Retained EU Law (Revocation and Reform) Bill

Debate between Lord Hope of Craighead and Baroness Bennett of Manor Castle

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly to express great concern about the lack of any offer on non-regression. I am going to bring this back to the absolute physical reality of the UK and the England that we are in today. In the other place, the Science, Innovation and Technology Committee has started an inquiry into the impact of insect decline on food security. If anyone wants to see the practical reality of this, I invite them to go out the back of the Foreign Office today, where a wonderful wildflower meadow has been created—they should go and look at it and ask where the insects are, because there are practically no insects there.

We have insect decline and a decline in our plants. Non-native plants now outnumber native plants in the UK: that is the state of the UK today. We have, right now, a huge, category 4 marine heatwave, which is going to have a huge impact on our marine world. It is very clear that the protections for the environment that we have now are vastly not enough, yet we are not promising even to maintain them. I ask everyone in this House to consider what people in the future will think when they look at today’s debate.

[Lord Hope of Craighead (CB)]

My Lords, I think it is appropriate that I speak to Motion B1 in my name, on the issue of parliamentary scrutiny. That issue remains as important this afternoon as it has been since the Bill first arrived in this House and the noble and learned Lord, Lord Judge, addressed us, with his usual skill, as to the importance of the issue. I have been doing my best to secure its place in the Bill at every stage, but each attempt has been rejected, either as novel and untested, which happened twice, or as incompatible with the system that the Bill lays down, on the last occasion. I regret very much that I have not been able to devise any other way of achieving that object that would be acceptable to the Government.

However, I did find two words, buried in a long and rather complicated paragraph in Schedule 5, which I think may at least open the door to something which is worth looking at more carefully, and that is the subject of my amendment. I am particularly grateful to the noble Lord, Lord Callanan, for being prepared to speak to me so that I could explain the purpose of my amendment and ask him whether he would be prepared to make a statement, in effect, giving me, in his words, what I was asking for in my amendment: words of explanation about these two words and reassurance about how the Government propose to respect the need for Parliament to be kept properly informed and consulted at each stage as the process of revocation proceeds.

The two words I am talking about, by way of explanation, are to be found in paragraph 6 of Schedule 5, which sets out an elaborate screening process in a case where a Minister is of the view that these statutory instruments should be subject to the negative procedure. The protection lies in the hands of screening committees of both Houses, which can take the view that the instrument should be subject to the affirmative procedure. If that is done, the Minister has the opportunity to give an explanation and perhaps try to persuade the committees to change their mind.

The important point for my purposes is to be found in sub-paragraph (12) and the words:

“Nothing in this paragraph prevents a Minister of the Crown from deciding at any time before a statutory instrument containing regulations under section 11, 12 or 14 is made that another procedure should apply in relation to the instrument”.


It is the words “another procedure” that caught my attention, because there is no further explanation in the schedule as to what that other procedure might be, except that in the following sub-paragraph there is a declaration that the statutory procedure for laying regulations in draft under the 1946 Act is not to apply, so we cannot have the statutory procedure of the 40-day period; that has been ruled out. My question to the Minister is: what is this other procedure that is available? The Minister has been very good in explaining in considerable detail what he builds into these words. In effect, he is providing me with exactly what my amendment is asking for. I welcome very much the clarity of his statement and we will of course bear it very closely in mind as the process proceeds.

My concern has always been that we are moving into the unknown. We have been told many times that the dashboard contains information. The dashboard sets out a list of names of the instruments, but it does not tell us, at least at the moment, what is to be done with them. That is the importance of the statement that the Minister has made today, because we need to be told, as everything proceeds, what is going on and what is planned and be able to express our views as to whether the proposals are acceptable or sensible or otherwise. I thank the Minister for his statement and I also express my warm thanks to all noble Lords who have supported me throughout my campaign and enabled me to maintain my campaign to the point I have reached today, but in the light of what the Minister has very kindly said, I am not intending to press my amendment.

Public Order Bill

Debate between Lord Hope of Craighead and Baroness Bennett of Manor Castle

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I am acutely aware of the time and, having spoken extensively in favour of Clause 9 at Second Reading, I rise briefly to express the Green group’s support for the amendment in the names of the noble Baroness, Lady Sugg, and the noble Baroness, Lady Hamwee, who made an important point. I will also speak in opposition to the other amendments in this group and address some points in the debate that I think may have been perhaps rather pointedly aimed in our direction.

