. That does not mean that the union is not available—the union has, at this point, a strong future ahead of it—but it is not going to be available on exclusively unionist terms. This is the point that we all have to accept.
There is irreducibly an element here. I have criticised the Irish negotiators of that agreement in 2017; they overplayed their hand, and the best Irish officials, in my view, now accept that. It left a lot of problems that the noble Lord, Lord Frost, had to struggle with, and in the first instance dealt with successfully. It left lots of problems, but the truth of the matter is that there are these two identities and Northern Ireland does face both ways. This cannot be avoided in the settlement, which must involve, at some level, a compromise. The protocol was definitely unfair to the mainstream unionist community, but the idea that we can just drop the Windsor Framework now—which, as I pointed out, has significant elements that work well for the unionist community—is not realistic.
Lord Morrow (DUP)
My Lords, speaking at this stage in the debate can be difficult, because much of what I was going to say has already been said, and perhaps said even more eloquently than I can say it. Just on the last point that the noble Lord, Lord Bew, made about Northern Ireland pointing both ways, we were of a clear understanding that the Belfast agreement actually articulated that.
Lord Dodds of Duncairn (DUP)
Does the noble Lord also accept that, as well as those capital costs, which are very significant, we have to add the £450 million-odd going into the Trader Support Service, the Movement Assistance Scheme and other schemes, adding up to hundreds of millions of pounds being thrown down the drain at a time when we are told that there is no money available for public services?
Lord Morrow (DUP)
I thank my colleague the noble Lord, Lord Dodds, who is forensic on this issue. He has again pointed out that the figure I have mentioned is but a fraction, and I thank him for making that point.
In the second instance, as the Explanatory Memorandum makes plain, if the UK Government judge that Heterobasidion irregulare, known to cause annosus root and butt rot, poses a non-acceptable risk to GB, would that not also pose an unacceptable risk to the rest of the United Kingdom? Similarly, if the United Kingdom Government have judged that specific import requirements must be imposed in relation to—this has been referred to—Popillia japonica, which is simply a Japanese beetle, because it is spreading in Europe, and that therefore it warrants additional measures to prevent its entry into GB, does the spread in the rest of Europe not similarly constitute a threat to the biosecurity of Northern Ireland? If the Minister’s answer is to be the same as her answer to us of 29 January on the related biosecurity foot and mouth question, I say respectfully that that will not do.
The levels of protection that the UK Government insisted on for GB—and rightly so—could not have been more different from those that the EU provided for Northern Ireland. The UK has abdicated its biosecurity responsibilities in relation to Northern Ireland, as the noble Baroness said. In this context, the claim by the Minister in the other place that Northern Ireland farms are just as important looks quite limp, downright pathetic and absurd.
The Minister responded, saying,
“he rightly laid out the situation that Northern Ireland is in as being part of the EU regulations and the fact there is a surveillance zone in Germany. I want to stress that the EU takes its biosecurity responsibilities for something like foot and mouth extremely seriously. There had not been a foot and mouth outbreak in Germany since 1988, so this is very significant for them”.—[Official Report, 29/1/25; cols. 359-60.]
That may not be as reassuring as some would perhaps want it to be, because we have heard this evening a charge of a dereliction of duty. Would there be any remote possibility that Europe could show a dereliction of duty at times too, or have we just to utterly trust it? Quite frankly, I am one who would not be prepared to utterly trust it. It is not enough to say that in Northern Ireland biosecurity standards are now determined by a different country from the rest of us, whose Government you do not elect and cannot change, but not to worry as they are very good in their duties. That is not acceptable any more.
The answer also fails the Windsor Framework because it demonstrates how its operation is now failing in its own terms. Article 1 of the Windsor Framework is designated as having very specific function by means of its heading, “Objectives”. I will not go into those because my colleague, the noble Lord, Lord Dodds, has already articulated that very well. If the Government are to fully and faithfully implement the Windsor Framework, the task of ensuring that its operation is faithful to those objectives is plainly of the utmost importance.
