Horizon Europe

Debate between Lord Clement-Jones and Lord Callanan

Thursday 8th September 2022 Lords Chamber

[Lord Callanan (Con)]

The noble Viscount is attacking the wrong target. We remain ready to associate to Horizon Europe at the earliest possible opportunity, in line with our agreement with the EU on the TCA. It is the EU that is preventing this agreement, which is why we have launched the dispute procedure. The noble Viscount is linking two entirely separate issues: the Northern Ireland protocol is a separate issue in a separate agreement. This is the EU’s fault; it is trying to hold science hostage under the banner of another issue. We remain ready to associate, so, however many times the noble Viscount asks me the question, he will get the same answer.

[Lord Clement-Jones (LD)]

My Lords, the creation of ARIA was an admission of the bureaucratic nature of the current UKRI research funding system. The Government must adopt plan B, which would be regrettable, and introduce a new research funding stream for international research co-operation. Will they commit to streamlining UKRI procedures to make them as flexible and generous regarding direct costs and innovation, and as start-up friendly, as current European funding? Surely it cannot be the Government’s intention to increase red tape if we are unable to remain in Horizon Europe.

[Lord Callanan (Con)]

I very much agree with the noble Lord; it is very much not our intention to increase red tape. We are not ready to give up on Horizon yet, but it is obviously regrettable that the EU does not want to finalise our association and abide by the agreements that it entered into. We have launched the dispute procedure mechanism as a last try to persuade it of the benefits of this co-operation. We have excellent co-operation in other areas, such as energy, where we are helping the EU out in its hour of need. So we hope that it will see sense and abide by the agreement that it entered into, but, as the noble Lord said, we have a plan B if that proves not to be the case.

Register of Overseas Entities (Delivery, Protection and Trust Services) Regulations 2022

Debate between Lord Clement-Jones and Lord Callanan

Tuesday 12th July 2022 Grand Committee

[Lord Callanan (Con)]

I thank noble Lords for their support and their valuable contributions. I think the measure has a wide measure of support. I too pay tribute to the officials who have worked long and hard to bring this into operation.

Before I talk about this, I will answer the point from the noble Lord, Lord Clement-Jones, about economic crime 2, as we are not in fact referring to it; we are not allowed to call it that, for some strange reason, but it is the next tranche of economic crime legislation that we expect to introduce to Parliament shortly after the Summer Recess. The measure is being worked on now. I am afraid I cannot promise him that all the measures he outlined at length will be contained in it—I am sure we will have some debate about that—but we intend to take action on some or many of the things he mentioned, particularly reforms to Companies House.

The Government are committed to ensuring that this register strikes the right balance between improving transparency and minimising the burdens on legitimate commercial activity. The measures contained in this instrument will play a key part in the effectiveness of the register from its launch. To pick up on the point from the noble Lord, Lord McNicol, I hope we can bring the register live on 1 August. That is the intention.

These regulations are essential for the register of overseas entities to operate effectively from the outset. To answer the point from the noble Lord, Lord Clement-Jones, they will enable it to operate. I am afraid they are not the end of the regulations—we will need some additional ones to further clarify the operation, et cetera—but they will enable it to commence and the six-month countdown period to start. All existing entities, including those that have made transactions since 28 February, will have to register in that period. That was a discussion we had during the passage of the Act.

[Lord Clement-Jones (LD)]

I thank the Minister for the detail. Can he say whether that will be by an affirmative or a negative process?

[Lord Callanan (Con)]

Four affirmative and six negative, I am informed by the experts. So we will be back, yes. We will return, as they say.

These regulations are essential for the register to operate, so we can commence it and get the six-month countdown period started. There has been some debate about whether we might expect a large rush of applications as soon as the register goes live. I reiterate that the vast majority of these overseas entities are legitimately owning property. They are corporations and others that legitimately own land, commercial properties, et cetera, in the UK. They will want to ensure that they are in compliance from the outset.

Mandating digital delivery for certain documents ensures that the registrar is able to receive and process information in a timely manner. An effective protection regime will protect those at real risk of serious harm because of their link with the overseas entity from the public disclosure of their details. I say again that this information must still be provided and will still be available to law enforcement. I will say a few more words about that shortly.

The measure on trustees allows for a consistent approach to dealing with corporate and individual trustees. It is a complicated area, but I assure noble Lords that we are attempting to close every possible potential loophole. We will also have some further measures in the economic crime Bill to tackle this issue of trustees, which, as the noble Lord, Lord Vaux, is always reminding me, is extremely complicated. But we are determined, and we will not hesitate, to return to this if any inadvertent loopholes are discovered. But we want to make it harder for corporate structures to be altered to avoid reporting requirements.

The main point raised—predictably—by noble Lords was the issue of protections. To try to alleviate concerns, I will give some of the statistics for the existing regime. There are something like 4.9 million companies registered on the UK companies register. Since 2016 there have been 436 applications for protections from that register, of which 163 have been granted—163 out of 4.9 million. Bearing that in mind, there are about 35,000 overseas entities; it is possible, given their nature, that a slightly greater proportion of the persons with significant control of overseas entities will want to be exempted, but I hope I can reassure noble Lords that the system is not being abused and that, given the proportions, tiny numbers of applications are being granted. Of course, I will make sure that this is closely monitored and that there is no excessive use of this provision. It will be only for those who have a very real need for that protection. But I think we can see from the use of it—it is pretty much an identical regime for the persons with significant control—that it is a tiny proportion, and an even smaller proportion of applications are granted. As I said, only 163 of 436 applications were granted.

This will be a public register. All information will be displayed, aside from, as I mentioned, protected information, such as date of birth and residential address information. Of course, again, that will be available to law enforcement and other public bodies. Companies House does have experience of determining these applications for protections since the PSC regime was introduced in 2016. We will ensure that the mechanism is robust and we will require applicants to provide evidence as to why they think there is a serious risk of violence or intimidation. If necessary, we will refer cases to the appropriate law enforcement agency. I reiterate that the protection does not exempt the person from disclosing this information to Companies House and all protected information is still available to law enforcement. So there is no place to hide.

I will give the figures once again. There were 436 applications under the previous regime, and 163 of them were granted.

