Professional Qualifications Bill [HL]

Baroness Hayter of Kentish Town Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I slightly have the feeling that the back of an envelope was used for the drafting of the Bill. I could be quite wrong, but it has that feel about it.

I actually really welcome the “purpose” framing of the Bill—and here, unusually on this Bill, I disagree with the noble Baroness, Lady Noakes—because I think that such framing is extraordinarily useful when one later comes either to court cases, which have in the past occasionally been involved in determining what the purpose of a Bill was or what it meant, or to looking at statutory instruments. I like the idea of setting out what a Bill is for and what it is trying to achieve. Therefore, I welcome Amendment 1, although I have a question about one part of it.

What seems to me really important about Amendment 1 is the second part:

“Nothing in this Act affects the independent process of defining the accreditation processes of the regulators.”


As the noble Lord, Lord Purvis, said, this statement is of great importance. It clearly underlines many of the concerns raised with us—and, I am sure, with others around the House—by regulators, that somehow the Government will tell them how or when to accept the qualifications or experience gained under other jurisdictions so as to allow an individual to practice here. Indeed, this concern is reflected in Amendment 12, spoken to by the noble Lord, Lord Palmer, which emphasises that regulators should be able to rule on whether someone meets their standards.

As I said at Second Reading, regulation is all about protecting the public and the consumer or user interest. It is why we restrict when someone can call themselves a lawyer or a doctor. The comfort that gives to a client or a patient is obvious: it is shorthand for saying that someone has trained them up, someone has tested them, and someone knows they are fit to practice. For consumers, that is a really important purpose of regulation. It is why we have set up, in law, independent regulators to be able to decide whether somebody meets the recognised standards. They do of course do more than that—they look at CPD, at discipline and at various other issues—but for the purpose of this, it is about setting a standard and ensuring that someone can meet that standard before they practice, to protect users of the service. That part of Amendment 1 is really important.

What I am querying is the other bit, which says that the purpose of the Act—and as I said, I like the idea of a purpose of an Act—is to

“give regulators the necessary powers to ensure demand for professions can be met in the United Kingdom.”

Of course, that does not describe the Bill as it is at the moment; that is only one arm of the Bill. Indeed, the regulators who have been in touch with us say about the part I have just quoted that they can do it anyway, and ask why we are passing a Bill to give them powers that they already have. None of the regulators has been clamouring for these powers. Nobody, while we were in the EU, came to us and said, “Look, outside the EU we would love to have lawyers, doctors, vets”—I forget who is on the long list now—“from another country, but we are not able, because of our statutes, to have a process to take them in”. So this has got nothing to do with leaving the EU; either they had those powers before and they were not used, or they did not have them before and never felt the need of them. Nobody is asking for these powers. It is quite extraordinary that the back-of-an-envelope drafting managed to drop that bit in. Basically, that is what the regulators have been telling us.

We have also had the noble Lord, Lord Trees, telling us, from the veterinary surgeons’ point of view, that they have been able to do this. The noble Baroness, Lady Finlay, knows that the GMC has been able to recognise doctors’ qualifications and experience from around the world. None of the regulators needs this, so it is very hard to understand why it is being dropped in.

Of course, partly it is being dropped in because the purpose of the Bill is not simply to look at where there may not be sufficient professionals here. The Government say that they want to do trade deals, and, as part of those, want to be able to sell—or is it offer or swap?—the rights of professionals from other jurisdictions to come here. Actually, I think that that is what the Bill is about. Perhaps the noble Lord, Lord Fox, deliberately did not put it in the purpose of the Bill as he knows we are coming later to try to delete Clause 3 because we have our doubts about it.

It seems to me that we need to be clear whether we need the first bit. I will ask the Minister later—I have given him notice—which of the 160 regulators in the letter to the noble Baroness, Lady Noakes, do not already have the powers. If there are three of them, are we really passing a Bill for three regulators that cannot do it and probably do not want to do it anyway? I think that broad question needs to be asked. We will come on to that.

There is a big issue around whether the Government should be asking a regulator to do something it does not want to do. If a regulator wants to put in a process for recognising qualifications from another country, it has probably already done so anyway. We are therefore looking only at situations where it does not want to do it, and the Government are saying, “Nevertheless, we want you to”. We are going to come back to ask whether it is right that that should happen.

Going back to the second part of Amendment 1, the Minister has said in a letter to me—and to others too, I am sure; I do not think I get special words from him—that he

“fully recognises that the autonomy of regulators in assessing standards is key to protecting consumers and public safety and … in all negotiations a key concern for the government is ensuring the autonomy of UK regulators and protecting UK standards”.

If he is willing to put that in a letter to me, I see no reason why he should not put it in the Bill, so I hope he will at least accept the second part of Amendment 1.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I thank the noble Lords, Lord Fox, Lord Purvis of Tweed and Lord Palmer of Childs Hill, for their proposed Amendments 1 and 12. These amendments would enshrine a purpose for the Bill and seek to avoid unreasonable burdens on regulators. I think we all recognise that, although this is a short Bill, it is a very complex one, as any Bill dealing with a landscape composed of more than 50 regulators and more than 160 professions was bound to be.

Many of the points raised in the debate, which I listened to very carefully, relate to the detail of subsequent clauses. So I propose, and I hope this is acceptable, to deal with these points later, in the order in which they come up in the Bill, rather than attempt to deal with all the points now. I have to say that I am very optimistic that, when I come to these points later, I will be able to deal with and assuage the anxieties expressed by noble Lords.

Coming back to the amendments in this group, I start with Amendment 1, tabled by the noble Lords, Lord Fox and Lord Purvis of Tweed. I accept that the noble Lord, Lord Fox, was trying to be helpful, as he always is, in tabling his amendment. The proposed new clause contains two provisions, and I will take them in turn.

First, the amendment states that

“The purpose of this Act is to give regulators the necessary powers to ensure demand for professions can be met in the United Kingdom”.


I am in firm agreement with the noble Lords’ intent. Indeed, one of the core purposes of the Bill is to give regulators the powers they need to enable demand for the services of professions in the UK, or part of it, to be met without unreasonable cost or delay. In essence, that is the purpose of Clauses 1 and 2. It is unnecessary to state one of the core purposes of the Bill separately, as it is already contained in Clause 2.

The Bill’s objectives, however—I think that this is clear to all of us—are wider than the purpose expressed in this proposed new clause alone. Do the noble Lords intend to limit the Bill only to responding to demand for services? That would be an opportunity missed. I will outline other important objectives of the Bill. It gives UK government Ministers and devolved Administrations powers to implement the professional qualification provisions of international agreements, and to empower regulators to enter into their own recognition agreements. These support the UK’s trade agenda. Having these powers has the knock-on benefit of helping to address demand for professions. Taken alone, however, these clauses are about international agreements and not demand for professions.

The Bill also has an important objective in relation to targeted steps for good regulatory practice. The clauses on transparency and information-sharing will support regulators in operating efficiently and individuals in entering professions. They are not necessarily about the demand for professions. I hope that the noble Lords recognise that these are also worthy purposes of the Bill.

The second provision in the proposed new clause outlines that nothing in the Bill affects the independent process of defining the accreditation process of regulators. As we all know, that process is important in maintaining professional standards in the UK. Once again, I find myself in firm agreement with the noble Lords’ intent. The Government are committed to upholding the autonomy of our regulators.

The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke with great knowledge of this in the context of the legal profession, and I completely agree with his views about the need for the independence of the profession to be maintained. Let me say at the outset—I am sure that this is common ground across the Committee—that our regulators are the experts in their fields. They make sure that high professional standards are maintained. The core of the Bill supports the autonomy of regulators and their freedom to determine whether an individual with overseas professional qualifications is fit to practise in the UK.

Furthermore, and importantly, I am pleased to say that the regulators I have spoken to—I have spoken to a great number of them—agree that the Government are not interfering with their independence in the Bill. I add that I agree with my noble friend Lady Noakes about purpose clauses, especially when, as in the Bill, they serve no useful purpose. I am not therefore convinced of the need to set out the importance of the independence of regulators’ processes in an additional clause in the Bill, when the autonomy is manifest already. That autonomy, I beg to suggest, runs like a golden thread throughout the whole Bill.

I know we will come back to delegated powers when we debate individual clauses, but I appreciate the point raised by noble Lords that, with many powers contained in the Bill, a statement enshrining the purpose of the Bill would offer reassurance. I repeat, however, that those principles are delivered through the substance of the Bill, and I will offer arguments on the necessity of the powers later in the debate. I hope that they will assuage the fears of the noble Lords, Lord Hunt of Kings Heath and Lord Purvis of Tweed, and others.

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[Lord Fox (LD)]

My Lords, I join noble Lords in congratulating the Minister on moving quickly on this. I also congratulate the GMC and the Nursing and Midwifery Council on moving quickly in terms of raising this issue with Her Majesty’s Government. Reflecting back on some of the things we heard in the debate on the first group of amendments, it seems that there are other professional groups in regulated professions that still have outstanding issues. I hope that the Minister can confirm that his door is just as widely open for them to bring their issues forward, albeit somewhat later, so that we can clear them up.

The Minister talked about whether we were assuaged and then stated that the Secretary of State for Health could bring forward statutory instruments concerning the health profession. We knew that. What we do not know, and what has not yet been answered, is how conditions set and laws made by this Bill that reflect on the consultation—as the noble Lord, Lord Purvis, set out frankly, this Bill and the DHSC consultation are travelling in highly contradictory directions—will affect the consultation and the health professions. It is that direction that we are more interested in, rather than the opposite.

I associate myself with the comments made by my noble friend Lady Garden of Frognal. These amendments are welcome. I note that, along with the noble Baroness, Lady Finlay of Llandaff, we expect to debate the word “substantially” later because we have some concerns around that. I also note her point about future regulators, so to speak. My assumption is that those regulators will be established by a different process somewhere else but, in order to add those additional regulators to this Bill, we will be seeing some more of the Minister’s statutory instruments in future. Perhaps the Minister can be clear about how future new regulators will be added to the terms of this Bill.

The noble Baroness, Lady Noakes, does not regard the noble Lord, Lord Lansley, as the Opposition, and I kind of do not, either. In this respect, I think the Minister would do well to listen to his very wise advice.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as has been said, the changes made are welcome. However, we should reflect that there are still concerns over the powers. On 7 June, the Delegated Powers Committee produced a report on the changes. It said that the Government had still failed

“to explain what such ‘additional requirements’ or ‘conditions’ might be”

and—this is the important bit—had failed

“to explain why the amendment would leave it to Ministers to determine … whether there are to be any such conditions and, if so, what those conditions are to be.”

The committee also said that the Government had failed

“to explain why all such conditions should be a matter for secondary legislation”

rather than primary legislation—a theme to which we will continue to return.

As the noble Lord, Lord Patel, said, the GMC welcomes the changes but has asked for a couple of things to be put on the record by the Minister today. For example, can the decision on whether a particular professional is able to join a register be based on an assessment of that individual’s knowledge, skills and experience, rather than on just their qualification? Also, will the regulators make that assessment? As the noble Lord said, the GMC has asked for that, but I must say, as a potential patient, that I too would like an absolute assurance that it will be the regulator who says that someone is fit to start cutting me open, or whatever else anyone would do.

On the little secret we heard about in the briefing from the other side of the House, perhaps the mistake next time could be calling my amendment a government amendment, because that way we might be able to get it through without anyone noticing. I live in hope.

The issue raised by the noble Lord, Lord Lansley, is a good one. I also wonder whether the Bill needs an “and/or”. That seems to go to the strength of putting this amendment to one side and putting it in on Report. The Minister should not think that there is any egg on his face or anything if we ask for a pause. As I am sure he will know, it is very normal for government amendments to be put in on Report; otherwise, they have to be brought back, slightly clunkily, at Third Reading, by which time we are normally rather tired and want to leave early. So if the noble Lord could not push his amendment today so that we can deal with it on Report, that might be the best way forward.

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This is all so much more complex than “substantially”, and the Bill needs a significant amendment to reflect this.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the requirement to speak Welsh in Wales is rather important.

I have some sympathy with the Minister. Later, we will get to our proposed new schedule—it is on pages 18 and 19 of the Marshalled List—to specify the regulators, again referring to the letter sent to the noble Baroness, Lady Noakes. The range of regulators covered by the Bill—and if they are covered they should be in the Bill—includes farriers, who may never have gone to university and for whom none of this might apply.

One has to be careful. Part of the problem is that we are trying to write a Bill for an enormous range of professionals. It does not include the Church—the right reverend Prelate will be very pleased—and their qualifications are probably recognised across different jurisdictions, but it includes all sorts of others, such as driving instructors. I used to call their body the DVLC, but I think it is now called the DVSA. It may well be that, in order to be able to instruct people, a driving instructor has to have five years post their own driving licence in one country but six in another. There may well be bits that are substantially the same, but I understand why we would want to include them. We are not just talking about the health service. I see the problems with that, but as a patient I would want the qualifications to be the same if not higher if we are recognising someone here.

Part of the problem is that, in writing what looks like a simple piece of law to cover the Security Industry Authority, the Royal Society of Chemistry and the Highways Agency—presumably the people who check that the roads are safe; I do not know what they do but they are in here—we have ended up with a Bill that tries to ensure that both doctors and farriers, for whatever reason the latter are regulated, are of high quality. I have some sympathy, but nevertheless I see a substantial problem in allowing too much flexibility, which would not be in the interests of patients in particular and maybe of other clients in sensitive areas. I look forward, as they say, to the Minister’s response.

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Baroness, Lady Garden of Frognal, for tabling Amendments 4, 5, 7, 8 and 33, which probe the use of the word “substantially” in Clauses 1 and 4, and I thank the noble Baroness, Lady Randerson, for her comments. The point is that, in the end, it is the individual who must be fit to practise, and the assessments that we make must relate to the individual. It is here where the important matter of regulator autonomy comes in, and why it is that the only people who can safely work out what is the appropriate route for a particular profession and the right mix between the individual, the skills and the qualifications seems quite properly to be the regulator. That is the key safeguard that we want to achieve under the Bill.

I turn to the amendments. As we know, Clause 1 is the “Power to provide for individuals to be treated as having UK qualifications”. If amended as the Government suggest, under Clause 1 an individual would be treated as having UK qualifications if the regulator determined that the individual had substantially the same knowledge and skills to substantially the same standard as are demonstrated by the specified UK qualification or experience. The noble Baroness asked some interesting questions about this approach and whether it undermines the freedom of UK regulators. I reassure noble Lords that the issue has been very carefully considered.

If we removed the word “substantially” from Clause 1, that would change the requirement such that individuals would need the same knowledge and skills to the same standard as demonstrated by the specified UK qualification or experience. That suggests an assumption that it is often the case that skills and knowledge gained in one country for a profession exactly match those gained in another country for that profession. It also suggests an assumption that it is often the case that a profession in one country covers exactly the same set of activities as the equivalent profession in another country. Of course, these assumptions are not necessarily valid. So while it might make it easier for UK regulators to decline applications, removing “substantially” would remove regulators’ flexibility in considering how skills and knowledge developed overseas translate into the UK profession.

In the event that regulations were made under Clause 1 as drafted, regulators would have the discretion—and I believe that is where the discretion should sit—to make appropriate judgments about whether overseas skills and experiences meet their expectations to an acceptable degree. That drives us back to the consideration of whether the individual is fit to practise in substantially the same way as a UK individual would. This does not water down expectations and is not a compromise on quality, because if a regulator felt that the quality had not been maintained then they would not want to approve that person. The individual’s knowledge and skills must be substantially the same.

Lastly, including “substantially” does not restrict the freedom of regulators to make determinations of equivalence in ways that they deem fit. We come back to a point that we discuss regularly in this debate: the importance of regulators’ autonomy in deciding exactly the right approach to take.

On the question of English language proficiency, at Second Reading the noble Baroness raised the need in certain professions for demonstrable English language proficiency in order for an individual to deliver professional services to the standards required in the UK, and for regulators to be able to consider this. The Bill allows regulators to take into account language requirements as part of an assessment of knowledge and skills. Alternatively, under Amendments 2 and 10, regulations could provide that passing a language test was an additional condition in itself.

Amendment 33 examines the definition of “corresponding profession” in relation to authorisation that can be given by the appropriate national authority to enable regulators to enter into regulator recognition agreements. The amendment would change the permitted scope of regulator recognition agreements from those with overseas professions whose activities are

“the same as or substantially correspond to”

the UK profession to those with overseas professions that are “the same as or correspond to” the UK profession. As I have explained, there are differences between professions in different countries, and differences between how they are regulated between jurisdictions. Even under the EU’s prescriptive mutual recognition of professional qualifications directive, there were differences in the qualification requirements between different EU member states. The clause as drafted reflects the reality that professions do not exactly align across different countries’ regulatory systems and standards. Some countries do not make the same distinctions as us in how they define professions—for example, England and Wales distinguish between barristers and solicitors, but that is not the case in many other countries.

The amendment would narrow the circumstances in which a recognition agreement could be made, potentially preventing recognition agreements from being made at all if professions did not directly align with one another. The Government believe this would limit the autonomy of regulators to make decisions about how similar professions are in different countries. Regulators should be free to determine for themselves where it is appropriate to enter into regulator recognition agreements with their counterparts overseas.

Many noble Lords have spoken passionately about the need to ensure that regulators can make decisions that are appropriate to their professions. I hope I have explained why the word “substantially” is an important qualifier that allows for more regulatory autonomy in these clauses, and indeed in the other clauses where it is used, and that, on that basis, the noble Baroness is able to withdraw her amendment.

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[Lord Purvis of Tweed (LD)]

I am grateful to the noble Baroness for bringing forward these amendments. She is very modest and did not tell the Committee whether they are considered opposition amendments, but, if it is not too unhelpful for her, I will say that I am very sympathetic to them. We have been considering them very carefully.

The noble Lord, Lord Lansley, quoted the interesting response from the noble Lord, Lord Grimstone. I think it was fairly clear that the Government intend to have these powers to, if they so choose, change the ability of the regulators to set fees for applicants. The Government will take those on board and then, for international trade purposes, set the fees for applicants. That changes the responsibility of the regulator quite dramatically, especially since many regulators, under law, have to seek approval from the Privy Council or the Scottish Parliament to do so.

I ask the noble Baroness, Lady Bloomfield, whether she might respond to the two times I asked the noble Lord, Lord Grimstone, about whether any of the regulations under this Bill will impact the oversight and accountability of the Privy Council regarding the setting of fees and the professional standards authority regarding its oversight. If the Government cannot, in Committee, offer reassurance on that point, then we are in a separate situation of considering the relationship of the Privy Council and Scottish Parliament.

If the Government intend to have the new powers now under the provisions of Clause 1(5)(e), which makes

“provision for fees to be paid in connection with an application”,

we have to look very closely at the impact assessment with regard to the impact of the Bill on fees. In their impact assessment, the Government have said that there is a high cost of this Bill of £42.82 million and a best estimate of £18.16 million. Let me be fair to the Government and take their best estimate of £18 million. The impact assessment says:

“These costs could be passed through in fee increases to professionals”.


I raised the staggering costs of this to professionals—the applicants—at Second Reading. The Minister responded that I should not be too concerned because this was not cost to the Government. It is not—it is to the applicants. I think the noble Baroness, Lady Noakes, and I agree; the Government do not have money—it is taxpayers’ money, as we are always told from that side of the House. The people who will be paying £18 million for this are the applicants. The Government say they want these new powers to reduce fees, but by implementing these powers the fees are going up. What is their plan, given that one completely contradicts the other?

The Minister may be able to help me out here as I do not know, but it may be that the Government are using the Home Office forecast of a 70% reduction in applicants from the EEA and Switzerland as a result of leaving the mutual recognition arrangements with the EU. Paragraph 90 of the Government’s impact assessment says that this

“may save resources by no longer assessing applications. It should be noted however that these regulators will also no longer receive the fee revenue attached to these applications.”

We could see a 70% reduction in the foreign fee applications, with an £18 million increase in this bureaucracy, which the Government say is going to be paid by British applicants.

I hope that the Committee is following me. If it is, I will refer back to the Department of Health and Social Care’s live consultation on the medical professions, which says in paragraphs 71 and 72:

“Four regulators (the GMC, GDC, GOC and the GPhC) can set registrant fees without any Parliamentary oversight. The remaining regulators can only implement fee changes with the approval of the Privy Council and, in some cases, of the Scottish Parliament ... We propose that all regulators should be able to set their fees in rules without Parliamentary oversight. This will make regulators directly accountable to registrants for the fees that they charge.”


However, this Bill will not do that; in fact, it is completely contrary to the proposals in the consultation for the medical professions to remove parliamentary oversight. The Bill is putting it in.

If that were not bad enough, the current situation for regulators setting their fees, as paragraph 73 says, is:

“Any fee changes, including those to put in place a longer-term approach, would require consultation.”


The Government are proposing—this relates to the point made by the noble Lord, Lord Lansley, about where the amendment of the noble Baroness, Lady Noakes, could fit—to put these regulations in place, with these provisions on fees and extra costs, through the negative procedure without any consultation. The Government are not only contradicting what they are saying to the medical regulators at the moment but weakening the ability of—or the requirement for—regulators to consult on who would pay these fees in the first place.

I would be grateful if the Minister could neatly wrap all this up for me because I am really struggling to work out whether BEIS or the Department of Health and Social Care is in charge of this situation. The impression I get at the moment is that no one is.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I will dwell on Amendment 18 in the name of the noble Lord, Lord Lansley. As he said, delays to services may not have anything to do with the workforce, although they may. I put my hands up: I live in a cladded building at the moment, and we feel strongly the lack of specialist fire surveyors to get things going. Therefore, one may have unmet demand for all sorts of reasons. Another one—save I would not want to say it to the ex-Secretary of State for Health—might be that the Government just do not spend enough money on the health service.

