Procurement Bill [HL]

Viscount Younger of Leckie Excerpts

Committee stage
Monday 24th October 2022 Grand Committee

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[Viscount Younger of Leckie]

188: Clause 31, page 20, line 2, leave out “tendering procedure other than an open” and insert “flexible”

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192: Clause 32, page 21, line 3, leave out “tendering procedure other than an open” and insert “flexible”

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199: Clause 33, page 21, line 22, leave out “tendering procedure other than an open” and insert “flexible”

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209: Clause 34, page 22, line 8, leave out from “competitive” to end of line 9 and insert “flexible procedure may provide for the following suppliers to be excluded from participating in, or progressing as part of, the procedure—”

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210: Clause 34, page 22, line 10, leave out “a particular” and insert “suppliers that are not members of an appropriate”

[Viscount Younger of Leckie (Con)]

My Lords, we have a change of horse. By way of a health warning, my remarks do include mention of a considerable number of amendments. However, as a reassurance, and in the interests of brevity and the current buzzword—simplification—my speech is somewhat shorter now than it was at the beginning of the day.

A number of amendments are needed in Committee to ensure that the Bill functions appropriately. Clauses 34 to 39 introduce the new concept of dynamic markets and the new utilities dynamic markets. Existing dynamic purchasing systems are limited to providing commonly used goods and services that are generally available on the market, and therefore their scope is constrained. Examples of existing dynamic purchasing systems include Crown Commercial Services artificial intelligence, which enables public sector bodies to access services including machine learning and augmented decision-making. The new dynamic markets can be used for all procurements rather than just commonly used purchases. Dynamic markets will always remain open for new suppliers to join. This provides a great opportunity for all types of suppliers, including SMEs, to pre-qualify for work.

Amendments 210 to 212 and 217 to 219 would clarify that references to membership of a dynamic market in this context relate to membership of an appropriate dynamic market, or an appropriate part of such a dynamic market. This is defined in Amendment 222 as a dynamic market, or part thereof, that permits the award of the contract by the contracting authority.

Amendment 220 clarifies that a contracting authority must consider applications for membership of the dynamic market from suppliers that have asked to participate in a competition reserved for members of the dynamic market before excluding such suppliers from the competition. This is in addition to considering applications from suppliers that have submitted a tender as part of the competition.

Amendment 222 contains various definitions relevant to these amendments, including a new explanation of when a dynamic market is appropriate, as mentioned previously. It also contains the exemption from Clause 34 for concession contracts other than those that are also utilities contracts, which was previously in Clause 35.

Amendments 223 to 227, 229 to 231 and 233 are tidying-up amendments. Amendments 223, 230 and 233 would delete provisions that are now set out elsewhere.

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[Viscount Younger of Leckie (Con)]

My Lords, as I was saying, Amendments 223 to 227, 229 to 231 and 233 are tidying-up amendments. Amendments 223, 230 and 233 delete provisions that are now set out elsewhere. Amendment 224 clarifies that only contracting authorities may award public contracts using dynamic markets, while Amendment 225 reflects the terminology of “participation in”, rather than “membership of”, a dynamic market. Amendment 226 includes a new definition of “utilities dynamic market” to make it clear that this is a subcategory of dynamic markets rather than a distinct concept. Amendment 227 deletes the previous definition of a utilities dynamic market and deletes Clause 35(3), which will not be needed if proposed new Clause 1, which was discussed on the first day of Committee, is agreed on Report. Amendment 229 is a grammatical change, and Amendment 231 ensures that the definition of “utility” applies across the whole Bill, not just to this clause.

Amendment 234 includes proposed new subsections (1A), (1B) and (1C) in Clause 36, relating to conditions for membership of a dynamic market. These provisions apply the same restrictions to these conditions as apply to conditions of participation in a competitive tendering procedure, as set out in Clause 21.

Amendment 235 clarifies that the contracting authority that established a particular dynamic market, as opposed to any other contracting authority, must publish a notice when the dynamic market ceases or changes—for example, when new suppliers are added.

Amendment 288 allows for a minimum 10-day tendering period for the submission of tenders in competitive tendering procedures for the award of contracts under dynamic markets. This shorter period is a significant efficiency offered by dynamic markets. It compares to the usual tender return of 35 days, which applies in a normal procedure unless tender documents are provided at the outset and/or tenders are accepted electronically, both of which reduce the return by five days.

