Economic Crime (Transparency and Enforcement) Bill

Lord Carlile of Berriew Excerpts

2nd reading
Wednesday 9th March 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow a speech of such forceful clarity as we have just heard from the noble Lord, Lord Eatwell. I should start by declaring my interests. The first is similar to those declared by the noble and learned Lord, Lord Garnier, as a practising barrister, although these days I do not do contentious advocacy in courtrooms. The second is that I am the director of a consultancy company that provides advice to foreign entities and foreign individuals—although, I hasten to add, not Russians. I shall say a little about the sort of interests that arise in a few moments.

In ordinary circumstances, I suspect that many of us in your Lordships’ House would be reluctant to support a Bill such as this without the normal debating time that we are given in conventional legislation. A high degree of trust is being placed in the Government to ensure that the Bill reaches the statute book fit for purpose and is applied in a way that means it will bite. However, we are in extraordinary circumstances. There is no doubt that the war being conducted by President Putin, and indeed Russia, against Ukraine is funded at least in part by the product of money that has passed, and passes, through the United Kingdom, and that it is in many ways money that has been obtained illegitimately through the plundering of the public purse of Russia.

That is brought into high relief today by the news that the Mariupol children’s hospital was bombed by the Russians, including its maternity unit, and the photographs of what is left are terrifying and ghastly. Russia has now become a clear enemy of international law, and its agents, including its oligarchs, have no right to expect us to apply in full our normal ethical legal standards to their behaviour, as in their complicity with the Russian state. Indeed, our prime task, alongside doing whatever we can to assist Ukraine, is to protect our own country, the United Kingdom, against being used as an unwitting instrument of international crimes against humanitarian law.

I shall start in substantive terms by referring, as others have, to unexplained wealth orders. I echo what was said by the noble and learned Lord, Lord Garnier, and my noble friend Lord Vaux in their very eloquent speeches. UWOs have been around for a long time but it is a fact that very few proceedings have been taken by the National Crime Agency. There have been four cases, of which one failed. I can tell your Lordships that around the members of the legal profession that I speak to, and there are many on a daily basis, there is astonishment that the NCA has not brought scores of applications to court for UWOs. The reason for that is plain and twofold: one is the risk of costs, which can be dealt with, but the other, which is more difficult to deal with, is that the NCA is simply horribly understaffed to deal with these cases. It is not that there are not people who could do it, but we have to commit to employing those people and they have to be of sufficient quality. They need to be good lawyers and good investigators so that we are not standing here in a few months’ time saying, “The NCA really hasn’t been effective”.

Then, as the noble Lord, Lord Eatwell, referred to, there is the role of Companies House. It just so happens that professionally, in my consultancy company, I made an application on behalf of a client to Companies House some weeks ago now, in full detail, for a company to be deregistered. The evidence in the case could not be clearer. The company concerned is an impostor; it is pretending by its name and its fraudulent activities to be a very great international entity, but it is not—it is just a bunch of fraudsters. It is probably six weeks since I sent that application to Companies House. It is not just that they have not done anything; they have not even acknowledged—apart from the most formal immediate acknowledgment—the receipt of the application that I put in on behalf of my client. So I am absolutely with the noble Lord, Lord Eatwell: Companies House either is not fit for purpose or has to wake up and achieve that part of its purpose. Companies House, like the NCA, needs the staff to deal with these issues because it does not have them.

I have two other substantive points. The first I raised in the debate on Ukraine on 28 February, which was answered clearly, eloquently and helpfully by the noble Lord, Lord Ahmad of Wimbledon. My point relates to law firms and, indeed. other professionals—I deliberately turn to a chartered accountant when I say that—who, mostly in perfectly proper circumstances before this conflict arose, without any breach of law or ethical standards, have been involved in actual or intended transactions that may well have brought financial benefit, and therefore belligerent facilitation, to the Russian state. Some of those are property transactions, although not all, and some are transactions that are worked on but not fulfilled. A great deal of work is going on in law and other professional firms in relation to transactions that benefit the Russian state and it could tell us a great deal about what the Russian state is doing, as well as revealing criminal activity. I hope there is no single lawyer in the UK, whether in the square mile or elsewhere, who would find it ethically acceptable to bring benefit to an enemy of the United Kingdom, but the opacity of the sorts of transactions that I am describing means that lawyers and other professionals may well be complicit—entirely unintentionally, although there are of course rogues in every profession—in the sorts of transactions that I have referred to.

It is important that legal professional privilege should continue to apply to legitimate transactions. I hope that no one in this House wants to wipe away legal professional privilege in a transaction because someone happens to be a Russian; after all, there must be some very respectable Russians around because quite a lot of them have given money to one of the major political parties in this country. I hope that will not be taken amiss, but as far as I can tell it is true. So how do we achieve the scrutiny of such transactions?

After the debate on 28 February, I wrote to the noble Lord, Lord Ahmad—I have not heard from him yet but this was very recently so I would not have expected a reply—suggesting that we should adopt the architecture of the National Security and Investment Act 2021, an architecture that is now up and running in, among other places, the Ministry of Defence, with a substantial group of people working on it. They are applying the national security principles, the 17 national security categories, that are exactly relevant to the sorts of transactions that I am referring to. I respectfully suggest to the Government that they should adapt the NSIA architecture to a register of transactions by lawyers that lawyers and other professionals would have to report in clearly described circumstances, even though legal professional privilege would continue to apply as an inviolable principle unless there was an effect on our national security, as described in the NSIA. It seems to me that that sort of architecture would satisfy what is in my view a need for professional firms, if they participate in transactions that now seem to be politically dubious apropos the Russians, to be examined.

The other issue I wish to raise is about non-Russians who own property in London. A significant number of special purpose vehicles have been created for well-known foreign people to purchase. These people are huge investors in this country—entirely honestly, in good faith and with strong ethical standards—who do not wish it to be known that they, as individuals, are the beneficial owners of those properties. They have good reasons. One good reason, as one might think, is simply to protect their privacy from unwelcome curiosity and criminals. Another possibly legitimate interest may be to protect themselves from unwanted curiosity from overcurious journalists. A third reason, and possibly the most important, is for national security issues—not ours, but theirs for the country in which they live.

I will briefly give a couple of examples. I remind your Lordships of the events of 2 October 2018 when Jamal Khashoggi was murdered in Istanbul by agents of Mohammed bin Salman and the Government of Saudi Arabia. This is an example of a Government finding out everything they need to know so that they can take out an enemy of the state in completely unlawful circumstances—in a friendly country—through an outrageous and brutally executed crime. People are entitled to defend themselves against that, as are the victims of Russian-led incidents. On 23 November 2006, in Bloomsbury, just yards from my own office in Gray’s Inn Square, Alexander Litvinenko was taken out by the Russians. By whose agents was he murdered on our territory using radioactive material? Vladimir Vladimirovich Putin. Perhaps we should have been warned then. Afterwards, there were the shocking events which took place in Salisbury and affected life in one of our most beautiful cities.

When he replies, I would be grateful if the Minister could confirm that, when registration is required, the legitimate privacy and interests of good foreign investors will be protected under the provisions of this Bill, particularly Clauses 21 to 25.

Finally, I apologise for not being able to be here next Monday when the Committee takes place. This is because I have a long-standing commitment aboard, otherwise I would have come to contribute further.

United Kingdom Internal Market Bill

Lord Carlile of Berriew Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 18th November 2020 Lords Chamber

[Baroness Meacher (CB) [V]]

My Lords, I speak in strong support of the amendments tabled by the noble Baroness, Lady Andrews, to which I have added my name.