There has been some discussion about how other elements of the Bill are aiming to restrict protest and this is seen to be restricting protest, but there is something profoundly different here. There is nothing in Clause 9 that stops people who are opposed to abortion or the provision of abortion services protesting on the high street, outside Parliament or on the M25. They could choose to do that; there is nothing in Clause 9 that would stop that happening. That is calling for system change, that is directed at our politics, at the way our society and our law work, but there is a profoundly different situation where protest is directed at an individual person, a patient who is seeking healthcare or advice about healthcare, to discourage them from receiving that healthcare. One point that has not been raised tonight, that I think really should be, is the fact that there is a risk if someone is driven away by this protest, they then seek to access irregular services, which are now broadly available on the internet, at potentially great cost to their health and well-being.

The noble Baroness, Lady Fox, said that this is a catch-all amendment in that it is seeking to have broad coverage across the country. That is the alternative, as the noble Baroness, Lady Sugg, said, to having a postcode lottery, where some people whose councils can afford to take action have protection and other people, often in poorer areas of the country where councils do not have the money, do not have protection.

The noble Lord, Lord Farmer, was concerned about intimate pressure. Let us look at where pressure for an abortion comes from. The noble Baroness, Lady O’Loan referred to mothers who fear not being able to pay for a baby. It is not just fear; the practical reality is that the greatest pressure for abortion in this country comes from an inadequate benefits system. I note that the right reverend Prelate the Bishop of Durham, has been prominent in campaigning for the end to the two-child limit. I will join him and anyone else who wishes to campaign against this inadequate system.

I have one final point which I think has not been addressed. The noble Lord, Lord Cormack, questioned necessity. A number of noble Lords asked what has changed since 2018. What has changed is this. A huge amount of what we see in the UK has been imported from the United States of America. We have seen an extremely well-funded and emboldened movement coming from the US to the UK. The noble Lord, Lord Cormack, referred to his experience as a constituency MP. That was some time ago. Since then, and certainly since 2018, the levels of funding and pressure have changed. A movement started in the US is aiming to act around the world. I do not say that your Lordships’ House should stand up against this movement if it seeks to campaign to change the law in the UK—personally, I want to see full decriminalisation of abortion. I accept their right to campaign against the law and the system, but I will not accept their right to target individual patients seeking healthcare.

[Lord Hope of Craighead (CB)]

My Lords, I do not want to prolong this debate, which has been extremely interesting and very rewarding in many ways. I want to make one or two short points, both relating to amendments in the name of the noble Baroness, Lady Fox of Buckley. I agree with one and disagree with the other.

In Amendment 89, the noble Baroness asks the Committee to take out paragraph (b),

“persistently, continuously or repeatedly occupies”.

I have some problems with this paragraph because I am not sure to what the word “occupies” refers. The grammar of this paragraph needs to be looked at very carefully. Unless the territory being referred to as being occupied is clear, this phrase is extremely broad. That is why I support all the amendment proposed by the noble Baronesses, Lady Sugg, Lady Barker and Lady Watkins of Tavistock. These are in line with the Constitution Committee’s report, which said that the phraseology of this clause should be looked at carefully to ensure that it is not any wider than it needs to be. Paragraph (b) should be looked at again because the word “occupies” raises questions which need to be carefully looked at and properly defined.

Amendment 80 in the name of the noble Baroness, Lady Fox, asks us to insert the words “without reasonable excuse”. In a previous debate, I expressed quite a few views on the use of the words “reasonable excuse”. We need to take a decision about this ourselves. The trouble with putting this in as a defence is that it would be passed to the police on the spot to decide whether or not trying to express one’s opinion or what motivates the individual to say or do what they are doing is a reasonable excuse. That is the problem. We need to take a decision and not leave it to the police or the courts.

The Court of Appeal—I beg the pardon of the noble Baroness—has been doing its best to soften the Ziegler case, which we discussed last time, to make it clear that there are certain offences, of which the Colston case is one, where damage is done or the activity is sufficiently serious that make it impossible to sustain a reasonable excuse defence. This is probably one of these cases. With great respect to the noble Baroness, these particular words should not go in. Otherwise, we are just creating more problems than we are trying to solve.

Procurement Bill [HL]

Debate between Lord Hope of Craighead and Baroness Bennett of Manor Castle

Committee stage
Monday 11th July 2022 Grand Committee

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Davies of Brixton, who I think is seeking to achieve the same goals as two amendments in this group to which I have attached my name: Amendment 43, in the name of the noble Baroness, Lady Hayman of Ullock, and Amendment 57, in the names of the noble Lords, Lord Wallace of Saltaire and Lord Fox. I will focus on those amendments because I have done my best to get round their technical detail.

