Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

I signed the clause stand part proposal from the noble Lord, Lord Willetts. The signatures to it reflect the point that I made at the beginning: this is a non-partisan debate, and it reflects opinion right across the House. I hope that the Minister will listen very carefully, because I would rather him come back and say that there are points on the regulator that the Government want to improve, there may be things that they will change over a period of time, and they will review the Act—if it becomes an Act. But this clause would open the door to courts and litigation that will undermine any good work that the regulator attempts to do, and the debate has shown very clearly that it needs to go.

[Earl Howe (Con)]

My Lords, as noble Lords have indicated, today and at Second Reading, the issue of the proposed new tort is one that has given rise to a number of doubts, questions and worries, which I shall do my best to address. Whether I can entirely assuage those concerns remains to be seen, but I hope that noble Lords find what I say to be helpful at this stage.

Amendment 48 from the noble and learned Lord, Lord Etherton, seeks to make it clear in the Bill that a claim under the tort against a higher education provider or college can be brought only by the individuals specified under new Section A1(2), namely those whose freedom of speech is protected under the Bill. The amendment would also make it clear that such a person must have suffered loss in order to bring a claim. I can confirm without hesitation—and I hope that it is helpful for me to place on the record—that we intend for the new statutory tort to operate as the amendment suggests, which is the usual approach under tort law. This is reflected in the Explanatory Notes.

For someone to make a successful claim via the tort against a provider, the claimant would need to be able to show that the provider owed them a duty of care. Only the class of individuals specified in new Section A1(2) would be able to demonstrate that the provider owed them a duty of care. This is not a question of demonstrating standing to bring a claim, rather a question of demonstrating that they were owed a duty of care—a more limited group that would not, incidentally, include pressure groups.

As for the need to demonstrate that they have suffered loss, the claimant would need to point to a genuine loss that they had suffered as a result of the breach of the freedom of speech duties in new Section A1 in order to claim damages. If we bear in mind that only a person specified in new Section A1(2) could bring a claim, we consider that they would do so only if they have suffered because of a breach of the duties—even if, for example, that loss is injury to feelings and not a monetary loss. I come back to the point I have made before, which may be helpful to the noble Baroness, Lady Fox: we intend the tort to be a backstop, particularly for those situations where an individual disagrees with a recommendation that has been made.

I understand the concern of the noble Lord, Lord Grabiner, that Clause 4 should specify that compensation can be awarded by the courts. There are, as he rightly said, some statutory torts where it specifies this but also torts that do not: for example, Section 138D(2) of the Financial Services and Markets Act 2000. The principal remedy for tort is damages, although, as the noble Lord will know, an injunction and other remedies may also be available. An injunction, for example, could require that a student is readmitted on the course which a provider has removed them from, so we would certainly want a court to be able to order that, if appropriate.

The remedies available for the tort of breach of statutory duty are the same as for tort generally, subject to the intention of the relevant statute. Where the legislation itself provides a remedy, the question may arise whether it is tended to be additional to the general remedies available under the law or instead of them. Where the legislation provides a remedy but there is no express or implied indication as to whether other remedies are also available, there is a prima facie presumption that it is intended to be the only one available. This presumption will not always exist and the question depends in each case on the construction of the enactment concerned. Given this, we think that it is not necessary to specify that compensation is available; it could, in fact, unintentionally limit the court’s powers.

Amendments 49 and 52, tabled by my noble friend Lord Sandhurst, seek to allow the employment tribunal to determine claims brought by academic staff members under the new statutory tort and to make dismissal for exercise of academic freedom automatically unfair. The consequential amendment removes the qualifying period for unfairly dismissed academics and the cap on the compensatory award, and it allows the tribunal to order interim relief. The Bill does not prevent academic staff bringing claims before the employment tribunal, which may take into account a breach of the freedom of speech and academic freedom duties, if it is relevant to a claim before it. Under the current employment law framework, the two-year qualifying period for unfair dismissal is intended to strike the right balance between fairness for employees and flexibility for employers, to ensure that employers are not discouraged from taking on new staff. Where an employee does not have two years’ service, it is still possible to bring a claim for wrongful dismissal in the civil courts.

In answer to the noble Baroness, Lady Falkner, in particular, the Bill in fact broadens the range of people covered by the existing freedom of speech duties to ensure that all staff within a provider, college or students’ union have protections and can seek redress where duties are breached. The new duties give particular protection to academic staff, including those who may not have employee status or have been employed for less than two years. It therefore broadens the scope of the current provision to ensure that visiting fellows, for example, have the freedom to research and teach on issues that may be controversial or challenging without the risk of losing their post, privileges or prospects.