The issue that I really wanted to raise is not that one—I just cannot help teasing from time to time, as the Minister will well know—but the other point that the noble Lord, Lord Lansley, raised. In that letter sent by the noble Lord, Lord Grimstone, on 3 June to the Delegated Powers and Regulatory Reform Committee, which is in its report of Monday, the Minister said—it has already been quoted—that, in ascertaining whether there is an unmet demand for a particular profession, “delay” could be a factor. More surprising to me to hear from a Minister on that side of the House was his reference to “high charges” charged by the profession. Normally, that side of the House in particular would stray away from any government intervention in the setting of fees by professions or indeed any other service. As a consumer representative, I have often gone to the CMA or other regulators, saying, “We’re being ripped off”, and they say, “No; as long as the consumer knows what they’re paying beforehand and has the chance to take themselves out of the contract, we or the Government do not get involved in the fees charged to consumers”. As such, I find this unusual because it sounds like the Government are saying that if they felt that lawyers or surveyors, for example, were charging “high” fees—that was the word that the Minister used in the letter, not “excessive”—they could bring in regulation to open up the profession to outsiders. I hope that I have got that wrong, but it looks to me as if that is what this says, or it could be a way of defining it.

In a later group, we will come back to how we deal with skills shortages, and we will make comments at that point about the Government’s responsibility to fill any such shortages. However, at the moment, I ask for some explanation about whether it really is possible for the Government to put themselves in a position of defining whether a professional is charging excessive fees and, if so, being more sympathetic to bringing in overseas providers. Some clarity on that would be appreciated.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I thank my noble friends Lady Noakes and Lord Lansley for Amendments 9 and 18, which bring together two elements of the recognition framework proposed under the Bill. Noble Lords have raised some interesting points about the Bill’s potential impact on professionals and consumers of their services.

I turn first to Amendment 9, tabled by my noble friend Lady Noakes, which seeks to ensure that any cost or burden on UK regulators in helping individuals with overseas qualifications or experience to make up deficiencies in their knowledge or skills is reasonable. The amendment proposes that particular means of addressing these deficiencies should not be available if the costs or other burdens on UK regulators and existing UK professionals, including those who fund professional bodies, are not reasonable.

By way of background, I note that Clause 1 allows the regulator to specify a means for an individual with overseas qualifications or experience to make up for a shortfall in their knowledge and skills, compared to UK requirements. This is typically known as a compensatory measure, which could include aptitude tests, completion of an academic course or further experience. If Ministers in the UK Government or the devolved Administrations make regulations under Clause 1, the regulator will decide the means by which it assesses individuals with overseas qualifications and experience. It is for the regulator to specify any appropriate compensatory measures.

I agree with my noble friend that any compensatory measures to demonstrate that the professional has met this standard should not be unreasonable or burdensome on the regulator or the qualified professionals whom they regulate. This is why there is no requirement for the regulator to have to specify a means to make up shortfalls where it is not appropriate or not available. There is no requirement for the regulator itself to provide particular courses or experience to an individual to help them make up shortfalls.

In some cases, a regulator may, for example, simply specify that the individual must complete certain academic courses or obtain a certain amount of additional work experience. This would not place unreasonable costs on the regulator. I should add that compensatory measures are a commonly used approach in professional qualification recognition; it is not a new concept or practice for many regulators.

For example, if English language proficiency were required in order properly and safely to practise a profession, it would be reasonable for a regulator to require an individual with poor English to take a course and pass exams to show that their English had improved. It would not be necessary for the regulator itself to deliver that course. In conclusion, I hope that regulators would not consider that compensatory measures place unreasonable costs or burdens on them.

Amendment 18, tabled by my noble friend Lord Lansley, who speaks with some authority in this field, seeks to remove “unreasonable delays or charges” to consumers being taken into account under the condition in Clause 2 for making regulations under Clause 1. Instead, the condition would focus solely on whether regulations would enable demand for professional services to be met.

Clause 2 limits the scope of the power in Clause 1 to a specific set of circumstances where the appropriate national authority deems it necessary to enable the demand for services provided by that profession to be met without unreasonable delays or charges. By this, I mean that the consumers of those services in the UK are experiencing unreasonable delays or having to pay high charges. An illustrative example of an unreasonable charge might be where consumers or businesses face unreasonably high fees caused by a shortage of professionals. For example, this could be the NHS—a consumer of professional services—or the general public’s consumption of them, direct from a professional. An unreasonable delay might, for example, occur if a profession was unable to deliver its services quickly enough without more professionals in the workforce. This could include, for example, waiting times for social worker support—so unreasonable delay or cost can be made distinct from demand or shortage. Without this wording, the levers that we have to take action where there is a need are narrowed.

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[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I have received a request to speak after the Minister from the noble Baroness, Lady Hayter of Kentish Town.

[Baroness Hayter of Kentish Town (Lab)]

The Minister has not answered my question. She seems to have continued to say that a national authority—that is, the Government or one of the devolved Governments—can decide when a professional is charging high fees. Can she be absolutely clear that she is saying that? I would like to know on what basis that would be and whether they would go to the CMA for advice. Whether it is a farrier or anything else—or an accountant, although I think they are not covered—on what basis is a Minister going to decide that a professional is charging a high fee? Will that be challengeable in court or via the CMA? What would be the mechanism for that decision?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am sorry that I gave that impression, but I do not believe that I did give the impression that the Government would set the fees. There would be a mechanism for oversight, which would be the impact assessment route that I mentioned in my speech.

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[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am going to leave the question of an assistance centre to one side. I think I have an amendment later on to delete it from the Bill. I have yet to understand why we need a statutory body and why this cannot just happen. We were told that all this is being done at the moment, perhaps by BEIS, so I really do not understand why it has to be in here. But we will come to that elsewhere.

Colleagues know we are on somewhat delicate ground with these issues, with the devolved authorities having been excluded too many times, going right back to the Brexit negotiations and then the Internal Market Bill, with UK powers imposed over devolved competencies. Since then, we have seen the Government wanting to spend the levelling up fund and the shared prosperity fund on projects in the devolved areas but also in areas where the devolved Governments would normally spend money—and where, frankly, the devolved Governments know best how expenditure should be part of their strategy. That is the background to how we are looking at this. So the Bill—as the noble Baronesses, Lady Finlay and Lady Randerson, said—being seen a week before it was introduced is just more of the same: them as an afterthought.

I am not going to repeat here in public what the Minister told me in private was the reason for this, although he might like to spread that a bit further if he thought others would be interested. But the second reason given was that the other Governments had been in purdah and therefore this was not possible. While that may well be the reason it could not be shown straight away, it does not explain why the Bill had to be suddenly published and rushed into this House without taking a breath. There is no reason to think that suddenly we need more doctors, nurses, vets, furriers and everything else—a sudden shortage of skilled people—and that is why we need the Bill to give powers to regulators if, as I said earlier, there are any that do not have them at the moment.

Therefore, of course, the feeling is this is being rushed through because there is some trade deal in the offing that needs this urgently. If that is the case, I think we should be told. In one of his answering letters, I think the Minister said he could not comment on current negotiations. This seems too important. If it was not shown to the devolved authorities because they were having elections but then has to be rushed into this House, it feels to me either that the Government forgot about the devolved Administrations or that there is something else going on.

The problem, therefore—and the reason why the environment in which this is taking place is important—is that this Bill replays exactly the same problems as we had with the internal market Act. At first glance, the use of concurrent powers looks like a rather deliberate, perhaps subtle, undermining of devolution because it allows the Secretary of State to amend or repeal Welsh primary and secondary legislation and regulations even in areas of devolved competence, as we have heard. Also, in the case of Wales—like the noble Baroness, Lady Finlay, I come from there, so I am always much more aware of the differences there—it would apply to devolved regulators such as the Education Workforce Council and Social Care Wales.

The Minister has said that these powers will not “normally” be used but, as the noble Baroness, Lady Finlay, said, that does not offer a lot of comfort. Nice man though the Minister is, his words are not law and are not binding on the UK Government. We very much hope that the Government will accept Amendment 41, tabled by my noble friend Lord Foulkes, which seems to strike a really good balance. As in the internal market Bill, it would oblige the Minister to seek the consent of the devolved authorities but would allow them to proceed, albeit with a published explanation, if no consent is received within a month. So it is not an absolute veto, but it starts on the assumption of working towards consent, which is really important. I am absolutely confident that my noble friend will bring that back on Report.

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

Yes.

[Baroness Hayter of Kentish Town (Lab)]

I thought he might. I think he can probably expect us to support him in that.

Amendment 49, which is in my name and that of the noble Baroness, Lady Randerson, would specifically allow the common framework approach, which we have been discussing, to trump the use of these powers in instances where the common framework procedure is developing a mutual recognition of professional qualifications framework. As we have heard, in its update covering the fourth quarter of last year, the Cabinet Office reported that discussions on the MRPQ framework had made progress, though the development timelines have had to be extended. As the Government and the devolved Administrations want the MRPQ framework to be completed, we want nothing from this Bill to be done outside of its remit.

The significance of how the devolved authorities are treated in this Bill has ramifications beyond the issue with which we are concerned today, which is the regulation of professional qualifications. I urge the Minister to engage with the relevant Ministers in the devolved Governments and do everything in his power at least to shore up, and hopefully strengthen, devolution rather than undermine it.

The noble and learned Lord, Lord Thomas of Cwmgiedd, said that the Government are chipping away at the devolution settlement; I think that that is what the noble and learned Lord, Lord Hope, was referring to when he talked about collateral damage. Something that happens in this Bill is chipping away at a really important part of the devolution settlement. I must ask the Minister whether he understands that. Does he understand those feelings? If so, does he feel an obligation, for the sake of the union, to amend the Bill to alleviate these concerns? I hope that we will hear a thoughtful and positive response from him on this.

[Lord Grimstone of Boscobel (Con)]

My Lords, these amendments have brought about a fulsome and entirely appropriate debate about respecting the devolution settlements for Scotland, Wales and Northern Ireland as the Bill continues its passage through the House.

Let me start by saying, in a direct answer to the noble Baroness, Lady Hayter, that I, too, find her a very nice person, although I must say that I think she has a suspicious mind in relation to this Bill. I assure her and other noble Lords that there is nothing going on about the timing of FTAs which is driving this Bill.

On a point of fact, the Bill was seen by the Administrations of Wales, Scotland and Northern Ireland on 22 April. This was just eight days after I first saw it, so it was not hidden or kept in a drawer away from the DAs until the last possible moment. It was seen by them pretty much as soon as I saw it after it had been prepared.

I assure noble Lords at the outset that the Government fully respect the devolution settlements. Devolved matters should of course be, except in the most exceptional circumstances, for the devolved Administrations to legislate on. The Government have no desire for this Bill to chip away at that in any way. I can confirm that we will seek legislative consent for the Bill in line with the Sewel convention, and we do not in any way intend to use this Bill to chip away at the devolution settlements.

I can confirm for the noble Baroness, Lady Finlay of Llandaff, that it is not part of our trade policy to compromise our standards. We have had many debates about that in this House. Free trade agreements will not compromise our standards or those of regulators. No free trade agreement will have the power to do that.

I thank the noble Lord, Lord Purvis of Tweed, for tabling Amendment 57 concerning the authority by whom regulations may be made and concurrent powers. I suggest that it is entirely fitting that the current definition of “appropriate national authority” in Clause 14 means that Scottish and Welsh Ministers and Northern Ireland departments are the appropriate national authorities and may make regulations, provided, of course, that they fall within the competence of the relevant devolved legislature. In direct answer to the noble and learned Lord, Lord Thomas of Cwmgiedd, let me say that the Government do not intend to disturb this in any way.

The issue is that this is a very complex landscape. As I have said before, it involves 160 professions and 50 regulators. Regulation varies between professions. Some professions are regulated on a UK-wide basis despite being within devolved competence. Some professions are also regulated across Great Britain. So the complexity of the regulatory landscape makes the use of concurrent powers important to the Bill’s operation in a purely practical sense. They are meant to be entirely practical and are not intended to undermine the authority of the devolved Administrations in any way. They make sure that professions that fall within devolved competence could have regulations brought forward across several parts of the UK by the relevant national authority. This will provide those professions with certainty and continuity.

Amendment 49, in the name of the noble Baroness, Lady Hayter of Kentish Town, aims to ensure that Clause 9 does not affect the establishment or operation of a common framework. The noble Baroness, Lady Randerson, also made this point. I am a huge enthusiast for common frameworks to make our systems work as efficiently as possible.

As noble Lords know, the common framework on the regulation of professional qualifications is under development between the UK Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive to ensure a common approach on powers that have returned following our exit from the European Union and which intersect with devolved competence. Although this amendment relates specifically to Clause 9, let me assure noble Lords that we are committed to ensuring that the provisions in this Bill work alongside the common frameworks programme. We absolutely will consider this as we develop the framework further. The Bill does not constrain that.

There was a hiatus in the development of this framework, while work paused during the election period in Wales and Scotland. We are very keen now to resume discussions to seek collective agreement on the timeline for delivery of the framework, including concentration on interactions with this Bill.

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[Lord Fox (LD)]

My Lords, this group is perhaps the inevitable consequence of trying to reduce a highly complex system and situation, as the Minister has highlighted, into a small one-size-fits-all Bill. In other words, we have a mixed bag of amendments in this group. I will speak initially to Amendments 53 and 54 in my name and to Amendment 52 in the name of my noble friend Lord Palmer of Childs Hill.

I thank the noble Lord, Lord Patel, for his support of Amendment 53. He said that he was disappointed to be speaking before me. I have to say that I am not disappointed to be speaking after him because he gave a much better speech than I could possibly have managed myself. The noble Lord, Lord Lansley, is right, in that the innovation issue is hard to measure, but I think that the point made by the noble Lord, Lord Patel, that this is part of a cumulative effect on innovation is important.

I was hoping to probe the Minister on how the Government have joined the dots between the intention of the Bill and how it will drive the future nature of our economy. To some extent, the criticism of the noble Baroness, Lady Noakes, of these kinds of amendments as a way of trying to shoehorn in something else is true; I make no apology for that.

At the heart of the Bill, there is a central conceit. At Second Reading, the Minister said:

“The Bill will allow action to be taken in the public interest if it is judged that a shortage of professionals has arisen in a profession.”—[Official Report, 25/5/21; col. 908.]


What is a “shortage of professionals”, and what level of omniscience is required from the department in order to identify that particular need in the market for professionals?

Is there a danger that the Bill is in fact solving yesterday’s problems? That is the innovation question—because we need people to create the businesses of the future. Yet we have a Home Office that lets in only people who already have a job, and BEIS, which will measure the current need for people. The noble Lord, Lord Patel, was closer to the mark when he talked about early career researchers—I would add research technicians. Both find it extremely difficult to get Home Office visas because they are paid less than the limit for them to come in.

We are going to have a debate about the availability of people, in the group starting with Amendment 17, and I do not want to pre-empt that, but I want to hear the Minister’s playback on how the department and those drawing up the Bill drew the dots between the Bill and innovation. That is one of my objectives with this amendment.

Amendment 54 looks at a different kind of impact. In fact, in retrospect it should have been grouped with the amendment of the noble Baroness, Lady Noakes, Amendment 9, because in a sense it measures the effect that she has highlighted there. As happenstance will have it, she did not get an answer to her questions the first time around, so this gives us a chance to run through them again.

Minister, there is a strong belief that the regulators will come under great influence from the Government on the level of fees. That will either reduce their income or maintain their income at the expense of those registering. This amendment seeks to give transparency to that problem. If indeed it is not a problem, we will see that clearly. The noble Lord, Lord Lansley, gave it something of a thumbs-up, in that it is measurable—and I assume that it is data that BEIS is already collecting because, of course, it is going to create a model of the entire professional market in order to manage it on behalf of the national economy. I assume that the data is already available. Therefore, publishing it would be very helpful and perhaps give a lie to the fears or expose them, so that the Government can change things to stop them becoming an issue.

Very simply, the point from the noble Baroness, Lady Bennett, about some joined-up reporting is well made. Whether it is the whole hog or just a few key elements—and I would probably prefer the latter to the former—I think that the global south issue can be solved by having a geographic split on where people are coming from, for example, to highlight those issues.

My noble friend Lord Palmer spoke on Amendment 52 about the need for there to be a realisation within organisations of the impact of the Bill, particularly on SMEs. In the past, many SMEs have picked up employees from the European Union without having to give a moment’s thought to the accreditation of their skills. That is now changing, and I absolutely agree with my noble friend that there has been no dawning on the vast majority of Britain’s businesses of that change. I think he has a great point.

The noble Lord, Lord Foulkes, spoke strongly, as usual. I agree with him—I would like the opportunity to intervene and interrupt the noble Lord, although of course I would exercise it with great care. But in the main, I would like the Minister to push back on Amendments 53 and 54 and say how this affects innovation and whether we can see the numbers when it comes to costs and the financial effect on the regulators.

[Baroness Hayter of Kentish Town (Lab)]

I start by saying that I may have misheard what the noble Baroness, Lady McIntosh, said. I think she was asking about Amendment 27, which is in the next group.

I will speak to Amendments 19 and 29 in my name, but also thoroughly endorse all the pleas that we have heard for a very thorough—and, indeed, statutory—requirement on consultations with all the relevant parties. The impact of this will be felt; it could be felt on professionals and on service providers or users of those services. This is not a technical thing, so it is important that the consultation takes place.

Amendment 19 simply specifies that it is crucial that consumers are consulted. Consumers may be users, patients, clients—in the case of lawyers—or customers. When I was involved with the regulation and standard setting for actuaries, which I guess comes under the FRC in this, noble Lords will not be surprised that I chaired the user committee and was on the board. We had pension administrators, pension trustees and other people who used actuarial services, so that we were able to get their input as we were setting standards for actuaries.

The word “consumer” is a broad one and it is always difficult to say what it means, but it seems to me that if one were setting standards or one wanted more actuaries in the country, and the same could be true of other regulated areas, talking to the people who use those services would be highly appropriate. So, despite what the noble Baroness, Lady Noakes, says about the use of that word, it seems to me that the people who use the services of the professions covered in the Bill really should be consulted if there is going to be a different way of recognising and approving people to carry out that profession.

As I said earlier, regulation was always set up to protect the consumers or end-users, however they are defined, and therefore, in changing the procedure of how a regulator works in accepting professionals, it should be automatic that users of those services that the regulator was set up to protect should be involved. It certainly should not be just between the Government and the service provider—in other words, the professionals involved—because those affected by the decisions should surely not be excluded. Government always needs reminding that the end-user is what regulation is all about. I thank the noble Lord, Lord Lansley, for his support on this. It ought to be automatic; we should not have to think about putting it in a Bill, but so often it does not happen.

I was reading earlier in one of the government documents—sorry, I have had lots of letters from the Minister—about the call for comments in a consultation that was put on the BEIS website, I think. I have to say that most people would not think that a call for consultation on the regulation of professional qualifications would affect them as, say, a pension trustee, not realising that it will affect the professionals that they depend on in decisions they take, whether it is about pension holidays or, more likely, making up for deficiencies in a pension. One has to be on the front foot and go out looking for the input of users or consumers of professional services; they will not automatically happen to be watching the BEIS website to see that there is a consultation taking place.

Amendment 29 may be slightly cheeky, but it is really a nudge to the Government. It says that a regulator set up either to create or to maintain standards in the interest of consumers or users really ought to have those end-users or consumers on its board, its council or its executive. Therefore, when we are talking about regulators, we should require them to have this. I think this is possibly pushing the boundaries of the Bill a little far, but if the Minister will accept Amendment 19, I will go quiet on Amendment 29.

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Moved by

[Baroness Hayter of Kentish Town]

15: Clause 1, page 2, line 23, at end insert—
“(5A) Regulations under this section relating to priority professions may not be made unless—(a) they have been published in draft form, and(b) the relevant regulators have been consulted on them for a period of three months beginning with the day on which they are published.(5B) In this section “priority professions” means—(a) healthcare professionals,(b) social workers,(c) teachers, and(d) veterinary surgeons and veterinary nurses.(5C) In this section, the relevant regulators are—(a) Nursing and Midwifery Council,(b) General Medical Council,(c) General Pharmaceutical Council,(d) Health and Care Professions Council,(e) General Optical Council,(f) General Dental Council,(g) Pharmaceutical Society of Northern Ireland,(h) General Osteopathic Council,(i) General Chiropractic Council,(j) Social Work England,(k) Scottish Social Services Council,(l) Social Care Wales,(m) Northern Ireland Social Care Council,(n) Teaching Regulation Agency,(o) General Teaching Council for Scotland,(p) Education Workforce Council,(q) General Teaching Council for Northern Ireland, and(r) Royal College of Veterinary Surgeons.”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, in moving Amendment 15 I will speak to Amendment 27, both of which are in my name and those of the noble Lord, Lord Patel, my noble friend Lord Hunt and the noble and learned Lord, Lord Hope.

These amendments are here for two reasons. One is that the regulators listed already have the power to recognise professionals from other jurisdictions, so they are somewhat at a loss as to why they should need to be covered at all. The other is that the maintenance of their standards is particularly crucial to the lives of patients—be they human or animal—pupils and clients. If there is any chance that they will be mandated to open up their approval system further than it is already—because they already have one—at the behest of the Government, then there must be the most thorough consultation and agreement. This really is too important to leave to chance. We need a legal commitment to consult in the Bill for the priority professions listed in the amendment.

In answer to the question posed by the noble Baroness, Lady McIntosh, during our debate on an earlier amendment, the Government had a list—the Minister sent it in a letter to the noble Baroness, Lady Noakes—of all the regulators covered, but this group of healthcare and personal care professionals already have the ability within their statutes to do the necessary for international. So there is this two-way reason why we put them in the amendment: their clients or patients are particularly vulnerable if standards fall, and they already seem to have this power. Therefore, for the Government to take a power to ask them to do something outwith what they want to do seems to require a particularly high level of consultation. I beg to move.

[Baroness Noakes (Con)]

My Lords, I will be brief. The requirement in these amendments for regulations to be published in draft form and consulted on is sensible, for the reasons that the noble Baroness has given. I just do not see why they are confined to this so-called priority list, because any profession that could be brought within the ambit of Clause 1 or Clause 3 should be treated in the same way. While we can sympathise with the medical professions and vets being priority groups over such mundane things as auditors and farriers, in practice any profession that might be impacted by these sorts of regulations, and could therefore have its standards impacted, ought to be covered in a consultation process.