Having listened to the powerful introductory speeches that were made, I noted that the noble Baroness, Lady Hayman, highlighted the issues with the Australian trade deal. It is a pity, therefore, that this Committee is taking place at the same time as the Australian trade deal is being debated in the Chamber; some joined-up thinking might have ensured that people were able to participate in both debates. However, that is perhaps a very large aspiration that we can all work towards.

I want to focus on perhaps the most crucial provision, which is subsection (1)(a) in the new clause proposed in Amendment 43, which refers to,

“promoting the public good, by having regard to the delivery of strategic national priorities including economic, social, environmental and public safety priorities”—

although I think I might prefer the wording “public health”, which is perhaps broader than “public safety”, for reasons that I will come to in a second. That is something that we might consider in future. However, the Government are already signed up to those principles, at least theoretically, in everything that they do because, like the rest of the world, they are signed up to the sustainable development goals. I cite the paper from the Cabinet Office and the FCDO Implementing the Sustainable Development Goals, dated 15 July 2021, which says:

“The UK is committed to the delivery of the sustainable development goals. The most effective way we have to do this is by ensuring that the Goals are fully embedded in planned activity of each Government department”.


Now one might think that making legislation is a planned activity of a government department. However, that is a very centralised view because it refers only to central government spending and is not focused on other spending. Surely, if we are going to deliver the sustainable development goals, they have to be embedded right across the broad breadth of spending. Essentially, Amendment 43 broadens out and attempts to deliver something that the Government are fundamentally, nationally and internationally, signed up to do.

I note further that the Cabinet Office report states that “all signatories” are

“expected to … deliver them domestically.”

However, NGO studies demonstrate that the UK is not on track to deliver a single sustainable development goal. Surely this Procurement Bill is a crucial mechanism for delivering those sustainable development goals of economic, social and environmental advance, meeting people’s basic needs while looking after our natural world and ensuring that we have a natural world for the future. I suggest that Amendment 43, in the name of the noble Baroness, Lady Hayman—and Amendment 57, in the name of the noble Lord, Lord Wallace of Saltaire, comes at this in a different way—is absolutely crucial, as it would put the principles of the sustainable development goals, to which the Government are signed up, on the face of the Bill.

Let me also address subsection (2) of the new clause proposed by Amendment 43, which states:

“If a contracting authority considers that it is unable to act in accordance with any of these principles in a particular case, it must—”


essentially, publish a report and take reasonable steps to ensure that it is not discriminating. When I considered signing the amendment, I worried about this because I thought that, surely, these are principles we should be delivering on. However, of course, we all know the practical reality is that many organisations procuring essential services simply do not have enough money to do what they need to do.

This is where we come to the value for money point of Amendment 57. I was thinking of putting this in practical terms, because much of what we are talking about here is technical and abstract. Think of the very common fable in which a poor person, who has only £10 in their pocket, is forced to buy a cheap pair of shoes. Then every three months, he is forced to buy a new cheap pair of shoes. A wealthy person, who has £100 in their pocket, can buy a pair of shoes that lasts for 10 years. So of course, in the end, the poor person ends up spending vastly more on shoes than the wealthy person, because they had no choice. So, given our current situation, maybe we need Part 2, but we have to look at whether this is a bigger, broader problem, beyond even the realms of this Bill. None the less, this group of amendments demonstrates that the Bill is fairly deficient in its current form. This cannot be an area for a framework Bill.

I will briefly mention another issue that is important and I commend the noble Lord, Lord Clement-Jones, for his amendment. We are seeing increasing levels of automation in many aspects of judgments—the human judgment being taken out and AI and algorithms being put in its place. There is a great deal of evidence demonstrating that the way they are being developed and the data on which they are based often fit the old adage of “garbage in, garbage out”. We need to make sure that any automation of these processes is not discriminatory. The noble Baroness, Lady Hayman of Ullock, pointed out that anti-discrimination elements are entirely lacking from any provisions in the Bill at the moment; proposed new subsection (1)(f) provides these as well.

[Lord Hope of Craighead (CB)]

My Lords, I return to Amendment 37 in the name of the noble Lord, Lord Moylan. He made the point that the words at the end of Clause 10(1),

“except in accordance with this Act”,

are a hostage to fortune. The words range right across the whole of this complicated Bill and of course a disaffected client will invite his lawyer to search through all the provisions to find some flaw in the way in which the procurement exercise was carried out, which he can then attack.