The noble Lord, Lord Vaux, asked about verification. Agents who will provide the verification will be UK anti-money laundering supervised professionals—

[Lord Clement-Jones (LD)]

Before the Minister moves on to verification, I just wanted to probe a little further on the Regulation 7 points he was talking about. It is reassuring that it will be a limited number, but my question was about Regulation 7(3):

“The grounds on which an application may be made are that the applicant reasonably believes that if that protected information is available for public inspection or disclosed by the registrar … the activities of that overseas entity; or … one or more characteristics or personal attributes of the relevant individual when associated with that overseas entity, will put the relevant individual or a person living with the relevant individual at serious risk of being subjected to violence or intimidation.”


How is Companies House going to assess that? Is it going to consult other crime prevention authorities? Is there an evidence-checking process?

[Lord Callanan (Con)]

The answer to that question is: absolutely. It is kept deliberately—not vague; that is the wrong word. There is a wide scope here, because different individuals will be affected in different ways. They might be foreign diplomats, to take one example. There could be a number of different opportunities depending on their personal circumstances, but the Act is very clear: they will have to provide evidence. That evidence will be checked and verified, and if necessary the head of Companies House, the registrar, will consult the law enforcement agencies.

Noble Lords can see that 163 out of the 436 applications made were granted under the previous regime, so it is clearly a rigorous process and they will have to provide the appropriate evidence. We will monitor it and make sure that the system is not abused. I reiterate that the information is still available to law enforcement; it is just not on the public register. It is also worth saying that there is considerable interest in this from transparency organisations, who I am sure, once the register goes live, will—correctly—crawl all over it and point out any obvious errors or omissions, or anybody who is attempting to avoid the provisions.

I move on to the verification of agents. They will be UK anti-money laundering supervised professionals, and most of those individuals already carry out due diligence when completing property transactions. Those who seek to circumvent the requirements of the Act, including any who provide misleading, false or deceptive information, are liable to criminal or civil sanctions. The identity of the person carrying out the verification will be made public and appear on the face of the register, and if necessary there will be future enhancements for making that information more accessible. We are determined that there is no place to hide for either those seeking to acquire property maliciously or the professionals who enable them to do so.

Companies House will engage with the verifier’s supervisory body, but ultimately the enhanced false filing offence may be used in this circumstance, if necessary. Some of the feedback we have had from professional organisations—I shall not mention them—think that these provisions are too draconian; they are unwilling to put their name to some of them. I did say that there was unlikely to be much sympathy in the House for that position.

The noble Lord, Lord Clement-Jones, questioned the impact assessment. The secondary legislation does not make any significant changes that were not anticipated in the primary legislation impact assessment, and for this reason, in line with the better regulation framework, for which I am also responsible, we did not think another impact assessment was necessary and one has not been produced.

The noble Lord also rightly raised the point of tackling the enablers of economic crime. As I said, the information about agents and verifiers will be published on the register. We believe the supervisory regime we have in the UK is comprehensive. We regulate and supervise all businesses most at risk of facilitating money laundering, including accountants, estate and letting agents, high-value dealers, trust or company service providers, the art market, et cetera.

HMRC’s civil and criminal enforcement powers and capabilities are an integral part of government work to collect and protect revenue and build a trusted, modern tax and customs department. Our enforcement powers allow us already to tackle a minority who attempt to cheat the system and whose actions cause wider harms. HMRC uses a range of supervisory enforcement powers robustly, to address money laundering and terrorist financing risks caused by non-compliant businesses. The aim of this register is to help them in that task.

As always, of course, the Government keep the law under regular review to ensure that there is a robust legislative framework. Following concerns that parts of the criminal law may not be fit for purpose and calls for legislative certainty around the prosecution of corporate bodies for economic crime, the Government sought to establish whether there was a case for change. In 2020 the Government commissioned the Law Commission to undertake a detailed review of how the legislative framework could be improved to appropriately capture and punish criminal offences committed by corporations, with a particular focus on economic crime. That paper was published on 10 June this year. We are carefully assessing the options presented and are committed to working quickly to reform corporate criminal liability.

Economic Crime (Transparency and Enforcement) Bill

Debate between Lord Clement-Jones and Lord Callanan

Committee stage
Monday 14th March 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, perhaps I could just add to what the noble Lord has just said. The Minister mentioned the regulations which are possible post the passing of the Bill. Will he undertake to review some of the points made during the passage of this Bill and consider whether or not regulations might be needed to fill certain gaps?

[Lord Callanan (Con)]

Indeed, I am happy to provide the reassurances that both noble Lords have asked for—in the case of the noble Lord, Lord Clement-Jones, in terms of the regulations, and in the case of the noble Lord, Lord Empey, that we see this as an iterative process. As I mentioned, this is fairly unique legislation in the world; we are aware of only one other country, possibly, that has attempted to do something similar. When we introduced the provisions on PSCs—persons with significant control—in relation to UK companies, we had to make some iterative changes to that, as it became evident over time that aspects were not working as effectively as we had hoped. I hope that we have thought of everything on this one, and I hope that we have all of the details correct, but a lot of it—some of it anyway—has been drafted in haste and it is possible that we will have missed one or two complicated international devices. But, the noble Lord can be assured that we will keep it regularly under review, and if there are—I hesitate to use the word “loopholes”, although it is probably appropriate—devices that clever lawyers, of which there are several in this House, find to get around the provisions, we will not hesitate to close them if we need to.

--- Later in debate ---

[Lord Callanan (Con)]

Yes, that provides the required legal certainty to the third party that is buying it, at the expense of, perhaps, a certain amount of transparency for that 11.5-month period. So, yes, I accept that.

The annual update already requires an overseas entity to provide information about its current beneficial owners, as well as any changes since its last update. This latter information was added as a result of the pre-legislative scrutiny of the Bill, providing a complete picture of an overseas entity’s beneficial owners. For these reasons we do not believe a change in the updating period is necessary or desirable, and I therefore encourage noble Lords not to press their amendments.