I do not think the consultation process, as drafted in these amendments, should be confined to the regulators, because it is not just the regulators themselves that would be impacted by any regulations made under these clauses; so would the professionals operating in those regulated professions and all the other groups affected by them. I support consultation being in the Bill because of the unusual nature of the powers the Bill is taking, but I do not think it should be confined to the so-called priority groups.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Baroness, Lady Hayter of Kentish Town, for her amendments and I note that the noble Lords, Lord Patel and Lord Hunt of Kings Heath, and the noble and learned Lord, Lord Hope of Craighead, are supporting them. These amendments introduce a duty to publish, in draft form, any proposed regulations where they relate to the professions listed, and to consult on these regulations before they can be made under Clauses 1 and 3—the powers to provide for individuals to be treated as having UK qualifications and the implementation of international agreements respectively. I have spoken at some length about the commitment to engagement on both clauses but let me provide some further reassurance specific to these amendments.

First, and perhaps most importantly, the Government, through this Bill, will not and cannot bring forward regulations that affect the autonomy of regulators or the standards that they set. With the greatest of respect to noble Lords, I sometimes feel that they think there is more to this Bill than meets the eye. There is not. This is a Bill which, at its heart, is about the mutual recognition of professional qualifications. It is not, and could not be, a Trojan horse for the Government to somehow choose to undermine the autonomy or the standards of regulators. It would be the height of foolishness for any Government, not just mine, to do so. I suggest that a little injection of reality about what this Bill is about should creep into some of our debates, and I say that with the greatest respect to noble Lords.

I turn first to Amendment 15 to Clause 1, which would mean that, if one of the listed professions were deemed to meet the demand condition in Clause 2, and regulations under Clause 1 were justified, there would be a three-month period of consultation with their regulators before regulations relating to those professions could be made.

I recognise that the professions and regulators specified by the noble Baroness are primarily those supporting our important public services. It is of course essential that any regulations made under the Bill support the delivery of public services and complement regulators’ existing practices. However, there seems little merit in listing, in primary legislation, a set of priority professions —my noble friend Lady Noakes put this very succinctly —which would be subject to change as demand changed. To do so could unduly restrict the ability of the Government, or the other national authorities, to respond quickly and efficiently to the needs of the professions on the list when they were deemed to have unmet demand.

Moreover, let us remind ourselves of what Clause 1 does. It requires regulators to have a route to consider applications from these people. It does not tell them that they have to accept these people or that there has to be a diminution of standards in relation to them; it requires regulators to have a route to consider them. This in no way undermines the carefully constructed architecture that our regulators have put in place to protect patients, consumers and other users of regulated services. Decisions under the Bill will be informed by careful engagement with professions and their regulators, and not introduced without warning. I agree that regulators will need to be involved from the outset, and have time to prepare for changes.

Amendment 27, which relates to Clause 3, seeks to make a similar requirement to publish and consult on draft regulations, with the same regulators and professions, in relation to implementing parts of international agreements on the recognition of professional qualifications. As I have explained previously—and will no doubt have to continue to do—a key concern for the Government in all negotiations is ensuring that the autonomy of regulators within these trade agreements protects UK standards. That applies to all regulators and professional bodies which may be within the scope of an international agreement, not just the ones specified in this amendment.

Through the Department for International Trade the Government engage with a range of stakeholders, including regulators, to understand their priorities and inform the UK’s approach to trade with future trade agreement partners. We have several forums to inform these negotiations, including the trade advisory groups, which hold strategic discussions to help shape our future trade policy and secure opportunities in every corner of the UK. We also hold many ad hoc consultations with interested parties. BEIS also organises regulator forums that provide updates on the negotiations and the terms of trade deals.

In addition, to consult before making regulations at the point at which the international agreement being implemented has already concluded would, frankly, be too late to meaningfully impact the substance of the agreement. That is why in May this year we launched a public call for input as we prepared for trade negotiations with India, Canada and Mexico. I encourage all those with an interest, and of course that includes all regulators and professions, to respond. Why would we not want to know what people think before we embark on the negotiations? To think that we should consult them after the agreement has been effectively finalised, when it is being prepared for parliamentary scrutiny, seems, with great respect, to be shutting the stable door after the horse has bolted.

On Clause 3, it is important for the UK Government to be able to meet our international obligations on professional qualifications, to support UK professionals and trade in professional services, and to do so in a timely fashion. I know that on a later group of amendments we will come back to further examination of this clause.

I trust that this gives reassurance to noble Lords on the engagement of professions, including the professions cited in the amendments but of course all others, before any changes are enacted through regulations through Clauses 1 and 3. I ask that the amendment be withdrawn.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, there is a problem in what the Minister said. He talked about consultation and a call for input, but that is very passive. As I mentioned on an earlier group, unless you know that the Government are going to be looking at your profession, who would think to input at the beginning? On a later group we will come to the need to have a negotiating mandate, because at that stage that might stimulate people to think, “Oh gosh, that’s my profession.” If the Government would like architects, surveyors or whatever to be covered then they may start talking about it, but just putting out a call does not actually tickle the trout; people do not know that they should be involved. What the noble Baroness, Lady Randerson, said was interesting: people do not even know that the Bill exists, so the idea that they are following the situation and will keep looking at websites just in case their profession is affected is not going to happen.

There is an issue, not just about the Bill but about all sorts of measures, of the Government’s consultations consisting of, “We hope you’ll hear what we’re doing and will come and tell us about it.” The Minister has talked about the trade advisory groups. I am sorry to go on about this again, but there are no consumers on any of those groups. Again, the users of those professional services, be they clients of City lawyers or whoever, will not actually sit on those trade advisory groups so are not part of that inner circle that is kept close.

The Minister has basically said, “You can trust us. The Government wouldn’t bring forward regulations that affected the independence of regulators. We would never think to abolish a regulator.” The problem is that he was not in this House—quite a few of us who are here today were, including my noble friends Lord McAvoy and Lord Foulkes—when we had the Public Bodies Act. Do noble Lords remember that? It abolished 32 public bodies with a skeleton Bill and then by statutory instrument. The poor noble Baroness, Lady Noakes, has to put up with me all the time because the National Consumer Council was abolished under that Bill; had it not been, I probably would not have had so much cause to be here because there would have been a statutory body on the formal list that the Government have to consult, and a lot of the stuff that I come in on at a very late date probably would have been dealt with before. So we have previously had a Bill on the basis of “Trust us, we won’t go round abolishing things”, and now here we are: we have no National Consumer Council any more. There is history here that predates the Minister, and that is why we would like a little more evidence in the Bill.

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[Lord Fox (LD)]

My Lords, I thank the noble Lord, Lord Hunt, for putting this amendment forward, and I commend him on the forcefulness of his speech. I am not going to repeat things he said, but I agree with his points. During the opening group, I touched on this issue and outlined the powers that are being taken into this clause, to which the noble Baroness, Lady Noakes, referred just now. I am still trying to understand what the Government think they are going to improve by doing this.

In essence, because of Brexit, the simple reality is that we are losing access to a considerable source of professionals. That is a problem, or potentially a problem. There is absolutely no certainty that we can replace them in another way, but there is also no certainty—indeed, possibly the opposite—that these clauses are going to help that to happen. So the idea that “We are from the Government and we are here to help you recruit people” seems to be unfounded.

There are two problems with Clause 1. One is that it seems to be a misguided effort. The other, which was front and centre of the points the noble Lord, Lord Hunt, made, is that this is the Government overstretching themselves in taking powers upon themselves and grabbing secondary legislation opportunities. We know that there is virtually no chance to amend—there have been very few examples in my lifetime where secondary legislation has actually been turned down. So it is with that that we on these Benches are supporting this amendment, and, of course, similar arguments will be put forward later on in the evening.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Clause 1 enables regulations to be made—as we have heard, they are never overturned—to require a specific regulator to put in place a procedure for assessing whether to treat overseas qualifications as if they were UK ones. However, we still do not know how many of the 60 actually lack such a power. The Minister wants this Bill; he says that it is necessary. Could he please list those regulators which, if circumstances required extra skilled professionals, could find that their statutes were insufficient and thus that they would need to be mandated, by law, to introduce a new process? Because, frankly, if there are no regulators that need this power, we do not need a law to give it to them.

If the regulator wanted to introduce such a process, and had the statute, why would it have to be mandated to do it? If the regulator does not want to introduce such a process, how autonomous is a regulator if it can then be told by a Government that it must do so with the force of law? It may, as the Minister has said, be just a process that they have to introduce, but we are, nevertheless, talking about the Government mandating a regulator to do something that it does not want to do—because if it does want to do it, it will just do it.

So the Minister needs to list the regulators who do not already have the power to adopt such a process. I understand that there may well be some, but it would be nice to know which ones they are. If the regulator has such a power, but does not want to introduce a process to assess whether somebody’s qualifications should be agreed, how does he justify mandating the regulator by law to do that?

[Lord Grimstone of Boscobel (Con)]

My Lords, I have previously set out the need for a framework for the recognition of overseas professional qualifications. The Government are proposing one that focuses on addressing unmet demand for professional services in the UK. The intention of Clause 1 is to bring in that framework. It means that regulations can be made which require regulators to have a route in place to determine whether or not to recognise overseas qualified professionals from around the world. The framework that the Bill introduces will replace the interim system for the recognition of professional qualifications that was put in place as the UK left the EU.

Clause 1 sets out the substance of the new recognition framework. I stress that these conditions cannot be amended by regulations under the Bill. Where regulations are made under this clause, they would require a regulator to make a determination as to whether an individual with overseas qualifications or experience has substantially the same knowledge and skills, to substantially the same standard, as the UK qualification or experience. As I have said previously, these regulations would not alter the standards required to practise professions in the UK. They could not alter such standards, and regulators would still decide who can practise. No regulator would be forced or pressured into accepting qualifications that did not reach UK standards. Any other appropriate regulatory criteria, such as language proficiency or criminal records checks, must also continue to be met before a regulator may give access to a profession.

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Moved by

[Baroness Hayter of Kentish Town]

17: Clause 2, page 2, leave out line 34 and insert “fulfilling a domestic skills shortage in the profession or implementing any international recognition agreement,”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, in moving Amendment 17, I shall speak to the other amendments in the group. They make up two distinct elements which, as we have heard, lie at the heart of the Bill. The purpose of the Bill is to authorise statutory regulators, where their powers are not available, to be able to put in place a process that would recognise overseas professionals either to fill a skills shortage or to assist in implementing a new trade agreement where the agreement includes a professional skills recognition clause.

However, because of the two possibilities, as we have heard, a third issue arises, which is that of the absolute guarantee of the independence of regulators and the need to ensure that they are never mandated to recognise particular qualifications or experience. This third issue of independence is covered in Amendment 26 in my name and in Amendment 28 tabled by the noble Baroness, Lady Noakes, to which I have added my name. The amendments say quite simply that no regulation under a trade agreement provision can undermine the independence and autonomy of a regulator, and that any such regulation may permit but not require a regulator to recognise an overseas qualification in allowing someone to practise here. These are the very least that must be guaranteed in the Bill and I am sure that it is something we will want to return to on Report.

I turn to the first issue of a skills shortage. It is not clear whether this means that the whole of a profession such as medicine, or only one specialism such as geriatric care or trauma surgery, would be dealt with in a regulation to require a process to be in place. It may well be that we need one, but not the other. My guess is that trauma surgery is quite popular and geriatric medicine perhaps less so. It would be interesting to know how granular the regulations would be when we ask a regulator to put a particular process in place. More than this, of course, is how the relevant Government, be they the UK Government or a devolved one, would decide that there is such a skills shortage. What role will service providers or the relevant regulator play in that decision?

Amendments 20 and 21 in my name and those of my noble friend Lord Hunt and the noble Baronesses, Lady Finlay and Lady Bennett, would therefore require sufficient consultation with the regulator. The Government must also produce a report, not only on the findings of their consultation but on the data and the modelling used to come to the conclusion that there is a skills shortage. This is crucial to what was said earlier by my noble friend Lord Sikka and, I think, by the noble Baroness, Lady Bennett: the Government must also indicate what they have meanwhile been doing to fill the skills shortage, by way of training our own workforce rather than pinching from other—sometimes very much worse off and more needy—countries, and what they are doing to retain the workforce that we have.

I hear from my consultant stepson that retaining existing medical staff is one of the biggest challenges. It is no good keeping on bringing people over and recruiting them to the health service—or indeed anywhere else—if our retention is so low that we are losing people elsewhere. Continuing to hire in when we cannot keep those whom we have does not sound like brilliant workforce planning. Indeed, the Minister might like to explain how, after a decade of Conservative Government, we still lack over 100,000 social workers, 3,000 teachers and 84,000 NHS staff in England. The Royal College of Nursing estimated that, before the pandemic, we were 50,000 nurses short, and the Royal College of Psychiatrists has described lack of staff as one of the biggest causes of workforce burnout in mental health. If he has a moment, he might just reflect on how 10 years of Conservative Government has left us in the position where he now tells us that we need the Bill to fill gaps in our skill base.

I should add that the Bar Council is concerned about the restriction in Clause 2 of the Clause 1 power to situations of unmet need for particular professional services. The Bar Council feels that the Government have offered insufficient justification for this measure which could, it says, negatively affect professional autonomy through an unintended effect of the scope of pre-existing regulatory powers to recognise overseas qualifications. It sounds as if the consultation that we heard has taken place was perhaps not all that thorough. Rather than respond to that today, could the Minister undertake to meet the Bar Council before Report to see whether he can better understand and meet its concerns or find some arrangements to allay its fears? Given how much consultation we have heard has happened, that last-minute plea—it arrived in my in-tray today—suggests that the consultation has perhaps not been all that deep.

I turn to the second arm of the Bill: its potential power to require a regulator to set up a process for foreign accreditation. We again ask, as before—the Minister agreed to it—that he let us know which regulators lack that power. If there are such regulators, Amendment 26 in my name and that of the noble Lord, Lord Trees, again demands that any such regulation to implement an international recognition agreement does not undermine the independence and autonomy of a regulator. The noble Lord is unfortunately unable to speak because his name is not on the speakers’ list, but he obviously knows the Royal College of Veterinary Surgeons very well. It already has all these powers and frequently recognises professionals from other non-EU countries.

--- Later in debate ---

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for that point. I think that I can answer the first point immediately because it comes back to the question asked by the noble Baroness, Lady Hayter. She wondered whether it would be at the level of, say, the medical profession rather than at the level of a specialty within that profession, such as anaesthesia. On letters, we will do our best to get them out quickly. It is slightly irritating that we have our next day in Committee as quickly as next Monday, but we will certainly do our best.

[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for that. On letters, I know that he is backed by many civil servants and colleagues. He is looking at the whole of my office at the moment—me—so could he not expect us to go to the Library and find things? When he is writing to one person who has asked a question, can he automatically circulate the letter to us because I am afraid otherwise we have no way of seeing it? That would be very kind.

I thank everyone who has contributed to this debate, which I have found really useful. The Minister is not going to like what I say, but there you are. The comments made by the noble Lord, Lord Lansley, and the noble Baroness, Lady Noakes, will help in the redrafting, but I think it is only fair to say to the Minister, nice try, but he can be fairly sure that three groups will be brought back on Report. One will be about the autonomy of regulators. They should not be forced to something. It has to be said somewhere that no trade agreement can underpin them. We can take advice on where it goes.

On the second one on skills, we will want some assurances that other things are going to be done and this will not be the immediate device for filling skills. I think that is in Amendments 20 and 21. We definitely want to look at this again. On skills, I very much welcome the clarification about granular. If I understood what the noble Lord, Lord Patel, said earlier, specialists —be they specialist registrars or consultants or members or fellows of the royal colleges—are awarded the specialisms by the medical royal colleges. I get a nod from across the Committee. The colleges are not the regulator, that is the GMC. I am going to keep out of that and leave it for the specialists. I am sure the Minister will need to discuss that with the medics. It is welcome that he says it will be granular, but then it will not be a regulator which is able to do that because, I think I am right in saying, the medical royal colleges are not regulators in this sense.

The third element was international agreement, which was covered by Amendment 22. Although we may want to look at the detail of that, I think that putting the Grimstone rules into this piece of legislation will be important. For the moment though, having said thank you for the answers but we will be still back, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Professional Qualifications Bill [HL]

Baroness Hayter of Kentish Town Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

First, I also welcome my noble friend Lady Blake to our Front Bench, where she has immediately made an impact and demonstrated the impact she will continue to make. Ministers, beware.

As the Minister foretold, the debate has heard experience from across the architectural, medical, veterinary, accounting and even the sports, dental and legal worlds, raising various issues, but interestingly, one first raised by the noble Baroness, Lady Noakes: why do we need this Bill? She said it in the meeting we had before this all began, and that made us start thinking. The noble Lord, Lord Trees, mused that the Bill was

“a solution in search of a problem”,

adding nothing to the powers that already exist—in his profession, to recognise vets from other countries that the college wants to recognise. The noble Lords, Lord Ribeiro and Lord Patel, the noble Baroness, Lady Finlay, the GMC, the BMA and the Professional Standards Authority all question whether the Bill is needed in their sector, given that health regulators have a long history of overseeing regulation, and they are worried that the Bill might jeopardise that system and risk patient safety.

As we have heard, the Bill does not define which regulators will be covered, although the noble Baroness, Lady Noakes, has been sent the list. We are delighted but, like the noble Lord, Lord Fox, we have not seen it; I am sure that it is on its way to us. The Minister said that the Bill is about only regulators set up in legislation and not those set up by a royal charter. The ICAEW would therefore not be covered, although it sounds as if the FRC and the new ARGA would be. Can he confirm that? Also, will it cover the Law Society, the SRA, the Faculty of Advocates and some others? We need to know what this Bill covers.

I should be clear, because I have some questions about it, that there are many pluses in the Bill, enabling statutory regulators, where they so desire, to enter mutual recognition agreements. As noted by the SRA, this could maximise opportunities for trade in professional services, while the Law Society said that it could assist in regulator-to-regulator reciprocal agreements by going rather beyond what a precedent-based FTA could do.

As has been said many times, legal services are central to our exports and investment. They enable their clients to make the most of opportunities across the globe. As the noble Baroness, Lady McIntosh, said, the Law Society hopes that legal services will be at the forefront of forthcoming trade negotiations so that we can ensure that our lawyers operating overseas can carry out a range of functions, including as arbitrators, and partner locally based lawyers. A similar point was made by my noble friend Lord Davies of Brixton in relation to actuaries. There is potential there to help some of our crucial export services. However, there are questions. I think that they cover four areas: skill shortages; trade deals; standards and the independence of regulators; and parliamentary scrutiny.

On skills shortages, while attracting overseas talent has been vital to our public sector, it would be wrong to continue to depend on importing qualified staff where we should be building up our own skill base to correct any shortage. We do not want to see this Bill used as a substitute for the Government investing in professional training. If we lack vets or nurses, we should train up our own—with the adequate resources to do so—rather than steal from other countries, as the noble Baroness, Lady Watkins, mentioned.

There is also a question of how the Government will decide whether there is a shortage. What involvement will there be with the professions and service providers? The noble and learned Lord, Lord Hope, touched on that point and mentioned the need for consultation on both this and broader issues. Will the Government undertake to publish the data, modelling and forecasts that they use when deciding whether they think there is a specific skills shortage? Will that definition be for a whole profession or just a particular specialism, as was raised by the noble Baroness, Lady Fraser? Furthermore, do we risk amending our regulation system for a short-term skills shortage, because we will be using legislation rather than individual cases to make up for any shortfall?

The Bill gives powers to Ministers to compel regulators of specified professions to offer unilateral recognition routes for all countries, subject to meeting the requisite standards. I will return to that power shortly.

Turning to trade deals, Clause 3 is a major concern, as we have heard. It requires a supposedly independent regulator to set up a process for authorising people from other jurisdictions to practise here—not because the regulator thinks it is the right thing to do, nor because we need more professions to fill a skills gap, which is dealt with in a different part of the Bill, but as a consequence of an international trade deal. As the SRA says, we must retain public confidence that professionals are appropriately qualified, with regulators able to set standards and make autonomous, independent decisions. As we have heard from a number of speakers, recognition will need to cover knowledge, skills and experience—not simply qualifications.

The Law Society has raised the specific question that the Bill could allow foreign Bars to challenge the independence of UK solicitors and barristers by possibly allowing the Government to make decisions on equivalence—the grounds for challenge from foreign Bars, because it would be regulated by the Government rather than independently. We trust that dialogue with the SRA and the BSB will produce an amendment to safeguard against this.

In addition to whether regulators should be obliged to enter into agreements with countries designated by the Government is the question of whether, for example, as with the GMC, the Royal College of Veterinary Surgeons could be forced to recognise vets from India or Mexico—I think those were the examples given. Each country has dozens of vet schools, every one of which would have to be assured if this is not being done by requalification in this country, as it could not give blanket coverage to a whole country’s independent vet or medical schools.

Surely we must agree that no regulator should be forced, because of pressure for a trade deal—we see those pressures in what is happening to farmers in trying to get a deal with Australia—to extend its recognition beyond what it wants, with a consequent risk of reduction in standards. IPReg, for example, is very happy to recognise qualifications from countries of its choice but would not want to be forced to enter into reciprocal agreements with any particular country decided on by the Government. Which future trade agreements that the Government are already looking at are expected to contain MRPQ clauses with specific routes for professions or an obligation on regulators to instigate a route to recognition? If the Minister cannot answer today—which I would understand—I hope he can write to all Members participating so that we know what they are likely to be looking at.

Might it be better to leave any new mutual recognition agreements just to separate, stand-alone, bilateral, regulator-to-regulator recognition agreements, perhaps in parallel to, but not as a requirement of, an FTA with a third country? Forcing regulators to be covered by an international agreement carries significant risks, not least to standards and consumer protection—the very purpose for which statutory regulation takes place.

We note that there is a recognition arrangements team in the department to help regulators pursue agreements with overseas counterparts. That sounds helpful, but can the Minister assure us that that team does not amount to pressure on a regulator to keep the DIT happy?