I wonder whether the words

“in accordance with this Act”

are wider than they need to be. First, Clause 10 contains a prohibition, but Clause 10(2) contains a definition of procurement and Clause 10(3) tells you that

“a contracting authority may only award a public contract in accordance with”

the four matters set out there.

In my mind, that raises the question of whether the words at the end of Clause 10(1) should really be

“except in accordance with this”

section, the purpose of which is to describe the framework or scope of the power, before Clause 11 tells you that that power must be exercised in accordance with the procurement objectives set out there. It would make sense if Clause 10 simply said what may be done in accordance with that section. If I am wrong about that, the Minister might like to reflect on whether the words

“in accordance with this Act”

go further than they need to.

Choice of words, as I say from time to time, is always very important and the noble Lord, Lord Moylan, raises an important point. What he wishes to put in place at the end of Clause 10(1) is already in Clause 11 and will have to be complied with. I understand that the Minister may be reluctant to go as far as the noble Lord, Lord Moylan, has invited him to go, but he has raised an important point. That is why I suggest that the word “section” might be a more sensible and less dangerous word to use than “Act”, at the end of Clause 10(1).

Police, Crime, Sentencing and Courts Bill

Debate between Lord Hope of Craighead and Baroness Bennett of Manor Castle

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I support Amendment 284 for all the reasons that the noble and learned Lord, Lord Falconer of Thoroton, has explained. However, I respectfully suggest to him that there is a slight mismatch between that amendment and Amendment 285. Amendment 284 is so broadly defined, for the reasons that have been very well expressed, that it would include the conduct that is described in Amendment 285. Indeed, if we look at the wording of Amendment 285, harassment is an essential element of that offence.

I raise the point because there is a difference between the penalties. The value of the kerb-crawling clause is that it introduces a possibility of disqualification, and I see the force of that, but the fine is only level 3, whereas the fine in Amendment 284 is level 5. If I was a prosecutor, having to decide which charge to bring, I would probably go for the offence in Amendment 284 and forget about the disqualification. I wonder whether, if the noble and learned Lord is thinking of bringing the matter back, he might try to amalgamate these two and perhaps put a subsection into Amendment 284 to cover the situation that if the harassment offence is conducted from a motorcar, in the way broadly described in Amendment 285, it would attract the additional penalty of disqualification. It would then be brought into Amendment 284’s sanctions, which are imprisonment, which might well be appropriate in a kerb-crawling offence, and also the level 5 fine. That is a refinement of drafting, but I am very much in favour of Amendment 284 as it stands, particularly in view of the broad way in which it is expressed.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer Green support for all these amendments. Some of my questions have just been answered by the noble and learned Lord, Lord Hope of Craighead, and his suggestion that some of the amendments be combined is positive, because retaining the opportunity to take away the right to a vehicle in an offence involving a vehicle is very useful.

I am aware of the time and the pressure to make progress, but it is a great pity that we are discussing such an important group of amendments, all put forward by the noble and learned Lord, Lord Falconer of Thoroton, so late at night and in this rather rushed way. I will just draw some comparisons and links between them.

One thing to highlight is how much these amendments come from community campaigning from the grass roots up. I imagine that the campaign for the offence of harassment draws, in large part, from the group called Our Streets Now, set up by sisters Gemma and Maya Tutton, aged 16 and 22, who are working with the charity Plan International UK. Their hashtag is #CrimeNotCompliment. I suspect that the noble and learned Lord might have drawn on their ready-made Bill and I note that this has had strong cross-party support in the other place. I draw on the words of the women’s rights campaigner Nimco Ali, who said it is “bizarre” that street sexual harassment is still legal. Littering and smoking are banned, but this kind of behaviour is not.

On Amendment 285, I briefly highlight that Generation Rent, another grass-roots campaign group, has been pushing for action here. A report by Shelter in January found that, between March and September 2020, around 30,000 women had been offered housing in exchange for sex. This is a function of the extreme dysfunction of our current housing system.

I have to address Amendment 292M personally because, as I suspect is the case for many people, particularly women, it is something I have personally experienced. I was 11 years old in another country, out in the centre of Sydney on my own, when I was subjected to this offence. I was taught, as lots of young girls were then and probably still are now, to laugh, turn around and walk away. But that I can still vividly remember that street scene shows that it had an impact on me. When I look back now, I felt as an 11 year-old that this was a threat to my right to be on the streets. I did not tell my mother, because I was worried that she would think I should not be allowed out on my own to exercise the freedom that I wanted and continued to exercise. It is crucial that we see a change in attitude here and a review is a good way to address that.