The Bill gives specific jurisdiction to the courts to consider claims for breach of a statutory duty, as well as setting up a new complaints scheme. I say to my noble friend Lord Willetts that we think that this is a proportionate approach. Academic and non-academic staff will have sufficient routes for redress, without the need to amend employment law as proposed.

Amendment 50, also tabled by my noble friend Lord Sandhurst seeks to make clear in the Bill that the tort should be only a remedy of last resort and that individuals should first exhaust the free route of redress of the Office for Students complaints scheme. Under the amendment, the court would be able to stay the claim on the application of the defendant. We expect that most complainants will choose to use the complaint scheme of the OfS—or students may wish to go to the Office of the Independent Adjudicator for Higher Education—before considering going to court, as no costs are involved in lodging a complaint.

The noble Lord, Lord Grabiner, spoke of mischief-makers. We consider that the tort is unlikely to lead to higher education providers, colleges and student unions having to deal with a large number of unmeritorious claims. A claimant would need to be able to show that the defendant owed them a duty of care, and they would need to point to a genuine loss that they had suffered as a result of a breach of the freedom of speech duties, as I described. In the case of an unmeritorious claim, the claimant would struggle to make their case. In addition, an unmeritorious claimant would risk having to pay substantial legal costs as a result, not only their own but potentially also the legal costs of the defendant. This, together with the availability of free routes for seeking redress, means that we expect the tort will likely be used only as a backstop.

[Lord Grabiner (CB)]

Does the Minister think it appropriate that there should be left in place two possible routes for a complainant—a regulatory route and a Clause 4 route—without there being any guidance whatever in the legislation as to who should or should not go first? At the moment, the Minister is saying, by way of assertion without a scrap of evidence to support it, if I may respectfully say so, that the expectation is that people will use the regulatory procedure first if they are going to make a complaint. At the moment, the legislation does not cater for that problem. Is he satisfied with that?

[Earl Howe (Con)]

My Lords, I hope the noble Lord will accept from me that I am not impervious to the points made by noble Lords from around the Committee on that issue, including the very powerful points that the noble Lord himself made. I will come in a minute to the position I have reached as a result of this debate.

It may be helpful if I just explain first, though, that we should note that, to complain to the OIA, the complainant must generally have first exhausted the provider’s internal complaints process; the same is likely to be the case for the OfS scheme. We anticipate that, in any event, where an alternative dispute resolution procedure is available, the court will be slow to engage with issues arising from the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion. If an individual wishes to bring a tort claim before then, they should provide the court with good reasons for doing so, but that will be a matter for the courts to determine.

However, I have heard the concerns expressed by noble Lords, as well as in the other place, about exhausting other remedies and about the tort generally. We take these concerns seriously and will consider carefully whether anything can be done to address them. I am also happy to discuss the issue of who can bring a claim with the noble and learned Lord, Lord Etherton, if he still considers an amendment along the lines of his amendment necessary.

--- Later in debate ---

[Lord Grabiner (CB)]

I apologise: it is probably my fault because I did not convey the point of the noble and learned Lord, Lord Hope, as clearly as I could, and perhaps should, have done, and certainly not as clearly as he inevitably would have. It is not about the earlier 1980s legislation; the fact is that the Bill, if it becomes law, will contain brand-new statutory duties. It is those duties that, if broken, would give rise to the course of action we are talking about.

[Earl Howe (Con)]

I am grateful to the noble Lord. I shall reflect on that point and write to him, if he will allow me to clarify the Government’s position in that way.

I have already set out how we envisage the tort will operate, so I will not repeat that. Suffice to say that, in the view of the Government, the statutory tort will provide an important legal backstop by giving individuals a specific right to bring a claim before the courts. This could include a number of people in different situations. For example, and purely by way of example, it could include students expelled from their course because of their views; organisers of an event that is cancelled, having incurred costs in the process; and a visiting speaker disinvited at the last minute, with the accompanying media furore and perhaps damage to feelings and reputation. There are other instances I could give. Noble Lords who wish to remove this clause need to be comfortable about removing a backstop provision that could offer a remedial route to certain individuals, such as those I have mentioned.

I hope I have been able to set out why we believe that this clause fulfils a duty that we surely owe to those who believe that their legal rights in this area have been infringed.

[Lord Collins of Highbury (Lab)]

A number of noble Lords referred to the chilling effect and the Minister did not really cover that point. He keeps talking about this being a backstop, but if its effect is to prevent the invitations and stop the debate, what does he think about that chilling effect? It has completely the opposite effect to what he has been speaking about.