Furthermore, the objectives include a requirement that the Windsor Framework respects the territorial integrity and essential state functions of the United Kingdom. The regulations before us today do neither; they divide the United Kingdom of Great Britain and Northern Ireland into two, with an international SPS border, disrespecting the territorial integrity of the United Kingdom of GB and Northern Ireland. They testify to the fact that an essential state security function has been passed from the UK to the European Union, in whose legislature, Executive and judiciary the UK is not represented.
In her response to the debate, I very much hope that the Minister will not suggest that a veterinary agreement with the EU is the answer, for I must tell the House emphatically that it is not. If the Government negotiate an SPS agreement with the EU that will not remove the Irish Sea border or restore the territorial integrity of the United Kingdom, because the United Kingdom will still be divided into two by an international customs border and subject to EU law in all manner of areas—law that we do not make and cannot change—that is just not acceptable. We will still be subject to the EU customs code, which deems that Great Britain is a foreign country in relation to Northern Ireland.
In this, it is my purpose not to offer a counsel of despair—far from it. The truth is that the way the Government are managing the movement of non-qualifying Northern Ireland goods from Northern Ireland to GB, in respect of these and the other SPS regulations, through the Official Controls (Amendment) Regulations and without SPS checks on the border, already provides the answer of how to manage the SPS checks on the international border. However, things can be made even more robust by adopting mutual enforcement, which has already been mentioned by a number of speakers this evening. That has been developed within the EU Commission by Sir Jonathan Faull, together with the academics Professor Joseph Weiler and Professor Daniel Sarmiento, and it provides a means of protecting the integrity of both the United Kingdom internal market for goods and the EU internal market for goods without a hard border across the island of Ireland. I pose the question: what is so desperately wrong with that, when, in fact, it does not hurt either territory? There has to be some other reason that the Government must tell us.
If the current delivery mechanism of the Windsor Framework was exchanged for SPS checks away from the border, as is already the case on west-east movements together with mutual enforcement, the objectives of the Windsor Framework, as set out in Article 1, would be clearly met. Not only would the territorial integrity and the essential state functions of the United Kingdom be respected but the other components of the objectives of the Windsor Framework, as set out in Article 1, could then be fulfilled: namely, protecting the Good Friday agreement in all its dimensions. While I will not digress on that point, the reasons that the current Windsor Framework, far from protecting the Good Friday agreement in all its parts, constitutes the greatest existential threat to the 1998 agreement were eloquently set out recently in an important article in one of our local papers.
There are some strong advocates in this House for the Belfast agreement, and I fail to understand why they are silent on this matter, because it is not being protected. I appreciate that, in 2019, the EU decided that it preferred the Irish Sea border to mutual enforcement, but now we are in a situation where it is clear, in 2025—in part courtesy of the regulations before us today—that the changes necessitated by the Windsor Framework are causing it to contradict, violate and undermine its own objectives as set out by Article 1. The issue must be revisited as a matter of urgency.
In conclusion, I hope that the regulations before us today can rapidly be withdrawn and replaced by regulations that are not implicated in the division of the United Kingdom into two and in the ceding of essential state functions to an entity of which we are not a part. I stress, lest the Minister might be tempted to point this out, that Northern Ireland has been part of the same epidemiological unit since long before the introduction of the Irish Sea border. This point is well understood and is not relevant, because it was never objected to. What is objected to is Northern Ireland being divided from the rest of the United Kingdom by a customs border and an international SPS measure which necessitates Northern Ireland being disenfranchised in hundreds of areas of law.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, I respectfully remind the House it is a firm convention that the House normally rises around 10 pm on Mondays to Wednesdays unless there has been some other agreement—which there has not been tonight. We have had a very good and forensic debate and we are 90 minutes in, so I suggest that we should move on to Front-Bench contributions. If there are going to be any more Back-Bench contributions, I really must insist that, unlike the last couple, they are very brief in their content.