The noble and learned Lord, Lord Falconer, has covered Amendment 292T very well, but we must note that Femicide Census, campaigning on this and broader issues, reports no sign of a reduction in the rate of femicide. That study covered a 10-year span from 2009 to 2018. We are not making progress on this, but we need to. I hope the Government will go away and look at this important group of amendments very seriously, and come back to us with proposals covering—I like to be an optimist—all of them.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Hope of Craighead and Baroness Bennett of Manor Castle

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer Green support for Amendments 212 and 213, with a preference for Amendment 213, which this debate has made clear is the stronger of the two. I return to the Committee after two weeks away from your Lordships’ House at the COP 26 climate talks. There we heard again and again about the need for evidence-based policy-making on the climate. It is very clear from the powerful introductions from the noble Lords, Lord Ponsonby and Lord Dubs, and all of the subsequent debate, that the evidence here is clearly that short prison sentences do not work.

I very much agree with the comment by the noble Lord, Lord Beith, in response to the noble Lord, Lord Pannick, that those words are there in the Sentencing Code, but clearly we need to strengthen this prescription. The figures from 2019 show that more than 44,000 prison sentences of less than six months were handed out. That was nearly half of all people sent to prison. Some 68% reoffended within a year of release, and for theft offenders, the rate was 82%. Two-thirds of the women in prison are serving a sentence of less than six months. Like other noble Lords, I go to the excellent group, Revolving Doors, and the experience of one person, Robert, subjected to a whole succession of short sentences. He said:

“Any support with drugs and alcohol I had in community stopped when I went to prison. I didn’t access any support in prison and certainly there was no planning when I was released.”


Very briefly, I turn to the reference to children in Amendment 212. The report from the Joint Committee on Human Rights, Human Rights and the Government’s Response to COVID-19: Children Whose Mothers are in Prison, indicated that the Government do not have clear figures on the number of women in prison who are separated from dependent children. It recommended that the Government undertake a census and ask all women coming into prison whether they have dependent children and what ages they are, and that those figures be collated and reported regularly. Can the Minister tell me, either now or in the future, whether that recommendation from the Joint Committee on Human Rights has been acted upon?

[Lord Hope of Craighead (CB)]

My Lords, I support both these amendments, but I want to add a brief comment on the mechanism which they both have in common: the giving of reasons. I know from my own experience how valuable it is to marshal your thoughts when you are having to give reasons, and sometimes when you write them down you wonder whether your thoughts in the first place were correct, and you may think again as a result. So the mechanism that is being suggested is a good one and, with great respect to my noble friend Lord Pannick, I think Amendment 213 in the name of the noble Lord, Lord Ponsonby, does add something to the code.

Of course, the code encourages care in passing custodial sentences and it sets it out very well, but it is this additional element which is of value. One particular word in the amendment adds force to it, and that is “must”. Everybody will have to do this. The noble Lord will know better than I do how often magistrates in particular pass custodial sentences without giving reasons. The point is that this discipline, which both amendments seek to inject into the system, adds value.

That having been said, I hope that these reasons will not just become a rota, because there is some experience in the Supreme Court where we had to give reasons for refusing leave to appeal; we had many of these cases to deal with, and we adopted a mechanism which I think the Minister will know quite well—it was the same reason given every time. That does not really meet what I think the noble Lord, Lord Ponsonby, is getting at, and I hope the Minister will be able to reassure us that when the word “must” is put there, together with the other matters in his report, it will actually add value and people will really think before they give their reasons, and not simply adopt a formula.

Environment Bill

Debate between Lord Hope of Craighead and Baroness Bennett of Manor Castle

Report stage
Wednesday 15th September 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I was very much in sympathy with similar amendments in Committee, but I have a feeling that this amendment presses the argument just a step too far.

Perhaps I can provide an answer to my noble friend Lord Hylton’s question. I sat on the committee that looked at the HS2 line to Crewe, and I can say to him that it would be impossible, because of veteran trees along the line, to carry out that development as was proposed.

One remembers that this amendment directs attention not only to ancient trees but to veterans. It also asks us to accept that every single tree

“must be retained within a development site, including a root protection area and appropriate buffer zone.”