[Earl Howe (Con)]

The point the noble Lord, Lord Collins, makes goes hand in hand with the point that I would like to reflect upon. The issue raised by a number of noble Lords was the sequence of events: whether the Bill should make clearer that the complaints process should have first been exhausted before a recourse to the courts is made. So if I may I will consider the noble Lords “chilling effect” point in that context, as well as in the context of the overall clause, and write to noble Lords accordingly.

[Lord Macdonald of River Glaven (CB)]

My Lords, perhaps I might ask the Minister to consider this. He mentioned earlier in his remarks that the question of pressure groups was not really relevant because they would not be an entity to which a duty of care was owed. The problem with pressure groups is their willingness to fund litigation on the part of other people: I think that is the relevance. Would the Minister care to reflect on that?

--- Later in debate ---

[Earl Howe (Con)]

I take that point absolutely. I was not seeking to say that someone well funded by a pressure group could not, in certain circumstances, have recourse to the courts. It was simply a point made about pressure groups in themselves.

[Lord Etherton (CB)]

I am very grateful to the Minister for dealing with the range of issues that have arisen. So far as my own amendment is concerned—as I have made clear in the past—it is very poor drafting to leave out major provisions that should be going into the Bill and leave it to a statement of the Minister at the Dispatch Box or to be found in the course of reading the Explanatory Notes. I do think my amendment should be put into a proper form in the Bill itself, if necessary by a government amendment.

If, as I think the Minister referenced, it is envisaged that the courts will be able to give remedies other than compensation, again, that is a very important consideration. I would want to consider very carefully whether it is appropriate for the courts to have to find a suitable remedy other than damages in a particular case, so I would very much welcome an appropriate amendment that we could all see if this provision is to remain in the Bill. Subject to that—and I am very happy to have meetings with the Minister to discuss these matters—I beg leave to withdraw my amendment.

Schools: Integrated Communities Strategy

Earl Howe Excerpts

Tuesday 24th April 2018 Lords Chamber

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

My Lords, I note that the noble Lord, Lord Pearson, has been trying to get in for some time and has graciously given way each time.

[Lord Pearson of Rannoch (UKIP)]

I am most grateful. Do the Government know what is being taught in our some 2,000 madrassas, which are not inspected by Ofsted, and which teach Muslim children about Islam and to recite the Koran for perhaps 20 hours a week? If the Government do not know what is going on there—and Written Answers to me confirm that they do not—should they not find out?

Social Mobility

Earl Howe Excerpts

Monday 20th February 2017 Lords Chamber

[Baroness Farrington of Ribbleton (Lab)]

My Lords—

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

My Lords, it is the turn of the Cross Benches and then, if we have time, we can hear from the Labour Benches.

[Lord Laming]

My Lords, does the noble Lord agree that it is a real challenge to help these young people to recognise the talents that they have, to give them a sense of ambition and to nurture those ambitions through these important years in their development?

Armed Forces: Capability

Earl Howe Excerpts

Thursday 12th January 2017 Lords Chamber

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

My Lords, I am grateful to the noble Lord, Lord Robertson, for tabling this Motion, and appreciate the obvious wisdom that he brought to it. I also warmly thank all noble Lords and noble and gallant Lords who have contributed to this important debate so powerfully.

It has been said repeatedly in this House in recent times, and it is undoubtedly true, that the world is a more dangerous and uncertain place today than it has been for many years. Despite encouraging advances, the threat from Daesh remains substantial. Russia, as noble Lords have said, continues to show its force through both conventional and novel means. New theatres of conflict, most notably cyber, demand new and complex capability. The transition to a new US Administration has been seen by some as an opportunity to question, perhaps even attempt to undermine, the role of the rules-based international order.

In the 2015 National Security Strategy and Strategic Defence and Security Review, we wrote:

“The world is changing rapidly and fundamentally”.

We cannot claim to have foreseen the seismic political events of the past 12 months, but we recognised the uncertainty and volatility characterising our current era and we conducted our analysis and reached our conclusions accordingly. I align myself with the noble and gallant Lord, Lord Stirrup, in this area: no Government can predict the future, but we can prepare for the unpredictable. The SDSR presents a clear plan for doing precisely that.

I remind the House of the four most pressing challenges to UK defence and security, as identified in 2015: first, the increasing threat posed by terrorism, extremism and instability; secondly, the resurgence of state-based threats and intensifying wider state competition; thirdly, the impact of technology, especially cyber threats; and finally, the erosion of the rules-based international order, making it harder to build consensus and tackle global threats. The noble Lord, Lord Robertson, rightly warned us against complacency. We cannot be complacent about recent developments in our strategic context, but I am confident that this list of challenges is as accurate today as it was just over a year ago, and that the plan we have constructed to respond to them stands up to scrutiny.