Turning to government Amendments 49, 50, 51 and 52, the Government have listened to the concerns raised about the need to deal effectively with anyone seeking to file false or misleading information or those who know or suspect that they may be filing false information, and we have taken on board those concerns. I thank all noble Lords who raised these concerns with me. They made the point that the evidential threshold to prove intent or recklessness is too high in the clauses as drafted. I have therefore tabled these government amendments to ensure that those who provide false or misleading information “without reasonable excuse”—in other words, a lower legal barrier—can be prosecuted and are subject on conviction to an unlimited fine. This will catch those who seek to facilitate and enable money launderers and the corrupt.

Furthermore, we have amended the threshold for what, under our amendments, constitutes an aggravated offence. This removes the reference to the word “recklessly”, which caused a lot of concern in the other place and to the noble Lord, Lord Fox, and others in this place. It also retains the potential for imprisonment and an unlimited fine if convicted of the aggravated offence of knowingly filing false, misleading or deceptive information. I hope this addresses the concerns.

I thank the noble Lord, Lord Clement-Jones, for Amendment 53, which would create a criminal offence of failing to disclose to the registrar certain information when a professional knows or suspects, or has reasonable grounds for knowing or suspecting, that misleading, false, or otherwise deceptive information was provided to them in their professional capacity. Again, I understand the noble Lord’s motive for proposing this new clause, but I hope that he will agree that his aims can be met by the existing provisions in the legislation regarding offences for the provision of false information, as developed in the way I have just set out by the Government’s amendments to lower the threshold needed for prosecution. We are confident that this will ensure that enforcement agencies have sufficient capacity to tackle those who seek to subvert the integrity of the register through the provision of misleading information.

I also take this opportunity to reassure the noble Lord—

[Lord Clement-Jones (LD)]

My Lords, I am afraid I do not agree with the Minister; I am amazed that he thought that I would. The Government need a strategy to catch these enablers in the way that they currently operate. What strategy do the Government have? The Minister was just about to pass on to other things. He has prayed in aid the professional regulators, such as the SRA and the ICAEW, and he has more or less said that the legislation is absolutely fine: it will catch the enablers properly. But does the Government not need a proper strategy for dealing with enablers? They cannot gloss this over. Is the Minister prepared to look at this carefully before the next Bill?

[Lord Callanan (Con)]

Of course, we are constantly looking at these matters. The Treasury is implicitly engaged in pursuing crackdowns on the so-called enablers that the noble Lord has mentioned, and the anti-money laundering regulations exist. This register, which is a transparency measure, is designed to provide information to the public, HMRC and other law enforcement agencies that can then take the appropriate action under the other provisions. However—before the noble Lord, Lord Fox, gets up—I totally agree with the noble Lord that we need to look again at whether the anti-money laundering statutes are appropriate. It is not for this legislation, but I am sure it is something we will want to look at in detail before we get to the next Bill, because it is a complicated area of law. If we do not, I am sure the noble Lord will wish to table his amendments again then.

[Lord Callanan (Con)]

I am happy to agree with the noble Lord. If there is one firm of accountants or one legal practice that is turning a blind eye to these provisions, there is a problem with which we need to deal. Nobody wants to see that; we want to give the UK a reputation as the best place in the world to do business and to crack down on the small minority of the legal profession that are abusing their position and facilities—of course we would want to do that.

[Lord Clement-Jones (LD)]

My Lords, I am sorry to interrupt the Minister and slow the proceedings but, on that point, the Minister began to move, gradually, towards thinking about the enablers, and mentioned anti-money laundering legislation. But it is wider than that: it is about sanctions, economic crime in general and the provisions of this Bill. Is the Minister prepared to undertake to look more broadly across the piece?

[Lord Callanan (Con)]

Yes. Obviously, a number of different government departments would be involved in doing this, but a number have been involved in putting the provisions into this Bill, and a number will be involved in the provisions of the next economic crime Bill. Of course, we want to take action against lawyers and accountants who abuse their positions to benefit some of these oligarchs and others. We have all seen the press reports and we all know the people that we are concerned about. I would not seek to defend them in the slightest, and I hope that we will be able to put the appropriate sanctions in place to deal with them.

Economic Crime (Transparency and Enforcement) Bill

Debate between Lord Clement-Jones and Lord Callanan

2nd reading
Wednesday 9th March 2022 Lords Chamber

[Lord Callanan (Con)]

This is what we are attempting to address in this legislation. We are trying to make the system as transparent as possible, to improve the action on unexplained wealth orders, et cetera.

[Lord Clement-Jones (LD)]

My Lords, the noble Lord has contradicted himself. He said that there was a robust system in place, but he has just talked about money laundering for enablers.

[Lord Callanan (Con)]

I said there was a robust system in place under the money laundering regulations in response to the various points that were made about financial services professionals, estate agents, et cetera. That is not to say that we cannot improve the system; we certainly look to do that. Providing information and transparency on property ownership, unexplained wealth orders and the sanctions regime, which is what we are doing, will help to supplement that system.

In July 2021, the CPS amended its legal guidance on money laundering offences for prosecutors to make it clear that it is possible to charge someone under Section 330 of POCA, which relates to the failure to disclose money laundering in the regulated sector. This closes a long-standing gap in law enforcement’s toolkit, which will better enable us to tackle the small minority of complicit professional enablers.

In addition, the Solicitors Regulation Authority—the largest legal PBS which supervises approximately 75% of regulated legal service providers in the UK—undertook a broad range of enforcement action in 2021. This included issuing 14 fines totalling £163,000, suspending membership three times and cancelling membership 13 times, effectively preventing an individual conducting regulated activity.

To take another example, the Institute of Chartered Accountants in England and Wales—the largest accountancy PBS—undertook a broad range of enforcement action. This included issuing 59 fines, totalling £178,000, and cancelling the membership of firms six times—again, effectively preventing an individual conducting regulated activity.

The noble Lord, Lord Carlile, suggested that we should consider how we can make legal professionals report matters relating to national security in a structured way and without the benefit of legal professional privilege. This is a complicated matter and not for this Bill, but I certainly welcome his contribution and his engagement, and we will certainly look at that.