Lord Weir of Ballyholme (DUP)
My Lords, from that point of view, I had not originally intended to speak, but I suspect I may be the last Back-Bench contributor. In the true spirit of equality, it may be useful if I can make a few comments in relation to that. I am sure that the Front Benchers do not really object to being detained too much by what I think is a matter of crucial constitutional significance.
As I said, I had not originally intended to speak in this debate, not least because I agree with the vast bulk of what has been said and contributed to this debate, but I want to touch on just three points that came up during the debate. First, I think that the noble Lord, Lord Frost, is correct that, while this is a highly technical issue, it is one that speaks to much greater constitutional significance. As has been mentioned, this is symptomatic of a wider problem, and that has been the overall approach that has been taken over the last number of years. There have been a number of failures: a failure of planning, negotiation, detail and implementation. Nationally, we need to learn those lessons, particularly for the future.
Secondly, while it will come as no great surprise that I and my unionist colleagues on this Bench, from at least two parties, are not the greatest fans of the Northern Ireland protocol or the Windsor Framework, what is particularly concerning about this regulation is that it is actually worse than the protocol and the framework. As has been highlighted by the noble Lord, Lord Dodds, and others, at the very least in Article 1, which is supposed to protect security and indeed national security on biosecurity, we are left with a situation where we have what I call “protocol plus”: we have a situation in which the requirements of the Government have been gold-plated. The supposed safeguards have been largely disregarded. If anything, what is in the protocol would provide greater protection than what is there today.
Thirdly and finally, as a number of speakers—relatively critically from noble Lord, Lord Frost, probably more benignly from the noble Lord, Lord Hannay—have indicated, we can only really look at this debate in the context of the reset arrangements. There have been many promises made about that reset. Those of us in Northern Ireland will take a slight level of scepticism towards that. It is not what is promised that is important; it is what is delivered. It is not what is said; it is what is done.
To be fair to the Government, in terms of what they have promised, they have not suggested that the reset particularly solves some of the fundamental issues that are still there. We are still going to be left now. I await the Minister’s response in relation to this: that there will still be customs arrangements between Great Britain and Northern Ireland. Secondly, it is clear that it will not deal with the democratic deficit of the 300 areas of law. Thirdly, whatever arrangements are there in SPS, as I think was indicated by the noble Lord, Lord Frost, in one of his opening questions, it seems very apparent that that will not cover those goods outside of SPS on that basis.
In conclusion, let us for a moment take a much more rose-tinted approach to this and borrow from some of the suggestions of the noble Lord, Lord Hannay, that this will be greatly easing and improving the situation. If that is the case, it is because it would treat the United Kingdom, albeit in a situation in which it is largely subservient to dynamic alignment with the EU, as being one unit on that basis. That seems to be the direction of travel of the skeletal agreement that has been produced in respect of SPS.
If that is the case, and if that is something that is going to lead to a much more halcyon future for the country as a whole, I have to say that this regulation before us takes us in a diametrically opposed position, because it very explicitly brings about a situation that, from a biosecurity point of view, creates fortress Great Britain at the expense of dividing us off entirely from Northern Ireland. So I say in conclusion that, if you are a true believer in and advocate for the reset arrangements, actually you would find yourself in agreement with the regret Motion of the noble Lord, Lord Frost. I do not want to detain the House any longer and I look forward to the response of the Front Benches.
Baroness Grender (LD)
My Lords, we support these regulations as a sensible step to protect our biosecurity and reduce costly and deeply damaging barriers to trade, but we see this as just one stage of a much bigger journey. As my noble friend Lady Suttie has said in previous debates of this nature, these regulations are a stopgap. The real prize is a full sanitary and phytosanitary SPS veterinary agreement with the EU—something both sides committed to at last month’s summit. That would mean that one day our aim would be to do away with most border checks on plant and animal products altogether.