In the context of enduring change and uncertainty, two principles must be central to our response. First, we must plan to be adaptable: the threats we face are varied and diffuse, and we must be ready to respond rapidly and effectively however and wherever they become manifest. Secondly, we must strengthen and deepen our international partnerships and alliances: now more than ever we must place an international approach at the heart of all of our defence and security plans. I will address both of these in turn.

Noble Lords will by now be familiar with the vision set out in the SDSR for Joint Force 2025. We start from the firm foundation of already world-leading Armed Forces. In 2010, however, the Government rightly optimised our forces around the ability to conduct a single, medium-sized, enduring operation, of the sort we were familiar with from Iraq and Afghanistan. Today we face a wider range of more complex tasks and more sophisticated potential adversaries. Joint Force 2025 has therefore set us on a path towards Armed Forces that are more agile, versatile and deployable than ever before.

We cannot plan with certainty for a discrete type and size of operation, so we must plan for flexibility. Joint Force 2025 will have the capability and skill mix required to conduct a wide range of complex operations concurrently, from deployments on the scale of the current counter-Daesh mission to more specialist operations, support for humanitarian assistance, and training and capacity-building with international partners. Furthermore, at the heart of Joint Force 2025 is the ability to deploy a highly capable expeditionary force of around 50,000. That is a step change in our ambition from the “best effort” deployment of 30,000 planned for in the 2010 SDSR. It will fully prepare us for the most substantial challenges to our national security, including a call to war fighting under NATO Article 5.

Increased agility and versatility increases our security. It sends a powerful message of deterrence to our adversaries, and lets our allies and partners know that we are willing and able to tackle our shared problems side by side. This point cannot be over-emphasised in the wake of last year’s referendum. We may be exiting the European Union, but—as I made clear in our defence debate before Christmas—we are neither withdrawing from Europe nor turning our back on the world. On the contrary, I assure my noble friend Lord King, the noble Lord, Lord Campbell, and the noble Baroness, Lady Jolly, that NATO will continue to be at the heart of UK defence policy, and we will remain a strong and influential European voice on the world stage.

That leads me to our second strategic imperative: the need to strengthen and deepen our international partnerships and alliances. In the SDSR, we wrote that our defence policy and plans will be “international by design”. Our interests are inextricably linked to global security and prosperity, and we will continue to play a leading role in protecting global stability. We cannot, and do not, hope to do this alone. It is not just a policy choice but a necessity that we become more deliberate in our international approach across all defence activity. We will build an international dimension into defence planning from the outset.

In practice, that means strong, strategic bilateral and multilateral relationships. The noble Lord, Lord Ramsbotham, was right. This begins with our closest allies—the United States, France and Germany. The US remains our pre-eminent partner for defence and security, and interoperability is at the heart of our relationship. Building on the Lancaster House treaty, we will further deepen our collaboration with France on capability, operations, science and technology, and counterterrorism. Germany shares our aspiration to expand our partnership on defence and security, and we will do so across all areas of defence.

But that is not where it ends. The UK will work to strengthen bilateral and multilateral relationships across the globe. We will build and sustain alliances and partnerships through a more comprehensive approach to defence engagement, which is now a funded core task for the Ministry of Defence. We will build and strengthen combined international military formations, whether with NATO or with partners and allies further afield.

I mentioned interoperability. That is being developed all the time. NATO remains the key vehicle for maintaining an integrated and interoperable military force, and we will work with alliance members to train and exercise together, and to share doctrine, tactics and procedures. We will also continue to develop collaborative capabilities with our key allies wherever there is an opportunity to share expertise and cost in the development of new defence technology. Taken together, and supported by the Government’s global defence and diplomatic network, this will allow us to build coalitions throughout the world in the pursuit of shared interests and in support of the rules-based international order.

Strengthening our Armed Forces and employing a comprehensive international approach to defence is the plan set out in SDSR 2015, and the Government stand by it. However, a plan is nothing without action, so I shall just outline briefly the significant progress that has been made. First, the ambitious plans for Joint Force 2025 are in train. The innovative 77th Brigade has reached initial operating capability; work has now begun on the first Dreadnought-class submarine; the first of our new aircraft carriers, HMS “Queen Elizabeth”, will begin sea trials this year; design and manufacture will begin on Crowsnest, the early-warning system for the helicopters that will protect the new carriers; RFA “Tidespring” will arrive in the UK in the spring for customisation; the contract has been signed to purchase nine P8 maritime patrol aircraft; and July 2016 saw the delivery of the RAF’s 14th and final Voyager aircraft for air tanking and transport. We are already delivering.