While the Government have the admirable objective of maintaining existing levels of public and consumer protection and professional standards, how does this sit alongside their objective of using this to support the international trade agenda? Those two may be in conflict rather than in harmony. To reassure us, will the Minister undertake—we might even seek to have this written into the Bill—to ensure that the Department for International Trade will consult with relevant regulators, at the very least before it finalises a trade deal, but hopefully at the point it sets its objectives for one?

This brings us to standards and to the independence of regulators. We will seek certainty that nothing in the Bill undermines high standards of health, public safety or consumer protection and that language can continue to be tested. It is vital that regulators remain independent, as the noble Lord, Lord Ribeiro, and others stressed, and that the Government do not force them to accept professional qualifications. Indeed, we might even look to see whether the Bill could strengthen the independence of regulators. It will not be a surprise to some people in the House to learn that I would like to add a requirement that user or consumer representatives should be added to the councils of the various regulators. I will give it a try.

As we have heard, the medical world has specific concerns. The BMA stresses that patient safety must be prioritised over mobility, and certainly over the Government’s desire for trade deals. It worries that the Government’s emphasis on paper qualifications overlooks ensuring that doctors have the right skills and relative and up-to-date experience before they work here.

As my noble friend Lord Hunt said, the Bill allows the Secretary of State to require the GMC to assess whether someone with a particular overseas qualification is “substantially the same” as a UK qualification, and thus able to practise here. As we have heard today, that means that international medical graduates would have an automatic right to practise on the same basis as home graduates, without any further checks that they are safe to practise. This is clearly unacceptable, but we very much welcome what the Minister said in opening and his undertaking that the Government will bring forward an amendment to Clause 1. We trust that it will cover all the points of worry. We hope that it will be agreed and, if you like, signed off by the GMC before it comes to us.

I turn to parliamentary scrutiny. Along with my noble friend Lord Hunt, the noble Baronesses, Lady Meacher and Lady Noakes, and the noble Lord, Lord Palmer of Childs Hill, we are concerned that substantial changes to the law will be made through delegated powers rather than in the Bill. I rather thought we had gone way beyond this in how we make law. We put up with a lot of it when we were coming out of the EU because of the rush; I do not think there is any excuse for this now. At the very least, we ask the Minister to commit to publishing draft or pre-draft statutory instruments covering the priority professions before Report. This will be as important for the devolved authorities and devolved regulators as for all the other related regulators and Parliament itself.

With regard to the devolved authorities, because work is already ongoing on this, can the Minister confirm that Clause 9 does not undermine the framework work going on? Can he respond to the Law Society of Scotland’s call for more forthright commitment to respecting the distinct nature of legal services, perhaps linking what is in the Bill with the policy statement?

It is clear that parts of the Bill are necessary and welcome, and we endorse the objective of maintaining consumer, public and patient safety. We want to see our legal and accountancy professions trade for Britain, and we want our UK professionals to be able to work abroad, but this does not mean we will sweep the Bill straight through Committee. There are changes we will want to see made and improvements to be considered. We look forward to working with the Minister on this over the coming weeks, and in the meantime would be grateful for a letter responding to any of the points raised that he does not have time to cover now.

Post Office Update

Baroness Hayter of Kentish Town Excerpts

Monday 24th May 2021 Lords Chamber

[Baroness Hayter of Kentish Town (Lab) [V]]

My Lords, no one who knows this story can feel other than shame that a government-owned institution, the Post Office, oversaw—nay, facilitated—the biggest miscarriage of justice that we have seen, with nearly 1,000 false prosecutions as well as bankruptcies, prison and unemployment all flowing from the actions of Fujitsu and the Post Office, and indeed from the lack of action from the Post Office’s shareholder, the Government.

The Minister knows we are delighted that the inquiry will now be statutory—though somewhat bemused that it has taken a month for the Government to reach that conclusion—and that a progress report will be made public, but there remain other concerns. First, while we agree with the Statement that

“We cannot undo the damage”,


we can move faster and with generosity on the question of compensation. Perhaps the Minister can explain why the inquiry will not cover compensation, and assure us that speed will be of the essence in beginning to help those so badly affected by this sorry saga. Can he update the House on the appointment of a new Post Office director to handle compensation and ensure that this will not replicate the disgraceful Windrush scheme?

Secondly, there is the major issue of the lack of accountability of those who were deeply implicated in the lies and lack of openness that led to the prosecutions and the delay in dealing with the results. Michael Keegan was Fujitsu’s chief executive when the company was telling the Post Office that Horizon was fine and when its staff were even appearing in court as prosecution witnesses against the sub-postmasters. He does not appear to have suffered any penalty and indeed is now a Crown representative at the Cabinet Office, where he oversees the Government’s relationships with suppliers. Given that Fujitsu continues to work with the Post Office, a £42 million extension to the Horizon contract having been agreed with the Post Office last month, can the Minister assure the House that Mr Keegan would have had no role in any such decision?

We continue to worry about the role that Fujitsu played in covering up concerns about Horizon and in facilitating the blame-shifting to sub-postmasters and their subsequent prosecutions, actions for which the company appears not to have paid a penny in compensation. What discussions are taking place in that regard?

The Post Office, which now wants taxpayers to take on its liabilities over this issue, has still not explained why no one questioned how it was that a vast cohort of upright citizens—people selected and trusted to run sub-post offices and handle public money—all at the same moment became petty thieves, as if a dishonesty virus had suddenly taken hold. Did nobody notice? The management incompetence at the highest level, as senior directors watched unlikely criminals paraded in court, still beggars belief.

I turn to the Government, the Post Office’s only shareholder, which somehow failed to spot what journalists, the noble Lord, Lord Arbuthnot, and finally the court did: that the Post Office was abusing its power over postmasters, failing to question Fujitsu and prosecuting a swathe of unlikely thieves. Will the Minister acknowledge the Government’s failure of oversight and due diligence, with drastic consequences both for individuals and for taxpayers?

We welcome the fact that the inquiry will now be statutory, but my plea to the Minister is: will he ensure that in parallel to the inquiry the Government themselves take a close look at how they oversee not just the Post Office but all expenditure, personnel and IT decisions to ensure that there is sufficient curiosity, challenge, openness and honesty, so that taxpayers’ money and people’s lives are never again put at the risk of a saga like this one?

National Security and Investment Bill

Baroness Hayter of Kentish Town Excerpts

Consideration of Commons amendments
Wednesday 28th April 2021 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it is clear that the Government have no good reason for refusing to accord the ISC its proper role in overseeing the intelligence input into a decision by the BEIS Secretary of State to forbid an otherwise bona fide investment in an enterprise—the sort of investment that the noble Lord, Lord Fox, has just described. I am sad to say that the Minister cited only the size of the House of Commons majority and gave no argument against proper parliamentary scrutiny. Frankly, if we are to say that this House should never question what the majority in the House of Commons does, you would wonder whether there is any role for this House. The size of the majority down there is not important; what is important to the security of this country is the correctness of the views that we take.

At one point, I think in this House, it was suggested that the Government did not want to amend the MoU case by case, but why not? As the noble Lord, Lord Fox, has said, if a new law comes in that has “national security” in its title and gives powers to a Secretary of State that depend wholly on intelligence, why not scrutinise that intelligence in respect of the use to which it is put? As we have head, neither the BEIS Select Committee nor its highly respected chair—who I assume will now be made a privy counsellor, since he is about to be briefed on Privy Council terms; I will be there to congratulate him if that happens—have the security clearance or experience to question the intelligence in the sorts of ways that we have been hearing from around the House. So why not let our experts carry out that work, on behalf of Parliament? What my noble friend is asking for is simple: an amendment to a memorandum of understanding. Is that too much to ask of the Government?

[Lord Callanan (Con)]

I thank all noble Lords who have contributed; it has again been a good demonstration of the quality of contributions from this House. I have listened very carefully to the points that have been made, in particular by the noble Lords, Lord West, Lord Campbell and Lord Butler, and by my noble friend Lord Lansley.

I will address the primary issue head on. This was raised by the noble Lords, Lord West and Lord Campbell, and the noble Baroness, Lady Hayter. It is the issue of whether the BEIS Select Committee will have access to “top secret” information. We will make sure that the BEIS Select Committee has the information that it needs to fulfil its remit and scrutinise the work of the ISU under the NSI regime. Much of this is unlikely to be highly classified and, where the Select Committee’s questioning touches on areas of high classification, it is likely that the relevant information could be given in a way that does not require as high a classification and provided to the committee confidentially. If, however, the BEIS Select Committee requires access to highly classified information, we will carefully consider how best to provide it, while maintaining information security in close collaboration with the committee’s chair.

Another point made by the noble Lord, Lord West, was that the current system for scrutiny is run out of the Cabinet Office and therefore comes under the ISC’s unit, so the Bill reduces the ISC’s remit. The Government’s main powers to scrutinise and intervene in mergers and acquisitions for national security reasons in fact come from the Enterprise Act 2002; the powers under that Act sit with the Secretaries of State for BEIS and DCMS, not in the Cabinet Office. Giving the BEIS Select Committee oversight of the new NSI regime is entirely in keeping with this and does not represent a reduction of the ISC’s remit.

A point made particularly by my noble friend Lord Lansley was about changing the memorandum of understanding, but the question here is not whether the MoU allows for the role proposed by noble Lords, but whether that role is appropriate. Our answer—and I appreciate that noble Lords will disagree—is no. The Government have made their case, which comes off the back of a resounding vote by the elected Chamber, that no change should be made to the Bill in relation to reporting to the Intelligence and Security Committee. We maintain our view that the BEIS Select Committee remains the place for scrutiny of the investment security unit and that the Intelligence and Security Committee remains the appropriate committee for scrutiny of the intelligence services, in accordance with the memorandum of understanding and the Justice and Security Act 2013. With acknowledgement to all who have spoken and with regard to the points that I have made, I appreciate the difference of opinion on this, but ask once again that the House does not insist on these amendments.

Post Office Court of Appeal Judgment

Baroness Hayter of Kentish Town Excerpts

Wednesday 28th April 2021 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I start by paying tribute to the noble Lord, Lord Arbuthnot, and others, including “Panorama” and Nick Wallis on Radio 4, whose championing of the postmasters’ cause helped, finally, to move this towards a just outcome.

Like other noble Lords, I have heard this dismal story many times, but I still have that mixture of shock, horror, shame and some anger with every new hearing. How is it possible that no one in a position of authority noticed that, all of a sudden, hundreds of some of the most upright and respected members of local communities had, almost at the same time, taken it on themselves to start pilfering? How come nobody thought to ask some simple questions? How come the Post Office, adding insult to injury, continued to pursue loyal employees, often with expensive lawyers, long after it was clear that something was amiss? This has been perhaps the most widespread legal miscarriage of justice that I know of; justice has been a long time coming.

Naturally, we welcome the Court of Appeal’s ruling overturning the convictions of 39 postmasters, but, as Lord Justice Holroyde said, the Post Office

“knew there were serious issues about the reliability of Horizon”

and had a “clear duty to investigate” the system’s defects. Despite this, the Post Office

“consistently asserted that Horizon was robust and reliable”,

and

“effectively steamrolled over any sub-postmaster who sought to challenge its accuracy”.

Was the Post Office not curious about this sudden outbreak of illegality? Did it not read the specialist press? As early as 2015, possibly before, Computer Weekly was warning of problems and, even worse, it now reports that Fujitsu bosses knew about Horizon’s flaws all along, yet allowed it to be rolled out to the Post Office network, despite being told that it was not fit for purpose. Back in 2019, a High Court judge ruled that Horizon was “not remotely reliable” for the first 10 years of its existence, which was obvious to Fujitsu and surely evident to the Post Office. Even when the Post Office knew that there were “serious issues” about the reliability of the system, it continued bringing

“serious criminal charges against the sub-postmasters on the basis of Horizon data”

and “effectively steamrolled” anyone who challenged its accuracy.

Even after the High Court vindicated postmasters in 2019, the Government refused to intervene, allowing the Post Office to abuse its power over postmasters. Will the Minister acknowledge the Government’s failure of oversight?

The Post Office let individual postmasters pay a terrible price for its incompetence and cowardice. Seema Misra, falsely accused of stealing £75,000, was sentenced to 15 months in jail while pregnant with her second child. Rubbina Shaheen, accused of stealing over £40,000, spent 12 months in jail. Jo Hamilton, accused of taking £36,000, gave up her shop and, because of her criminal record, found it impossible to get another job. While these convictions have finally been quashed, the hurt, damage and enormous costs remain—to say nothing about those who died before they could be vindicated by last week’s ruling.

So there are questions that the Government must answer. Why are Ministers refusing a statutory inquiry, with subpoena powers and a remit to consider compensation? Given that postmasters are having to spend some of their compensation on legal fees, will the Minister confirm that additional support will be made available to cover such costs? What steps will the Government take to hold Fujitsu to account? Given that it was found to be complicit in covering up the software bugs that led to the false Post Office prosecutions, will it be asked to pay for the monstrous damage that it has done to hundreds of lives?

Given the acknowledgement in the Minister’s letter that steps need to be taken to ensure fair compensation, will he promise—not just undertake, but promise to this House—that it will be done speedily, generously and with no more of the foot-dragging that has besmirched this whole saga? Does the Minister agree that there should now be a criminal investigation into potential wrongdoing, given the knowing cover-ups that led to false prosecutions?

There is one other point I want to make. These postmasters were criminalised by a culture that assumed that technology is infallible and workers dishonest. Given that in future, technology will play an ever-larger role in the world of work, stringent protections will be needed against this “computer says” culture. We must not get to the point where directors, and Governments, automatically side with technology over their workers—or, indeed, over claimants or consumers. If ever technology is trusted without question, or there is inadequate human oversight and challenge, I fear that this will not be the last time that individuals are unfairly treated by a Big Brother who is neither infallible nor accountable.

This has been a sad story. It now rests with the Government to provide fast and full compensation, and to put right the ills that many people have suffered.

[Lord Fox (LD)]

My Lords, I thank the Minister for bringing this Statement to your Lordships’ House, and for his two letters to all Peers over the last five weeks. I should say that I have been a member of the Post Offices APPG for some time.

Looking back, the Government have said that they will determine what went wrong. Of course, we absolutely support that. To this end, their route has been to ask Sir Wyn Williams to lead the Post Office Horizon IT inquiry. The inquiry, they say, will work

“to fully understand these events, gather available evidence and ensure lessons have been learnt so that this cannot occur again.”

I am sure that this will be a thorough investigation, which will shine a bright light on systems and programmes, and their implementation. But can the Minister reassure us that it will also illuminate the overriding issue of how this business behaved? As the noble Baroness, Lady Hayter, has just eloquently set out, the moral shortcomings of the management are central to why this happened. To fully understand this issue, as the Government want to, they need a thorough appraisal of the management culture of the Post Office. It is changing the culture that makes sure that something never happens again, not updating an operating system or rewriting a computer programme.

Can the Minister please make available the full terms of reference according to which Sir Wyn will conduct his inquiry? Government communications include the phrase:

“The Government look forward to receiving Sir Wyn’s report in the summer”.


Does the Minister expect the report to be completed by this summer, or have I misunderstood? If so, what support will the investigation have to run to such a tight timetable? I am concerned because this is not a statutory inquiry. What will happen if individuals retain lawyers to represent their interests? How will Sir Wyn proceed in those circumstances?

I echo the praise given by the noble Baroness, Lady Hayter, to the noble Lord, Lord Arbuthnot of Edrom. He has tenaciously pursued this issue, and in February last year he asked a question of the then Under-Secretary of State at BEIS, the noble Lord, Lord Duncan of Springbank:

“To ask Her Majesty’s Government what recent assessment they have made of the Post Office’s powers to conduct prosecutions.”-


The response was that

“the Post Office’s powers to bring a private prosecution, which fall under section 6(1) of the Prosecution of Offences Act 1985, are not specific to that company.”—[Official Report, 4/2/20; col. 1709.]

I forewarned the Minister that I would bring this up, because my understanding is that while it has not been granted investigative powers, the Post Office has regularly undertaken joint investigations with the police and other investigative bodies that do have statutory investigating powers. It was granted access to the national police computer system for intelligence and prosecution purposes; it had financial investigators appointed by the National Crime Agency for the purpose of undertaking financial investigations for restraint and confiscation proceedings; and Royal Mail was included in the list of relevant public authorities, under the Regulation of Investigatory Powers Act 2000, designated to grant authorisations for the carrying out of directed surveillance to investigate crime. The Minister’s views on that would be welcome. Is it really still appropriate that this organisation should enjoy those powers?

This is by no means the end of the road, as the Statement makes clear. In yesterday’s debate in the House of Commons, my honourable friend Christine Jardine MP asked the Parliamentary Under-Secretary, Paul Scully, to give an assurance that the Government will commit to treating each of the former sub-postmasters as individuals. The Minister acknowledged that, as well as those prosecuted, there were those whose lives had been blighted by incorrect accusations. I am pleased to report that he acknowledged the human cost. However, it is not clear to me what this acknowledgment means in practice. How will the Government embark on treating everybody individually? As part of the settlement, we have the historical shortfall scheme and it has been explained that this had received over 2,400 applications when it closed last August. First, although this is more than the Post Office anticipated, is the Minister satisfied that everybody who could have applied for this was aware of it and did? Secondly, the Minister was clear that Her Majesty’s Government will support the Post Office with resources. We of course endorse that. We do not yet know what form compensation will take and how it will be calculated. However, in a Written Answer, the noble Lord, Lord Callanan, said:

“we will not spend more of taxpayer’s money than is necessary to ensure that the Scheme meets its objectives.”

That sounds like a management expectation exercise and is a bit ominous. This is not an area, or a time, for penny pinching.

However financially generous the scheme turns out to be, the Government have to be clear that they can never fully compensate for the emotional and social damage that has been visited on many thousands of innocent people in this country.

National Security and Investment Bill

Baroness Hayter of Kentish Town Excerpts

Wednesday 28th April 2021 Lords Chamber

[Lord Fox (LD)]

My Lords, the sands of dissent are passing through the hourglass of incredulity. The Minister is right; there has been a long debate. It is very nice to hear that he values the expertise and that he has been able to hear it. It is disappointing that, having valued it, he considers it insufficiently valuable to take the advice that the expertise came up with.

Some time between our last meeting and this one, an email came through from Darren Jones, the chair of the Business, Energy and Industrial Strategy Committee, setting out the fact that an MoU has been exchanged on the subject that we are debating. There is one curious sentence in there, which states:

“I have had to protect the position of my own committee …”.


It is late and I will not press that, but it smacks a little of someone being strong-armed, which is a shame.

The other sentence comes at the end of the email’s penultimate paragraph, which states:

“Should my Committee find any of our scrutiny of the Investment Security Unit is inadequate, we will of course make that clear on the record.”


That is somewhat reassuring. I know that Darren Jones is someone whom one can trust, and I am sure that if he and his committee find that to be the case, that is what will happen and we will of course be listening and watching for it.

We look forward to the Statement being brought forward for debate in both Houses as a consequence of the Bill, and we look forward to debating the technologies that will be put into the Bill.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it is a treat for us to have the Minister here again. He says that there is some scepticism in the House about this matter. I think that there is some mystification, actually. It is said that when he heard about Talleyrand’s death, Metternich said, “What did he mean by that?” There is a bit of me that, as a historian, wonders how historians looking at this in the future will ask, “What was going on? What did they mean by that?”—to have such a squabble, and to go back and forward at the end of a Bill that we all agree is important, over the possible addition of five words in a memorandum of understanding. That is what we have got down to. And I remain mystified. One day, maybe long into the future, when the noble Lord and I have gone on to other things but are still in the land of the living, we may sup together and hear what was really behind the resistance to amending the memorandum of understanding simply to allow one committee to look at the work of the unit.

Having said that, we are pleased that we are now at the end of the Bill. We wish it and the new unit in the Minister’s department well. We talked previously about the number of notifications that it may have to deal with. There is a real challenge there. We seriously wish that unit well as it begins to take on and embed what this soon-to-be Act will enable it to do.

[Lord Callanan (Con)]

My Lords, the hour is getting late and I will not try your Lordships’ patience. It remains for me to thank the last two indomitable warriors on this subject, the noble Lord, Lord Fox, and the noble Baroness, Lady Hayter, once again for their help, support and the valuable scrutiny that they have provided to this legislation.

The legislation has changed as a result of your Lordships’ efforts. I know that there will be disappointment in those noble Lords’ parties that we were unable to agree on this final point but, nevertheless, the House has done its work well. The Bill has been improved as a result of the work of this House, but it is now time to let this matter rest. As I set out earlier, the Government have made their case. Noble Lords will be pleased to know that I will not repeat that case, which was made both in this House and the other place. Let me finish by saying that I appreciate the strength of feeling on this matter and I am sure that we will have further discussions as the work of the ISU takes place. We must now ensure that the Bill is passed.

National Security and Investment Bill

Baroness Hayter of Kentish Town Excerpts

Committee stage
Tuesday 16th March 2021 Lords Chamber

[Lord Clement-Jones (LD)]

The noble Baroness, Lady Noakes, and the noble Lord, Lord Hodgson, have demonstrated exactly why Committee is so important. The way they have teased out the real meaning of these time limits under Clauses 14 and 18 has been revelatory, if we can call it such.

I very much like the no man’s land metaphor used by the noble Lord, Lord Hodgson, but, under Clause 18(9), my noble friend Lady Bowles also talked about the piece of elastic that brings you back. It is almost as if this Bill was designed to be deliberately obscure. The reference back to Clause 2(2) and (4) has almost been sneaked in, so that the Secretary of State has the ultimate discretion.

As the noble Baroness, Lady Noakes, said on the one watchword we have throughout the Bill, we are trying to create an investment regime where there is a high degree of certainty, so that people know what the boundaries are. The time limit boundaries seem to be limitless if they apply to the Secretary of State. An ordinary investor will no doubt be absolutely under the cosh if they fail to meet any time limits that apply to them, but the Secretary of State seems to have absolute discretion.