Amendment 345 extends the requirement on contracting authorities to notify the relevant appropriate authority where a supplier is excluded from a dynamic market because it has fallen foul of a mandatory or discretionary exclusion ground. Amendments 346 to 348 are consequential on this amendment.

In respect of the last two amendments, Amendment 541 corrects the clause reference in the list of defined terms to align with the amendments proposed to Clause 35, while Amendment 545 includes in this list a cross-reference to the newly defined term “utilities dynamic market”.

With that, I beg to move the first of these government amendments in the name of my noble friend Lady Neville-Rolfe.

[Lord Fox (LD)]

My Lords, as the noble Viscount set out so speedily, this new concept of dynamic markets is so new that a lot of it did not even make it into the original Bill; it had to be brought in as amendments. Thereby hangs a concern—not with the concept of a dynamic market, which I will come to shortly, but with how this is being put together, the sum of the parts and how it will work. It is difficult to see exactly how this will work in practice from the noble Viscount’s presentation that we just heard, the Bill itself and the original White Paper. That is my concern.

It would be helpful if the noble Viscount came back to us in writing with a simple message as to how this will work. How, for example, does it welcome innovation rather than shut it out? I will give an example. Whether a dynamic is based around process rather than outcome makes a difference, so how will these rules manage dynamic markets that actually deliver constant innovation? How will they be refreshed? How will the system work so that, rather than having the power of incumbency, if you like, which is often what happens with procurement, power will be pushed around to allow innovation, new entrants and new people to work within this dynamic?

We can call something dynamic but how is it dynamic on an ongoing basis if I use this market to buy things or services on a daily basis? Essentially, that is my concern: all these amendments are tinkering around technically with process but, because of the way this has been put together in pieces, will it actually work? Can the Minister come back with some assurance as to how this is supposed to work? How will it be constantly renewed? How will he ensure that it is open to new entrants throughout the life of that dynamic? How will individuals know that they are able to keep entering that market? Tenders will not be going out, so what is the process? If I have a small or medium-sized business, how do I find out about dynamic markets that might suit my product or service set? I am concerned about those kinds of mechanisms and processes.

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[Baroness Hayman of Ullock (Lab)]

I shall be extremely brief as the noble Lord, Lord Fox, has already covered a lot of the concerns that your Lordships feel. Following on from that, we need some clarification around the issue, as the noble Lord, Lord Lansley, just said, of whether it is or is not entirely electronic. How is that going to operate? What are the conditions of membership? We need some clarification on the detail of how the dynamic markets are going to work. Perhaps the Ministers opposite could write to the Committee with some clarification about the operation of the system ahead of Report. That would be very helpful.

[Viscount Younger of Leckie (Con)]

My Lords, I appreciate the comments made by the three Peers who have spoken. It might be appropriate for me to write a letter to clarify the detail, which I appreciate came across as rather technical—though not too rushed, I hope. I appreciate the questions asked by the noble Lord, Lord Fox, my noble friend Lord Lansley and the noble Baroness, Lady Hayman; I will attempt to answer some of them.

Let me start by saying that the expression “dynamic market” is not just a name change. The dynamic market will have a wider remit than the current dynamic purchasing systems. Importantly, dynamic markets can be used for all procurements rather than just commonly used goods and services. That is the first change. The Bill also provides much greater clarity on how dynamic markets can be established and contracts awarded to suppliers—this is on-the-ground information—and on how contracts can be awarded to suppliers that are members of the dynamic market, as well as increased transparency over their operation. I hope that helps to some extent.

I shall go further in answer to the questions asked by the noble Lord, Lord Fox. The benefit of frameworks is that, once set up, they can be a fast, efficient, compliant and easy-to-use procurement route for both the contracting authority and the suppliers. Again, once the framework is set up, there is a significant reduction in the procurement timescale from six to nine months to as little as four to six weeks, leading to reduced procurement costs. Obviously, that is beneficial for both the public sector and the suppliers.

With this, there are pre-agreed terms and conditions, meaning that contracting authorities can simply call off the framework to meet their requirements. They are usually set up with ceiling prices that can be further reduced by competition at the call-off stage. So the benefit of the dynamic market is that it remains open to all suppliers, which benefits SMEs in particular as they will not be locked out for long periods of time.