Internationally, we have also done a lot to demonstrate our commitment to working with allies and partners. My noble friend Lord King referred to the vulnerability of the Baltic states, as did my noble friend Lord Jopling and the noble Viscount, Lord Hanworth. That is exactly why we have agreed to deploy a battalion to Estonia in the spring and an infantry company to Poland in support of the United States, strengthening NATO’s enhanced forward presence. We are also deploying UK fighter aircraft to contribute to the NATO southern air policing task in Romania.

I understand my noble friend Lord Jopling proposing that we should try to hasten the deployment of UK forces to the Baltics. I was at the ARRC headquarters at Innsworth yesterday and can reassure him that plans for the deployment are well advanced. A careful judgment has been made and it is felt to be well worth ensuring that our forces are comprehensively trained and equipped prior to deployment. I am sure that my noble friend would agree with that.

It is not surprising that defence spending has formed a major theme of this debate. A number of noble Lords referred to the Government’s commitment to spend 2% of GDP on defence in every year of this Parliament. We should not downplay that; nor should we draw what appear to be very easy comparisons. Comparing like with like is, I suggest, flawed reasoning because the nature of defence spending inevitably changes over time. In the past, we have reported significantly more operational spend, such as during operations in Afghanistan. That has changed. New threats also require new spending. We have not historically included any spend on cyber. Therefore, it is right that, from time to time, like all NATO allies, we ensure that we are capturing all appropriate spend, and I emphasise that all adjustments are fully in accordance with NATO guidelines.

The noble Lord, Lord Robertson, warned that we should not confuse percentages with capability—and he is absolutely right. He asked the right question: have we retained the power to act? The SDSR laid out a clear and affordable strategy for delivering one of the most capable armed forces in the world, including an expeditionary force, as I have said, of 50,000 by 2025; £1.9 billion in cyber investment; new capabilities for special forces; and a commitment to spending more than £178 billion on equipment and equipment support—more than in previous plans.

I do not accept the accusation of creative accounting. I will just say to the noble Lord, Lord West, that defence spending is going up. When defence spending will increase by £5 billion over this Parliament, it is nonsense for anyone to suggest that there is no new funding. I hope that my noble friend Lord Sterling, the noble Lord, Lord Murphy, and others will be at least somewhat reassured to be reminded of that figure.

The noble Lord, Lord Bilimoria, the noble Baroness, Lady Jolly, and other noble Lords spoke about manpower, particularly that of the Army. It is true that ensuring efficiency was a driver in force design in 2010, as it was in 2015. However, strategic rationale was the primary basis for the figure of 82,000 regular Army personnel. The figure was based on an assessment of the type, frequency and concurrency of tasks that the Army will be required to conduct. Future Force 2020 described a move away from enduring stabilisation and towards a more adaptable posture. Joint Force 2025 builds on that principle, increasing the adaptability of all the services, including the Army.

The noble Lord, Lord Touhig, rightly emphasised the threat from Russia. We are not complacent about Russian behaviour or capabilities. We remain fully committed to NATO, as I have emphasised, and to our European partners, with whom we will deter threats across a wide spectrum in order to protect our people. NATO has developed a readiness action plan that gives it the tools needed to respond to short-notice or no-notice incidents in order to protect and defend alliance territory.

I understand the call by the noble Lords, Lord West and Lord Hutton, for more platforms for the Royal Navy. The Government share that desire. Not only is our fleet set to grow for the first time since World War II, but its high-end technological capabilities will allow it to provide a better contribution and to retain a first-class navy up to 2040 and beyond. We will maintain a destroyer and frigate fleet of at least 19 ships and look to increase that number by the 2030s, as has been mentioned; and I am sure that we can all take pride in the fact that the Queen Elizabeth aircraft carriers will be coming into service.

The fleet will also be supported by a very capable and renewed tanker fleet. A fleet of up to six offshore patrol vessels will support our destroyers and frigates in delivering routine tasks and will enhance our contribution to maritime security and fisheries protection. I can reassure the noble Lord, Lord West, that the in-service date of the Queen Elizabeth aircraft carrier has not slipped, and nor are there any plans for the Prince of Wales, the second carrier, to be mothballed.

The noble Baroness, Lady Dean, criticised my right honourable friend the Prime Minister and questioned her interest in defence. I respectfully reject that criticism. The Prime Minister has a close and abiding interest in defence. Indeed, one of the visits she made as Prime Minister was to the MoD headquarters to speak with the service chiefs. She has also visited our service personnel around the world, including recently on board HMS Ocean in the Gulf.