The noble Baroness, Lady Kramer, raised an important point on protecting whistleblowers. We recognise how valuable it is that whistleblowers are prepared to shine a light on wrongdoing and believe that they should be able to do so without fear of recriminations. The whistleblowing regime enables workers to seek redress if they are dismissed or suffer detriment because they have made a so-called protective disclosure about wrongdoing. It is right and proper that the Government review the whistleblowing framework once we have had sufficient time to build the necessary evidence of impact of the most recent reforms. We are considering the scope and timing of a review.

A number of noble Lords—the noble Lord, Lord Macdonald, in particular— raised an important point concerning the wording “knowingly and recklessly”. The wording is drafted on precedent, coming from the Companies Act. This clause is intended to provide a necessary and proportionate deterrent to those who may otherwise provide inaccurate or misleading information on the register of overseas entities. This was debated at length in the other place and the Government have already made a commitment to reconsider the drafting. I also welcome the comments of the noble Lord, Lord Macdonald, on the sanctions proposals.

The noble Baroness, Lady Kramer, and the noble and learned Lord, Lord Garnier, asked about the issue of the register and trusts. If the assets are owned via an overseas legal entity, then this entity is within the scope of the draft Bill and will be required to register the trustees as beneficial owners with Companies House and state the reason that they are the beneficial owner—that is, because they are the trustees of that trust.

Her Majesty’s Revenue and Customs introduced a register of trusts in 2017. Trustees of trusts that acquire UK land or property are required to register and provide information on the beneficial ownership of the trust. The information on the register can be shared with law enforcement authorities and enables them to access information on the trustees and beneficiaries of all trusts. Reforms to unexplained wealth orders will also allow law enforcement to investigate the origin of any property held via trusts.

I now turn to the points raised by the noble Lords, Lord Vaux and Lord Eatwell, on verification. Clause 16 requires the Secretary of State to make regulations requiring the verification of information before an overseas entity makes an application for registration, complies with the updating duty or makes an application to be removed from the live register. To ensure that regulations are laid in a timely way, we have added a requirement for regulations to be made before applications may be made for registration in the register of overseas entities. We expect that UK anti-money laundering supervised professionals may have a part to play in this, and we will set out details on the verification scheme in regulations. Overseas entities will be required to update their information annually, and Companies House will be given broad powers to query information it holds via the further legislation to come later in the year. Also, the very public nature of the register means that there will be many eyes viewing the data, which will of course aid in identifying any inaccuracies. I thank my noble and learned friend Lord Garnier for his comments on whether we are capturing the ultimate beneficiaries of property. This is an important point.

Advanced Research and Invention Agency Bill

Debate between Lord Clement-Jones and Lord Callanan

Report stage
Tuesday 14th December 2021 Lords Chamber

[Lord Callanan (Con)]

I think the noble Lord will find, if he looks at my remarks, that I did not say that every applicant will pay fees but that there is a general expectation that a fee of $25 will be charged, or even more in some cases if more information is required. However, there are exemptions to that, which can be exercised. If the noble Lord looks back at Hansard, he will see that I did not say that everyone would be charged a fee. In most cases, a fee would be applicable, but there are certain exemptions.

I turn to Amendment 7, in the names of the noble Lords, Lord Clement-Jones and Lord Fox, and the noble Baroness, Lady Chapman, which relates to procurement regulations. I note that the noble Lords did not address this, but it is worth while setting out the Government’s position on that amendment. I believe there are clear reasons why this exemption is beneficial to ARIA and why it will be integral to the agency’s effective operation. First, unlike other R&D funders, ARIA will be commissioning and contracting others to do research for it in pursuit of its own technological visions or research goals. The process of contracting and commissioning means ARIA will be operating in fundamentally different ways from traditional R&D grant making, where procurement rules already do not apply. Placing ARIA outside the existing public procurement rules will mean that the agency can freely procure expert investment and consultancy advice, which will be important given the highly varied and technical nature of the agency’s work.

While we imagine that the bulk of ARIA’s research activities will be carried out by its partners and funders, it remains possible that ARIA may wish to procure and own a piece of research equipment to crowd-in interest from other research partners, or to accelerate the progress of a project. Freedom from traditional procurement rules will facilitate ARIA making those investments quickly and with ease. In my view, it is appropriate for ARIA to have greater flexibility than the R&D exemption would afford it so that it can design and tailor its contractual arrangements to precisely suit its research endeavour.

Secondly, in designing ARIA, we have put a premium on the agency investing and acting quickly. In our view, this agility would be incompatible with the public tendering process mandated in the Public Contracts Regulations 2015, which can require contracting authorities to put contracts out to open tender for up to two to three months. Such a delay could prevent critical investments being made with sufficient speed or, indeed, at all. In choosing to exempt ARIA from standard procurement rules, we have learnt from the successful approach taken by DARPA, which benefits from “other transactions” authority, giving the agency the flexibility to operate outside traditional US government contracting standards. It is our belief that ARIA should benefit from similar flexibilities.

I also dispute the notion that taking ARIA outside traditional procurement rules will leave the agency vulnerable to cronyism. I think this was a point made by the noble Baroness, Lady Chapman, in Committee. This exemption will ensure ARIA’s leadership and programme managers—who have been recruited for their technical expertise and scientific vision—can take decisions on ARIA’s procurement with autonomy, as they will have the freedom to procure at arm’s length from government and Ministers.

As I have already detailed, ARIA has clear lines of accountability, transparency and scrutiny in the preparation of its an annual report, scrutiny by the NAO and an annual independent audit to report on its procurement activities. As I have already alluded to, to reflect the constructive and considered debate in Grand Committee, ARIA will publish information on its delivery partners, and this expectation will be detailed in ARIA’s framework document. I thank the noble Baroness, Lady Chapman of Darlington, for tabling an amendment to that effect previously. I hope she and other noble Lords welcome this principled commitment to transparency, which would extend to delivery partners supported through the full range of ARIA’s funding mechanism.