As many noble Lords made clear at Second Reading and in Committee, this Bill has plumbed new depths in undermining our democracy through the unprecedented and unacceptable use of Henry VIII powers to sidestep the scrutiny of Parliament and give Ministers extraordinary powers. It is no accident that it was Henry VIII clauses in this Bill, six of which are the subject of this debate, that prompted the chairs of the Delegated Powers and Regulatory Reform Committee, the Constitution Committee and the Secondary Legislation Scrutiny Committee to write to the Minister for the Cabinet Office and the Leader of the House of Commons expressing their deep concern about these developments. This Bill using Henry VIII powers unreasonably is of course not a one-off. As a relatively new member of the Delegated Powers Committee—I should declare that interest—I have been very conscious of its growing concerns about this Government’s increasing use of delegated legislation and ever wider Henry VIII powers. It is worth putting on the record a point made by the Leader of the House of Commons in response to the letter from the three committee chairs. Mr Rees-Mogg says that

“there will be times when the Government will still need to rely heavily on delegated powers, particularly if legislation is needed urgently, but I am clear that at all times the Government must fully justify the appropriateness of these powers to both Houses and to your Committee.”

The problem is that in the view of the Delegated Powers Committee, and certainly in my view, the Government simply have not justified the wholesale delegation of powers in the Bill.

We are very pleased that the Government have gone some way towards rectifying the problem through their many amendments. In particular, we welcome the Government’s acceptance that the Henry VIII power in Clause 3(8) should be removed. The arguments for removing that power, as set out in the Delegated Powers Committee report, are overwhelming. However, as the noble Baroness, Lady Andrews, has cogently spelled out, exactly the same arguments apply to the Henry VIII power in Clause 6. I fully support the position that if the Government are unwilling to withdraw the Clause 6 Henry VIII power then the opinion of the House on this issue just has to be tested. I hope a vote will not actually be necessary—would it not be wonderful if the Government accepted this amendment along with the one on Clause 3?—but if there is one then I will be supporting the noble Baroness.

Our amendments to Clauses 8, 17 and 20 are less broad and the issues are therefore a bit less concerning. However, I have considerable reservations about Clause 10(2), which gives Ministers the power to rewrite Schedule 1 in part or indeed in its entirety. Surely that cannot be justified. Our Amendment 17 would delete that power. I hope the Minister will give the House some assurance that he will take this issue back for reconsideration.

I welcome the Government’s new commitment to consulting the devolved Administrations before making regulations under a number of clauses of the Bill. Whether that goes far enough will be debated at a later stage of Report and I therefore will not comment further on it here. I also welcome the Government’s commitment to review the use of Parts 1 and 2 as set out in the government amendments.

[Lord Carlile of Berriew (CB) [V]]

My Lords, it is a pleasure to follow the speeches by the noble Baronesses, Lady Andrews and Lady Meacher, who have spoken with such cogency. I agree with them.

My name appears on Amendments 2, 7, 12, 17, 31 and 42 for two reasons. The first is that I was there at the beginning of devolution in Wales and have watched it develop in ways that were described earlier this afternoon by other noble Lords. It has been successful; it has brought the people of Wales much closer to government and resulted in faster decision-making than we ever had in the old days when the nearest we had to devolution, when I was a Member of another place, was the Welsh Grand Committee.

The second reason why I speak in favour of these amendments is a more general one. I have watched with surprise, and sometimes despair, the galloping tendency of government—and it has been successive Governments—to take more executive power through secondary legislation. Henry VIII must be very surprised, if he is aware of it at all, that his powers are being asked for so frequently and when they are not necessary.

I want to focus on Amendment 7 for I, like the noble Baronesses who have just spoken, welcome the addition of the name of the noble Lord, Lord Callanan, to Amendment 2. That is truly welcome. When I first saw it, I thought it showed a thorough recognition of the issues at stake because it is a significant concession. All that we are asking on this side of the debate is consistency with regard to the non-discrimination principle. That principle is of as fundamental importance as the mutual recognition principle for markets to which the noble Lord, Lord Callanan, has signed up in Amendment 2. They are plainly legislative siblings—indeed, they are almost identical twins—since they have a great deal of political and legislative DNA in common. Certainly they are equally important, and they are of equal moment in the devolved parts of the UK. I therefore feel bound to say that I am bemused by the lack of logic displayed by the Government’s failure to agree to Amendment 7 having agreed to Amendment 2.

I was talking earlier about the way in which devolution has worked. I can put that point very simply. These days in Wales, about which I know more than Scotland, legislative changes are brought about in real time as decisions become necessary. They are not always right—legislative changes are never always right—but at least there is an understanding by the public, those involved in politics in Wales and public servants in Wales that it is possible to make change. By that process, one has given a new self-respect regarding the way in which Wales is governed to elected Members, public officials and those who elect the elected Members.

What is still in Clause 6, the requirement for consultation without consent, is, unfortunately, a fig-leaf. It does not provide any reality to the role of Wales—on which I speak particularly—in this process because it can be overridden. Yes, reasons have to be given, but it is not very difficult to construct reasons. It relegates the devolved regions to a negligible role on matters directly affecting their interests. If it were necessary to do that, if that relegation could truly be demonstrated intellectually and logically as necessary, then I would be willing to support it, but I see no such explanation. Allowing executive powers in this way goes far beyond what is necessary.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to follow the noble Lord, Lord Carlile of Berriew. I congratulate the noble Baroness, Lady Andrews, and other noble Lords on tabling these amendments. I thank my noble friend Lord Callanan for supporting Amendment 2 and, in particular, for adopting government Amendment 35 as his own. I thank the Law Society of Scotland for its help, both in briefing me and in helping me to draft an earlier form of this amendment. I want to single out for praise Michael Clancy, whom I have known for many years. He works tirelessly on behalf of the Law Society of Scotland, and Scotland more broadly, to ensure that both Houses of Parliament and other sectors of Scotland are in tune with the constitutional implications of their thinking. I also thank my noble friend Lord Callanan for tabling government Amendments 29 and 47. They are inclusive in reaching out to consult the devolved Administrations.

Amendment 2 lays to rest the dangers of many of the original provisions in this Bill—particularly in relation to secondary legislation and Henry VIII powers— that did not find favour with your Lordships’ House. I remind the House of my interest as a non-practising member of the Faculty of Advocates. I shall pursue a similar line of thought to that expressed by the noble Baroness, Lady Andrews, in moving Amendment 2. I welcome government Amendments 29, 35 and 47, but perhaps we need to persuade the Government to move similarly further in other parts of the Bill. I shall seek to do so when the time comes. I congratulate my noble friends Lord Callanan and Lord True on their letter and thank them for listening to our concerns.

United Kingdom Internal Market Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, on this anniversary of Kristallnacht, when some of us mourn the cruelty of the death of grandparents we never knew, I join in expressing my sadness at the death of the late Lord Sacks, a truly inspiring member of your Lordships’ House. He bore his greatness well.

It is a pleasure to follow the attractive speech of the noble Lord, Lord Moylan, disagree with him though I do. I simply suggest to him that I suspect that hungry lawyers and busy grocers share more instincts than he imagines.

I am persuaded by the clarity of my noble and learned friend Lord Judge in his presentation of the proposition that we should expunge this part from the Bill. Indeed, it is my view that we should stand fast, and make it absolutely clear to the Government that we will do everything in our power, however long it may take, to achieve that end.

I listened with great interest to the eloquent and ingenious arguments, presented in particular by the noble Lord, Lord Lilley. In my view, the noble Lord fails in those arguments for at least three reasons. First, these proposals are a deliberate and unnecessary flouting of international legal obligations which the European Court of Justice would never support. If there was any implication in what he said that it would, the noble Lord is simply wrong. Secondly, he offers no justification for the breathtaking and extraordinary use of secondary legislation on the fiat of a Minister to break treaty obligations, especially as such secondary legislation is unamendable. Thirdly, and this is a point made by my noble friend Lord Pannick, there is the issue of the arbitration provisions. To avoid those provisions is simply an abuse of process, and nothing less.