I do not think I need to add anything further, except to say that we on these Benches strongly support Amendments 43 and 67. I have signed Amendment 67, but both the mandatory and voluntary notification procedures need curing in this respect. I very much hope that the Government will see their way to amending these clauses as we move to the next stage.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this sounds like a “me too” moment, because we also have tremendous sympathy with the amendments, especially after hearing the concerns of stakeholders in the research sector about the uncertainty around the time for notices to be decided by the Government. As we have heard, their concerns reflect others from business and investors.

Could the Minister explain why a default approval should not be included in the Bill if organisations have not heard back within a particular timeframe? She will probably know about the important process for clinical trials involving medical products prescribed in the Medicines for Human Use (Clinical Trials) Regulations. In that case, where no notice is given or where further information is requested within 60 days, the clinical trial is treated as authorised. I am not suggesting that these are two exact types of decision, but that default authorisation in legislation seems to be one we might look at. I am interested to know whether the Government have looked at a similar default approval to add here. Perhaps the Minister could say what sort of advice the Government have had on whether that would work here.

On Amendment 67, could the Minister indicate whether 30 days is right for such a process? It would be useful to know the Government’s thinking on the expected average turnaround time for a call-in notice.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am grateful to my noble friends Lady Noakes and Lord Hodgson of Astley Abbotts for their amendments, which, I believe with good intention, seek to bring further clarity to the status of acquisitions that have been notified to the Secretary of State after the end of the 30 working- day review period. In particular, they seek to provide that acquisitions notified to the Secretary of State are deemed to be cleared following the review period if the Secretary of State does not issue a call-in notice within that period. Both worry, as other noble Lords have, that such a transaction might be stranded in a so-called no man’s land. Amendment 43, from my noble friend Lady Noakes, would apply to both mandatory and voluntary notifications, whereas Amendment 67 from my noble friend Lord Hodgson of Astley Abbotts would apply just to voluntary notifications.

I think we are all agreed it is essential that businesses and investors have the clarity and certainty they need from this regime. That is exactly why we have included statutory timescales for cases—those covered by mandatory notification as well as voluntary notification —to be screened by the investment security unit. That is also why the Secretary of State is already required to give a call-in notice or issue a notification of no further action before the end of the review period in response to both voluntary and mandatory notification. He has no other option, and I hope that noble Lords are reassured by this. The Government consider that this is the right approach as it imposes a legal requirement on the Secretary of State to take a positive action to provide certainty one way or another. I do not believe that the default approval system suggested by the noble Baroness, Lady Hayter, would add to that certainty.

The Government do not think it would be in anyone’s interest to leave the situation ambiguous as to whether an acquisition has been cleared or requires further scrutiny, so I am pleased to be able to reassure my noble friends of the Bill’s functioning on these matters. Many of the businesses the Government have spoken to about the new regime have emphasised they would not wish to proceed with completing an acquisition without unequivocal confidence that they are cleared to do so. As such, it is not clear to me that my noble friends’ amendments would provide greater confidence in the business and investment communities.

For these reasons, I cannot accept the amendment, and I hope that my noble friend Lady Noakes will withdraw it.

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[Lord Fox (LD)]

My Lords, it is nice to be in the Chamber rather than the glass cubes in which we have been confined. I assure your Lordships, and agree with the noble Lord, Lord Lansley, that noble Lords not only on those Benches but on this side of the House want this Bill to succeed; I think that I can speak for Her Majesty’s loyal Opposition as well. However, the measure of that success will be its efficiency, its certainty and the way it manages this important element of investment.

I listened to the answer that the Minister gave to the last set of amendments; I do not expect the noble Lord, Lord Grimstone, as Minister for this set, to comment on that. However, although it is probably irregular, I ask both Ministers to listen back to the answer that was given there and answer the same questions with their departments: how would they manage a company for five years that is still sitting in that kind of limbo? How would they make investment decisions for that business while it is still not approved but not denied? I ask them to think about the management decisions that they would make. When they have come to a conclusion, I think the Ministers will agree with the proposers of those amendments that some degree of certainty needs to be delivered quickly and efficiently—and that brings us to this set of amendments. The noble Lord, Lord Lansley, has eloquently set out an alternative to the—we might say—digital approach that the Bill has taken, with the option of remedies. Businesses are familiar with remedies, I would say, having worked with the CMA and others. The merits as set out by the noble Lord of speed, flexibility and durability are all things to be aspired to.

I know this sounds patronising, but I remind the Government that the title of the Bill includes the words “security and investment”—the investment part should have equal weight to that of security. It is straight- forward to stop things happening and tick a security box; it is harder to make sure that we have a regime that continues to encourage investment. Everything that takes time or injects uncertainty pushes investment away. The Ministers should listen to the wise words of the noble Lord, Lord Lansley, and think about this middle way, which can move things quickly, keep investment in the game and make sure that, at the same time as getting investment, we are also getting the security that the title of the Bill demands.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, there is something going around my mind now about letting foxes out of their glass cubes—I am not sure how dangerous that is.

These amendments would allow for undertakings to be accepted instead of a final order—a case well made by the noble Lord, Lord Lansley. During Committee in the other place, Dr Lenihan from the LSE said:

“There are many cases in which a threat to national security can be mitigated by agreements and undertakings without needing to block a deal.”


Perhaps the Minister could inform the House what thought was given to that proposal.

As we have heard, Amendment 71 is in a way a probing amendment to learn more about the type of person the Secretary of State could appoint to supervise a final order. We will be particularly interested to hear the Minister’s reply on this. What sort of specialism would be involved? Would the person need to have any relevant training, background or experience? It would be interesting to know how they would be selected and whether the job description would be included in the report that would in any case be made, so that one could see the basis on which the selection happened.

Clause 26(4) states:

“Before making a final order the Secretary of State must consider any representations made”.


We are interested in what exactly is meant by the word “consider”. Would that be part of a dialogue, perhaps as part of the negotiations, or simply a requirement that representations are in the dossier submitted to the Secretary of State for ratification? Assuming that the representations had not been successful—if there were a final order, that would presumably be against the wishes of the parties—it would be interesting to know whether the reasoning for rejecting them would be noted and reported on elsewhere, possibly to the ISC. It would be important for someone to be able to reflect on the decision-making that had taken place.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I start by extending my thanks to my noble friend Lord Lansley for these amendments. I also thank other noble Lords who have spoken; all I think welcome the broad thrust of the Bill even if they wish, quite rightly, to probe certain aspects of how it will work.

I begin by addressing Amendments 45, 68 and 69. Amendments 68 and 69 would allow the Secretary of State to accept “undertakings” from the acquirer

“as the Secretary of State deems appropriate to remedy, mitigate or prevent any risk to national security”,

rather than issuing a final order or a final notification. Amendment 45 would then, as I read it, make a consequential change to Clause 13 in respect of notifiable acquisitions so that those which are completed otherwise than in accordance with the final order or the agreed undertakings are void.

The Bill as drafted allows the Secretary of State two options once he has exercised his call-in power: first, to issue a “final order”, which contains remedies. I would add here that remedies are not necessarily just black and white—they could have a whole set of actions incorporated into them; some noble Lords may not fully have comprehended that. Secondly, the Secretary of State can issue a “final notification”, which states that no further action is to be taken under the Bill.

Undertakings proposed by my noble friend in these amendments would come into force when the undertakings were accepted. They could be varied or superseded through the Secretary of State accepting another undertaking, replaced by a final order made by the Secretary of State at any time, or the Secretary of State would be able to release the acquirer from their undertaking.

I am grateful that my noble friend is seeking to expand the options available to the Secretary of State but, as I hope to explain convincingly in just a moment, the Secretary of State does not need these additional options. Undertakings would not be appropriate because the Bill already provides the dual benefit of certainty for parties while giving the Secretary of State the “teeth” needed to enforce a regime built around our national security.

The Bill includes the ability for the Secretary of State to establish the terms of any remedy through the power to make final orders. I emphasise that point again. The terms of a remedy may require someone to dispose of part of something or to do something in relation to one bit of an undertaking but not another. It is a comprehensive term which allows all sorts of matters to be included within it. Indeed, the Bill states in Clause 26(5)(a) that a final order may require a person

“to do, or not to do, particular things”.

I am advised that that is a strong statutory footing which the Government consider is both required and sufficient for remedies under this regime.

My noble friend Lord Lansley was right on the button when he said that this gives the Secretary of State all that he requires. The Secretary of State does not need any additional powers because this power gives him all that he might conceivably want to do. Of course, before the Secretary of State determines his final order, he is likely to engage with parties to an acquisition—acquirers and others—to explore potential remedies.

However, it is right for the purposes of national security that these remedies—once they have been considered, and once they might have been discussed and looked at—should then be able to be imposed through a final order rather than assented to by the Secretary of State. We believe that this imposition is necessary because the matters that we are dealing with here are matters of national security. The Bill as drafted provides the Secretary of State with the power to impose remedies through a final order or to take no further action under the Bill, which is all that is required.

With Amendment 71, my noble friend addresses an important part of the Bill; namely, the carrying out of activities pursuant to final orders. The execution of final orders is of course vital to ensure that any remedies imposed by the Secretary of State have their desired effect. There would not be much point in just imposing orders if they were not carried through afterwards. This amendment seeks to make explicit a requirement that anyone who will conduct, or supervise the conduct of, activities mandated by final orders must be “suitably-qualified”. While I appreciate the good intention of my noble friend, I do not believe that this amendment would add anything substantial to the Bill.

First, the Secretary of State is unlikely to appoint someone who could not conduct or supervise the conduct of activities mandated under the final order. It would be daft of him to put someone in to do the job who was not qualified to do it. Why would he or she wish to do that? To do so may undermine the Secretary of State’s remedy; the remedy may not be carried out in full or in part if the person is not qualified, which would be against the decision that the Secretary of State has made. It is therefore very much in the Secretary of State’s own interests that the person appointed has to be “suitably-qualified,” even if the Bill does not say that specifically. I take it for granted that that is what the Secretary of State would want to do.

Secondly, the Secretary of State will be subject to public law duties when providing for a person to be appointed. Those public law duties will require him to act reasonably and take into account all relevant considerations. This would include whether the person is suitably qualified to undertake the task. He would be failing in his public law duties if he appointed someone who was not so qualified.

Thirdly, should it be helpful to noble Lords, I am happy to state categorically on the Floor of the Committee that the investment security unit will comprise eminently qualified people of the right skills and experience. For example, if a particular case requires someone qualified in chartered accountancy or in audit, the Secretary of State will appoint somebody who has those qualifications to carry out what is required.

For these reasons, I believe that although noble Lords are trying to be helpful in putting forward the amendments in this group, they are unnecessary. What they seek to do is already covered by the powers that exist in the Bill, and I hope that my noble friend will feel able to withdraw Amendment 45.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, the noble Baroness, Lady Noakes, has coined another phrase that will run through this Bill—notably, “practical impact”. It is interesting that among those of us who have taken part in the debates on the Bill many have a practical understanding of what its impact could be. We have been in walks of life that have brought us into the investment community—not least the Minister himself—and we see the potential for major issues arising under the legislation because of the way in which it is drafted. This group of slightly disconnected amendments illustrates that. The noble Baroness, Lady Hodgson, and my noble friend Lady Bowles forensically took us through the amendment and Amendments 67B and 67C. I shall come to the question on whether Clause 30 should stand part of the Bill in a moment.

However, the amendment is definitely the kind of red tape-busting amendment that we need. My noble friend Lady Bowles said that we needed provisions that actually met the needs of the investment community and were tailored to it. The amendment is a classic example of what could be done in terms of making sure that we do not have a situation in which companies have to make notification after notification. The inter- twining of the mandatory and the voluntary notification aspects provided for in the amendment is extremely important.

Then we come to Clauses 19 and 24, and Amendments 67B and 67C. The noble Lord, Lord Hodgson, also has a way of coining a phrase, such as “stop the clock” provisions, which again give the Government all the cards and the poor old investor could be stuck for some period of time. As the noble Lord pointed out, the extent of the powers in terms of the periods are already quite long—75 working days or 15 working weeks for a national security assessment, or 30 working days or six working weeks for the initial screening period. We are not talking about modest periods but, rather like the referee in a rugby match, the Government can stop the clock and there is no control over that, as far as I can see. Therefore, we on these Benches firmly support those amendments.

On Clause 30 stand part, I liked the phrase of the noble Baroness, Lady Noakes: “stuff these companies with public money”. If that was the case, it would be pretty egregious. Now that noble Lords have drawn our attention to it, we can see that the Explanatory Notes on Clause 30 are vanishingly small. There is virtually nothing in there: there is no control over what the Secretary of State does. He may have to give a report if it is over a mere £100 million—and what is £100 million but small change in the circumstances? The Secretary of State can make more or less any decision and then say, “We have made the decision, but we have plenty of cash that we can stuff into your pocket.” It is the opacity, the lack of reporting and any real control in Clause 30 to which the noble Lord, Lord Hodgson, has rightly drawn attention. This is another area where I hope the Minister has something to say that not only gives quite a lot of further assurance but undertakes to create greater control over the powers in that clause.

After a bit, one gets a feeling for a Bill, and this one seems overly weighted in favour of the Secretary of State. The Secretary of State is more or less footloose and fancy free, and it is the poor old investor who will have to bear all the consequences.

[Baroness Hayter of Kentish Town (Lab)]

The lead amendment, Amendment 48A, would introduce a streamlined form for mandatory notification, and Amendment 67B would make any time limit for an information notice not less than three working days. That seemed a sensible—I think the word used was “pragmatic”—proposal.

Turning to the interesting Clause 30, the Minister in the other place said,

“final orders, in exceptional cases … when we are administering taxpayers’ money—may bring about financial difficulty for the affected parties”,—[Official Report, Commons, National Security and Investment Bill, 8/2/20; col. 288.]

which is why Clause 30 allows the Secretary of State to give financial assistance to an entity through a loan guarantee or indemnity as a consequence of making a final order.

It would be interesting to know a little more about the whole of this, as we have heard, and when a potential recipient might know that they were even in line for such help. How early in the process would it be indicated—not the actual decision but that that was a possibility? Or is it like Father Christmas appearing at the end?

As we have heard, the figure of £100 million is interesting, and it is interesting that there is no regulation-making or guidance-providing requirement such that guidance on the use of the power might have to be, if not agreed by Parliament, at least provided and open for debate and scrutiny. Will such guidance exist and how many cases a year are envisaged involving £100 million? Who would make the decision and how, as has been asked, and will it be reported in a timely manner—or, indeed, at all?

If this is the Government’s desired outcome, it seems that Clause 30 does not provide for any financial assistance in the case of an interim order. Perhaps the Minister could outline the thinking behind that, given that an interim order could also impose major costs on a British start-up or prevent an acquirer investing in one if it was thought that that investment might increase the acquirer’s level of influence unduly and trigger the next stage. There could also be the loss of a business-critical investment. It would be useful to know the thinking behind making money available to cover one sort of loss but not another. I look forward to hearing more of the thinking behind how this would work in the Minister’s response.

[Lord Grimstone of Boscobel (Con)]

My Lords, first, I thank my noble friend Lord Hodgson of Astley Abbotts for tabling Amendments 48A, 67B and 67C. I hope that the transaction he referred to had a happy ending.

Amendment 48A seeks to make it explicit that a streamlined mandatory notification form may be provided for in regulations if a person has previously submitted a mandatory or voluntary notification to the Secretary of State. The Bill requires a mandatory notice to be submitted to, and receive clearance from, the Secretary of State prior to the completion of a notifiable acquisition. Clause 14(4) provides for the Secretary of State to prescribe the form and content of a mandatory notice in regulations.

The amendment would amend the regulation-making power to make it explicit that such regulations could provide for those who have previously submitted either a voluntary or a mandatory notification form to submit a streamlined form. I am pleased to say that we are completely aligned with noble Lords who want the process under the Bill to be as streamlined as possible. As the Minister for Investment, looking to the interests of investors, I completely endorse that. I reassure noble Lords that the regulation power as drafted already provides for that.

In addition, the Government are designing both the voluntary and mandatory notification forms with business in mind, while ensuring that the Secretary of State receives the information that he needs to decide whether to issue a call-in notice in relation to a proposed notifiable acquisition.

I stress that the Government are keen to ensure that all the forms are clear and simple to complete. A draft notification form was published for comment during the Commons passage of the Bill, and the Government continue to engage interested parties to test the ease of completing the forms and the clarity and relevance of the questions.

Amendment 67B seeks to create a floor for the minimum time which the Secretary of State must provide to a party for responding to an information note. The minimum floor proposed is three working days. As noble Lords will be aware, Clause 19 provides for an information note which the Secretary of State may issue to require any person to provide information which is proportionate in assisting the Secretary of State in carrying out his functions.

An information notice may include a time limit for providing the information and the manner in which the information must be provided. An information notice must specify the information sought and the purpose for which it is sought, as well as the possible consequences of not complying with the notice.

It will be in the Secretary of State’s interest that any party from whom information is required is provided appropriate time for collecting and providing such information, or else confirming that they do not possess it. Providing insufficient time for doing this will only lead either to incomplete information being provided or to information being provided in a form which is more difficult to analyse. It might also lead to unwelcome outcomes, such as a party undertaking due diligence as to whether they possess the relevant information, but there then being insufficient time for them to establish that with certainty.

It is with these issues in mind that I assume that my noble friend tabled his amendments. I reassure him that the Secretary of State will already have the appropriate incentives to allow appropriate time for a response, and that, more widely, public law duties will require him to take a reasonable approach in setting a time limit for responding to an information notice under the Bill.

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This is the body that deals with national security risks and it is not written into the Bill. It needs to be there. I hope the Government see sense; if they do not, I hope that we can work together to produce something that reflects the nature of this debate.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the case has been well made as to why the ISC should, and indeed must, have a role in scrutinising the use of powers contained in the Bill—or maybe if not scrutinising them, then, as the noble Lord, Lord Butler, says, having a role before they have been exercised. As my noble friend Lord West and others have said, we have been clear throughout that we support the need for the Bill. However, when broad powers of intervention are expanded, those using such powers must be held to account by Parliament and through greater transparency, as other noble Lords have said.

In the Commons Public Bill Committee, Professor Martin from Oxford University said that

“there should be accountability and transparency mechanisms, so that there is assurance that”

the powers

“are being fairly and sparingly applied.”—[Official Report, Commons, National Security and Investment Bill Committee, 26/11/20; col. 81.]

Sir Richard Dearlove said that while the annual report should have as much transparency as possible, it could

“require a secret annexe from time to time”—[Official Report, Commons, National Security and Investment Bill Committee, 24/11/20; col. 21.]

such as is now provided for in Amendments 78 and 79.

Amendment 82 in my name and those of the noble Lord, Lord Fox, and the noble Baroness, Lady Bennett of Manor Castle, would put on the face of the Bill the case made convincingly here today but also in the Commons, where the chair of the ISC set out how this oversight fell well within his committee’s remit. However, the belt-and-braces approach of Amendment 86 is also welcome, just in case the Government’s only answer to a role being given to the ISC is that such scrutiny would go beyond its existing terms of reference. If so, they should amend the terms of reference.

It is important not simply that the ISC has a role, but—to give confidence to this new regime—that everyone, particularly business and researchers, knows that it has such a statutory role. This will be particularly important, as the noble Lord, Lord Janvrin, just said, where a key investment is stopped or voided. Everyone concerned will want reassurance that the security questions that have come into play were indeed properly analysed and assessed.

The power to be used needs reviewing, and it is not sufficient to say—as I have heard said—that the Business Select Committee is equipped for that. It has neither the specialism and expertise nor the clearance to handle and judge such security information. Nor, as the noble Lord, Lord Lansley, said, is it even able to do so, according to the quotes that he gave us. It is also a committee drawn only from the Commons, which would preclude, as the noble Lord, Lord Fox, just said, those in this House being able to have any input into the scrutiny that can take place through the ISC.

As we heard, in the Commons, the Minister said that the ISC could seek information—so clearly there is no problem in it having the information. We simply say that it should not have to ask—as was pointed out, it can then be rejected—but it should also not have to ask to see what has gone on. The noble Lord, Lord Janvrin, reminded us about Donald Rumsfeld and his “unknown unknowns”. You do not know what you do not know, therefore you do not even know what you should be able to ask. As I pointed out at Second Reading, how do you know what the questions are if you do not know what you have not been told?

Then there is, as has just been referred to, the Bill title. We do not even have to go into the content of it; the words “National Security” are in the title, so it is slightly hard to see why the security committee should be excluded.

Amendment 82 therefore provides for an annual report to the ISC, including certain detailed information in relation to state-owned entities, the expertise being targeted, the jurisdiction of acquirers and other national security threats. We are not wedded to the particular wording—I am sure that we can come to an agreement on what should be there—but it is important for our functioning democracy that new, extensive powers for the Secretary of State go hand in hand with accountability. I would think that the Minister would welcome the expertise—indeed, the challenge—of the expert and experienced members of the Intelligence and Security Committee and the confidence that the knowledge that the committee is looking at it would give to the wider group of stakeholders.

I turn now to what the noble Lord, Lord Fox, called an orphan amendment. Maybe I should have put it into a different group; if so, I apologise. Amendment 90, in my name, and those of the noble Lords, Lord Fox and Lord Rooker, is a probing one, to ask the Government to spell out why they think that BEIS is the correct home for the new unit. We seek assurances that the balance of interests between those concerned with the economy and those with our security have proper channels to have their views heard, and heard in a way that is sufficiently speedy and effective to deal with real or imagined problems.

We have heard a lot, quite rightly, about whether business can get its information handled quickly enough, but the same is true for security: those demands and queries must also be handled in a timely manner. There is a balance between those who are interested in the economy and those who are interested in security—it is the same people, very often—and it is always a challenge to get that balance right. As the ISC noted:

“There is an obvious inherent tension between the Government’s prosperity agenda and the need to protect national security.”


Locating the unit in the business department is a statement about which they think is the more important. It makes some sense, obviously, because the issues are about investment, but it will be vital that all sorts of intelligence, from across Whitehall, about possible targets and areas of investment are considered.