Indeed, we welcome the Government’s recent decision to delay new checks on medium-risk fruit and vegetables, an approach that a lot of industry rightly calls common sense. The extension until January 2027 gives businesses some breathing space, but everyone knows this is temporary and that the Government expect that a new SPS agreement will make these stopgap measures unnecessary.
The May summit made clear the aim: a common sanitary and phytosanitary area with no time limit. That would mean most goods, plants, animals and their products could move between Great Britain and the EU without the current certificates and controls. It would cut costs, ease pressure on food prices and end routine border checks. The benefits would also extend to Northern Ireland, thanks to the Windsor Framework. There is sometimes a myth that such an agreement would make Britain a rule taker. In reality, if we want to export, we always have to meet our trading partners’ standards. This deal would mean genuinely unfettered access to the EU market and therefore far less trade friction—friction that has been so damaging, for example, to our farmers in recent years.
Farming groups such as the NFU and the Country Land and Business Association have raised concerns about the role of European courts and the need for flexibility, especially around issues such as precision breeding and pesticides. The proposed agreement suggests dynamic alignment with the EU rules, but also promises a say for the UK and an independent arbitration panel. I am looking forward to a few more answers on this and the need to be sure that any dispute process is genuinely fair and respects our own parliamentary procedures.
This agreement could bring real benefits: lower prices, less red tape and more secure food supply. But I echo some of the requests in previous debates with questions to the Minister, especially from these Benches, about a clear timetable for finalising the implementation of the SPS agreement. So far, our understanding is that no date has been set. We would also like to know whether there is any risk to animal health or biosecurity while we wait for the new agreement to come. Ongoing surveillance in that period is obviously vital, but we do feel that reassurance is needed.
On another point, the Explanatory Memorandum mentions debt recovery and collection costs for unpaid fees. Can the Minister tell us the total cost of unpaid fees, the average fee charged, and whether non-payment is a widespread issue? If she is unable to answer that this evening, perhaps she could undertake to write; we would be very grateful. Finally, can the Minister confirm that there are robust checks to prevent goods deliberately avoiding control posts, now and in the future?
With regard to the Motion to Regret, I note at paragraph 17 of the Secondary Legislation Scrutiny Committee’s 15th report the submission from Jim Allister MP and the Defra response with reference to the use in the four nations of the UK plant health provisional common framework and that, for example, measures against Popillia japonica are already in place in Northern Ireland, and the rest of Great Britain has been catching up. I therefore have been a little confused by some of the contributions I have heard this evening.
Given the benefits so ably described by the noble Lord, Lord Hannay, and the very detailed and useful explanation from the noble Lord, Lord Bew, we will not be supporting the regret Motion tabled by the noble Lord, Lord Frost. We want to see these regulations and the wider agreement deliver what matters to people: less bureaucracy, lower costs and a stronger partnership with our closest trading neighbours, and we would prefer that sooner rather than later. That is what is best for our businesses, our farmers and ultimately our consumers.
Lord Roborough (Con)
My Lords, I thank all noble Lords who have contributed to this debate and my noble friend Lord Frost for bringing it to the Chamber.
At face value, this instrument appears to be a routine update, technical in nature and laudable in intent. It introduces new and stricter import controls on certain plant pests, including Heterobasidion irregulare and Popillia japonica, which are already spreading rapidly in parts of Europe. These steps are necessary. We have seen all too often the devastating consequences of failing to act quickly and unilaterally if necessary, whether to Phytophthora ramorum, which devastates our larches and causes sudden oak death, ash dieback, or threats to our commercial crops from the great spruce bark beetle and the eight-toothed European spruce bark beetle—for some reason, neither of those seem to have Latin names. I refer the House to my register of interests as a forest owner and a planter of new forests.
While these regulations seek to bolster biosecurity across Great Britain, they do not extend those same protections to Northern Ireland, and that is a shame. I know that the concerns of my noble friend are sincerely held and reflect the views of a great number of those in Northern Ireland in particular. As my noble friend Lord Caine has said on previous occasions, it is important that His Majesty’s Government and Opposition continue to listen to those concerns and seek to address them.