Do we learn anything from what is happening elsewhere at the moment, in relation to these proposals? Why has President-elect Biden’s election engendered such support across the democratic world? What unfolded in recent days, as I saw it in many hours of the day and night while watching the extraordinary output of CNN, promises the world the speedy return by the United States to the honouring of treaties, multilateralism, and to trust between nations. Trust between nations, however, requires one to trust the Governments of each of those nations.

I remind the House of President-elect Biden’s long-standing commitment to the Good Friday agreement, and that his commitment, and his understanding of it, will engender intensive scrutiny by the United States of the United Kingdom’s adherence to all its obligations, including the Good Friday agreement. As my noble and right reverend friend Lord Eames said in his powerful speech, the Belfast Protocol is a living instrument, and a very sensitive organism, which we should not damage in the course of negotiation tactics. The prospect of a United States-United Kingdom trade treaty, so important to this country, will not turn on the feeding and the properties of chickens.

Such issues are always negotiable. It will depend on the perceived adherence of the United Kingdom to important treaty obligations and on what the United States thinks of the integrity of the United Kingdom. Why would one make a treaty with an untrusted partner? There are plenty of other potential partners around.

My conclusion is that this part of the Bill has no place in our legal tradition. Indeed, it damages our economic interest and reputation in a key area of commerce—the extraordinarily successful legal services provided by British lawyers and the British legal system all around the world. Worst of all, as my noble and right reverend friend Lord Eames made clear, it threatens stability in Northern Ireland, which was hard won, to the credit of all sides there.

There was no manifesto commitment to break international law in this way. Rather like President Trump’s allegations of electoral irregularities, this part of the Bill is completely unsupported by anything remotely ascribable as cogent evidence. I will vote against all these clauses standing part of the Bill. I hope others will join with me in any future debates in standing firm on these extremely important issues of principle.

[Lord Shinkwin (Con)]

My Lords, may I begin by joining with the noble Lord, Lord Carlile of Berriew, and other noble Lords in mourning the loss of our noble friend Lord Sacks?

I shall speak to Clauses 44 and 45. I may be being thick but, for me—and I think for millions of people who voted for the UK to leave the EU—these clauses go to the heart of why we felt there was no alternative. I did not vote to leave the EU almost four and a half years ago because I hate Europe or because I am xenophobic. I did so with a heavy heart because I believed that, unless and until we had left and the transition period had passed, British democracy would be inexorably undermined by a lack of transparency, accountability and control. I did so because I believe in a stronger, not an ever weaker, Parliament, in government that is more accountable, not less, and in a people that thus have more power, not less.

The idea that we should surrender in the final round makes no sense at all. For that is what we would be doing without this insurance policy. Whether we like it or not, it is an inescapable fact that, without it, the integrity and viability of the United Kingdom of Great Britain and Northern Ireland could be at risk. Of course, who in your Lordships’ House does not hope that we achieve a favourable outcome through the Joint Committee process? However, this is not guaranteed by any means.

It is worth reflecting on the practical consequences of an unfavourable outcome. My noble friend Lord Lilley posed the key question: what would it mean for people’s lives and livelihoods in Northern Ireland? As the noble Lord, Lord Dodds of Duncairn, made clear, it would have a terrible impact.

Essentially, damaging defaults would come into effect, which would achieve the very opposite of what noble Lords, the Prime Minister, the Taoiseach, the First Minister and Deputy First Minister of Northern Ireland, and the President-elect of the United States all reject—the effective creation of a hard border in the Irish Sea between Great Britain and Northern Ireland. If I may, I would like to take this opportunity to say how excited I am personally by the election of the first woman and person of colour as Vice-President of the United States. It must mark one of the most exciting milestones in my lifetime and is a testimony to the overwhelming, inevitable logic of equality.

If Michel Barnier or President-elect Biden want to protect Northern Ireland’s integrity and equality through the Good Friday agreement, surely they must accept that a hard border would not achieve that objective. It is therefore essential that we safeguard the gains that have been made and ensure there is a safety net in place to protect the people of Northern Ireland—their jobs, their livelihoods and their financial security—should the EU fail to agree reasonable solutions in the joint committee. As my noble friend Lady Noakes said, these clauses do that pragmatically. I agree with the noble Baroness, Lady Hoey. If parliamentary sovereignty is to mean anything, these clauses must stand part of this Bill.

United Kingdom Internal Market Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

[Baroness Altmann (Con) [V]]

My Lords, I have added my name to these amendments, moved so excellently and explained clearly by the noble Lord, Lord Hain, and of course the noble Baroness, Lady Ritchie of Downpatrick. So I will not spend too much time going through the proposals of these particular amendments. I would just like to ask the Minister, from these Benches, why the Government are objecting to these amendments being in the Bill.

I understand that one of the arguments is that they are superfluous or not really required. However, given the clear lack of trust or concerns about some aspects of recent statements, and given that, I assume, the Conservative and Unionist Party is indeed committed to the Good Friday agreement, to no hard border on the island of Ireland and to the terms of the Northern Ireland protocol—on which this Government were so recently elected and which our Prime Minister signed up to—this amendment merely aims to ensure that measures in the Bill are fully compliant with both the Good Friday agreement and the Northern Ireland protocol, which was part of the great deal that the Government negotiated and put to the country. If Part 5 is a negotiating tactic and the Government really do not intend to use it and are aiming to get a deal, or if there is no deal, surely we still need to respect the Good Friday agreement, and our internal market needs to respect the promises made that this Northern Ireland protocol will be part of our future relationship with the EU.

I ask my noble friend to explain why the Government are unwilling to accept these amendments and to confirm that our party wishes to maintain our country’s reputation for upholding the legal agreements that we have reached with other countries in good faith.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I start by apologising to the noble Baroness, Lady Ritchie, for speaking over her earlier; I had not realised that I had already been unmuted.

The issue of the Northern Ireland protocol is about nothing more nor less than peace and stability in Northern Ireland and peace and security in the United Kingdom. I share the view given with such clarity a moment ago by the noble Baroness, Lady Altmann, that this matter should be explicitly declared in the Bill. There is nothing more important to national security and public safety than the Good Friday agreement. It celebrates the 21st birthday of its effectiveness on 2 December this year. My interest in the Good Friday agreement arose from my time as Independent Reviewer of Terrorism Legislation and the years that followed. I have followed very closely both the sometimes fractious, but surviving, political process in Northern Ireland and the recent history of residual terrorism in Northern Ireland. Although it still exists, it is much reduced and is well understood, now, at least, by the authorities.

The Good Friday agreement has secured the United Kingdom. If you visit Northern Ireland and look at its political and business institutions and public authorities, you will see that it has given them a sense of benefit which is sometimes not matched in other parts of the United Kingdom.

I pay tribute to the political parties in Northern Ireland, some of which were regarded as enemies of the people until the Good Friday agreement—and whose presence at St Andrews caused a good deal of criticism of the then Government—for the way in which they embraced constitutional activity in the political issues of Northern Ireland. I once spent some time with some ex-terrorists who had, by then, become respected politicians. I was hugely impressed by the way in which they embraced those constitutional proprieties, both in Northern Ireland and the Republic of Ireland.

There is no more important issue in the context of Brexit than ensuring that nothing is done to undermine in any way the Good Friday agreement. Everything else fades into unimportance. We must be clear that no sacrifices of the stability that the Good Friday agreement has brought will be made in the name of Brexit.