In conclusion, I hope noble Lords have been assured that exempting ARIA from traditional procurement rules will be integral to the agency’s effective operation. The package of accountability, conflict of interest procedures and governance provisions that sit within this Bill are an appropriate counterbalance to that. Taken in the round, this represents an essential, proportionate and balanced freedom, placed in the hands of ARIA’s incoming leadership and programme managers. Taken together, I hope that the assurances and explanations I have been able to provide for noble Lords will allow the noble Lord to withdraw his amendment.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response and thank noble Lords who have taken part in this debate. There is clearly an argument to be had on our Amendment 7 and the whole procurement regime. The one argument that the Minister has is that DARPA is not subject to procurement rules.

However, the position is quite other on Amendment 6, as the noble Baroness, Lady Chapman, has said. This is a matter of principle. The Minister keeps coming up with some quite colourful phrases. This evening he said that scientists should not have to be fearful at the prospect of FoI disclosure. That is quite an interesting phrase—those scientists quivering in their labs, waiting for freedom of information disclosure. I must say it is quite a colourful way of looking at the situation, but, clearly, we have a matter of principle to decide on here, and I would like to test the opinion of the House.

Advanced Research and Invention Agency Bill

Debate between Lord Clement-Jones and Lord Callanan

Committee stage
Monday 22nd November 2021 Grand Committee

[Lord Callanan (Con)]

I start with Amendment 24 from the noble Baroness, Lady Chapman, Amendment 32A from the noble Viscount, Lord Stansgate, and Amendment 39 from the noble Lord, Lord Clement-Jones, which all deal with the Freedom of Information Act. As I said at Second Reading, our decision not to subject ARIA to FoI was made after much consideration. As on so many of these things, I find myself in full agreement with my noble friend Lady Noakes and I thank my noble friend Lord Patten for his support during the Second Reading debate.

I was hoping that some of my noble friends who have been in government would comment on how they found the Freedom of Information Act in government. From my point of view, it is a truly malign piece of legislation. At the risk of trashing his reputation even further in the Labour Party, I agree with Tony Blair on this matter. I agree with the noble Lord, Lord Fox, that all information on government contracts et cetera should be published, even if it is embarrassing for the Government. However, I think he will find that all the contracts to which he refers were not released under freedom of information but under normal government contract transparency.

In my experience, not much is ever released under freedom of information that causes any problems for government; it is normally stuff that is released in the normal transparency of contract negotiations and government transparency returns. I am fully in favour of decisions, and information about them, being released, but I fail to see how the processology of government benefits at all from FoI disclosures. I find that people just modify their behaviour and communication to take account of the fact that private conversations may be released in the future. I genuinely do not think that it achieves anything at all, but that is my personal perspective and not necessarily a matter for this debate. It was also new to me to discover at Second Reading that the US charges a fee for freedom of information disclosures. I think that is an excellent idea, even if it is only a nominal amount to get rid of some of the somewhat spurious fishing expeditions that many go people in for. Anyway, that is a separate matter for different discussions.

In contrast to UKRI, which comprises the seven research councils, ARIA is a new, unique organisation that we anticipate will attract a disproportionate number of FoI requests for its size. On the point made by the noble Lord, Lord Browne, I would reiterate, as I did at Second Reading, that comparisons between ARIA and DARPA do not hold, precisely because, as I said, DARPA adds a standard fee to the requester, which is not comparable to the situation in the UK, although we should certainly consider it.

[Lord Clement-Jones (LD)]

My Lords, if I may have the privilege of intervening—a wonderful feeling, having been under different rules for a period of time—does the Minister not accept what the noble Lord, Lord Browne, said: that the individual research councils receive no more than the number of requests that DARPA receive, something of the order of 47? It is quite coincidental that the average is 47. Why does the Minister think that ARIA will be inundated with freedom of information requests?

[Lord Callanan (Con)]

Because it is a fairly new and exciting agency doing new things. I suppose we will have to disagree on that. There is no point and nothing to be gained by doing otherwise. In designing ARIA, we are envisaging a lean agency that will employ people in the tens. I do not know how many people across government are currently employed to respond to the hundreds if not thousands of FoI requests that we get, but given the bundles of documentation that sometimes pass my desk, there must be many hundreds of civil servants engaged in doing nothing other than responding to these fishing expeditions. As I said, ARIA will be an agency employing people in the tens, with around 1% of the R&D budget.

--- Later in debate ---

[Lord Callanan (Con)]

Amendments 38, 41 and 43 are consequential on the omission of Clause 10 from the Bill and the narrowing of the power we talked about earlier to make consequential amendments through regulations. The Delegated Powers and Regulatory Reform Committee suggested that any necessary consequential amendments should be added to Schedule 3, so we are responding to that recommendation here. The amendments apply to ARIA a set of relevant obligations that would usually apply to “public authorities”, which are sometimes defined in reference to Schedule 1 to the Freedom of Information Act 2000, which, of course, ARIA is not listed in. Bespoke provisions therefore are required.

I will briefly summarise the obligations that will apply to ARIA as a result of these amendments. The first relate to the Income Tax (Earnings and Pensions) Act 2003 and the Social Security Contributions (Intermediaries) Regulations 2000, with which I am sure all noble Lords are intimately familiar. This legislation includes the off-payroll working rules, which are designed to ensure that individuals working like employees but through their own company—usually a personal service company—pay broadly the same income tax and national insurance contributions as those who are directly employed. These rules have been reformed over the past five years to improve compliance by moving the responsibility for determining whether the off-payroll working rules apply from the individual’s personal service company to the client engaging them. That reform came into effect in the public sector in April 2017, and in the private and voluntary sectors on 6 April this year. I do not believe that there is a justification for ARIA to be treated differently from any other public bodies here.

The second element is the Data Protection Act 2018, which gives the GDPR effect in UK law. Through the Bill as it was introduced, ARIA would already be subject to the normal requirements of the GDPR, but the obligations on public authorities are different, in terms of the bases for data processing and governance and oversight arrangements. Similarly, in this case, I do not believe that there is a justification for ARIA to be treated differently from other comparable bodies in this important area.