We are told that biosecurity is an essential state function. It is and it must be. But under the terms of the Windsor Framework, that essential function has been compromised. Biosecurity measures which apply robustly to England, Scotland and Wales are not being applied to Northern Ireland in the same way. In effect, plant health in Northern Ireland is now subject to the policy choices of the EU and not, as it should be, to the collective will of this sovereign Parliament. However, the Windsor Framework was the best deal available to us while in government, and we continue to support it, while urging this Government to try to improve on it. For that reason, we do not support my noble friend Lord Frost’s regret Motion.
My noble friend Lord Frost and others have already mentioned the new sanitary and phytosanitary deal with the EU, which is designed to ease trade by removing checks on food. To add to the many questions posed to the Minister, could she reassure us that this will not provide an easier entry for plant diseases and a repeat of the imported pests that I mentioned earlier as happened while we were in the EU? What checks will remain in place to protect our natural environment?
The EU deal appears to have betrayed our fishers in return for reduced checks. The farmed salmon industry seems to be the only fish and seafood group to have spoken in support of this deal. The damaging effects of this industry on the environment have been debated at length in this House during Committee and Report of the now Crown Estate Act. The farmed salmon industry is distinct from the UK fishing industry, which has greeted the deal with deep disappointment.
In answer to my Oral Question two months ago, the Minister gave encouraging answers, which I will briefly quote:
“after the end of the fisheries adjustment period set out in the trade and co-operation agreement, European Union access to UK waters, and vice versa, become a matter for annual renegotiation, as is typical between coastal states … as a Government, we will always push for the best opportunities for our fishers and the fishery industry”.—[Official Report, 31/3/25; col. 8.]
The end of the trade and co-operation agreement in June 2026 represented the opportunity to increase the size of our fishing effort by 60%, with full zonal attachment in our exclusive economic zone—a huge economic opportunity for deprived coastal communities. The deal was a betrayal of those communities and those who live and work in the fishing industry. We are now committed to a 12-year extension of the very disappointing status quo. Was this phytosanitary deal really worth that betrayal? The benefits of trade accrue to both sides of that trade, so why should any price be paid, let alone such a high price?
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)
My Lords, I thank the noble Lord, Lord Frost, for introducing this Motion and noble Lords who have contributed to the debate today with such passion and energy. I have, as ever, listened very carefully to all the concerns that have been raised, but I want to draw the attention of noble Lords back to the very positive impact that this legislation has.
Protecting our biosecurity is of paramount importance to address the climate and biodiversity crisis. This instrument introduces and amends protective measures against high-risk plant pests in Great Britain, as identified by our risk and horizon scanning process. As a result, this instrument protects biosecurity and supports trade in the UK. As part of these technical changes, this instrument recategorises certain plants and plant products, again following the completion of the risk assessments, as committed to under the Border Target Operating Model. This is part of an ongoing technical review of plant products subject to plant health import requirements and maintains the GB plant health regime as risk-based and proportionate. This instrument also amends certain official control measures to exclude large plants, plant products and other objects from the requirement for unloading in an area with a roof. This provision enables the implementation of appropriate biosecurity standards in those cases.
I emphasise that this instrument does not separate Northern Ireland from the rest of the United Kingdom or treat Northern Ireland as a third country. Indeed, several of the measures in the instrument actually ensure that Great Britain is applying measures already in place in Northern Ireland. I am sure that noble Lords will not be surprised when I remind the House that the island of Ireland has been treated as a single epidemiological unit for decades. Under this regime, Northern Ireland implements official controls and additional protections in response to pest risks to maintain its biosecurity as part of the island of Ireland.
This instrument also upholds the Government’s policy of unfettered market access in relation to qualifying Northern Ireland goods. Indeed, the Windsor Framework underscores Northern Ireland’s place in the UK. The UK Government want to see the Windsor Framework’s benefits realised for the benefits of businesses and people in Northern Ireland, and right across the UK, in a manner that meets our international obligations, so I am pleased to state that the devolved Governments gave their consent for these regulations to extend across Great Britain. The UK Government and all devolved Governments will continue to work closely together on plant health issues via the UK plant health provisional common framework.