I will listen with great care to what is said by the noble Lord, Lord True, in replying to this short debate. I hope we will hear unequivocally from him not only that nothing will be allowed to happen that undermines the Good Friday agreement but that the Government are prepared to declare that in the Bill.

[Lord Cormack (Con)]

My Lords, after that speech from the noble Lord, Lord Carlile of Berriew, I am tempted to say “Amen” and sit down, but I will just add a few words. We will, of course, return to this subject when we debate the crucial Part 5 of the Bill.

All I really want to say to your Lordships is this: the Good Friday agreement is the greatest cross-party agreement since the war. It is the achievement, of course, of the Blair Government, but it is also the achievement of the John Major Government. As Tony Blair himself has admitted on a number of occasions, particularly when we had that great ceremony with the Taoiseach in Westminster Hall shortly after the Good Friday agreement, without the groundwork of John Major, Albert Reynolds and others, this could never have come about.

It would be an act of supreme folly if anything we did in this Parliament endangered the continuity of the Good Friday agreement. It is absolutely crucial that each and every one of us recognises this. In whichever party we sit, or on the Cross Benches, this agreement is our heritage and it is our duty to conserve it. It is nothing to do with whether you are on the Brexit or remainer side; that argument is over. What is not over is the continuing relevance and importance of an island of Ireland without hard borders and the principles and achievements of the Good Friday agreement being maintained.

I had the honour to serve as the chairman of the Select Committee on Northern Ireland in the other place. There were many memorable moments, such as addressing a meeting in Crossmaglen with my committee, which would never have been possible without the agreement, but my most memorable moment is this: being asked by the late Lord Bannside, or Ian Paisley as he was then, if I would be kind enough to have a private meeting with him. This was soon after the joint Executive had come into being, and of course Lord Bannside had not been altogether helpful at the time that the agreement was forged. When I congratulated him on working with Martin McGuinness, he said to me, “I have discovered that Martin McGuinness has a spiritual dimension.” I could have fallen off my chair. When I went to Ian Paisley’s farewell at Hillsborough, attended by the Taoiseach and others, a panegyric—and it was that—was delivered by Martin McGuinness, thanking his friend and mentor. We have come a long way and had some rough passages since then, but I will always remember that as an extraordinary illustration of what a political agreement can achieve. We must not jeopardise that.

I am glad that this was introduced by the noble Lord, Lord Hain—he was himself a notable contributor to all these things and has been since. We must not put this at risk.

United Kingdom Internal Market Bill

Lord Carlile of Berriew Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I, too, congratulate the noble Baroness, Lady Hayman of Ullock, on her excellent maiden speech. As a former Welsh rural Member of another place, I welcome her commitment to the integrity of rural life and rural communities, and I look forward to her many further contributions to your Lordships’ House. She should not be unduly sensitive about the habits of this place. We all get used to being shouted at when we break order by standing up at the wrong moment or in the wrong gangway, but it is never really meant; it is just one of those things.

I suggest that the very fact that so many speakers are expressing their concern about Part 5 of the Bill, combined with their range of expertise and experience, should give Ministers serious pause for thought before this bent-barrelled blunderbuss is fired into the rule of law. This is legislation by offensive weapon rather than logic.

Like many others, I support the amendment to the Motion in the name of my noble and learned friend Lord Judge and moved by him with such clarity. As a former Lord Chief Justice, he speaks with authority, the contradiction of which—on this issue, at least—would amount to brazen and wilful ignorance, in my view. For those who are interested in his support for Leicester City, I remind others who are listening that, at the moment, Leicester City are winning 14:1, as it were. This is a fairly rare experience, and I suspect that it will be a much larger lead by the end of this debate, which is something that Ministers should not overlook.

I urge your Lordships and others outside to beware of thinking that this debate is a lawyers’ wordfest. This is not an issue on which any special knowledge of the law is required at all. Surely, it is a matter of constitutional instinct, international expectation and mutual respect between the United Kingdom and the rest of the world. I remind your Lordships that this Government are the first to resort to the rule of law when it suits them. If you look at the way they have made their submissions in cases concerning foreign terrorism fighters seeking to return to the United Kingdom, however unruly in law those applicants’ other countries of potential citizenship are, they are the first to say, “We rely on the rule of law. We may not like those countries, but they’re entitled to go back there, so there they shall go”. So there is a degree of hypocrisy, on the evidence, in what is happening today.

My parents escaped from the basest of persecutions. After my father, who was a deep-rooted Anglophile, got over my decision not to follow him into the medical profession—a decision about which he expressed deep disappointment, although it was probably to the benefit of my potential patients—taught me politics and history in an international context. He told me of his pride in living in a legal system that would make my qualifications respected throughout the world. I and many others in our current professional lives deal with businesspeople in many countries. One of the beacons that attracts them to making contracts with UK-based entities is their belief that, once a contract and agreement are reached, nothing will be changed in this country arbitrarily, gratuitously or for oblique motives. Some of those dealings are with the British Government.

I am ashamed that the Government are even considering empowering Ministers to derogate from the obligations of the United Kingdom under international law. I am dread-dazed that breaching international law is being contemplated in a way that could undermine the extraordinary achievements of courageous people on all sides in Northern Ireland. I am also appalled by the suggestion that we should be in breach of Article 26 of the Vienna convention, and I hope that the Government will listen to these debates, particularly today’s debate on my noble and learned friend’s amendment to the Motion, and change their mind.

British Steel

Lord Carlile of Berriew Excerpts

Tuesday 21st May 2019 Lords Chamber

[Lord Henley]

My Lords, the right reverend Prelate is quite right to draw attention to the uncertainty facing apprentices in the steelworks at Scunthorpe and the other places where British Steel is based, but also to draw attention to the concerns of all those who are employed by British Steel and the uncertainty they face. I can offer him an assurance that my right honourable friend will be talking to government colleagues in other departments to make sure that all appropriate help and support can be given by the Government, particularly, as the right reverend Prelate drew attention to, to those who are in the middle of apprenticeships with British Steel. It is right to remember at this stage that we have an economy that is providing virtually full employment. We have seen employment grow to levels that we have not seen for a very long time, we have seen unemployment continue to fall and we want to continue that process.

[Lord Carlile of Berriew (CB)]

My Lords, I ask my question as the father-in-law of somebody employed in the steelworks at Scunthorpe. Does the Minister accept that there is a sense of panic and despair among the ordinary population of Scunthorpe, a town totally dominated by the steel industry? Will he confirm that discussions with the Government are going on hour by hour to try to secure an outcome? Will the Government bear in mind that what is being asked for at the moment is simply bridging finance to get through a crisis period, not something more permanent than that?

[Lord Henley]

I am very grateful to the noble Lord for bringing to the attention of the House his concerns and those of his family. Obviously, we all have Scunthorpe in our minds at the moment because a very large number of jobs in one area are at risk. The Government are active and will continue to be active in doing all we can to offer whatever appropriate help it is possible to offer, but the noble Lord will appreciate that at this stage it would not be appropriate for me to go much further. I repeat that my right honourable friend has made it clear he will come before the House to make a further Statement.

Domestic Gas and Electricity (Tariff Cap) Bill

Lord Carlile of Berriew Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 11th June 2018 Grand Committee

[Baroness Featherstone]

I thank the noble Lord. This amendment is about the duty on energy companies to communicate properly with their customers. I raised concerns at Second Reading that there is a possibility that energy companies might not be totally up front and honest with customers about the circumstances surrounding the introduction and execution of an energy price cap. I am particularly concerned that some companies may not be up front about the facts: this is a temporary cap, ordered by Parliament, the level of which is set by Ofgem to protect consumers on standard and default tariffs from excessive charging. Companies must not seek to absolve themselves from blame for the fact that a cap is being introduced—an action that they have necessitated. Nor must they be able to play it off as some sort of benevolence introduced by them to help their customers. I am also concerned that companies might imply that the cap brings about the best deal for customers and indicates in some way that they need not shop around.