The Department for Transport will know a lot about where investment is flowing and it and others will have critical infrastructure where they need to be involved. The ISC’s Russia report, having reflected on Russia’s attempts to influence electoral outcomes in other countries, notes that the Government’s defending democracy programme and their work to protect the democratic processes from interference is under the leadership of the Cabinet Office. It would be useful to know whether consideration was given to collocating this new unit also under the Chancellor of the Duchy of Lancaster, or, indeed, how sufficient input from the Cabinet Office will flow into this unit.

More widely, the ISC, reviewing the co-ordination of security policy across Whitehall when it was looking at Russia, noted that responsibility fell to 14 different departments and agencies. The requirements of the Bill may well be similar: it will need tentacles all across those agencies and departments. It would be helpful to have some reassurance that there is a strong and appropriate lead and that the Government are confident that that lead is correctly placed in the business department rather than in the Cabinet Office, which normally does that cross-department work—the cross-Whitehall responsibilities are often put there for exactly that reason of drawing on expertise.

The amendment also suggests an advisory body, but what it is really pointing to, again, is the importance of pulling in all relevant parties and stakeholders with expertise to what will be big decisions. We have heard about the sort of investments that could be stopped by this, so these are big and important decisions. We look forward to some reassurance that all the right expertise will be used.

I turn to what is the main subject of this group, the ISC. I do not know whether it is the intransigence mentioned by the noble Lord, Lord Campbell, or whether it is something else that has turned such a cold shoulder on what we would all expect normally to be involved in this issue—that is, the ISC. We are not asking for much from the Minister today, perhaps just a cast-iron assurance that the MoU will be adopted in the way suggested. I think that that would satisfy most of us. I suggest that he puts the speaking notes that the noble Lord, Lord Callanan, passed to him to one side. What we really want to hear from him is that he has listened to the debate today, that he will take this back to the department and that it will be given serious consideration.

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[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for his comments. I apologise to noble Lords if they feel that I have misread the mood of the House. The key point that I want to make in response to him is that the BEIS Select Committee—I say it again—is part of our parliamentary scrutiny and has democratic accountability in the other place. The Government are not avoiding scrutiny of the investment security unit; they are putting it somewhere where they believe that the scrutiny will be most effective, looking at the work of the unit in the round. They believe that the most effective overall scrutiny of the ISU will be found in the BEIS Select Committee.

[Baroness Hayter of Kentish Town (Lab)]

I have a couple of questions for the Minister. He said that the remit of the ISC under the 2013 Act does not cover the work of BEIS. If that is the case, that justifies even more an amendment to the Bill to amend the 2013 Act to put in such a provision. If the Government wanted to do it, that would be the way. I do not think that we should use the law as an excuse. The law can be changed; we are making an Act now.

I have just double-checked the names, but can the Minister confirm that the current members of the BEIS Select Committee are not all even privy counsellors and certainly do not have security clearance which goes beyond Privy Council? Can he confirm that there is no House of Lords Member on the BEIS Select Committee? Can he also confirm that nothing that we have done in any of these amendments to give the ISC a role removes the role of the BEIS Select Committee—in other words, it can still look at the industrial or investment parts? We are not taking those away from it, so it would continue to have the role that he has spelt out for it, but we are adding another bit. Can he confirm those three points?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Baroness for those questions. First, I repeat that there is no barrier to the BEIS Select Committee handling highly classified, top-secret material. Appropriate arrangements can be put in hand to ensure that the members of that committee have access, after processes have been gone through, to that material. Secondly, of course, the committee is a committee of the other House —that is self-evident. I come back to my core point. Where the agencies which report to the ISC have done work of relevance to this, the ISC will be able to speak to them about such work, but that is very different from the ISC being responsible for monitoring the work of the ISU, which goes far wider than the responsibilities of the ISC. I have deep respect for the opinions that have been put forward, but I am afraid that I do not agree with them.

National Security and Investment Bill

Baroness Hayter of Kentish Town Excerpts

Committee stage
Tuesday 9th March 2021 Grand Committee

[Lord Fox (LD)]

My Lords, I agree with the analysis of the noble Lord, Lord Vaizey, that Her Majesty’s Government have underestimated the potential workload that this unit will get, but I am not convinced that his solution to reducing that workload is the right one. We have heard many speeches but I would single out those of my noble friend Lady Bowles, the noble Baroness, Lady Noakes, and the noble Lord, Lord Lansley, as reasons why we should not be separating out one set of companies due to their nationality. The noble Lord made the point clearly that the criterion should be: is it or is it not a national security risk, rather than, does it or does it not come from Hampshire or New Hampshire? That should be the rule running through this.

The noble Lord, Lord Leigh, when moving into caveat territory, started to explain why singling out foreign companies becomes an extraordinarily difficult thing to do. First, what is one, and is it a shell company? Is it listed on NASDAQ but actually resident in Beijing? Those kinds of complications start to point to the Government’s analysis that all companies are in. Clearly, it will be easier for the company whose owner your friend meets in a pub to get through the process and not be called in, compared with one that hails from the Far East, for example. Surely, the process should be the efficiency with which the unit can deal with and dismiss issues quickly, rather than accidentally filtering out things that we should not.

On the concept that, “Our friends are our friends, so we include them as ourselves”, the noble Baroness, Lady Noakes, made the wider point about access to the technology. Access can be cut off by our friends as much as by ourselves or, indeed, by external companies. I am sorry, but I am going to repeat the example I gave at Second Reading. A British company with a US-based subsidiary took the technology to the United States, started to produce it and made one small amendment to that technology. The use and sale of the technology back to the UK was then blocked by the Department of Defense under export controls, because it considered it to then be United States strategic technology. I am sure that such things happen all the time—this example is just one that I happen to know about.

Regional agnosticism, the gospel according to the noble Lord, Lord Lansley, is the sensible approach here, and I hope that the Minister can explain his views on this issue.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we have some sympathy with the intention here, which is to seek clarification about whether certain investors or countries should be more or less encouraged to invest here, although this may not be exactly the right way to achieve that. Such clarification is clearly needed and is sought in a different way by Amendment 91, which we will reach next week, I think, and which stands in the name of my noble friend Lord West.

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Moved by

[Baroness Hayter of Kentish Town]

15A: Clause 6, page 4, line 17, leave out paragraph (b)

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[Baroness Hayter of Kentish Town (Lab)]

Amendment 15A would delete Clause 6(2)(b), because otherwise that paragraph means that someone increasing their interest in a qualifying entity from under 15% to over 15% would then turn it into a notifiable acquisition.

This amendment asks a simple but significant question: why has 15% been chosen and what is the rationale for it? The people we spoke to were a bit bemused by the figure. I think someone mentioned in Committee last week that 15% appeared somewhere else, but those we spoke to across a range of areas could not find, and did not know, where that 15% came from. There is obviously no particular evidence behind it. I am not sure whether it appears elsewhere in legislation, but I am sure the Minister will know the answer and outline the thinking behind that figure.

Not just for pubs but for other early stage start-ups and developments, this could certainly be an impediment to an investment just at the point when it is needed. For these small start-ups there seems to be a more or less continuous need for money, but drip by drip as things develop. It is on a continual basis rather than a great big one-off deal; the more the work begins to show potential, the more extra money is needed. Any concern about suddenly hitting 15% in the case of a small company, particularly a new one, just when it needs the money could jeopardise access to funds when they are most needed.

I am not even absolutely certain about the purpose of Clause 6(2)(b), but, again, I am sure the Minister will elucidate in his reply. Clause 8(2) already describes shareholding thresholds for qualifying entities of a specialist description, where the figures of 25%, 50% and 75% are used, and Clause 8(5) does the same with voting rights. So the references in Clause 6(2)(b) to a 15% threshold for

“a qualifying entity of a specified description”

appear to go over very similar ground, unless the intention is to have two different classes of qualifying entities of a specified description, with the higher-risk one subject to the additional 15% level. If that is the case, it seems to add an extra level of complexity to the legislation. Dropping the 15% level could remove the regulatory burden from at least some fundraising that needs to go on. It might be questionable anyway how much control a shareholding of below a quarter would achieve.

Amendment 29A would delete Clause 8(8), which again is a bit unclear. Perhaps the Minister will be able to spell it out a bit more. It concerns the fourth listed case of a person gaining

“control of a qualifying entity”

as described earlier in Clause 8(1). However, Clause 8(8) is not part of the mandatory regime in the earlier Clause 6, which we are now looking at, because in Clause 8 only cases one to three are cross-referenced with reference to subsections (2), (5) and (6). It does not include subsection (8), so a bit more explanation would be good.

Clause 8(8) is perhaps there to allow for a broad range of call-ins than those covered by the mandatory notification regime, but the imprecision of the language is difficult. It talks of where it

“enables the person materially to influence the policy of the entity”.

As that is fairly broad, it could lead to a lot of excess voluntary reporting and it is hard to know what it means in practice. “Influence” is hard enough to define. Maybe “materially to influence” meets a legal threshold of which I am unaware, but it is quite difficult for a researcher or company to know what that means.

It is true that the CMA uses some of that language when we are talking about much bigger operations. However, it is probably not a phrase that is particularly familiar to most businesses or, indeed, to academia. As I said, it could lead to a lot of extra voluntary notification by parties in an attempt to get certainty. As we have heard, we are worried about too many voluntary notifications clogging up the system.

The reason why 25% in Amendment 17 was chosen might need some spelling out. It may well be correct, but it would be useful to know the thinking behind it.

I beg to move.

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[Lord Callanan (Con)]

I will take that as a comment and not as a question. I continue to look at all aspects of the Bill to see how they can be improved.

[Baroness Hayter of Kentish Town (Lab)]

The Minister referred to the meeting that he and the noble Baroness, Lady Bloomfield, very kindly held yesterday with the Wellcome Trust, and I very much welcome the reassurances that he has read into the record today. The shorthand for this is the nervousness in academia of bringing in assets—IP, information, ideas and software—rather than just entities. That was what we discussed at the meeting yesterday, and the Minister has now read into the record the reassurances he gave there, for which we thank him.

I thought that the suggestion—I was going to call it a wheeze—of the noble Lord, Lord Lansley, was rather crafty: if that is what you mean, why do you not say it upfront? However, from what the Minister said, there seems to be a difference between the objective and the subjective criteria. I do not know whether that is why the Government want them in different clauses, but there is a problem with the subjectivity of this phrase. It is not simply, as the noble Lord, Lord Leigh, just said, about material influence rather than material control, but also the policy, and it is hard to define what that means. It seems to me a very subjective test for the big change made in Clause 6. I remain unconvinced that we have got it clear enough.

I thank the noble Baroness, Lady Bowles, for explaining where the 15% figure, to which the Minister referred again, comes from. The CMA uses it when talking about mergers, but we are talking here about big companies, not small ones. However, because there is no threshold, much smaller companies will be covered by this. It may be absolutely important for the takeover of very large companies whether competition is taken out of the market. The Minister knows that, as a consumer champion, I am always very happy for the CMA to look at the impact on competition. However, I have my doubts whether a regime defined for competition in consumer goods and access should be lifted and shifted—the Minister said that there will not be separate guidance—into something that will sometimes affect small start-ups and new developments.

I certainly know more about the subject than I did 43 minutes ago, for which I thank all those who have spoken on the amendment. As has been said, I hope that the Minister and his draftspeople will look at whether this is clear enough, necessary and appropriate for the sorts of investments we are dealing with. When the Minister gives a bequest in a will as the reason for including a particular provision in the Bill, that feels like clutching at straws to me. I hope there are better arguments than that, but, for the moment, I beg leave to withdraw the amendment.

Amendment 15A withdrawn.

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[Lord Fox (LD)]

My Lords, it would seem, when looking at Clause 29 and listening to the reasoned arguments of the noble Lords, Lord Hodgson and Lord Clement-Jones, that the Government would be hard put not to agree with the objectives they set out for this amendment, so I suppose we have to listen to the Minister to hear why the Government think that the Bill already does the things which this amendment seeks to achieve, unless the Minister wants to explain why those objectives are wrong. There is a similar argument to be made about Amendment 72, which is more complex. Again, why would the Government not wish to achieve what this amendment is seeking to achieve? If they do, it is not clear in the Bill.

I dubbed Amendment 97 the Gilbert and Sullivan amendment, because you have the cousins, the sisters and the aunts all lining up in the connected parties list, or perhaps not. The noble Lord, Lord Lansley, would probably have made a fabulous argument, but in his stead the noble Baroness, Lady Noakes, makes very good points.

Coming back to the substantive point about Clause 8, we have had a long debate on the group beginning with Amendment 15A, and a smaller, shorter debate that has focused on similar issues. My noble friend Lord Clement-Jones called Clause 8 a hybrid, being both specific and broad. I hope the Minister and the Bill team will take from this that there is work to be done on this clause. It is quite clear from the debate we have had that tightening and clarifying are required to take the Bill into Report. Otherwise, I suspect there will be a lot of recalls coming from the sort of debate we have seen, particularly in the Amendment 15A group, but also, to some extent, from this one.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am still slightly reeling from having to find names of people long since in my past, but maybe Hansard can piece things together.

We have heard today, both in this group and in others, and in the representations that we have all seen, that there are considerable investor concerns about bits of the Bill, some of which Amendments 29 and 72 in particular seek to address. It is important to recognise, although it has been made clear by people in Committee, that the Bill marks a radical transformation of national security screening for mergers and acquisitions. It is a new and different regime, so it is essential that the Government not only maintain business confidence but gain more confidence from businesses and the investors in them. That was why, on the first day of Committee, we set out why we thought we needed a definition of national security to provide clarity for businesses and investors and to build trust in the regime.

However, as has been said in this group, one of the things that would help that confidence is better drafting. The noble Lord, Lord Fox, is right when he says that more work is needed. I know it is the second day back at school, but it feels as if the homework has been self-marked and now needs a slightly more thorough look. As everyone has said, it is not that anyone has objections to the purpose of the Bill; the concerns are about the wording and perhaps the breadth of its scope.

Clause 8 defines the circumstances in which a person gains control of a qualifying entity, thus constituting a trigger event that may be subject to assessment under the regime. This is clearly a key part that must be got right. Amendment 29 would narrow the third circumstance to make sure that it does not capture minority investor veto rights, as has already been mentioned. Perhaps the Minister could clarify whether it is expected that minority investment veto rights would be captured.

The group of amendments raises some broad questions about the number of cases in which a person gains control of a qualifying entity. We are interested in why other cases are not included. We do not necessarily want them included but want to work out the limits that brought certain things to be put in the Bill. It is quite interesting to know what is not there. For example, is an acquisition involving state-owned entities or investors originating in a country of risk to UK national security not a concern? It is not mentioned. Neither is a person who becomes a major debt holder and could therefore gain influence over the entity’s operation and policy. Is that not of interest? It is not that I want to include them, but I am really interested in how the definitions were put together. Maybe the Government, either in writing afterwards because it may be more detailed, or in answer today could spell out why these particular cases were selected and the sort of advice that was taken in the selection process.

Amendment 97, which the noble Baroness, Lady Noakes, has discussed, raises the question of why a former partner should remain a person of concern. Probably all of us here have had difficulties with being a politically exposed person, a PEP. We have found it very difficult sometimes just to open or become a signatory to a charity’s accounts because of being a PEP. A number of difficulties were had, but I think they have been got over now after some work in this House. It really did affect those of us who have step-children and former partners and siblings we never see, and things like that.

This issue needs a little more clarification and protection, if you like. No investor or anybody involved in this wants to get caught up by something which they could not have thought at the time was of any interest. I understand that it might look suspicious if somebody divorced their partner two days before to get rid of some assets, but this is a very wide net. Perhaps the Minister can explain why this clause is needed and needs to be drawn quite as widely. This is a net that would catch whales, never mind tiddlers.

[Lord Grimstone of Boscobel (Con)]

My Lords, I begin by briefly extending my thanks to my noble friends Lord Hodgson and Lord Lansley for tabling the amendments in this group relating to the circumstances determining the control of entities in the Bill, as well as arrangements and the impact of final orders on contracts.

I am conscious of the complexity of some of the matters that we are debating. If I am not able to explain or elucidate these points fully in my comments, I will of course write to noble Lords. I will also be happy to discuss them with noble Lords outside the Committee. Some of these things are quite difficult to get straight across a table like this.

I will start by addressing my noble friend Lord Hodgson’s Amendment 29. For the purposes of the Bill, Clause 8 sets out the circumstances in which a person gains control of a qualifying entity. It explains the four ways in which control can be gained. Subsection (6) sets out the third trigger event:

“The third case is where the acquisition is of voting rights in the entity that (whether alone or together with other voting rights held by the person) enable the person to secure or prevent the passage of any class of resolution governing the affairs of the entity.”


I think that there is broad support for that concept. However, Amendment 29 seeks to narrow this so that only acquisitions of such voting rights over matters that are equivalent to those which require the passing of ordinary or special resolutions under the Companies Act 2006 would be a trigger event.

I sincerely pay tribute to my noble friend for seeking to ensure that the regime is as reasonable and proportionate as possible. I believe that his intent is very much to seek to exclude acquisitions of minority veto rights from constituting trigger events. However, the Government consider that the Bill already achieves this goal to some extent as subsection (6), which my noble friend seeks to amend, is of course subject to the qualifying provision in subsection (7), which explains how references to voting rights in an entity apply to different sorts of entity.

In the case of an entity that has a share capital, this means voting rights conferred on shareholders to vote at general meetings of the entity on all or substantially all matters. In the case of an entity that does not have a share capital—this is where some complexity arises—this means the voting rights conferred on members to vote at general meetings of the entity on all or substantially all matters. The important words in both cases are

“all or substantially all matters.”

I therefore suggest, with deference to my noble friend, that minority veto rights would be captured by subsection (6) only where such voting rights provide the holder with a right to vote on all or substantially all matters, which perhaps takes it rather beyond the worry that some people had about these minority rights being constrained.

I hope that this puts the mind of the noble Baroness, Lady Hayter, at rest but, again, if a further discussion is needed to clarify how this works, I would be very happy to hold one. I also hope that the Committee agrees that it is only right that minority veto rights, in circumstances where they really are broad enough to cover all or substantially all matters, should be in scope of the Bill. For all intents and purposes, they are the same as majority rights if they are able to do that.

I am grateful to my noble friend Lord Lansley for Amendment 30 in respect of Clause 8 and the definition of control of entities for the purposes of the Bill. This clause reflects the fact that there are ways of obtaining control over an entity other than just acquiring shares or voting rights at significant thresholds. As part of the new regime—I say without excuse that we have made this embracing because of the importance of national security—the Secretary of State must be able to scrutinise lower stakes of shares and votes or other rights or interests acquired by a person that allow them materially to influence the policy of the entity. This is consistent with the UK’s merger framework, and businesses and investors alike have welcomed our adoption of the familiar material influence concept that they have been accustomed to under the Enterprise Act 2002.

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[Lord Clement-Jones (LD)]

My Lords, I am not going to speak for any length on Amendments 31 and 33. I just hope that the Minister has a battery of Scots lawyers advising on these amendments because it sounds as if they could be of huge significance and the issues under Scots law may well have been ignored in the drafting of the Bill. I am looking forward to hearing the Minister’s response, no doubt on advice.

I support, in particular, Amendments 34 and 35, tabled by the noble Lord, Lord Hodgson of Astley Abbotts, which he introduced so well. The common factor is that the existing wording of Clause 10(2) appears to catch intragroup investments where an ultimate parent company holds an interest indirectly through a wholly-owned subsidiary and decides to transfer the interest to itself so that it is held directly. Such transactions do not raise new or additional national risks as there is no change in the substantive control. For mandatory filings, as he also described, the initial acquisition will already have been notified and reviewed. Proposed Amendment 34 therefore makes sure that only those transactions where the initial investment took place before the commencement date are caught; they will thus not have been reviewed. Without this provision, each entity within a corporate group would need to make a separate notification for a single trigger event.

Amendment 35 deals with cases where corporate group companies comprise multiple, separate entities because Clause 10, as drafted, also appears to require each entity within the corporate group to make a separate notification for a single trigger event that takes place relating to the group.

These are well-crafted amendments and were well described by the noble Lord, Lord Hodgson, who, as he said, is supported by the Law Society. We have a Law Society group of amendments here relating to England, Wales and Scotland. I am sure that the Minister will have huge pleasure in responding on this group.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I have no new information to bring to the Committee. As we have heard, a number of transactions appear likely to be caught under the Bill which are probably outwith the intention of the authors of the Bill. I think the Minister has to explain why these provisions are in it, rather than noble Lords who tabled amendments having to explain why the provisions should be taken out. We look forward to his explanation of that and, perhaps, his reassurance to the Committee that the Bill is really fit for purpose across the whole of the UK, including for the Scottish legal system.

[Lord Grimstone of Boscobel (Con)]

My Lords, with thanks to all noble Lords who have spoken with such knowledge and eloquence on the amendments tabled, I will begin by speaking to Amendments 31 and 33 in the names of the noble Lord, Lord Bruce of Bennachie, and my noble friend Lady McIntosh of Pickering. The noble Lord, supported by my noble friend, clearly raises important questions on the juxtaposition of Scottish law with the powers that we are looking at in this group.

I am grateful to the Law Society of Scotland for having supported this and, if I may, rather than attempting to deal with these points on the hoof I will take them away. I commit to being in communication with noble Lords as to what needs to be done, if anything, in relation to them. More generally, perhaps putting the important Scottish points on one side for the moment, I completely agree with the noble Baroness, Lady Hayter, that the Bill has to work for every part of the United Kingdom.

These amendments concern Clauses 8 and 9 and the circumstances where acquisitions of control of entities and assets take place for the purposes of the Bill. They seek, I believe, to ensure that rights or interests in, or in relation to, entities and assets held by way of security are exempt from the regime, on the understandable basis that lending and debt arrangements do not give rise to control. Let me agree right away with the thrust of the concern expressed by the noble Lord and my noble friend. The Government do not consider that the provision of loans and finance is automatically a national security issue. Indeed, it is part of a healthy business ecosystem which enables businesses to flourish and grow in this country. Lenders need confidence that they can see a return on ordinary debt arrangements to provide that service, which is of course vital to the proper functioning of the economy. But we must recognise that there are, in a small number of cases, national security risks that can be posed through debt. I will come to this in a moment.