My right honourable friend is also well aware of the need to invest in security across the piece. That brings me to the subject of cyber, which was rightly emphasised by the noble Baroness, Lady Liddell, among others. Cybersecurity is vital to defence. As she said, our adversaries present a real and rapidly developing threat to our networks, systems and platforms. We are enhancing our cyber defence capabilities through the development of the Cyber Security Operations Centre. As I also mentioned, £1.9 billion will be invested in cyber across government over five years. We are ensuring that our Armed Forces are able to project power in cyberspace, are ready to assist in the event of a significant cyber incident and can respond to a cyberattack as they would to any other attack using whichever capability is most appropriate. We are building a dedicated capability to counterattack in cyberspace as part of our full-spectrum capability. Defence is delivering this capability in partnership with GCHQ through the national offensive cyber programme.

The noble and gallant Lord, Lord Walker, rightly criticised the concept of an EU army. I hope that I can reassure him by saying that no one is seriously proposing that idea. Despite the rhetoric and speculation that we have all read, we have seen nothing to suggest that any major European country wants an EU army. The joint letter published by the ministries of defence of Germany, France, Italy and Spain explicitly ruled that out, and we will continue to resist any EU initiative that risks undermining or duplicating NATO’s central role in European defence.

The noble Lord, Lord Bilimoria, called for greater collaboration with universities. I understand and agree with his point. Our innovation initiative has included the horizon-scanning unit known as IRIS, which will forge close ties with the academic community.

My noble friend Lord Attlee asked about the robustness and resilience of our logistics systems, the importance of which he rightly stressed. I can reassure him that we have the strategic base and associated enablers to underpin SDSR 25 and its wide capabilities. I will write him with an answer to his question on exercise Saif Sareea.

The noble Lord, Lord Burnett, raised several issues relating to the Royal Navy. In terms of investment and manpower, the Royal Navy attracted significant investment as a result of the SDSR, as he well knows. With regard to new assault ships, we currently have no plans to commission any. On the matter of our use of landing craft, HMS Albion and HMS Bulwark provide the capability needed to deploy and sustain the lead commando group ashore, by air and sea. They will remain in service until the end of the next decade.

The noble Earl, Lord Sandwich, raised issues of conflict prevention and peacekeeping. I have mentioned the Government’s intention to be international by design. That is in no small part motivated by the principle of conflict prevention: by working more closely with allies and partners we strengthen our shared ability to prevent conflict and ensure our own security. I can tell the noble Earl that we are increasing our contribution to UN peacekeeping operations in South Sudan, Somalia and Kosovo, we are continuing to support CSDP missions, and we are fully committed to Ukraine’s sovereignty and territorial integrity.

My time is up. I shall write to those noble Lords whose questions I have not addressed. I hope that it is clear that the Government fully recognise the breadth and severity of threats that face our country today. We know that in this era of uncertainty we can take nothing for granted. The approach that we have taken in the SDSR is the right one for strengthening our defence and security, and it is the one to which this Government are fully committed.

Children and Families Bill

Earl Howe Excerpts

Wednesday 5th February 2014 Lords Chamber

Moved by

[Earl Howe]

35: After Clause 86, insert the following new Clause—
“Purchase of tobacco etc. on behalf of persons under 18
(1) A person aged 18 or over who buys or attempts to buy tobacco or cigarette papers on behalf of an individual aged under 18 commits an offence.
(2) Where a person is charged with an offence under this section it is a defence—
(a) that the person had no reason to suspect that the individual concerned was aged under 18, or(b) in a case where the person has bought or attempted to buy cigarette papers, that the person had no reason to suspect that the individual concerned intended to use the papers for smoking.(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(4) A local weights and measures authority in England and Wales must enforce the provisions of this section in its area.
(5) Section 9 of, and Schedule 1 to, the Health Act 2006 (issue of fixed penalty notices in relation to certain smoking related offences) apply in relation to an offence under this section as they apply in relation to an offence under section 6(5) or 7(2) of that Act but with the following modifications—
(a) references to an enforcement authority are to be read as references to a local weights and measures authority;(b) references to an authorised officer of an enforcement authority are to be read as references to any person authorised by a local weights and measures authority (whether or not an officer of the authority) in writing, either generally or specially, to act in matters arising under this section.(6) Section 11 of, and Schedule 2 to, the Health Act 2006 (offence of obstruction of enforcement officers and powers of entry etc) apply for the purposes of this section as they apply for the purposes of Chapter 1 of Part 1 of that Act but with the following modifications—
(a) references to an enforcement authority are to be read as references to a local weights and measures authority;(b) references to an authorised officer of an enforcement authority are to be read as references to any person (whether or not an officer of the authority) authorised by a local weights and measures authority in writing, either generally or specially, to act in matters arising under this section; (c) references to Chapter 1 of Part 1 of the Act of 2006 are to be read as references to this section;(d) section 11(5) is to be ignored;(e) paragraph 10 of Schedule 2 is to be ignored.(7) “Tobacco” has the same meaning in this section as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I shall speak also to Amendments 36 to 41 and 45.