Communications from suppliers have not always been totally clear, but they need to be. The last thing we need in setting and executing the cap is for communications to confuse, entice or entrap customers into any false beliefs or misunderstandings. The amendment seeks to ensure that suppliers cannot use the setting of a cap as a marketing opportunity. Companies are very clever in their use of marketing language to seduce customers into perhaps believing that the cap is protecting them in more ways than it was created for. We should not provide any opportunity for suppliers to mislead consumers, accidentally or otherwise, into believing that the price cap is beneficial in any other way or being put in place for any purpose other than that for which it was intended; namely, that it is as a temporary cap until such time as circumstances dictate that it must be lifted. It must not allow the supplier to appear to be the instigator of the cap. Nor must the cap be called anything other than what it is: a temporary cap. I am concerned about the wording being used to describe the cap. A company might say that it is a beneficial cap or a protective cap, but there should not be anything to indicate a benefit in the name of the cap.

The amendment is very dictatorial, particularly for a Liberal. It states that the term used should be simply that it is a temporary cap and that, once it has been implemented, all companies should use that phrase in reference to it. There cannot then be any dodging around it. Since writing the amendment, I think it needs to go further and perhaps disallow any words around the name too so that suppliers cannot add adjectives to it. I am not sure how particular we can get on this, but I refer to words such as “beneficial” or “protective” temporary cap. It may seem picky and dictatorial, but my background pre-politics was in marketing and design, and it takes one to know one. Communications are hugely important. There can be no objection to calling it what it is: a temporary cap. In that way, no supplier will be able to use the name of the cap or its description inappropriately.

In the same vein, it should also be obligatory for suppliers to make it clear that the cap does not mean that the price under the cap will necessarily be the best price or the cheapest price. In any communications, suppliers must include clear and accessible information about switching energy suppliers.

Amendment 22 from us and Amendment 23 from Labour concern the provisions in the Bill surrounding the publication of information regarding variations in the cap. Clause 4 states that if the authority is thinking about modifying the price cap, it must notify holders of supply licences, but there is no requirement once a decision is made for companies to inform customers. These amendments put this requirement into the Bill.

Lastly in the group, Amendment 38 is in the name of my noble friend Lord Teverson, who cannot be here today. He wanted Ofgem to have powers to regulate the websites of energy suppliers and energy price comparison site operators. The purpose of that power would be to ensure that consumers are presented with objective information on immediate and future costs and matters of customer service sufficient to make informed decisions about energy supplier choice. I know he wanted a specific requirement for all such sites to list the immediate cost of energy to the consumer, together with, and in the same format, future costs when the initial contract term ends. This would protect consumers from being seduced by a good offer and a good price only to be shortly disappointed to find a huge hike when the first contract ends. He wanted a requirement also that, for each tariff, the terms under which price variations can be applied are clearly shown. However, much of that was out of scope, so Amendment 38 is a lesser version. It requires the authority to modify the supply licence conditions to ensure that the information presented on energy companies’ websites is “sufficiently objective” and to modify the Ofgem Confidence Code so that only price comparison websites that are similarly objective can be accredited by the code.

[Lord Carlile of Berriew (CB)]

My Lords, I want to speak, if I may, in favour of Amendment 23 in the name of the noble Lord, Lord Grantchester. At Second Reading, I referred briefly to my attempts to change tariff with my electricity and gas supplier. I think I described it as a parlour game on a computer system that did not always work. It seems to me that what we need to give the public is, first, clarity and, secondly, the capacity to compare one supplier with another.

Let me give two analogies, one good and one bad. The first occurred to me on Saturday when I was standing at a bus stop in central London alongside a hoarding advertising a new credit card deal. At the bottom of the advertisement, in big letters, it said, “Interest rate 57%”. On the face of it, that is quite a high interest rate, but the company has to advertise that interest rate so that it is really clear to the consumer. That is the sort of clarity we need. The bad analogy relates to train fares. Noble Lords who travel a great deal by train may, like me, go on to one of the internet sites that offer you the timetable and the train fares. With train fares there is absolutely no way of making a decent comparison between the different options available. Indeed, it is so complicated that, if you buy your ticket in Llandrindod Wells to go to Paddington, it may be a different price for precisely the same ticket if you buy it in Paddington to go to Llandrindod Wells.

If we are going to do this job now in the Bill, what is required is to ensure that consumers are able to make a proper comparison between the supplier they have and the alternative suppliers available. It does not mean that they will necessarily take the cheapest supplier. The noble Lord, Lord Lennie, made a point about green suppliers. Some of us might decide that we are prepared to pay a few pounds extra for the purposes of a better environment, but at the moment we have no way of knowing what sort of value green suppliers present. We have to go on to their website and take their word for it, which is not necessarily good enough. Amendment 23 at least makes a start in achieving those joint aims of clarity and the ability to compare.

[Baroness Neville-Rolfe (Con)]

My Lords, I join others in thanking the noble Lord, Lord Berkeley, for setting off a discussion on this important issue of communication with consumers on electricity prices and the cap. I was going to add to the discussion from my own experience as a householder in Wiltshire. I have had a letter from SSE which is meant to tell me simply how my electricity prices are increasing, what I could do and how I might be able to pay less. I have to say that it is very difficult to understand, so there is a problem outwith the legislation that we are putting through. It is also wrong to suggest that energy companies are always trying to dissemble. How well they do depends on satisfying the consumer and the better ones want to be able to say clearly what is happening.

If we were to add to the system a requirement to communicate about the tariff cap provision, it would make the sort of letter that I have already described yet more complicated. My own experience is that these things can be costly to business. When the minimum wage came in, I remember being telephoned by the business department—I was at Tesco at the time—to ask whether we could put the minimum wage on our payslips. Having talked to our ICT people, I discovered that it would cost us an extra £1 million to put the minimum wage on the payslip. It was therefore agreed that the minimum wage could be communicated in other things. I worry that if we in this Committee put down requirements, it could have a similarly escalating effect on costs.

I have looked at the impact assessment—noble Lords will remember that I am always passionate about the usefulness of impact assessments—but this one does not go into any detail. It just suggests that there are savings to consumers. If we were to add extra provisions on communication, we would need to consider the cost of that because it would then get passed through to the consumer. That cost will apply to the small, new entrants to the industry as well as to the bigger suppliers.

That leads me to one final thought. When we took through the Consumer Rights Bill, in which we were also concerned about communication to consumers, the department worked with the industry to produce special communication. That was then used across the retail industry to inform shops as to the new rights that were coming in for consumers. I wonder whether some of the concerns raised today could not be met by voluntary action within the industry, dedicated to improving clarity for consumers in this important area.

--- Later in debate ---

[Lord Henley]

I am more than happy to look at that and I hope Ofgem will note what the noble Baroness has said in Committee. It might be that it would want to change the advice it offers to suppliers about what they do. It is important we make sure that the right information is provided in the right format—I think we are all agreed on that—and that, as I said, it is kept simple.

[Lord Carlile of Berriew]

Can the Minister help us to understand why he referred to midata? The midata vision of consumer empowerment, as it was called at the time, has been in existence since November 2011. What will the midata vision provide to help consumers following the enactment of this Bill? What specifics will the consumer be able to use?