Access to finance is crucial for so many businesses and, to grow and succeed, they will often take out loans secured against the very businesses and assets they have fought so hard to build. That is why the Bill allows the Secretary of State to scrutinise acquisitions of control that take place when lenders exercise their rights over the collateral. The important point is that it is not where the lenders have hypothetical rights but where they exercise their rights over the collateral. This approach is needed because it will prevent hostile actors artificially structuring acquisitions in the form of loans which, following a swift and convenient default—let us put it that way—might otherwise allow them to evade scrutiny. This is a proportionate approach, and one that I am confident will keep finance flowing into UK companies and infrastructure while ensuring that our national security can be protected.

Amendments 34 and 35 in the name of my noble friend Lord Hodgson relate to Clause 10, which, in combination with Schedule 1, sets out various ways in which rights or interests are to be treated, for the purposes of the Bill, as held or acquired. These include indirect holdings whereby, for example, a person holds an interest or right indirectly if that person has a majority stake in an entity that is part of a chain of entities, each of which holds a majority stake in the entity immediately below it, the last company in the chain of which holds the interest or right. That example is relevant because Amendment 34 seeks to ensure that intragroup investments are not covered by Clause 10 and, as a result, Schedule 1 as well.

My interpretation is that my noble friend wishes to prevent internal reorganisations within the same corporate chain of entities from resulting in trigger events by virtue of Schedule 1. I confirm to the Committee that, in the vast majority of cases, that will not have an impact but, depending on the facts of the case, internal reorganisations may be in scope of the Bill. That is because there may be rare cases in which internal reorganisations pose national security risks. That may be true even if the ultimate beneficial owner is the same before and after the trigger event: for example, if there are concerns about changes to the level of control acquired by other links in the chain as a result of the internal reorganisation.

Clause 10(2)(b), which the amendment seeks to amend, is therefore important, because it makes it clear that in circumstances where a person is already treated as holding an interest or right, when something happens that would be regarded as the acquisition of that interest or right by the same person, then it is treated as such.

This means, for example, that an ultimate beneficial owner at the top of a corporate chain transferring existing majority holdings held by entities lower down in the chain to those above them could be a trigger event if it can be regarded as an acquisition by virtue of Schedule 1.

Amendment 35 would insert a new subsection into Clause 10 to provide that only one trigger event arises where more than one person is treated as acquiring an interest or right due to the provisions of Schedule 1. I can clearly see that my noble friend is seeking to help the Government by looking to ensure that the investment security unit is not deluged by duplicate notifications by corporate chains each time a new acquisition is made by an entity towards the bottom of the chain.

I can assure him that we are carefully designing the notification process and forms so that, wherever possible in situations such as these, a single notification providing all the details of the entities in the same corporate structure can be considered together. That is different from his amendment, which would seek to provide in the Bill that only one trigger event takes place. I am afraid that the Government consider that this would introduce ambiguity into the Bill, as it would not make it clear which trigger event is the one which takes place, and which should be discounted.

Hostile actors could try to exploit such a provision to avoid scrutiny by using shell companies at the bottom of long and complex corporate chains to acquire sensitive entities and assets. If only one trigger event is considered to take place by virtue of Schedule 1, the entity immediately above it in the chain could notify the acquisition, while not necessarily disclosing the control acquired by more troubling persons higher up the chain. In these circumstances, the amendment would mean that these could not be treated as separate trigger events, whereas surely they should be.

With the arguments I have outlined and my undertaking to write to the noble Lord, Lord Bruce, and my noble friend Lady McIntosh about the important Scottish matters they raised, I ask that the noble Lord agrees to withdraw the amendment.

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[Lord Fox (LD)]

I remind the noble Lord, Lord Rooker, that this is a particular Bill designed to do a particular thing. It is not a higher education Bill. While he may feel strongly about many of the issues, I will not comment on them, because they do not fall into the remit of the Bill. I point out that I am also not a university vice-chancellor.

The noble Lord, Lord Lansley, set out the danger, and this was supported by my noble friend Lord Clement-Jones. If this Bill is used to police these issues, the deluge that will fall on the agency will be huge. We are back to the point that my noble friend made on the previous group: we are creating a Bill that does everything, then the Government will gradually calibrate what they do and do not need to do. That is not the best legislative approach.

There are issues with the research relationships that universities may have, but this Bill is not the policing agency that we should be using for them. I do not 100% agree about the outset of a relationship, as set out by the noble Lord, Lord Vaizey, in his and my noble friend’s amendment. Sometimes that has to be looked at, as well as the outcome of that relationship, but I do not think this Bill is the place to do it.

To steal a word that was used earlier and use it differently, we are also looking at the nexus between this and export control. Universities seem much more comfortable with export control, and if there is an issue with universities it could be addressed through the increased and more rigorous use of these measures, not through this Bill.

I return to the point which I asked the noble Lord, Lord Grimstone, about last time and which I put to ask the Minister now, what are we seeking to stop? In other words, in putting this Bill together, how many partnership agreements does the Bill team imagine would have been stopped by this process? What sort of things are the Government seeking to arrest, stop or cancel compared to that which the export control regime would be doing anyway?

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as the Minister knows and as has been said, there is considerable concern in the higher education and research sector about the potential impact of the Bill on research partnerships. We agree with the intention of Amendment 40, which is, as we have heard, to provide clarity for the sector. Indeed, it reflects a recommendation from the Russell group which said that a key concern is that it is unclear which type of asset transactions should be referred for screening. That will cause problems for the group as well as to the unit, which could have simply too many referrals. Amendment 40 is also to ensure that research and development partnerships, such as those between commercial organisations and universities to create new intellectual property and potentially qualifying assets, are not required to provide notification of the creation of such partnerships.

Amendment 88 in my name and that of the noble Lord, Lord Clement-Jones, reflects similar concerns. I hope it takes an approach that the Government are able to accept. It would require the Government to publish specific guidance for the HE and research sector, including a clear explanation of asset transactions indicating how contract research, consultancy work and collaborative research and development are affected and how the provisions apply to strategic security partnerships and domestic partners. The amendment also requires—and this is key—the Government to consult the higher education and research sector in a meaningful way in advance of the guidance so that the published guidance reflects what is workable for both sides, particularly in relation to that definition of assets which otherwise could lead to great uncertainty. The amendment therefore is about developing guidance and promoting good practice in that it should be done in co-operation with the sector. I thank my noble friend Lord Rooker and the noble Lord, Lord Lansley, for their support for this approach. The wording of my amendment may not be perfect, and we could perhaps tweak that on Report, but it will be important to have this in the Bill.

Perhaps the Minister who is about to reply—or may be doing that next week—would indicate the Government’s acceptance of this need for guidance as well as the way of getting it. As the Russell group says, without clear guidance a significant proportion of universities’ routine engagement with British business could be inadvertently captured by the Bill. We are all in favour of that engagement between universities and business. We want to make sure it happens. Any hiccups could delay time-sensitive research deals if the unit was preoccupied with this.

Universities want to help make this Bill work. They acknowledge that there are risks. I disagree with the noble Lord, Lord Fox. I think that the issue raised by my noble friend Lord Rooker about the amount of collaboration with certain countries is key and we must face up to it. I think that the leaders of the universities are aware of that. They want to be part of the solution, so I hope that the Minister will accept Amendment 88.

National Security and Investment Bill

Baroness Hayter of Kentish Town Excerpts

Committee stage & Lords Hansard
Tuesday 2nd March 2021 Grand Committee

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it was clear at Second Reading, and again today from when the noble Lord, Lord Fox, began, that everyone across the House agrees that national security is the number one priority.

The discussion therefore is twofold. First, will what is, and is not, covered in this legislation be clear enough? Secondly, is the balance between security needs and the desire for economic growth, research, innovation and freedom to invest, correctly delineated? On the first issue, it is obvious that the new regime must be based on the best advice coming from across government, as well as on emerging and current threats, and the behaviour and developments of our adversaries. We will come in the next group to the definition of national security.

This first amendment is focused more on the second question that I posed. Will the unit take sufficient account of technology investment, research and innovation, and business opportunities, particularly for SMEs? From everything said at Second Reading and even today, that is an important discussion. We should not expect the Bill, nor its new unit, to be the generator of investment, research and development—that is for an industrial strategy—but the Government must have a careful eye on whether the workings of the Bill have a detrimental impact on technology investment and innovation, while ensuring that the economy does not override security interests. That is a difficult judgment. If it were not, there would never be any problems for the Government to solve.

I read today—others may already have been aware—of possible changes to the listings regime to help the City compete with New York, Amsterdam and Frankfurt in attracting fast-growth companies by creating an “agile” new economy focused on innovation and technology. We welcome such moves and attention being given to making Britain a more attractive place in which entrepreneurs can take companies public.

We hope that the proposals emanating from one of our colleagues, the noble Lord, Lord Hill, on relaxations on the use of dual-class shares, to allow founders to keep control over their companies by giving them deciding votes on decisions such as corporate takeovers, could work in harmony rather than at variance with the objectives of the Bill. I hope there will be an opportunity to discuss those interplays as we go forward.

In the meantime, we will consider future amendments that will look at whether the right procedures, definitions, timelines and so on strike the right balance as to workability in making those fine judgments between security and economic interests. However, this amendment is calling for the Secretary of State to be required to have regard to those other interests. The Minister will say that, of course, he or she is bound to do so. However, it is a question on which some assurance is needed and we look forward to the Minister’s view on that.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

I am grateful to noble Lords, Lord Clement-Jones and Lord Fox, for their introductions to this debate. I thank them for proposing this new clause and for enabling a further discussion on the purpose of the Bill.

Amendment 1 seeks to establish an objective for the Bill and include a number of elements to which the Secretary of State must have regard when using his powers. Let me say at the start that the intent behind this amendment is to provide a clear statement of the scope of the Bill, to prevent so-called mission creep and give certainty to businesses and investors, while avoiding the pitfalls of attempting to define “national security”. However, the legal effect of the amendment presents us with a number of challenges.

The amendment would require the Secretary of State when exercising his powers under the Bill to safeguard national security in respect of economic and social harm, which is reasonable. It is indeed possible that economic or social harms could give rise to risks to national security, but so could other harms such as physical or military harm. For example, a hostile actor could use control over a piece of critical infrastructure to put UK citizens in physical danger or they could acquire companies in the UK defence supply chain and thereby degrade our military capabilities.

The absence of other harms in the factors listed by the amendment suggests that the Secretary of State may not use his powers under the Bill to safeguard national security from those harms that I have outlined. It is also unclear how he should have regard to the factors in subsection (3) of the proposed new clause. As the amendment does not say that they are to be regarded as part of national security, that would suggest the scope of the Bill is being expanded beyond national security. It is important to note that the government position on the issue of defining, wholly or in part, “national security” remains consistent with when amendments in a similar vein to this were discussed at Second Reading and in the other place; I have discussed that with the noble Lord, Lord Fox, previously. The Bill does not set out the circumstances in which national security is, or may be, considered at risk. That reflects long-standing government policy to ensure that national security powers are sufficiently flexible to protect the nation. It also does not include factors which the Secretary of State must or may take into account in assessing national security risks on the face of the Bill.

While it is crucial for investor confidence that there is as much transparency in the regime as possible, there is clearly a limit to how much the Government can and should disclose in this regard, given that the regime deals explicitly with national security matters. National security risks are multifaceted and constantly evolving. What may not constitute a risk today may well do so in future. We may find over time that such specificity becomes outdated. Indeed, as my noble friend Lady Noakes pointed out, it is enough of a challenge to ensure sufficient specificity in the objectives of the Bill, especially with regard to concepts such as those referenced in the amendment.

While I have nothing but gratitude for the noble Lord’s intention—to provide a specific objective for the Bill—it is primarily for the reasons I have set out that I am unable to accept the amendment, and hope that in the light of that he feels able to withdraw it.

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Moved by

[Baroness Hayter of Kentish Town]

2: Clause 1, page 1, line 10, after “security” insert “, including public order and public safety”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I shall speak also to Amendments 13 and 83. Perhaps I will take a little more time than usual over this because it is one of the central issues on which we wish to hear the views of the Committee and, indeed, the response of the Government.

Given that national security is clearly the Government’s priority, it is important that to make the Bill work everyone involved in its provisions and their interpretation are clear about how the Government see national security—its range and depth, if I may put it that way. Therefore, Amendment 13 seeks to establish the issues which should be taken into account because clear rules will be vital for businesses seeking funds, researchers, investors and the unit having to take decisions. They need to work on basically the same template.

Let me take a moment to say that the Government have published 112 pages today—the Minister expected someone to say it, so I may as well say it now—but his letter covering the first amendment arrived as he was speaking to it and the Written Ministerial Statement did not even refer to a policy statement that I gather has also been put out, according to my up-to-date information. I think the Committee will understand that we have not had time to digest this and we may therefore have to try to look at some important issues in that.

One of the points relevant to Amendment 13 is that this response states that several respondents indicated that “national security” should be clearly defined. We are therefore interested to know whether the Minister will listen to those concerns which, in a sense, is what Amendment 13 is seeking to do. It is not trying to define exactly what is national security nor, by implication, what is not. It is setting out how people tasked with scrutinising potential investments may approach the first question—“Might this risk our security?”—by listing the sort of factors to be considered. The “have regards”, while not an exclusive list, indicate to officials, the Secretary of State and those handling investments the matters which should be considered in any decision.

We absolutely agree that neither the Government nor Parliament should prescribe or limit what national security covers, as is long-standing practice, and therefore do not seek by this amendment to curtail the Secretary of State’s flexibility to act, but we nevertheless think that the other parties involved who will be impacted by this legislation need to know the range of issues which will be among those considered by the Secretary of State.

Amendment 13 provides a framework which is neither rigid nor exclusive. It simply does what other countries have done, what experts have recommended and what we have heard that people submitting comments to the Government have also said. The Law Society argues that without something like this, there is a risk that a Secretary of State could become exposed to political influence, and the Investment Association says that a better understanding of national security could help calm investors. Therefore, the amendment indicates factors that the Government might consider, such as the impact of a triggering event on defence capabilities or how a hostile actor might be enabled to gain access to critical infrastructure. I hope that the Minister will accept that Amendment 13 provides such a framework and flexibility to help alleviate the concerns that have been raised, particularly in the defence sector.

We are also keen to ascertain whether critical infrastructure is included in the Bill. As we know from the ISC report published last year, Russia has

“undertaken cyber pre-positioning on other countries’ Critical National Infrastructure.”

It would therefore be useful if the Minister could clarify whether that is covered in the Bill.

Later this month—the rumour is a week tomorrow but certainly while the Bill is in this House—we will see published the Integrated Review of Security, Defence, Development and Foreign Policy. Perhaps the Minister could confirm its publication date and that it will indeed be a week tomorrow. He nods—I think I am not going to get a yes that question. Can he also outline how the results of the analysis of that review will feed into the work of the new unit and its decisions on what constitutes a security threat? Will the review focus on the private sector and on the role that the Government see for business, as well as on how the interests of innovation both in academia and in business should be promoted?

Amendment 83, to which the noble Baronesses, Lady Northover and Lady Bennett of Manor Castle, have added their names, highlights the relationship between the review just mentioned and the objectives of the Bill and seeks a government statement on it. Given that the Government have said that the review will include the

“long-term strategic aims for … national security”,

there are questions about how these would align with the Bill’s new regime and how we are able to keep an eye on technological developments in the private sector while keeping pace with security challenges. What we do not want to see is an important new national security regime buried in BEIS which does not link with the UK’s wider and longer-term security concerns and priorities.

The ISC noted

“the extent to which economic policy dictated the opening up of the UK to Russian investment”,

whereas the Bill seeks to put security first and our investment needs second. As I said on the earlier group, it is an important but not always easy judgment to make. It is therefore essential that the Government’s view on security is considered by the BEIS unit and that Parliament is able to see how that is happening by way of the statement suggested in the amendment. That statement should focus both on how the Government will align the provisions in this Bill with the outcome of the integrated review and on how the UK will respond to identified threats, including new technology, biological weapons, cyber and misinformation. The reference to new technology is key since new weapon capabilities could as easily be developed in the private sector as in an MoD lab. The Government will need to procure these assets while preventing certain foreign states also purchasing them.

I return to Amendment 2, which probes whether public order and public safety are included within the Government’s view of national security. The similar German regime captures “public order” as part of its national security, while the Japanese regime applies equally to “public order and public safety” and to national security. Is the UK regime narrower than the approach taken by these other jurisdictions? Perhaps the major issue we want clarified within that is whether an investment which could have an impact on the working of our democracy would be covered.

Last year’s Intelligence and Security Committee report on Russia stated:

“The UK is clearly a target for Russia’s disinformation … Russian influence in the UK is ‘the new normal’ … It is clear that Russia … poses a significant threat to the UK”,


including “interference in democratic processes”.

With regard to elections, the discussion at the time of the publication of the report, which of course was written a whole year before it was published, was more on bots, messages, and so forth, the report noting that

“Russia has carried out malicious cyber activity … including attempting to influence the democratic elections of other countries”.

The Government’s own response concluded that

“it is almost certain that Russian actors sought to interfere in the 2019 general election through the online amplification of illicitly acquired and leaked Government documents.”—[Official Report, Commons, 16/7/20; col. 71WS.]

However, an external force intent on interfering with our elections could instead invest in the electronic gear that stands behind our pencil and paper voting, and perhaps pose a threat that way. Given, as the ISC report notes, the

“fusion of government and business”

in Russia, a business providing advanced IT for elections could have very close ties to that regime, or indeed to any other regime. Indeed, the Government’s response to the ISC noted that the Defending Democracy programme in the Cabinet Office includes consideration of

“direct attacks on electoral infrastructure.”

So the thinking is clearly there. Perhaps the Minister could therefore clarify whether foreign investment in democratic electronic infrastructure would come under the remit of the Bill. It is partly about what we think of as national security.

When the ISC covered this, it noted that

“the issue of defending the UK’s democratic processes … has appeared to be something of a ‘hot potato’, with no one organisation”—

I assume it meant within government—

“recognising itself as having an overall lead.”

Could the Minister outline how such responsibility and oversight will sit within the BEIS unit, such that investment in any democracy-related hardware or software could be included in its remit, and explain how the Government will overcome what the ISC describes as

“nervousness around any suggestion that the intelligence and security Agencies might be involved in democratic processes”,

given the committee’s view that

“Protecting our democratic discourse and processes from hostile foreign interference is a central responsibility of Government, and should be a ministerial priority.”?


The answer to the questions may indeed be no, but to have a discussion on national security and the future of our democracy and our safety without considering this seems to us to miss out a vital ingredient. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the noble Baroness, Lady Hayter, for bringing forward this group of amendments. I will speak in particular to Amendment 13.

In preparing for this stage of the Bill we have received a number of briefings from outside bodies. Every single one has said, in the words of the noble Lord, Lord Clement-Jones, that the trawl is being done far too widely. The Government would not be drawn on that at Second Reading, and it is absolutely appropriate that we try to pin them down through this form of probing amendment.

In leaving the parameters drawn as wide as they are, it is fair to say that all those who have briefed ahead of today would prefer to see a strict definition of what national security is. Am I right in assuming that national security for the purpose of the Bill covers everything that is not defined or covered elsewhere? Water treatment, the water supply and air traffic are covered by other legislation, so does that mean they are not covered by the purpose of the Bill? Are we wrong to assume that the Bill covers critical infrastructure in the way the noble Baroness, Lady Hayter, set out? It would be helpful to know whether we have to work on a process of elimination rather than on a specific reference point such as a definition, as is set out in Amendment 13, which is quite wide in its own right, given its number of “have regards”.

The Law Society of Scotland states that

“national security itself is not defined within the Bill. We note that the Enterprise Act 2002 definition refers to EU legislation”.

Are we right to assume that that definition still applies, or can we safely assume that, because we have now left the European Union, it is no longer valid? A steer from the Minister would be very helpful in summing up this debate.

The Law Society of Scotland goes on to say that

“: it might be helpful to introduce a stand-alone concept appropriate to the current context. An exhaustive definition is likely to be neither possible nor desirable but a general delineation of the concept together with detailed additional guidance as to how this is likely to be applied would be helpful.”

Does the Minister intend to do that as the result of this amendment to date?

I, too, received the letter from the Minister within the last half hour, when I was on another call. In the normal course of events, I would have studied such a letter quite closely to enable me to prepare for today, so it is a matter of some regret that we have not had a chance to read it. Perhaps the Minister will cover its main points in replying to this little debate on this group of amendments.

I believe that either we should adopt something like Amendment 13 in the course of proceedings or the Minister should bring forward some definition of the Government’s own drafting during the proceedings, before the Bill leaves the House.

--- Later in debate ---

[Lord Callanan (Con)]

If the acquisition in question poses a risk to national security, yes, there is the general power, but the point I was making is that, with regard to areas of political and national infrastructure, there are also separate powers in different pieces of legislation that would help to protect in those areas.

[Baroness Hayter of Kentish Town (Lab)]

First, I thank everyone for their contributions, which I found extremely helpful and thoughtful. In particular—this will not surprise the Minister—the Minister confirmed that it would be possible to call in any threat to democracy or anything like that. I am sorry he did not feel able to answer on when exactly the integrated review will be published, but we live in hope.

I was a bit disappointed that the Minister said that he did not want to define national security because it was long-standing government practice not to. My heart sank at that point, thinking that the Minister must have a better reason. Luckily, he did and he gave us answers other than, “It’s always been done that way”, which always seems to me a really bad answer. I am not saying I was completely persuaded by his answer, but it is a thoughtful and useful way of thinking about how we approach this. I hope it is not just because the Government would fear a JR if there are words that could be challenged over whether something should or should not have been brought in.

My fear is about the difference between the list and the call-in power. As the list will be mandatory, people will know what they have to do. Where investors, researchers or companies will probably have the biggest fear in respect of the call-in power is that they will not know in advance. I hope that we will come to the possibility of either safe harbours or a quick turnaround—though that does not get over the call-in power—because that seems the area of greatest uncertainty. We will probably have to return to that. In a sense, it is the same issue when it comes to critical national infrastructure. I guess I should leave it to those far more experienced in infrastructure to know whether those comments are helpful.