Finally, the amendments to the Enterprise Act 2016 and Small Business, Enterprise and Employment Act 2015 allow us to avoid a situation where ARIA is considered part of the private sector for the purposes of business impact assessments of regulatory activities. Again, I do not believe that it is appropriate for impacts to ARIA, as a public sector body, to be included in any such considerations. I also do not believe that it would be appropriate for ARIA to avail itself of the support available through the office of the Small Business Commissioner, which is intended for private sector entities. So, while public authority obligations in other legislation have been considered, they were not assessed to be sufficiently relevant to ARIA to make further amendments here. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, there is a splendid irony in what the Minister has just said as he trotted through the contortions of these amendments. I think he had a former life as a contortionist: it was quite extraordinary, really.

I do not think that these amendments are consequential; I think they are “Oops, we forgot something, actually”, as far as the Bill is concerned. Because of the way they treated the FoIA, suddenly everybody woke up to the fact that, for the purposes of that, ARIA was not a public body, because the Government had been so keen not to define it as a public body and therefore it had to be defined as a public body for the purposes of other legislation in a rather different way. So I do not think that this is consequential—except that it is something that probably should have been thought about when the original FoIA omission decision was made. No doubt everything will be clear after Report: the Minister will have his definition of a public body, everything will be logical and clear, and we will not have to have contortions such as this.

National Security and Investment Bill

Debate between Lord Clement-Jones and Lord Callanan

Committee stage
Tuesday 16th March 2021 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bilimoria, particularly as I am speaking to the two amendments that he has spoken to, because he speaks with huge authority and considerable backing.

To start with Amendment 85, we on these Benches are very sympathetic to the cause of SMEs. Whether this is the best way of catering for the considerable issues that they will face under the Bill is a matter for debate. I would prefer to see the thresholds altered to accommodate the needs of small businesses, but the heart of Amendment 85 is certainly in the right place.

I turn to Amendment 89. As we have heard, throughout the course of the Bill’s passage concerns have been expressed about its impact and the culture of the ISU as it enforces the Bill’s provisions. As ever, my noble friend Lord Fox anticipated some of my arguments in the previous group. It is critical that a regular review is undertaken to ensure that the Act is achieving its aims proportionately while not unduly deterring foreign investment.

Other aspects of the Bill include the five-yearly review of the Secretary of State’s statement about the exercise of the call-in power under Clause 3 and, of course, the annual report that we have just been talking about, which is inadequate in many ways. It is currently envisaged in Clause 61 and, as we debated in the last group, it does not go nearly far enough. Neither provision makes any reference to the effectiveness of the overall scheme of the legislation, whether it is achieving its objectives and, indeed, whether its overall purpose is being achieved. As my noble friend said, two key questions need answering here—effectively, are we safe and is our investment climate healthy? Where in any of the Bill’s provisions is the provision for that to be considered?

Amendment 89 would require the Secretary of State to undertake a review of the Act and report to Parliament every three years. This would involve a cost-benefit analysis of the regime’s impact, as set out in proposed subsection(2)(c).

I support Amendment 92 in the name of the noble Lord, Lord Leigh, and have signed it. I am sure that the noble Lord would have introduced it with far greater panache than me. But the Minister—the noble Lord, Lord Callanan—said at Second Reading:

“Noble Lords are entirely reasonable to expect further high-quality guidance from government to help businesses and investors navigate the regime.”—[Official Report, 4/2/21; col. 2391.]


That is reassuring but, as was made very clear by David Petrie, the head of the Corporate Finance Faculty of the ICAEW—I declare an interest as a member of its advisory board—in the Public Bill Committee on behalf of the members of the ICAEW, and as the noble Lord, Lord Bilimoria, has confirmed, the most effective way of tackling asymmetry of information in the business, investment and advisory communities would be the periodic production by the ISU of meaningful market guidance notes, modelled around the practice statements that accompany the City Code on Takeovers and Mergers.

Market guidance notes would be an important way for the ISU to engage closely and on an ongoing basis with businesses, investors and professional advisers. They would signal a culture of professionalism and openness to investment in UK businesses. They would support a necessary communication and awareness campaign of the legislative requirements. By setting out in an accessible way and in consultation with business, professional and sector bodies why and how businesses may be affected, the ISU could ensure that consistent and accurate information reaches the population of businesses and their advisers. Of course, future updates could also be issued in this format.

Beyond raising awareness, issuing market guidance notes over time would help to inform market participants on what they could be doing to make sure that the process works with more certainty, speed, clarity and transparency—all these cultural things that we have been talking about throughout the Bill, things which financial markets and the wider UK economy need to see. There would be a positive impact on productivity as a result; they would help to ease potential resourcing pressures on the ISU by increasing the proportion of notifications being submitted correctly, with all relevant details included.

I hardly need to say that market guidance notes would not form part of the Act and accordingly would not be binding on the Secretary of State. They would be issued to provide informal but meaningful guidance to businesses, investors and professional advisers on matters such as the level of information required in a mandatory or voluntary notification, and they would also provide commentary on the ISU’s normal approach to various provisions of the Act and greatly assist market participants seeking to establish the extent to which the Act may apply in a particular case. The ISU can also use them to share insights into trends where this would benefit the process. They would be amended periodically, or withdrawn as necessary, without the need for legislation—so extremely flexible. Each note could indicate the date on which it was issued, and so on.

There are other details that I could provide. There is great enthusiasm for this instrument, and I very much hope that the Bill will provide specifically for these. It would be an extremely useful indicator of the way in which the ISU proposes to operate.

[Lord Callanan (Con)]

I am grateful to the noble Lords, Lord Grantchester, Lord Leigh and Lord Clement-Jones, for their amendments in relation to equity stakes of affected parties, small and medium-sized enterprises, an impact review of the regime, and market guidance.

I first turn to Amendment 84, tabled by the noble Lord, Lord Grantchester. This amendment seeks to require the Secretary of State to analyse the financial support provided by government, as part of Covid-19 support, to sectors considered more likely to give rise to national security risks. It then seeks to require him to consider converting loans and grants to equity stakes when there is a clear economic and national security rationale for doing so.