I am very pleased to have tabled this package of government amendments aimed at protecting young people from tobacco and nicotine addiction, which seek to do four things. They would introduce a regulation-making power to prohibit the sale of nicotine products to persons under the age of 18; would create a new offence of the proxy purchasing of tobacco; would make a technical change to the standardised packaging amendments that were passed by your Lordships on Report; and would amend existing smoke-free legislation in the Health Act 2006 to deliver the regulation-making powers on smoking in cars carrying children, as was your Lordships’ wish on Report, but with a more workable legislative framework. The amendments come at a late stage in the passage of the Bill, for which I apologise.

I will deal first with the provisions on the age of sale of nicotine products. There has been widespread support for the introduction of an age-of-sale restriction from the public health community and from the electronic cigarette industry. Responsible manufacturers of e-cigarettes are clear that their products are intended for people over the age of 18. I wrote to all noble Lords on 27 January to explain the key elements of this proposed new clause. I will summarise the main provisions. They provide the Secretary of State with the power to make regulations to prohibit the sale of nicotine products to persons under the age of 18. At present there is no general legal restriction on people under the age of 18 buying nicotine products, including electronic cigarettes, which are also known as e-cigarettes. The regulations to be made under this power would be subject to the affirmative resolution procedure to ensure that Parliament has the opportunity to scrutinise how the regulations would operate in practice before they were made.

This measure does not capture tobacco products, which are already subject to law restricting their sale to persons aged 18 and over. The penalty for committing the offence of selling a nicotine product to a person under 18 years of age would be a fine not exceeding level 4 on the standard scale, which is currently £2,500. We also have very little evidence on, for example, the impact on children’s developing lungs of their use of products such as e-cigarettes. The public health community is concerned that nicotine products could act as a gateway into smoking tobacco, as well as undermining the Government’s efforts to reshape social norms around tobacco use. We need to remember that young people can rapidly develop nicotine dependence and that nicotine products deliver nicotine and cause addiction.

Attempts were made to include an age-of-sale provision applicable throughout the EU in the revised European tobacco products directive, but this was not achieved. We therefore want to do this domestically through this Bill. I hope noble Lords will understand why we are using the opportunity the Bill provides to take these additional steps. It is important that we act now to manage the risk of a gateway effect into tobacco use and the development of lifelong addictions to smoking.

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Finally, my noble friend Lord Faulkner talked about the Scottish licensing scheme. Would the Government, in taking forward regulations in this area, be prepared at least to look at the experience in Scotland, to see whether there are any lessons to be learnt from it?

[Earl Howe]

My Lords, I am grateful to noble Lords from all parts of the House for their support for the government amendments, and I thank all noble Lords who have been so energetic and assiduous in this area of policy for the action that they have taken, and the focus that they have afforded to Ministers to promote the health of young people under 18 in this respect. I completely concur with the noble Baroness, Lady Finlay, who told us how addictive nicotine is: tobacco use remains the single biggest preventable cause of death in England. We surely must do all we can to encourage communities to make tobacco less desirable and less accessible, if we are to stop the perpetuation of smoking from one generation to the next.

My noble friend Lord Ribeiro was right, too. The purpose of the amendments is to protect children and young people from the harms of tobacco use and a lifetime of nicotine addiction. I was intrigued and interested to hear from the noble Lord, Lord Faulkner, about the retailer registration scheme in Scotland, and I do indeed undertake to look at it.

The noble Baroness, Lady Howarth, asked me to be a little more precise about the timetable for implementation across the piece. As regards nicotine products, we have not taken a decision on timing. It will be partly dependent on the timetable for laying and making regulations, but the Government want to move as quickly as possible to get the provisions in place. As regards standardised packaging, the timetable will be wholly dependent on the decision the Government take once we have received Sir Cyril Chantler’s report, and we have not taken that decision yet. On proxy purchasing, we need to engage with stakeholders appropriately. It is very difficult for me to give the noble Baroness a timetable because there are technical issues to be looked at; indeed, we would want to examine the experience of Scotland. But we are clear that this is a measure that should be proceeded with.

On smoking in cars, I think my answer has to be: one step at a time. Questions of whether the Government would move forward with legislation or what the detail of the regulations would include are debates to be had at another time, once both Houses have expressed their will on the principle. It would be inappropriate for me to express firm views in advance of those discussions.