One can think of development sites of great areas where that might just be possible, but there are many others where it would effectively extinguish the possibility of development. So I feel that this amendment, although very well intentioned—I am so much in sympathy with what the noble Baroness seeks to do—just presses it a little too far, with language that does not allow any latitude at all for exceptional cases.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I have to question the description given by the noble Lord, Lord Hylton, of HS2 as affecting a

“small area of ancient woodland”,

given that the Woodland Trust says that 108 areas of ancient woodland are at risk of “loss or damage”. However, it will probably please your Lordships’ House to know that I will not restart the HS2 debate at this moment.

I will focus on Amendment 100, to which we in the Green Party would have attached one of our names, had there been space. We are talking about something very ancient and precious, and we can make comparisons with cathedrals and indeed with your Lordships’ House. I was on the site of what is supposed to be the Norwich western link, standing at the base of an oak tree that was a sapling when Queen Elizabeth I was on the throne. An ancient woodland containing trees like that is comparable to your Lordships’ House or a cathedral. Think about the protections we offer to those and all the money we are thinking about putting in to preserving this building; we are in a different place on that.

We often think of ancient woodland as being out in the countryside somewhere. I want to be a little parochial and point out that Sheffield has 80 ancient woodlands within its boundary. I want to think and talk about the benefits to human health and well-being of having these ancient woodlands—indeed, London has some of them, and, when I lived here, I used to walk in them as well. They have enormous human health benefits that we have to take account of.

Returning to the subject of walking through ancient woodland in Sheffield or the threatened woodland in Norwich, we are talking about not just trees here but crucial, utterly irreplaceable habitats for bats and insects. These woodlands would have a chance truly to flourish without air pollution and other factors. Lichens and mosses—crucial, complex organisms that are absolutely foundational to rich, healthy ecosystems—depend on those ancient trees to thrive and indeed survive. So I commend both these amendments to your Lordships’ House, and I encourage the noble Baroness to press Amendment 100 in particular to a vote.

Environment Bill

Debate between Lord Hope of Craighead and Baroness Bennett of Manor Castle

Committee stage
Monday 28th June 2021 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

Thank you, Deputy Chairman. My Lords, I offer support for all these amendments, but particularly on whether Clause 24 should stand part. Opposing it is the obvious way forward here. I want to pick up on the points made by the noble Baroness, Lady Neville-Rolfe, who was not entirely consistent in suggesting that we should not worry about how the Bill was structured because there is a strong person as the first head of the OEP, Dame Glenys Stacey. However, then she said, “But we don’t want it too independent because then it might get too strong and dynamic, and take too much control”. That really highlighted the issue.

Many people are saying “Isn’t it great that we have that person as the first chair of the OEP?”, but structures should not depend on individuals. Those individuals change; they go to different places as roles change over time. Often when we talk about what is in the Bill the Government tell us, “Trust us, we don’t have any ill intentions”, but the point is not who the current Minister is or what the Government of the moment’s intentions are. We are setting up something new and important here, which is likely to continue for decades. We are talking here about the environmental review process and the OEP being able to state what the remedies for that are. There has been a lot of talk about carrots and sticks, and soft and hard powers. These things are really quite subtle and need to be used with great independence to have real force over long periods.

We have heard a lot of comparisons with other government bodies, such as the National Audit Office, the Electoral Commission and the Office for Budget Responsibility, all of which have stronger levels of independence. They have real independence from Ministers and departmental structures. It is quite telling that two of them are financial structures. When we talk about spending money, we have to have some independent oversight of that; but when we talk about the environment, somehow it is good enough to leave it with Ministers and the Government. It is a question of what we regard as important and what we really value and guard. That is what we are looking for.

I think it may have been the noble Lord, Lord Krebs, who quoted the Secretary of State as saying, “If we do not have these controls, there is a risk of making it up as it goes along.” Surely that is the point. The OEP needs to create new structures, not to be directed by the Minister in those structures.

The noble Lord, Lord Curry, speaking just before the break, asked a very important question: what is the point of having guidance if there is no impact? We are being told that the Minister can provide some advice, some offering, but if that is not going to have an impact, why does it need to be in the Bill and why does it need to be given? We think about spending government money very carefully with real independent oversight. When we are looking after our environment, our natural world, and tackling the climate emergency, we need that same kind of independent oversight.