[Lord Henley]

What it will do, as I thought I had made clear, is make it easier to open the door to innovative third-party switching devices, such as the devices I referred to, I think, during the debate on the Smart Meters Bill. These will allow the consumer to find himself automatically shifted from one supplier to another if he says, “I always want the cheapest tariff”, or, “I always want the greenest tariff”. Such things are being developed and midata will help towards that.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I support the amendment in the name of the noble and learned Lord, Lord Mackay; indeed, I put my name to it. I declare two rather different but relevant interests. I spent eight years as a chairman of the Competition Appeal Tribunal, sitting with experts and expert witnesses, analysing the interstices of whichever competition issues were placed before us and being enabled to reach judgments that were carefully considered, although dealt with at extraordinary speed—much more speedily than many High Court cases. For a number of years, I also sat as a deputy High Court judge, dealing mainly with judicial review. In that role, I deferred at once to the much greater experience of the noble and learned Lord, Lord Brown, who was the king of judicial review in his time. Nevertheless, in my years in that role I was able to see the difference between the discipline of judicial review and the competition, evidence-based discipline.

As I listened to the noble and learned Lord, Lord Mackay of Clashfern, I had a horrible feeling—or perhaps a pleasant one, I am not sure—of déjà vu. Way back in the last century I used to appear as junior counsel in a fair number of cases in the Court of Appeal. I was often led by very distinguished leading counsel, though none more so than the noble and learned Lord. Indeed, three of them aside from me ended up as Members of your Lordships’ House so I look back on those days with pleasure. One of the most terrifying things that used to happen in those days was that if you were appearing as junior counsel in the Court of Appeal, when your distinguished leader had finished, the judge in the chair uttered words that I think were, “Do you follow, Mr Carlile?” They were uttered in a tone that included, “If you dare, don’t you dare and I’ll murder you if you dare”, at least intellectually. So, one followed rarely; I follow the noble and learned Lord, Lord Mackay, with great trepidation. I will be very brief because I feel like his junior on this occasion. I will not go through the substantive points that he made, which he did with his usual extraordinary cogency. I agree with every word that he said. These arguments were rehearsed at Second Reading by all of us who spoke—the noble and learned Lord, me, the noble Lord, Lord Hunt, and others. I just want to provide a couple of headlines, as it were.

What kind of appeal do we want to give? Do we want to give one that allows the decision to be corrected if it is plain wrong or do we want to allow an appeal that only allows the decision to be corrected, even if it is wrong, if it is perverse and no reasonable authority would have reached it? For the latter option is the judicial review test. We should aim for what Amendment 5 suggests: that within time limits and the other restrictions described by the noble and learned Lord, Lord Mackay, the answer can be corrected quite simply if it is incorrect. That is what the public expect and that is what this amendment provides.

[Lord Hunt of Wirral (Con)]

My Lords, I rise to support my noble and learned friend Lord Mackay of Clashfern in his amendment, and in doing so I declare my interests as set out in the register, in particular as a partner in the global commercial law firm, DAC Beachcroft LLP. As the noble Lord, Lord Carlile, has pointed out—we enjoyed his journey through history— this amendment will ensure that the Bill meets the Government’s ambition to have a cap in default-rate energy tariffs in place by the winter while also ensuring that the correct scrutiny of such a major intervention in the energy market will be in place; namely, the CMA being able to review and improve the methodology if an appeal is brought.

I want to put forward three core reasons why the Bill in its current form does not provide appropriate scrutiny. First, setting a price cap that maintains competition and innovation will be extremely difficult. Competition is improving and a range of important policy costs such as the smart meter rollout and subsidies for renewable and vulnerable policies are included in energy bills. There are material risks to consumers if the methodology is not correct, and I welcome the amendment proposed to Amendment 5. The CMA clearly possesses the necessary expertise to hear an appeal on the cap, and there is no better source in support of that than the Government themselves. I shall quote from their recent Green Paper, Modernising Consumer Markets:

“We have an independent expert competition body, the Competition and Markets Authority (CMA), to promote competition in the interests of consumers and business across the economy … The work of the CMA from 2014-2017 is expected to achieve benefits to consumers well in excess of £3 billion”.


I agree with this endorsement and I believe that appeal rights to the CMA will provide a reassurance to consumers and the industry alike.

Secondly, removing the right of appeal to the CMA from the provisions of this Bill would undermine the established approach which has been in place since privatisation. Some noble Lords may remember that as a junior Minister I took through the Gas Bill in 1985 and I still bear the scars, particularly on setting up a system of regulation which at the time was quite innovative. Since privatisation there has been an approach that underpins investor and consumer confidence. Moreover, the CMA already has a track record of improving regulatory decisions. In 2016 it set out that Ofgem’s previous attempts to regulate retail tariffs in its retail market review had damaged competition and should be removed, while in 2015 the CMA heard an appeal, supported by Citizens Advice, on the level of the energy network price control. It found that Ofgem had made an error and £105 million was returned to consumers.

Thirdly, the Government have suggested that the courts, through judicial review, would be better placed to hear an appeal. I do not agree with that. JR is concerned only with the process for making a decision, not the substance. The CMA is a specialist competition body that is designed to look at these issues. It has teams of experts within the organisation and the Government announced in the Budget last year around £3 million-worth of funding to ensure that the CMA could continue to support competition and consumers. This makes the CMA better qualified and resourced than the courts to review a price control. I hope that noble Lords will understand that those are three very clear reasons in support of my noble and learned friend’s amendment.

Perhaps I may anticipate, if I dare, what the Minister may say. Looking at his initial response at Second Reading, I recall his main concern was delay. As my noble and learned friend explained, the amendment explicitly rules out the potential for a CMA appeal to delay or block the introduction of a price control. Delay is not usual anyway. In the past 11 price control decisions the CMA has not caused a delay and the amendment would now make that impossible.

My noble friend also may say we have concerns that a right of appeal could be used by certain of the major players to frustrate a price control. We know, however, that delay will not be possible via the amendment and the energy sector overwhelmingly supports CMA appeal rights, as do investors in the utilities sector. Furthermore, consumer groups would be able to exercise the right of appeal.

Thirdly, in the Official Report at col. 1018, if I recall, the Minister raised the fact that the Select Committee had considered the matter and recommended judicial review as an appropriate route of appeal. I believe there is a capability question here. However, I would also point out that judicial reviews actually take longer to resolve than CMA appeals—9.7 months versus 8.8 months. That is a comparison since the year 2000. As my noble and learned friend pointed out, the amendment would commit the CMA to resolve a case in four months. We rest our case.

--- Later in debate ---

[Lord Young of Norwood Green]

My Lords, there is no danger of my repeating what I said at Second Reading because unfortunately I missed the cut and was too late to make a contribution. I do not want to repeat what has been said by the noble and learned Lords. I am trying to think of the collective noun for a group of such distinguished legal experts. I am not sure “a clutch” does them justice—if your Lordships will pardon the pun.

[Lord Carlile of Berriew]

Would the noble Lord accept “a brief”? But that depends on him paying the fees.

[Lord Young of Norwood Green]

That is a given! I will not go through the arguments again. I concur with them. The case has been made and I hope the Minister is listening. I, too, look forward to his alternative response—or perhaps there has been an epiphany and he will accept the validity of the arguments that have been so ably put.

I want to make a few points that have not been made. It is important to understand the context within which price caps are going to be set. A number of times in the debate reference has been made to the introduction of smart meters. That is not going to happen by chance, it is going to happen because the major suppliers have been told that they have to be introduced. The cost is not insignificant: 50 million smart meters will need to be installed at a cost of something like £7 billion. There is a long way to go: only about 12% of the smart meter installation has been completed.

An independent analysis by an energy sector expert points out:

“An energy price cap that pushes the industry as a whole to break-even or losses has significant implications on the smart meter roll-out programme”,


and that it is,

“absolutely essential to secure the cost-effective deployment of electric vehicles in addition to enabling the reduction of switching times to 24 hours”.