Noble Lords may be interested to note that I had a meeting only this morning with representatives from all devolved Governments—with Ministers—to discuss the BTOM in the context of the SPS agreement. I have listened carefully to the points made by the noble Lord, Lord Frost, in support of his Motion, and to other contributors in today’s debate, and have been struck by our shared commitment to protect UK biosecurity.
I also thank the noble Baroness, Lady Grender, and the noble Lords, Lord Bew and Lord Hannay of Chiswick, for supporting the SI this evening. In respect of the late hour, I will address the noble Lord’s points that relate directly to the legislation which is in front of this evening. I will go through Hansard and any questions that I have not answered I will answer in writing— for example, on the fees, for which I do not have the details with me.
The noble Lord, Lord Frost, asked why the SI applied only to GB. As I said, the island of Ireland has been treated as a single epidemiological unit for decades. The important thing that these regulations are doing is amending the GB-specific phytosanitary legislation to ensure that the biosecurity risks posed to the United Kingdom are addressed. These are already covered in Northern Ireland. We will continue to work closely with Northern Ireland on plant health issues. Northern Ireland will continue to play a full and comprehensive role in technical and policy decisions via the UK plant health provision or common framework.
The noble Lord, Lord Morrow, referred to the Explanatory Memorandum and third countries. To reassure him, this SI applies phytosanitary controls to European Union and rest of the world goods when entering Great Britain. That is the third country mentioned in the EM. A number of noble Lords mentioned the SPS agreement, asking what was in it and what checks would remain. The agreement will cover SPS standards and controls and wider agri-food rules related to food labelling, organics, key marketing standards and compositional standards, as well as pesticides. This is regarding checks, specifically. This will further bring down costs for UK businesses by removing the majority of regulatory trade barriers to agri-food trade, hopefully helping with the trade drop that the noble Lord, Lord Bew, referenced earlier.
We want to get the best deal for British businesses and British people. There is a very limited scope of application to the agreement. We are making commitments to regulate consistently only where that commitment removes a barrier to trade. The EU cannot unilaterally dictate the regulations which the UK must implement. The UK will have to agree and then implement any new rules. It is not like when we were a member state and EU law could flow into the UK even if we had voted against it. We are not returning to those arrangements. This is about regulating in the same way in some limited areas where the UK will also have a role in shaping the relevant laws as they are designed. Again, with regard to the SBS agreement, I have been asked for some specifics, but, because detailed negotiations are ongoing, I cannot provide that information at the moment. But it will come to the House in due course.
The noble Baroness, Lady Hoey, asked why the SPS border has to be in the Irish Sea. The Windsor Framework recognises Northern Ireland’s unique circumstances and therefore prevents the hard border on the island of Ireland. There is a need to maintain the biosecurity of the island of Ireland. Some pests that could pose a risk to Northern Ireland, such as protected zone pests, are present in Great Britain. Therefore, it is appropriate to have procedures in place to ensure compliance with the applicable requirements.
Baroness Hayman of Ullock (Lab)
To be honest, I am not going to take any interventions; it has gone 11 pm.
On plant health threats, the UK Plant Health Service, as I mentioned earlier, has Defra, the Scottish Government, the Welsh Government, the Northern Ireland Executive, DAERA and the Forestry Commission as part of it. So it is properly considered and looked at. The noble Lords, Lord Dodds and Lord Roborough, talked about the removal of border checks putting biosecurity at risk, looking in particular at the rising pest risk in the EU. The agreement will explicitly allow for the UK to take action to protect biosecurity. This will mean that the UK has access to EU databases and other systems to help us do this. This is a big benefit. The common understanding is that the UK should be able to take targeted action to protect its biosecurity in public health, in the same way as member states can in the EU.