We heard a thoughtful and challenging response to the amendment from the noble Lord, Lord Lansley. If I understood him correctly, he suggested that we start at the back end: we discuss the assets; we discuss the acquirer; we look at the definition of control—which is the end part of the Bill—and use that to define national security in the front part of the Bill. I am bemused by whether that is the right way round; it may be, but by the time we have defined it, we may have got to it. It seems an odd way round to do things to have a Bill that has “national security” in its title and then to have to work through “Well, if it is that sort of asset owned by that sort of people to that sort of percentage” to decide that it comes into the category of national security. However, I want to read more carefully what the noble Lord said because the elements appear to be there, but it seems slightly upside down. The noble Lord also said:

“We know that Ministers are going to have regard … to that kind of issue.”


If we do, what is the harm in writing them down? He may know that Ministers would have regard to those issues, but will everyone else know what they are?

I have a lot more to think about having heard the wisdom expressed today. It is possible that we will want to come back to this issue on Report—maybe in a more refined way; I am sure that those who have read the Commons debates carefully will have noticed that my words were not all of my own drafting. I thank everyone who has contributed—more sincerely, perhaps, than in other debates. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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[Lord Clement-Jones (LD)]

My Lords, it was a pleasure to put my name to the amendment in the name of the noble Baroness, Lady McIntosh, because I think that I understand its intentions entirely. It is also a pleasure to follow the noble Baroness, Lady Noakes, and the noble Lord, Lord Hodgson, in their elucidation of what the amendment is about. I think the noble Baroness, Lady Bennett, has entirely misunderstood the essence of this amendment.

Earlier in Committee today we were trying to get some sort of definition of national security, and I think that the noble Lord, Lansley, in his inimitable way, managed to unpick that rather successfully. As far as national security is concerned, it is a mission impossible to try to carry everything in one bundle in a definition. This tries the other way on and, as the noble Lord, Lord Hodgson, said, it is designed to avoid mission creep. It is trying to make sure that the definition of national security is not used as a blanket term to cover damage to the economy and society. It has the huge benefit of simplicity; it tells us what is not in national security rather than what is in it. It clarifies that certain factors such as employment, reciprocal investment or trading opportunities, and protectionism will not be taken into account when assessing national security. If there was mission creep in the way that was described, it would undermine legal certainty and damage investor confidence in the way that we have heard from a number of noble Lords.

The Government have kept assuring us that this is not, in the words of the noble Lord, Lord Callanan, a national interest Bill but a national security Bill. That is exactly what this amendment is trying to ensure—that we do not have that all-encompassing national security definition used by lobbyists or others to try to bring things into the net. I have seen it happen in the United States. The CFIUS is absolutely that kind of spider-like operation that brings in all sorts of spurious transactions. I very much hope that we will keep this provision absolutely focused, and this amendment is a very good way of doing it.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we support the approach of this amendment. As we have all made clear, the new regime must focus on protecting national security. The clue is in the title of the Bill. The definition of national security has to take best advice from across the Government about the threats and behaviour of our adversaries.

While I hope the Government will monitor the impact of the Act on technological investment, innovation and SMEs—which I hope a different part of the Government is actively supporting—those interests, along with employment, investment and competition, cannot and should not trump national security, albeit that I hope that the Government would consider mitigating any detrimental domestic impact of placing security first if that were needed.

Clearly, concerns about any political pressure, rather than any disregard for the issues listed, give rise to this amendment. The tone and the purpose of it are ones that we share.

[Lord Callanan (Con)]

I thank everybody who has spoken in this debate and thank my noble friend Lady McIntosh of Pickering for tabling the amendment. It seeks to clarify that certain factors, namely employment effects, reciprocal investment or trading opportunities and the desire to protect UK businesses from international competition, cannot be taken into account in assessing whether a trigger event would give rise to national security risks. I was surprised to see that the noble Baroness, Lady Bennett, and my noble friend Lady McIntosh are now differing on some things. That is most unusual; it is something to be encouraged for the future.

My noble friend articulates a reasonable concern here: that a regime used to screen investment for national security purposes could be used to screen investments more widely. Indeed, the shadow Secretary of State, in his opening speech at Second Reading in the other place, argued that the Bill should include an industrial strategy test—I was therefore surprised to see the noble Baroness, Lady Hayter, supporting this amendment.

As such, I have some sympathy with the aims of this amendment. I can, however, reassure my noble friend that the Bill is about protecting national security, nothing more and nothing less. The Bill does not set out the circumstances in which national security is, or may be, considered at risk. As I said on previous groups, this reflects long-standing government policy to ensure that national security powers are sufficiently flexible to protect the nation. The Bill also does not include factors which the Secretary of State must or may take into account when assessing national security risks. Instead, factors that the Secretary of State expects to take into account in exercising the call-in power are proposed to be set out in the statement that we have provided a draft of and is provided for by Clause 3.

The draft statement, published upon introduction of the Bill, includes details of what the Secretary of State is likely to be interested in when it comes to national security risks. This includes certain sectors of the economy, and the types of acquisitions that may raise concern. It does not currently state anything which the Secretary of State intends not to take into account with regard to national security. This is a conscious choice. If the Secretary of State were to start listing areas of the economy or types of acquisition that he considered unlikely to present national security concerns, I suspect that this would result in a long and dense document of little use. We judge that it is therefore more helpful for businesses and investors to set out where the Secretary of State is more, rather than less, likely to use the call-in power.

I understand, however, the concern that without a definition extraneous factors may be taken into account. My reassurance for my noble friend comes from the courts. Were the Secretary of State to seek to use the powers in the Bill for a purpose beyond national security, his decisions could be challenged in the courts through judicial review and could not be successfully upheld. It is with this judicial oversight in mind that the Secretary of State is constrained in delivering the purpose of the Bill. I am therefore confident that the Bill as currently drafted contains sufficient safeguards against inappropriate use of the regime, and that the Government are already providing a good amount of information for parties affected by the regime on its likely areas of focus.

I hope that my explanation, taken together with these points, provides sufficient reassurance to my noble friend, and that she therefore feels able to withdraw her amendment.

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[Lord Fox (LD)]

My Lords, as the noble Lord, Lord Lansley, said, government Amendments 37 and 75 are technical and Amendment 12 covers the ground of Amendment 11, so I will speak to the latter. I am broadly supportive. Clearly, this is an issue about “may”—my noble friend Lady Bowles and the noble Baroness, Lady McIntosh, asked the same question. If “may publish” means “may not publish”, where are we in this process, given that the statement is such an important part of setting out the modus operandi of the whole Bill? This is quite an important area.

I support Amendment 11 but it will be important to listen to the Minister’s response to decide how this might go forward in the next stage. I believe that some degree of accountability should not be left as an option to the Secretary of State; there should be an obligation on the Secretary of State to make that statement and, as the Government have said, to have the ability to remake it.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we welcome the Government’s Amendment 12 to make changes to the sectors statement in respect of feedback from stakeholders. Can the Minister confirm whether all the suggested changes that come back in that consultation will actually be published?

I will make a comment about the document that has arrived in front of us today because, in a sense, it gives a very good description of how good consultation works—never mind the timing; we have made that point—in relation to the degree of change that looks as if it is going to happen as a result of conversation on that particular issue. However, it then feeds into what happens if, had this been the statement, changes were wanting to be made. For example, what we have heard today, as a result of some very good consultation, is that the definition of AI has been narrowed significantly to focus on three high-risk applications: identification of objects, people and events; advanced robotics; and cybersecurity.

The interesting thing is what happens after you have had a consultation that has got the Government to rethink and that may then have other implications. In this case, with those changes, does this change the Government’s estimate of the number of notifications that that might give rise to, in relation to the change in definition? It is that sort of issue that might come up, and it would want the dialogue that I think is being referred to in the amendment, in relation to whether there is a second stage—if it is turned down, so to speak—about having to go on further. As such, how we handle the feedback is about both the transparency of what has come back in and the full implications of any changes that that has made.

We keep coming up with the figures where, even though the Government have increased the assumption of how many notifications there would be—less than 1% or so—the CBI and other commentators feel it would be much greater. As such, that degree of dialogue is needed in relation to consultation over these very big issues. Some assurance about the results of such a consultation, as well as a second stage, seems very helpful, along the lines in the amendment.

On the Government’s Amendment 75, it would be interesting to know what advice led to the change—we are not questioning it but wondering why it has been made—to extend the regulatory power from a notice or serving an order to include all documents as well. It would be helpful, certainly to me and possibly to other Members of the Committee, to know what other types of additional documents will thus be added to this regulatory power—could the Minister spell that out?

[Lord Callanan (Con)]

First, I thank my noble friend Lord Lansley for his Amendment 11. With the permission of the Committee, I will speak first to the three minor technical amendments that the Government wish to make to the Bill: Amendments 12, 37 and 75. Briefly, before I begin, I reassure the Committee that the Secretary of State must lay and publish a statement before using the call-in power.

Amendment 12 is to Clause 4, which concerns consultation and parliamentary procedure for the statement pursuant to Clause 3, in which the Secretary of State sets out how he expects to use the call-in power. At present, Clause 4 enables the Secretary of State to meet the requirement to carry out such consultation as he considers appropriate, in relation to a draft of the statement under subsection (1)(a), before Clause 4 is commenced.

However, it does not make it clear that the Secretary of State is able to make any changes that he considers necessary in view of the responses to that consultation under subsection (1)(b) before the clause is commenced. Amendment 12 clarifies this point, ensuring that stakeholders will be able to see a revised draft statement before it is laid before Parliament.

Amendment 37 is to Clause 11, which provides an exemption for certain asset acquisitions which would otherwise be trigger events. Subsection (2), however, provides that assets that are either land or are subject to certain export controls should not fall within the exemption, and subsection (2)(b) sets out the relevant export control provisions. One of these provisions, Article 9 of the Export Control Order 2008, was revoked on implementation period completion day as a result of EU exit by Regulation 4 of the Export Control (Amendment) (EU Exit) Regulations 2019, with which I am sure all Members are very familiar. The amendment would remove the reference to this revoked provision from Clause 11.

Amendment 75 is to Clause 53, which enables the Secretary of State to make regulations, subject to the negative resolution procedure, prescribing the procedure for giving notices and serving orders under the Bill. At present this clause enables the Secretary of State to specify how a notice or order must be given or served, but does not make it clear that these powers are intended to extend to all documents given under the Bill. The amendment would clarify that point, ensuring that the Secretary of State has the power to make regulations in Clause 53(1) in relation to the procedure for service of documents for all the different types of notices, orders and other documents under the Bill. These are relatively small tweaks to the Bill, and I hope that the Committee will see fit to agree to them.

Amendment 11 was tabled by my noble friend Lord Lansley, and I will begin by briefly setting out its context. Clause 4 sets out a consultation requirement and parliamentary procedure for a statement about the exercise of the call-in power which must be published before the Secretary of State may issue a call-in notice. It requires the Secretary of State, before publishing the statement, to carry out such consultation as he thinks appropriate in relation to a draft of the statement, to make any changes to the draft that appear to him to be necessary in view of the responses, and to lay the final statement before Parliament.

My noble friend’s amendment seeks to clarify the process by which the Secretary of State may publish a new statement if either House resolves not to approve the previous version that he lays before Parliament. The apparent stumbling block that the amendment seeks to remove is that the Secretary of State is under a duty to carry out such consultation as he thinks appropriate in relation to a draft of the new statement, and make any changes to the draft that appear to him to be necessary in view of the responses to such consultation. However, I point out that the Secretary of State must carry out such consultations as he “thinks appropriate”, according to Clause 4(1)(a).

The Bill therefore provides the Secretary of State with some measure of flexibility in deciding whether, for how long and how widely the draft statement should be consulted on. Therefore, the Bill as drafted does not in appropriate circumstances prevent the Secretary of State from publishing a new updated statement, reflecting the debate in Parliament, almost immediately without first undertaking a consultation if he does not think that a consultation is appropriate.

In short, while my noble friend’s amendment seeks to ensure that a new statement may be laid speedily if either House resolves not to approve the previous version, the Bill as drafted already allows for this. I am grateful that he has afforded me the opportunity to make the functioning of this clause clear. Therefore, in the light of the explanation that I have been able to provide, I hope that he will feel able to withdraw his amendment.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, there are distinct common factors in both these amendments. The proposers do not believe that the current way of approving regulations under Clause 6, purely the affirmative procedure, is satisfactory. That is because of the importance of the regulations under Clause 6. As we heard, they underpin the necessity for mandatory notification for certain types of transactions in 17 sectors and they can be changed. We heard, particularly from my noble friend Lord Fox, that the definitions of these sectors are highly complex.

My noble friend took the example of artificial intelligence, a technology I have taken considerable interest in. As he explained, machine learning technology permeates almost every single sector and every use for both consumers and businesses one can think of—fintech, edtech, regtech, you name it. Artificial intelligence permeates those, and the new description of the AI sector published in the government response today states:

“In narrowing the definition, the definition now provides further clarity for businesses and investors”.


However, the definition still covers:

“the identification of objects, people, and events; advanced robotics and cyber security.”

That is pretty broad.

The policy statement published today is also extremely helpful in emphasising the importance of Clause 6 regulations. The policy statement says:

“Under Clause 6, the Secretary of State has the power to make regulations to:… a) specify the description of a qualifying entity for the purpose of identifying a notifiable acquisition; …b) amend the circumstances in which a notifiable acquisition takes place … c) exempt acquirers with specified characteristics … d) make consequential amendments of other provisions of the Bill resulting from provisions set out in paragraphs (b) and (c).”—[Interruption.]


I hope that I am having some impact on the Minister, my Lords. The policy statement goes on to say:

“For the commencement of the regime, the Secretary of State intends to make regulations only to specify the sectors subject to mandatory notification.”


I underline “only” because you would have thought that was significant enough in itself. This is obviously a self-denying ordinance, but it is not a very large self-denying ordinance when you are dealing with the intricacies of those 17 sectors.

My noble friend Lord Fox has rightly quoted the Constitution Committee’s 2018 report The Legislative Process: Delegated Powers, which talked about the rubber-stamping of the Government’s secondary legislation. He also referred to my long life, and in my already long life I have been responsible for overturning a statutory instrument. The Blackpool casino was very much wanted by the citizens of Blackpool, so the SI for east Manchester was defeated by three votes in the House of Lords, and one of those votes was from the Archbishop of Canterbury—the former Archbishop of Canterbury, I am glad to say. It was I who put the Motion, and we passed it by three votes to deny the Government the right to build the casino in east Manchester. Unfortunately, the Government never came back with a proposal for Blackpool, and that is a sad piece of history. I do not know why they did not; it would have been a great place to build a casino.

However, that does show that, on a simple proposition, it is possible to have an effective debate. When you are dealing with 17 sectors and 111 pages of text, which are going to be the subject of this regulation, that illustrates that the form of affirmative resolution proposed in this Bill is not fit for purpose. This kind of super-affirmative procedure means that there would be a genuine debate on the regulations and the 17 sectors and their extent.

I have huge sympathy with the amendment of the noble Baroness, Lady McIntosh, because of course one wishes to see consultation among stakeholders. In an ideal world, one would like to see both that and the super-affirmative resolution. But, to be frank, consultation is not the same as, or a substitute for, proper parliamentary scrutiny. These are crucial regulations, and it is right that they are opened up for full debate in this way. I am probably going to embarrass the noble Lord, Lord Lansley, by saying that he said earlier we will have some debates about the sectors—well, not really, unless this amendment is accepted.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as we have just been hearing, these notifiable acquisition regulations are significant and require proper oversight, not just from both Houses of Parliament but also from experts involved, and with the opinions of those experts being made available to legislators. It will obviously be important to ensure that the stakeholders to be consulted are knowledgeable and, if I may say it, at the cutting edge of technology.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Bates) (Con)]

My Lords, I have received two requests to speak after the Minister: from the noble Baroness, Lady Hayter, and the noble Lord, Lord Clement-Jones.

[Baroness Hayter of Kentish Town (Lab)]

I forgot to declare at the beginning that I used to work for the Wellcome Trust. It was 20 years ago, but I think it should still be noted.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her response but I do not think that she has quite got to grips with the full concern about this. It is not so much that there has not been consultation about the current sectors; there has been an extensive consultation and the Government have come back with their views and have explicitly said that they may change them even further. Yet they are still going to return to Parliament with a pure affirmative process. It is not as if parliamentarians will be able to change it. The stakeholder discussion and consultation is going forward as she said, but there is no guarantee that when that set of regulations is passed there will be proper debate in the House, nor will there be thereafter if the sectors are changed and made more specific, less specific, added to—whatever. There is no guarantee that consultation will take place.

The Minister said that there are the right incentives. That is a bit thin. If that is the guarantee of government consultation, it is not very solid, and even then, Parliament is entitled to have a view about the width of those sectors in the light of changing circumstances. It might have different views about new risks emerging, to use the Minister’s phrase. Therefore, it would be entirely legitimate to have that debate if those regulations were revised. The Minister has not got the nub of the concern in all of this.

National Security and Investment Bill

Baroness Hayter of Kentish Town Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 4th February 2021 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for introducing the Bill. He will be pleased to know that, as he will have gathered from its passage through the Commons, the Opposition are fully supportive —we might even say “at last”. We will, however, be wanting to make a few changes to ensure that it works even better than the Government envisage.

Today’s debate, not unusually for your Lordships’ House, will bring together an experienced group of speakers with expertise in industry, defence and security. I particularly look forward to the maiden speech of my noble friend Lord Woodley, who will speak from his own knowledge of the field. Some of his former trade union members, whom he represented, worked in defence sectors and thus played their role in the defence of the realm.

We hardly need to repeat that national security is the number one priority for any Government. We welcome the changes the Bill makes to ensure that investment, whether in companies, land, assets or know-how, never jeopardises our security. Our only surprise, as my honourable friend Chi Onwurah pointed out in the Commons, was that the impact assessment

“regrets that national security is an area of market failure requiring that the Government do something about it.”

As she said about that quite astonishing claim:

“National security is not a private concern first and a Government afterthought second. National security is the first reason for Government. It is not undersupplied by the market; it is outside the market altogether.” —[Official Report, Commons, 20/1/21; col. 998]


Putting that to one side, we welcome the new and updated regime for intervening in business transactions that might raise national security concerns. We applaud both the requirement for automatic pre-acquisition referrals in some areas, as well as a voluntary notification system and the ability to call in acquisitions of sensitive entities and assets where it is thought they need a national security assessment.

I do, however, wonder whether sufficient thought has been given not just to tangible or IP assets but to the brain power which is vital to dealing with the security threats of today. It is not simply a matter of retaining domestic control over key assets, but also of ensuring that we grow and nurture the skill sets needed for this rapidly changing technology, where we need ability and domestic capability here in the UK. Could the Minister reflect on this when he comes to reply? Could he also comment on whether crucial national infrastructure is likely to be covered in the automatic notification part?

The Bill as it stands should be capable, subject to some issues over capacity which my noble friend Lord Grantchester will address when he winds, of protecting vital security interests. Our questions are twofold. First, they are about the security capability and cross-departmental working within BEIS. Secondly, they are about parliamentary scrutiny, which appears woefully thin.

Much of the business department’s work is to foster and promote inward investment, for the best of reasons. The UK has twice the direct foreign investment of France or Germany. That is good for our economy but potentially risky for security. Because of that dual responsibility, it is surely challenging to give the business department almost the opposite role to that of a cheerleader for investment: to check and sometimes prevent such investment. Indeed, it almost looks like a potential case of moral hazard. Can the Minister confirm that, at least, there will be strict Chinese walls within the department?

Perhaps even more fundamentally, it is hard to see how the Minister’s department can be close enough to departments dealing with land use, defence, supply chains, higher education, foreign relations, transport, science and medicine to be fully aware of what is happening across those areas. Traditionally it has been the Cabinet Office that handles such significant cross-departmental or multiagency working.

Having looked carefully at the draft Statement setting out the three types of risk to be considered by the Business Secretary—the target risk, a trigger event, and the acquirer risk, according to the Minister—it is clear that while judgments as to degree of ownership or control of a business fall within his department’s expertise, some of the other security judgments listed, such as the hostility of a particular state or knowledge of our security services, are not among those traditionally made by business specialists. The backgrounds and expertise of the advising personnel will need to be drawn from across other departments, and many of them will require high-grade security clearance. The decisions taken will be serious and could impact on our international and diplomatic relations, including with close allies.

I recognise that this remit has been with the business department to date, but the increased remit of the Bill—the sheer number of cases and their increased sensitivity—makes the future quite different from what was correct in 2002. Is the Minister therefore confident that the passing on of intelligence and advice from around Whitehall will work smoothly in the new set-up?

Allied to the nature of this work is my second question, which is about whether the Bill allows for adequate parliamentary scrutiny of the decisions which will fall to the business department. A strong case was made in the Commons for the Intelligence and Security Committee to be given an explicit role in scrutinising the working of the Bill; indeed, its chair spelled out very clearly how it was well within the committee’s terms of reference to handle it.

The response of the Minister in the Commons was rather disappointing, to say the least. He said that the Intelligence and Security Committee could ask for extra information or invite the Minister to attend if it wanted. However, as a Nobel laureate commented

“they do not know what they do not know.”

Indeed: the committee will not know what it has not been told until and unless it sees a report. The Intelligence and Security Committee, with its security clearance, would be able to do a proper job on behalf of Parliament in seeing how these powers are—or indeed are not—being used.

We need therefore to amend the Bill, along the lines suggested in the Commons, to ensure that reports are made to the Intelligence and Security Committee. Perhaps the Minister could reflect on whether this would be best achieved via a government amendment.

We welcome the Bill, which, as I said, is in some ways sorely overdue. We will scrutinise it seriously and call for changes to be made, particularly in relation to parliamentary scrutiny and ensuring that the new unit has the skill set, working methods and resources to ensure that its decisions are timely, cross-departmental and forward-looking, so that it safeguards our future security. I look forward to working with the Minister as we take the Bill through the House.