[Lord Hope of Craighead (CB) [V]]

My Lords, I cannot help feeling that there is an air of unreality about this debate. Everyone on all sides agrees about the need to preserve the independence of the OEP. The Government’s position is set out quite clearly in paragraph 17 of Schedule 1, to which I referred earlier today. The phrase is “must have regard:

“the Secretary of State must have regard to the need to protect its independence.”

As my noble friend Lord Anderson of Ipswich said, there is much to be said for the view that it is no business of the Secretary of State to give guidance on these matters and that Clause 24 should not be there so that the OEP can make up its own mind about the policies it needs to follow. Much depends on the meaning and choice of words, so let us reflect for a moment on that.

Is it really being suggested, as I think someone mentioned earlier, that Clause 24 can live with paragraph 17 of Schedule 1 because there is no requirement to follow the guidance that has been talked about in Clause 24? Do the words of Clause 24 really have that meaning? Does the phrase “must have regard” change its meaning according to the context in which those words are found? As I have mentioned, paragraph 17 contains the same formula. Are we really to read it as imposing no requirement to have regard to protect the independence of the OEP? That would be an astonishing position to take and I am sure the Minister will not be taking it, but if it means what it appears to mean, the word “must” imposing an obligation that must be fulfilled, why not so in Clause 24?

I hope that the Minister was listening very carefully to what I said in the debate about Section 14(2) of the Scottish continuity Act. It is difficult for me, far away, looking through a lens, as I am, to observe closely what the Minister is doing to know whether he really was listening very carefully. I very much hope he was, and his closing words suggest that he was, and I am glad of that. He will have noticed that the reason why I was supporting him was because of the meaning that I gave to the phrase

“Ministers of the Crown must … have due regard”


in Section 14 of the Scottish Act to Scottish environmental policies. I made it clear in my remarks that it was because I read those words as giving a direction to UK Ministers, imposing an obligation on them, that I felt that Amendment 80 had to be supported because it was correcting a mistake in the Scottish legislation. If I had been told that there was no requirement on UK Ministers to follow these policies, the position would have been quite different. One cannot pick and choose. The words in each context are perfectly clear and they must have the same meaning.

The noble Lord, Lord Teverson, said that, as worded, Clause 24 “drives a coach and horses” through paragraph 17. I must confess that, taking the words according to their ordinary meaning, that seems to be absolutely right. So I agree with my noble friend Lord Anderson that the Bill would be much better without Clause 24, but, if it is to remain, its wording must surely be adjusted so as to preserve the independence of the OEP, which the Secretary of State is, I suggest, under an obligation—in terms of paragraph 17—to do.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Krebs. As always, his contribution has made a useful addition to the debate and he has put down a useful specific question.

I rise to speak in favour of the ideas and aims behind the amendment in the name of the noble Lord, Lord Lucas, although I come at this from a somewhat different direction. The noble Lord suggested that this was the way the Government, or the OEP, could lead the public; I suggest that we look at it from the other way around. On many environmental issues, whether you look at the climate strikers or last year’s people’s assembly on the climate, the public have in fact been leading and pushing companies and the Government to act. It is very helpful to the public to have available the information and published material, but rather than thinking about this as us leading the public, let us see it in other terms: as more of a partnership.

This amendment also takes us back to some of our debates on the Agriculture Bill, when we talked about the lack of agricultural extension and of independent advice to farmers. Indeed, a group of farmers I talked to last week were bemoaning the lack of independent advice available to farmers. A great deal of the information that might be collected and put together by the office for environmental protection would also be of great use to farmers. I think here of what the noble Lord, Lord Curry, said on the last group of amendments about regulatory capture. We want this to be available.

As the noble Lord, Lord Lucas, said, a lot of research is behind paywalls. We are lucky enough in your Lordships’ House to have the wonderful Library; we can ask it to get anything we want, but that is not available to the public. It is a great pity that far too much publicly funded research is still hidden behind paywalls. The research that guides the OEP should be publicly available.

Finally, I turn to the questions from the noble Lord, Lord Lucas, about oat milk. I remind him that the practical reality of our economy is that a great many externalised costs are not paid by the producers or sellers of a product and are therefore not reflected in the price tag. Many farmers are barely being paid, or not being paid, the production costs of their milk, reflecting the economic power of the supermarkets. I also point out that you can of course make your own oat milk, which would cut out the middle person, save you a great deal of money and cut out a great deal of packaging as well.