On how dynamic markets actually help companies—let us say SMEs, which I think was the gist of the noble Lord’s question—it may be that I need to provide more information, but here we are. The new dynamic markets will be open to new suppliers joining throughout their life, ensuring that no one is locked out from the market for long stretches of time. That will be beneficial to SMEs in particular, which can decide to apply to a dynamic market at any time via a process that will be much simpler and quicker than tendering for a framework.

I believe it will be best if I set out all this information and more in a letter. With that, I hope that the noble Lord will be prepared to withdraw his amendment. Actually, these are government amendments, are they not?

[Noble Lords]

Hear, hear!

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211: Clause 34, page 22, line 11, leave out first “a particular” and insert “suppliers that are not members of an appropriate”

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223: Clause 35, page 22, line 32, leave out “(a “dynamic market”)”

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229: Clause 35, page 23, line 5, after “Act” insert “that apply”

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233: Clause 35, page 23, line 20, leave out subsection (8)

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234: Clause 36, page 23, line 29, at end insert—
“(1A) A condition set under subsection (1)(b) may relate to suppliers’ qualifications, experience or technical ability, but may not—(a) require suppliers to have been awarded a contract by a particular contracting authority,(b) break the rules on technical specifications in section 24, or(c) require particular qualifications without allowing for their equivalents.(1B) When considering whether a condition is proportionate for the purposes of subsection (1) a contracting authority must have regard to the nature, complexity and cost of contracts to be awarded by reference to suppliers’ membership of the market.(1C) A condition of membership may require the provision of evidence that is verifiable by a person other than the supplier.”

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235: Clause 39, page 25, line 6, after “authority” insert “that established the market”

Negotiating Objectives for a Free Trade Agreement with India

Viscount Younger of Leckie Excerpts

Tuesday 6th September 2022 Grand Committee

[Viscount Younger of Leckie (Con)]

My Lords, whether I am temporary, permanent or in no role at all, I am very pleased to respond to this debate this afternoon. I thank the noble Baroness, Lady Hayter, for tabling today’s Motion and congratulate her and the International Agreements Committee on their report on the free trade agreement we are negotiating with India. As ever, it is a comprehensive report and the Department for International Trade is thoroughly considering its recommendations.

We have heard many insightful and helpful speeches today from Peers with much experience in this sector, including trade itself. As the Committee will know, we are currently in live negotiations. I will endeavour to respond to as many points from noble Lords as I can, but there is a lot to cover. I reassure the noble Lord, Lord Purvis—I was going to raise this before he did—that I will ensure that our negotiators are made fully aware of all the points raised today, although I doubt that I will be able to cover everything. My noble friend Lord Caithness stated that this debate cannot possibly cover all the points of the deal in depth. He is right, but it is part of a multifaceted process; I argue that this debate is a big deal but not perhaps such a big deal in terms of the whole process, which I will speak about later.

I am the first to say that this negotiation is a considerable challenge. India’s economy is vastly different from those of countries with which we have previously agreed free trade agreements. I recognise that it has historically taken a protectionist stance towards trade and agreed so-called thin free trade agreements with several countries. I note the realism in this respect expressed by the noble Viscount, Lord Waverley. However, I am also realistic. Every negotiation is different, and our ties with India are already strong. In this case, from the very top down, both countries have made it clear that we want to reach a thick deal—a comprehensive free trade agreement. Negotiations are gathering momentum as we work towards our shared target to conclude the majority of talks by the end of October. I know there are a number of questions on this, and I will come back to the timings and deadlines later in my remarks.

I believe that the prize that awaits us is great. My noble friend Lord Frost reminds us that we start from the position of being outside the EU and negotiating under our own steam. In 2021, India was the world’s sixth-largest economy. By the middle of the century, it is on course to become the third largest, so a free trade agreement will take the UK to the heart of the economic powerhouse of tomorrow. My noble friend Lord Hannan gave us a brief history lesson on trade with India, emphasising the need to address the tariff barriers, and of course he is right.

Last year, UK businesses exported more than £8 billion-worth of goods and services to India. As its middle class grows towards a quarter of a billion people, demand for the best of British is surely set to soar. That is why, through our negotiations, anything that we can do to make trading with India easier could be game-changing for UK businesses. To reassure the noble Baroness, Lady Hayter, it is to benefit UK businesses, not just businesses or consumers in India—an important point.