There is no doubt that the impact of Covid-19 on businesses and livelihoods of people across the country has been truly terrible, and I have a massive amount of sympathy for those affected. I can assure noble Lords that the Government are committed to supporting all UK businesses through the Covid period. The Government continue to provide extensive support to businesses to survive the pandemic, so far totalling over £280 billion, including through furlough, the Self-employment Income Support Scheme and business grants. However, I do not think that converting loans into equity stakes necessarily represents the best use of public money. As noble Lords will be aware, Clause 30 provides for the Secretary of State to give financial assistance to, or in relation to, entities in consequence of the making of a final order. However, it is expected that this will be used only in exceptional circumstances. What the noble Lord is proposing would be much wider than this and, while I am sure that it is very well intentioned, is very much a substantive diversion from the main purpose of the Bill.

I turn to Amendment 85, which would require the Secretary of State to create a small and medium enterprise engagement unit within three months of this Bill being passed. This unit would take particular actions in relation to SMEs and their interaction with the regime. I note that this amendment bears a strong similarity to an amendment proposed during Report in the other place, and it will not surprise noble Lords that my views on the subject are closely aligned with those of Nadhim Zahawi, my fellow Minister. The Government strongly support SMEs and so have sought to provide a clear and easy regime for businesses of all sizes to interact with. The Government have been happy to provide support to businesses both large and small through the contact address available on GOV.UK and discussions with BEIS officials. The Government have published fact sheets on GOV.UK which make clear what the measures in the proposed legislation are and, importantly, to whom they apply.

We are also creating a digital portal and a simple notification process to allow all businesses to interact with the regime without the need for extensive support from law firms. Furthermore, there is no fee for filing a notification, unlike many of the regimes operated by our allies. Consequently, we have no reason to believe that this regime will disproportionately affect SMEs or that this new clause is necessary.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I should thank the Minister for his response; I am not sure I really want to. I found it rather extraordinary, particularly to Amendment 89. We have a Bill on foot with a purpose in mind but, when it comes to reviewing it, we are told that it is far too sensitive and we cannot possibly review whether it has met its objectives. We can keep it under review—within the department in some shape or form, I assume—but we cannot possibly undertake a periodic review of any kind. Even a normal post-legislative review process would expect to see whether an Act of Parliament was meeting its objectives. The Minister cannot even say whether that will take place at any stage.

This really adds to one’s concerns about this Bill in so many ways. It is a rather furtive creature that, if we are not careful, will be hiding in the dark for quite a long time and will not get reviewed. There is no way of seeing whether it is achieving its purpose other than the kind of review the Minister was talking about, which is purely internal to government and part of the government department’s overview. This is not particularly reassuring.

On Amendment 92, the Minister talked about just making statements about the call-in power or having the annual report. I said a set of market guidance notes would do; I did not adumbrate about six points that a set of market guidance notes could set out. They are far more extensive and market friendly than anything that is going to be caught by the call-in power statement or the annual report. We are talking about real guidance to business so that it knows what to expect and the parameters within which the Secretary of State is operating—particularly when it comes to guidance about the kinds of sector that will be caught and the current issues that the Secretary of State believes would give rise to a call-in notice and other aspects dealt with by the ISU. The idea that five years is a reasonable time to adjust a call-in power statement is laughable in the commercial world. The Takeover Panel updates its notes on a regular basis, and that is exactly what the ISU should do with market guidance.

[Lord Callanan (Con)]

I am not sure there were any questions for me there; the noble Lord has made some observations. I understand that he was unhappy with my replies, but I am afraid I cannot agree that the Bill is “furtive” or “hiding in the dark” at all. We are committed to transparency as much as possible. He says he has six additional points on market guidance notes. If he wants to send them to me, I will happily have a look at them and see what we can do. We said a maximum of five years, but of course the Secretary of State has the ability to do earlier reviews if necessary. That is a maximum date, and we could bring that forward. I take on board his points and am sorry if he is disappointed by my replies.

Competition and Markets Authority

Debate between Lord Clement-Jones and Lord Callanan

Thursday 25th June 2020 Lords Chamber

[Lord Callanan]

On that final point, we will of course run a full and open competition process. We will appoint the best person for the job. We committed in our manifesto to tackle consumer rip-offs and bad business practice. Where we need to give the CMA new powers, we will look at that, but it already has extensive powers, as proven by the cases it is currently pursuing. It is one of the leading regulators in the world and, as I said, we will look at giving it additional powers if necessary.

[Lord Clement-Jones (LD) [V]]

My Lords, the noble Lord, Lord Tyrie, and Professor Furman have clearly spelled out the challenges of the digital age. I heard what the Minister said on this, but do the Government intend to address these issues or will they continue to allow big tech to rampage across our economy in digital markets such as social media, e-commerce, search and online advertising? Will the Government set out their proposals any time soon?

[Lord Callanan]

The regulation of digital e-commerce is extremely important. As I have said, the CMA has set up the digital markets taskforce to study these matters, but they are complicated. This country has one of the best competitive markets in the world and digital markets are an increasingly important part of that. We will look at what further measures need to be taken.

Covid-19: Business

Debate between Lord Clement-Jones and Lord Callanan

Wednesday 13th May 2020 Lords Chamber

[Lord Callanan]

The noble Baroness makes a number of good points. We are endeavouring to work with other political parties. The Opposition have been consulted on many measures; of course, the devolved Administrations are present in many of the meetings at which these decisions are taken; similarly, we regularly host conference calls with local authorities to try to communicate information as much as possible. Ultimately, she makes a very good point, and we will endeavour to proceed with the maximum consensus possible.

[Lord Clement-Jones (LD)]

My Lords, I cannot see any reference in the guidance on working safely, or the FAQs, to the arts and entertainment sector. This is a really badly hit but massive contributor to our culture and economy. Surely, if house viewings can restart, musicians and other creative artists, many of whom are suffering real financial hardship, can be given a clear indication about when they will be able to return safely to work, rehearsal, performing and recording. If estate agencies can open for business, why not museums and galleries and certain other arts and entertainment facilities? What guidance do the Government have on this? Can the Minister pledge that creative workers, along with live performance venues, will be financially supported for as long as necessary?

[Lord Callanan]

The noble Lord makes a very good point. I can tell him that earlier today we announced five new ministerial-led task forces that have been set up to develop plans for how and when currently closed sectors can reopen safely following the publication of the UK’s road map. This includes a DCMS-led task force considering some of the sectors he refers to: recreation and leisure, including tourism; culture; heritage; libraries and entertainment. As part of this scientific-led approach, each task force will work across government and engage with key stakeholders to ensure that the guidelines are developed and that those sectors can reopen as quickly as possible.