[Lord Hope of Craighead (CB) [V]]

My Lords, the Minister invited me to welcome government amendment 95, which of course I do and I imagine that, if he were here, the noble Lord, Lord Wigley, would do the same. It is particularly encouraging, if I may say so, that this amendment comes from the Government. It has not been necessary for me or the noble Lord, Lord Wigley, to struggle to get an amendment in these terms through the House. It is an example of a welcome and increasing recognition throughout government at Westminster that the devolved Administrations really do matter and need to be respected as equal partners in the various endeavours we are engaged in to maintain the integrity and standing of our country. That is particularly so in relation to the environment, where we are so dependent upon each other.

I am grateful to the Government for taking the initiative. This is a welcome amendment and it has my full support.

United Kingdom Internal Market Bill

Debate between Lord Hope of Craighead and Baroness Bennett of Manor Castle

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 28th October 2020 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, as the noble Lord, Lord German, just said, it would be far better if we did not have these provisions in the Bill at all, but one must assume that they may remain. That is why these amendments, particularly Amendments 15 and 30, to which I have added my name, address the provision which talks about consultation but does not mention the word “consent”.

I have two requests for the Minister; I will not elaborate further on what the noble Lord, Lord German, said in his very helpful introduction to this group. First, would he be good enough to repeat, in the context to which these amendments refer, the assurance he has already given that the Sewel convention principles will be applied without any hesitation in regard to consultation?

Secondly, will the Minister consider whether it would not be wise, in view of the importance of the clauses in which these provisions appear, to adopt the system used, he will recall, in the European Union (Withdrawal) Act 2018 when considering the system of seeking the consent of the devolved Administrations—Assemblies, Senates and Parliaments—to the modification of EU law? He may recall that Ministers were given power to restrict the powers of the devolved Administrations to modify EU law in certain respects by delegated legislation. Provided for in Part 1 of Schedule 3 was a system whereby the Parliaments, Senate and Assembly were given an opportunity to provide consent. The wording in the Scotland provision was:

“A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing”


the relevant

“regulations … unless … the Scottish Parliament has made a consent decision in relation to the laying of the draft, or … the 40 day period has ended without the Parliament having made such a decision.”


If it came to the point of there being no consent, when the Minister of the Crown laid this draft, as mentioned, before either House, he would be required to explain his decision to lay it without the consent of the Parliament.

That system was arrived at after a great deal of discussion in the 2018 Act; it is quite a useful one that might well be thought appropriate in this case to reduce the element of dismay which the devolved Administrations are feeling about how they are being treated by these provisions—all that has been provided for is consultation. They would at least have an opportunity in their legislatures to consider whether consent should be given. Of course, if they fail to give it within 40 days, ultimately the Minister can go ahead, provided he explains why he is doing so. There is no amendment to this effect, but this is an opportunity for the noble Lord to consider whether it would not be wise to soften the blow that has been felt by the devolved Administrations by adopting that system, which was so carefully worked out and eventually accepted in the 2018 Act.

Beyond that, I support everything the noble Lord, Lord German, has said in support of the amendments to which he has spoken.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord German, and the noble and learned Lord, Lord Hope of Craighead. I thank them both for setting out detailed consideration of this rather long list of amendments, the length reflecting the levels of concern in the Committee about this area of the Bill.

I will speak to a series of amendments in this group to which I have attached my name, Amendments 15 and 64 in the name of the noble Baroness, Lady Finlay of Llandaff, and Amendments 16, 41, 48, 74 and 99 in the name of the noble Baroness, Lady Hayter of Kentish Town. I apologise to your Lordships for not taking part at Second Reading. My name was down to speak, but I was caught up in the collision with the Medicines and Medical Devices Bill, which also prevented me from taking part in earlier Committee sittings.

That is not the only crucial political collision we are encountering at the moment. As a former newspaper editor, I am well aware of the problem of the media being able to focus on only one issue at a time. I sought to place an article about the environmental issues in the medicines Bill with a major news outlet, and was told “No, we’ve already run too many articles on this Bill.” We are at risk of falling into the same problem with this Bill.

I can identify at least three major areas that could in normal circumstances expect attention from the serious media. Rightfully getting top billing are the Part 5 issues that we expect to get to on the final day of this Committee’s deliberations. The second area, which would normally get massive amounts of attention, is the clauses that provide powers even greater than those of Henry VIII, as the noble Baroness, Lady Andrews, the noble and learned Lord, Lord Hope of Craighead, and others spoke to so powerfully earlier today. As a former journalist, I have a shorthand for that—Henry VIII on steroids. I share the liking of the noble Lord, Lord German, for the amendments that wipe those out altogether.