That will be one of the benefits of the smart meter rollout. If we want to encourage electric vehicles—which we do, as we know—smart meters need to be a key part of that.

I was also interested to see that the report talked about the incentives to switch. It said:

“The cap is intended to be set at a level that provides customers incentives to switch. When the CMA surveyed customers to understand the level of savings from switching that would encourage them to switch, it found that the median amount of savings”,


for customers was £120. It went on:

“At savings of £50, only 7% of customers were interested in switching … The survey did not find any meaningful variation in the level of savings required by different demographic groups”.


That is a really interesting bit of analysis, ironically by the Competition and Markets Authority.

I will go on to what we expect from our major energy suppliers, which are vital to the UK economy and the day-to-day lives of British citizens. They account for something like 2.3% of gross domestic product and £100 billion of investment has been earmarked to 2020-21 to ensure that the lights stay on and customers have reliable, affordable and low-carbon energy. There are 600,000 people employed in the sector—even more, if you include indirect jobs—and it is at the forefront of essential new technology, as I have said, such as the smart meter rollout. That will facilitate the rollout of electric vehicles, which will be a £200 billion global market in 2019.

Energy companies are at the forefront of training apprentices. For example, Centrica has six training academies, employs 27,000 people in the UK and has trained 1,000 apprentices a year in recent years, including 2,500 smart apprentices. These are no mean considerations and they do not just happen. I hope there is recognition of this. Energy companies supply households with their gas and electricity, and the market is more open and competitive than it has ever been. Some of this statistical evidence is interesting. We have had an argument about suppliers but the fact is that there are more suppliers than before. I do not disagree with my noble friend about concentration but there has been significant switching. Nearly 400,000 customers switched during January 2018, a 14% increase on the same period last year, while 5.5 million customers—one in six—switched supplier in 2017. Awareness of the ability to switch is high; I have already given the Committee that information. It is interesting that in the BEIS tracker polling, public concern about energy bills does not rank higher than it does about other household bills.

I want to make my position clear. I am not in hock to the energy companies—I will finish in a minute—and I am in favour of a price cap, but it has to be administered in a way that takes cognisance of the role that energy companies play. It also has to be done in an appropriate way. Unfortunately, my quote from the Green Paper was anticipated by the noble Lord, Lord Hunt, so I will not go through that again but I believe that the evidence to support this amendment is overwhelming and, on those grounds, I support him.

Nuclear Safeguards Bill

Lord Carlile of Berriew Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 6th June 2018 Lords Chamber

[Lord Teverson (LD)]

My Lords, I am also very pleased that we have come to a suitable arrangement. I support this amendment and reflect the comments of the noble Lord, Lord Broers. However, the challenges in achieving this are still major. We know from the leak from the risk assessment of the Office for Nuclear Regulation that we have an IT system that has only just been commissioned and timescales are very short for that £100,000 programme. We know that training has not been fast or easy in terms of recruitment or giving skills to those people to ensure that we have the right number of people in the Office for Nuclear Regulation. We have already had a concession that the standards that can be met by Brexit day are best international, rather than the Euratom standards the Government originally wished for.

Also, I understand that we have not yet had ratification of any of those nuclear co-operation agreements. Although I recognise and welcome the fact that we have agreement with the United States, agreement is not ratification. As the Minister himself said in a Written Answer to me:

“Ratification in the US requires the agreement to remain in Congress for 90 joint sitting days, whereby the US Senate and House of Representatives both sit, and the consent of two-thirds of the US Senate. Congress also has the option of adopting either a joint resolution of approval, with or without conditions, or standalone legislation that could approve the agreement. UK officials have held detailed discussions with the US and both sides are satisfied that this process can be completed ahead of the UK’s withdrawal from Euratom”.


I am glad to hear that optimism, but I still believe that that is a very difficult timetable to meet. I will be interested to hear from the Minister where we are on the other three nuclear co-operation agreements as well.

[Lord Carlile of Berriew (CB)]

My Lords, as another who took part in the earlier stages of this debate, my eye joined with my noble friend Lord Broers in expressing thanks to the noble Lord, Lord Henley, for listening to the arguments that were made earlier, and to the Government for showing that the dynamic relationship that sometimes exists between your Lordships’ House and the House of Commons actually improves Bills, even in the febrile context of Brexit. I hope that this result today on Motion A, which I certainly support, will be a clear message to those who are given to say glibly that your Lordships’ House is merely trying to wreck Brexit. That is just not true. What is happening this afternoon is clear evidence, which the Government should cite, that there can be constructive work between the two Houses to improve even the legislation on this very difficult issue.

[Lord Hunt of Chesterton (Lab)]

My Lords, one of the features of this provision is that it does not mention the exact question of finance. Clearly, we are working on some large and expensive programmes, particularly on fusion. In replying, will the Minister comment on whether new budgets will have to be created for the new arrangements, or will they fit within the existing budgets?

Domestic Gas and Electricity (Tariff Cap) Bill

Lord Carlile of Berriew Excerpts

2nd reading (Hansard): House of Lords
Tuesday 22nd May 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to see that the noble Lord, Lord Young of Norwood Green, has arrived lately in his place. I am sure that he will acknowledge, however, that his recent arrival means that it is appropriate that I should speak now.

I start by declaring a relevant but past interest, having spent eight years as the chair of the Competition Appeal Tribunal. In that context, we used to debate on a very regular basis the difference between judicial review, which was not the standard by which the tribunal was making its judgment—the same applies now—and the merits-based appeal, which is the standard by which the tribunal reaches its decisions. I will have a little more to say about that later without, I hope, repeating what has already been said.

I support the principle of this Bill, subject to suitable scrutiny procedures being in place on a merits assessment. I take the points made by the noble Lord, Lord Redesdale, who said that this was plainly a politically motivated Bill, which was designed to give advantage to the Government. I am sure that the noble Lord would agree that most Bills have a political motivation. The Government are sending out a hostage to fortune, because the people will be expecting their power bills not to rise, in real terms, as a result of this Bill. If the Government let the public down in that regard, the voters will, no doubt, make their judgments on a very visible, tangible issue.

Consumers have been faced with substantial increases in energy prices. I suspect that the price increases announced last week may have had the consequences of the Bill partly in mind. The proportionality that energy costs have to average earnings is an important measure of the economic relationship between the state and its citizens. This applies especially to those who are responsible for the upbringing and care of families and to the elderly—the cohort so nobly represented in your Lordships’ House. Fuel poverty is not only a sign of a poorly organised country, it is also a basic and justifiable cause of political discontent.

The public’s dissatisfaction with energy companies is compounded by their poor performance. It happens that, last Saturday morning, I noticed in my inbox an email from npower, the company that supplies gas and electricity to my home. It set out very clearly—because it has to—that I could save a few hundred pounds a year if I moved on to another tariff. Later that day, thinking that I could save myself that money, I went on to the npower website. I got one of those responses that reads something like: “Oops; there seems to be something wrong with our website”. I left it for an hour or two and tried again, and “Oops” appeared. In the early evening, I tried again and “Oops” appeared, so I left it. On Sunday, I went to the npower website and no “Oops” message appeared. It was possible for me to go on to a site which told me clearly that I could save a few hundred pounds a year on my gas and electricity combined. I looked very carefully for the button that said something like: “Do it now”, but there was no such button, though it was well within its power to produce one. I then embarked on a parlour game, or obstacle course, depending on the view you take, and eventually, after having two cups of tea while trying to get through the exercise, I was, thankfully, able to reduce my energy costs by a few hundred pounds. However, if I had not been determined, bloody-minded and reasonably good at dealing with computers, I may well not have been able to do that.