That leads me to the questions posed by the noble Lords, Lord Hunt and Lord Stoddart. The noble Lord, Lord Stoddart, asked about the definition of vehicles. The answer is that we have allowed ourselves the scope to define in regulations, should regulations be laid, what kinds of vehicles should be covered. The noble Lord, Lord Hunt, asked me to confirm that the police could be involved in the enforcement of this offence should it be created. I can confirm that the wording of the amendment that we are tabling today allows that scope but, as I have indicated, we need to engage with the police and other stakeholders to determine exactly how this would work.

Finally, the noble Lord, Lord Stoddart, posed the question that he has asked on a number of occasions as to why the Government do not simply make smoking itself illegal. My answer has to be that almost 20% of adults in England smoke and it would be difficult if not impossible to criminalise 7 million people at a stroke. We want above all to help current smokers to quit and to stop young people taking up smoking in the first place. We know that two-thirds of smokers want to quit but their addiction makes doing so very difficult. That is the approach we are taking.

[Lord Stoddart of Swindon]

The Minister says that he does not want to criminalise 7 million people, or 20% of the population. But of course that has been done before, as was pointed out by the noble Lord, Lord Ribeiro. The non-wearing of seat belts was made a criminal offence for between 25 million and 30 million people at the time that the legislation went through, which, incidentally, I supported. The excuse that there are too many people smoking who would be criminalised simply will not wash.

[Earl Howe]

I doubt that in the early 1980s we had a population that was addicted to not wearing seat belts.

[Noble Lords]

Oh!

[Lord Stoddart of Swindon]

I was in the House of Commons at that time, and I can assure the noble Earl that the number of complaints I had, from my own constituents and other people, about the compulsory wearing of seat belts was enormous. But I bravely resisted those complaints and spoke in favour of the then Government who brought the seat-belt legislation forward, and of course it was later extended to back-seat passengers as well.

[Earl Howe]

I am sure that noble Lords would love to continue this debate, and perhaps we could do so on another occasion. I am grateful to the noble Lord, Lord Stoddart, for reminding us of those debates.

We all agree, I am sure, that action we take now to stop young people taking up smoking will have a significant beneficial impact on public health in the long term, which was a point made by my noble friend Lord Ribeiro. It will help young people to live longer and healthier lives, and I say, “Hear, hear!” to that.

Amendment 35 agreed.

Moved by

[Earl Howe]

36: After Clause 86, insert the following new Clause—
“Prohibition of sale of nicotine products to persons under 18
(1) The Secretary of State may by regulations make provision prohibiting the sale of nicotine products to persons aged under 18.
(2) A person who breaches a prohibition in regulations under subsection (1) commits an offence.
(3) Subsection (2) does not apply if—
(a) at the time of the sale, the person to whom the nicotine product is sold is employed by a manufacturer of nicotine products to which regulations under subsection (1) apply or by a dealer in such products (whether wholesale or retail), and(b) the purchase of the product is for the purposes of the manufacturer’s or dealer’s business.(4) Where a person is charged with an offence under this section it is a defence that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence.
(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(6) The Secretary of State may by regulations—
(a) amend section (Purchase of tobacco etc. on behalf of persons under 18) (purchase of tobacco etc on behalf of persons under 18) so as to apply it (with or without modifications) in relation to nicotine products, or(b) provide for that section to apply (with or without modifications) in relation to nicotine products.(7) Regulations under this section may make provision in relation to—
(a) all nicotine products,(b) nicotine products of a specified kind, or(c) nicotine products subject to specified exceptions.(8) The Secretary of State must obtain the consent of the Welsh Ministers before making regulations under this section which would (if contained in an Act of the National Assembly for Wales) be within the legislative competence of that Assembly.
(9) For the purposes of this section “nicotine product” means—
(a) a device which is intended to enable nicotine to be consumed by an individual or otherwise to be delivered into the human body,(b) an item which is intended to form part of a device within paragraph (a), or(c) a substance or item which consists of or contains nicotine and which is intended for human consumption or otherwise to be delivered into the human body.(10) It does not matter for the purposes of subsection (9)(a) whether the device is also intended to enable any other substance to be consumed by an individual or otherwise to be delivered into the human body.
(11) The following are not nicotine products for the purposes of this section—
(a) tobacco;(b) cigarette papers;(c) any device which is intended to be used for the consumption of lit tobacco.(12) In this section—
“specified” means specified in regulations under this section;
“tobacco” has the same meaning as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”

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Moved by

[Earl Howe]

38: Clause 87, page 63, line 1, after first “regulations” insert “—
(a) ”

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Moved by

[Earl Howe]

45: Clause 126, page 134, line 24, at end insert—
“(ca) regulations under section “(Prohibition of sale of nicotine products to persons under 18) or (Amendments consequential on section (Prohibition of sale of nicotine products to persons under 18)),”