The noble Lord, Lord Dodds, mentioned FMD protection for Northern Ireland. As he said, Northern Ireland is protected under the biosecurity regime of the EU. Northern Ireland implements official controls and additional protections in response to risk, such as measures related to pest-free areas, traceability and additional notification requirements for the highest- risk goods in order to maintain the island of Ireland’s biosecurity.
The noble Lord, Lord Lilley, and the noble Baroness, Lady Grender, asked about Popillia japonica. The noble Baroness rightly said that the reason these pests are mentioned in this SI is that the new requirements are already in place in Northern Ireland, so this is bringing the rest of GB into alignment with Northern Ireland; that is what the SI does.
Baroness Hayman of Ullock (Lab)
I have said I am not taking any interventions.
Lord Lilley (Con)
The Minister has not replied to a single point I made. If the bug does not exist in Ireland, why are we inspecting goods coming from Ireland?
Baroness Hayman of Ullock (Lab)
There are plenty of bugs that do not exist in our other countries and are far away that still have the propensity to come here or could possibly arrive here. Therefore, we need to be absolutely vigilant regarding any new potential pests and diseases. The noble Lord, Lord Roborough, talked about the devastating consequences if we do not do that, so we absolutely need to be doing this.
I just have a couple of points and then I am going to wind up, because it is getting late. I will go to Hansard and write on any outstanding points. The noble Lord, Lord Empey, mentioned the trade and co-operation agreement and that its review is due next year. I will take that back to the department and speak about the noble Lord’s concerns on this, because he made a very sensible and relevant point. I completely agreed with the noble Lord, Lord Bew, regarding compromise. It is an extremely important point to make and, if we are to move forward, compromise is going to be critical.
In conclusion, I emphasise that this instrument is a routine update that ensures that risk-based and proportionate biosecurity controls are in operation in Great Britain. Northern Ireland continues to be able to respond to pest risks specifically for Northern Ireland where needed, and will continue to play a full and comprehensive role in technical and policy decisions affecting the UK as a whole.
I remind noble Lords that I meet regularly with DAERA and the Northern Ireland Ministers and their team. Also, I understand that we have a regular meeting of our Northern Ireland Peers this Wednesday, so I am sure that we can pick up many of these issues and continue further at that meeting.
Finally, it is very late. It has gone 11 pm, so I thank all the staff who have stayed and supported us in the House at this late hour.
Lord Frost (Con)
My Lords, I too thank the Minister, the Front-Benchers, noble Lords who stayed late and, indeed, the staff who have kept the Chamber running this evening. This has been an important debate and I will not prolong the discussion.
I have some sympathy with the view expressed by my noble friend Lord Lilley that not all the detailed questions were answered—perhaps understandably— in the round-up. I hope the Minister will look through Hansard and, in particular, at the three specific questions I asked, in addition to others.
I thank all those Members of your Lordships’ House who expressed support for the points I made this evening. I even thank the noble Lord, Lord Hannay, although I suspect his frustration at Brexit might have led him not to pay full attention to everything I said. Indeed, I think we even agreed on one point, which is that an SPS agreement will not cover every barrier that currently exists on SPS.
In winding up, I will react in particular to the comments that the noble Lord, Lord Bew, made. He is absolutely reasonable in saying that one could have different degrees of dissatisfaction with the Windsor Framework arrangements while still thinking that any solution might be imperfect. That is true, and we do have different if often very strong degrees of dissatisfaction.
My concern would be whether it is a stable ending point, not merely an unsatisfactory one. We have heard, and the concerns expressed show, that it probably is not stable. The reality is that having part of your country governed by another entity is not stable. In the end, there are only two stable points: one is to extend the anomaly to the rest of the country—that seems to be the approach that the Government plan to take in the reset—and the other is to remove the anomaly where it exists, which is in Northern Ireland. I hope that is the direction that will be taken.
The issues have been fully aired tonight, if not exactly resolved, and I will not seek to divide the House. I beg leave to withdraw my Motion.