Parental Bereavement Leave and Pay (Consequential Amendments to Subordinate Legislation) Regulations 2020

Debate between Lord Clement-Jones and Lord Callanan

Monday 23rd March 2020 Grand Committee

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

My Lords, I beg to move that the draft Parental Bereavement Leave and Pay (Consequential Amendments to Subordinate Legislation) Regulations 2020, which were laid before the House on 10 March 2020, be approved.

This statutory instrument supports the implementation of a new entitlement to paid leave for employees who lose a child under the age of 18 or whose baby is stillborn. The main regulations, which contain the main provisions of the policy, were approved by resolution of both Houses on 5 March, and are set to apply to child deaths and stillbirths on or after 6 April. Together, the package of Parental Bereavement Leave and Pay Regulations will ensure that there is a statutory minimum provision in place which all working parents can rely on in the event of a child death or stillbirth. They will also establish a clear baseline of support for employers when managing bereavement in the workplace.

Specifically, the Parental Bereavement Leave Regulations 2020 give all employees a right to a minimum of two weeks off work in the event of their child’s death or stillbirth, regardless of how long they have worked for that employer. The Statutory Parental Bereavement Pay (General) Regulations 2020 implement a new statutory payment for parents taking time away from work following their bereavement, subject to the same eligibility criteria as all other statutory family leave payments. The SI under consideration today plays an important role in supporting the implementation of this policy, and ensuring that it achieves its objectives.

The draft Parental Bereavement Leave and Pay (Consequential Amendments to Subordinate Legislation) Regulations 2020 amend other pieces of secondary legislation to take account of the introduction of the new entitlement to parental bereavement leave and pay. This SI makes it clear how certain other rights or benefits should be calculated when an employee takes parental bereavement leave or statutory parental bereavement pay. The Government’s intention is that parental bereavement leave and pay are treated consistently with other family-related statutory leave and pay entitlements when calculating entitlement to certain other rights or benefits. This is beneficial to employers who are expecting this new entitlement to align with the existing framework of family-related leave and pay entitlements.

The SI also sends a clear message that parental bereavement is to be afforded the same status and importance as other types of leave typically associated with the birth or adoption of a child. This supports the policy objective to encourage employers to acknowledge the importance and value of recognising bereavement in the workplace and providing adequate support for parents in those sad circumstances. Without this SI, we would be calling into question the status of this new entitlement when compared with other existing entitlements to statutory leave and pay, and we would create confusion for employers and their employees.

As I have said before, while the purpose of the parental bereavement leave and pay policy is to set a statutory minimum, this should in no way stop employers from going further where they can. The Government encourage all employers to support their employees in whatever way they are able to. It is my hope that this new statutory provision will act as a catalyst for improving workplace bereavement support across the board.

Before I finish, I again pay tribute to all noble Lords who have lent their support to this legislation throughout its course, in particular the noble Lord, Lord Knight of Weymouth, for his integral role in getting this on the statute book.

In conclusion, this SI supports an important package of legislation to give bereaved parents a right to take time away from work to grieve in the tragic event that their child dies or their baby is stillborn. It plays an important role in ensuring that the policy as a whole can achieve its objectives by ensuring consistency between parental bereavement leave and pay, and other entitlements to family-related leave and pay, in the calculation of other rights and benefits. This is a fair and helpful outcome for employees and their employers, and I commend these regulations to the Committee.

[Lord Clement-Jones (LD)]

I thank the Minister for that introduction. I am not sure whether I am the understudy or the understudy’s understudy, but it has been instructive reading a number of SIs over the weekend and doing my homework. I admit I was shocked to learn that, from government estimates, only two-thirds of businesses provide parental bereavement leave currently, particularly when the last figures I saw, from 2017, were that 7,600 babies and children under 18 died. This is not insignificant. The Minister rightly paid tribute to the noble Lord, Lord Knight, but this also derived from a Private Member’s Bill by Kevin Hollinrake MP and noble Lords should credit him for that.

I very much welcome what the Minister has said and recognise that this is the third of the three statutory instruments needed to put this in place, but I ask the Minister why it has taken two years from passing the original Bill to get this much-needed help. The Minister hoped that this would lead to certain consequences; I hope there will be a communications exercise with business, particularly small businesses, about this duty. I also hope that there will be a full review, not overengineered, of how this is being put in place, after a period—I do not know how long that should be, but maybe a year or shorter—to see whether businesses are really complying. Otherwise, this hard-fought new right, which we very much welcome, will not be worth as much as has been hoped.

Artistic Content: Copyright Protection

Debate between Lord Clement-Jones and Lord Callanan

Monday 2nd March 2020 Lords Chamber

[Lord Clement-Jones]

To ask Her Majesty’s Government what steps they are taking to ensure that United Kingdom creators of artistic content have the same level of copyright protection as those working in the European Union.

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

My Lords, UK copyright works, such as books, films and music, will continue to be protected in both the EU and the UK because of the UK’s participation in the international treaties on copyright.

[Lord Clement-Jones (LD)]

My Lords, in contrast to the Government’s present intention not to implement the copyright directive, the Culture Minister, Nigel Adams, said in January:

“It is imperative that we do everything possible to protect our brilliant creators”.—[Official Report, Commons, 21/1/20; col. 56WH.]


Does the Minister recognise that creative workers are crucial to the success of the UK’s creative industries; that many rely on payments related to copyright to sustain their careers; and that the new rights in the copyright directive, for which they fought hard to be included, are absolutely essential? These include transparency, contract adjustment and, of course, fair remuneration. Should these not now be introduced in UK law?

[Lord Callanan]

As the noble Lord will be aware, the UK has now left the EU and the transition period will end on 31 December. This means that the UK is not required to implement the copyright directive, but the UK has one of the strongest copyright protection frameworks in the world. Many of these are subject to international treaties, which we will continue to be members of. We will continue to value the creative sector; of course its work should be recognised.