Those very cohorts which I mentioned earlier are not being given the opportunity by the energy companies to reduce their prices as easily as possible. That means that those companies are canny about what they can do. They will take every point at their disposal, and that brings me directly to the appeal process. I said earlier that I have relevant experience, through being a member of the Competition Appeal Tribunal. The existing appeal regime enables parties to challenge decisions of sector-specific regulators, in front of a specialist body—in this instance, the CMA—and, as the noble Lord, Lord Hunt, said, this is part of the existing regulatory model in the UK. For example, as chairman of the Competition Appeal Tribunal, I dealt with Oftel and the ability to port your number when you change from one supplier to another. What had been done was not wholly unreasonable, but it was not right on the merits, so we provided a ruling that meant that you can port your number. People have been able to do that ever since, and it has become easier.

We were able to consider things as mundane as bus prices in the city of Cardiff because unfair competition was taking place. Again, we considered the matter on its merits, not by looking at points of law but by looking at when buses arrived and where the competition was on the street at the time of the arrival of those buses. That is what a merits-based appeal system achieves. Indeed, the established system is central to driving better regulatory decisions and thus the level of legal and regulatory certainty upon which all industry stakeholders depend. That is a long-winded way of saying that if there is a merits-based appeal and a decision, people know what they have to do.

Judicial review is not the appropriate standard for legal challenge to a decision that has significant consequences for competition and consumers. I suggest to the Minister that an appeal right to the Competition and Markets Authority could be inserted in the Bill by an amendment such as that alluded to by the noble and learned Lord, Lord Mackay of Clashfern, to ensure the appropriate checks and balances for price control while not delaying or frustrating the process in any way.

I do not intend to repeat everything said so cogently by the noble Lord, Lord Hunt of Wirral—I agreed with every word he said on this issue. I just wanted to add this to try to simplify matters a little. If judicial review principles are applied, the court could hold that the decision was rational but wrong, and therefore it would stand. If the CMA principles are applied, the CMA could hold that the decision was reasonably reached but wrong and therefore would not stand but would be replaced by the correct decision. Stated in that way, I believe that the proposition is unanswerable other than by allowing an appeal to the CMA.

[Lord Berkeley of Knighton (CB)]

My Lords, before the noble Lord sits down, may I ask him a quick question? I was deeply saddened to hear of his travails in trying to move his tariffs. Would he believe me if I told him that that was a relatively “short ride in a fast machine” compared to the three months and counting I have spent trying to achieve the same thing?

[Lord Carlile of Berriew]

I absolutely accept that, because two or three years ago I changed my provider, and it took me about three months to achieve.

Nuclear Safeguards Bill

Lord Carlile of Berriew Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 1st March 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I support this and the other amendment in the group. One of the concerns we have, as expressed on the first day in Committee and at Second Reading, is about disclosure of the actions and steps that have been taken by the Government to meet the undoubtedly genuine, real and merited concerns that have been expressed about the process of leaving Euratom and this Bill.

In that context, I thank the Minister very fully for the letter he wrote to me on 28 February, which has been placed in the Library, relating to the activities that have taken place between the Government and the IAEA, the European Commission and various third countries, which he named in the letter. He has provided a wealth of information which enables us to understand more about the part of the process with which it deals. The amendments seek disclosure about other parts of the process.

Although I support the amendments, I do not regard it as necessary for statutory provisions to be created to provide the information that is set out. What I do regard as essential is a similar generous and helpful approach by the Minister in which the items set out in the two amendments are the subject of an undertaking that the Government will keep the whole of Parliament fully informed about the process and progress of discussion of the items referred to. That is not an unreasonable demand, but is the least the House can reasonably expect.

[Baroness Neville-Rolfe (Con)]

My Lords, I agree about the importance of consultation, as noble Lords will know, and also about the proper resourcing of the ONR. However, I am nervous about the precedent set by proposed subsection (9)(b) in the amendment. It would be very difficult if this was established as a new approach to SIs. As the Minister knows, resources are sometimes constrained when you bring in new legislation, but that is not a reason not to proceed with regulations. I recall milk quotas, where a vast amount of administrative work was involved—but that did not mean to say that it was not right to proceed with that part of EU policy at that time.

It is also not clear how many people will need to be involved in resourcing work. I accept that this is a problem in the nuclear area, but I would guard against putting that sort of provision into legislation—although it might be that the amendment is purely exploratory. I very much agree that we need comfort on resourcing for the ONR, and I thought that the Minister gave us some comfort when he last spoke.

I have another question for the Minister about transition. The draft withdrawal agreement published yesterday covers Euratom—slightly to my surprise, because I believed and hoped it would be in a separate instrument. But that is as it is; it is in the draft document. I am interested to know, since the document also covers transition, whether that means that Euratom will be part of any transition agreement likely to be agreed in the coming weeks and months. Confirmation of that would be helpful because it bears on some of the other concerns we have had about the process of bringing nuclear safeguards into UK law—and of course the resourcing and the time for the ONR to do a proper job are critical.

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[Lord Carlile of Berriew]

In the Library?

[Lord Henley]

I will make it available in the Library, as well as to other noble Lords who want copies of it.

To summarise briefly what I tried to set out in that letter, and for the benefit of the Committee, we are working closely with the ONR to ensure that it will be in a position to regulate the new safeguards regime. The ONR is in the process of expanding its safeguards function by recruiting and training additional inspectors, building additional institutional capacity and developing the necessary IT systems. I want to stress—having made a visit to Sellafield, which has two of the three sites in this country where nuclear safeguarding takes place, with a senior representative from the ONR and others—that on the information given to me it is my assessment, based on current progress, that the ONR will be in a position to deliver to the international standards as required by the IAEA on withdrawal from Euratom in a year’s time, in March 2019.

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[Baroness Vere of Norbiton (Con)]

My Lords, I thank the noble Lords, Lord Grantchester and Lord Fox, for their contributions. The amendments apply sunset provisions to two key powers in the Bill, Amendment 8 in respect of new Section 112(1B), which enables the Secretary of State to specify in regulations international agreements relating to safeguards that should be treated as “relevant international agreements”, and Amendment 13 in respect of the Henry VIII power in Clause 2.

I am grateful to the Delegated Powers and Regulatory Reform Committee for its considered report on the Bill. We are considering the recommendations carefully, and my noble friend Lord Henley hopes to respond positively to many of the recommendations soon.

I welcome the principles that appear to be behind these amendments, namely those of scrutiny, certainty and restriction of powers. However, as the underlying purpose behind these powers is very different, the proposed two-year sunset clauses must be considered in each context specifically.

[Lord Carlile of Berriew]

The noble Baroness may accuse me of being pedantic, but she said that her noble friend “hopes” to be able to respond. Does that really mean “expects” to be able to respond, or is it merely a hope? If it is an expectation, most of us will be content; if it is merely a hope, we will be troubled.

[Baroness Vere of Norbiton]

My noble friend Lord Henley has just whispered “expects” to me.

[Lord Carlile of Berriew]

I am most grateful.

[Baroness Vere of Norbiton]

Noble Lords will recall that I updated the House last week, during the first sitting of this Committee, on the progress the Government have made in discussions on our new agreements with the IAEA and key NCA partners. These discussions provide important context for the amendments as, despite having made significant progress, we do not expect all of them to have been concluded by the time of the Bill’s passage through Parliament.

Amendment 13 would apply a two-year sunset provision to Clause 2, which contains the power to amend the Nuclear Safeguards and Electricity (Finance) Act 1978, the Nuclear Safeguards Act 2000 and the Nuclear Safeguards (Notification) Regulations 2004. It can amend these pieces of legislation only in consequence of a relevant safeguards agreement.