Today, some of our most iconic exports, such as Scotch whisky and Midlands cars, face import duties of up to 150%, which was raised in the debate, and our businesses are held back by restrictive rules and regulations. We are therefore looking to remove or reduce a range of tariffs and cut through as much red tape as we possibly can. This will make UK exports more price competitive in the Indian market, potentially giving our businesses a first-mover advantage over their global competitors.

The noble Earl, Lord Sandwich, asked about our objectives, and my noble friend Lord Lansley asked what would constitute success in negotiating an FTA. Those are both fair points and, although I cannot wholly answer them precisely, I will start by saying that the Department for International Trade’s modelling suggests that, by 2035, a comprehensive FTA could boost UK GDP by more than £3 billion. Of course, the exact benefits will depend on the final deal we achieve, but we remain confident of securing a deal that compares favourably to anything India has previously agreed. In any case, the Department for International Trade will carry out an impact assessment to build on the scoping assessment that has already taken place.

Several noble Lords, including the noble Baroness, Lady Hayter, my noble friend Lord Lansley and the noble Lord, Lord McNicol, asked about priority areas. They will know that the Government do not publish detailed policy positions, as that would disadvantage the UK in the negotiations. However, I can reiterate that our extensive stakeholder work, in both our consultation to set our mandate as well as our continued engagement with business in talks, is important.

A free trade agreement will be immensely valuable to the UK and to India, but I emphasise that it is just the next chapter in our long-standing trading relationship. Just as my ancestors exported beer brewed in Alloa in Scotland to India in the 19th century, today, thousands of British businesses exchange goods, services and ideas with India. Last year, our trading relationship was worth over £24 billion and, separate from this FTA, the UK and India share a road map to double our trade by 2030.

However, our relationship with India is defined by more than just numbers. As Prime Minister Modi has so often reminded us, a living bridge connects our nations—the world’s largest and the world’s oldest democracy. More than one and a half million people of Indian origin live in the UK. They make a profound contribution to our society, culture and economy. This living bridge has been built by partnerships—my noble friend Lord Lansley emphasised that point. One of the vaccines that protected billions of people around the world from Covid-19 was developed through a partnership between Britain’s AstraZeneca and India’s Serum Institute. Jaguar Land Rover is Indian-owned but British-made and employs almost 30,000 people in the UK. There are so many more examples of this collaboration across our economies. It delivers jobs and prosperity and enriches our society, and through a free trade agreement we can make it cheaper, easier and quicker for goods and services to cross this living bridge and drive growth.

I will touch on services and mobility, which was raised, not least by the noble Lord, Lord Purvis. As the Committee rightly recognised, services are also vital to our trading relationship. Prior to the coronavirus crisis, between 2009 and 2019, UK services exports to India doubled. Through our negotiations, we are also looking to open doors in sectors where our businesses are currently hindered from operating in India, such as professional, business and financial services. Along with our efforts to liberalise trade in goods, this means that, by 2035, a comprehensive deal could increase UK exports of services by billions of pounds, generating higher wages, supporting thousands of jobs and growing the economy.

The committee’s report rightly outlines that improving mobility for businesspeople will be key to delivering these benefits, again points that were raised this afternoon. That is why I want to assure the Committee and the noble Earl, Lord Sandwich, who raised this, that we are exploring mobility provisions that benefit UK businesses and consumers, but will not agree anything which undermines the UK’s points-based immigration system or our ability to control immigration.

Moving on to investment, the committee also raised the importance for UK businesses of opening India’s markets to investment. As outlined in our published objectives, we want to make sure that investment is protected and that investors are treated fairly. The UK and India have a common interest in seeing our investment relationship grow and providing businesses with confidence.

Let me say a little more about this because it was raised by the noble Baronesses, Lady Bennett and Lady Hayter, and my noble friends Lord Lansley and Lord Caithness. The Committee will know that India terminated our existing bilateral agreement for investment in 2017, so we want to agree new investment commitments that will form the backbone of the UK-India relationship for years to come but, in line with our public objective, we aim to make it easier for UK firms to invest in India by providing them with legal certainty and the confidence to operate in Indian markets. We will seek to provide sufficient protections to UK investors and guarantee that they receive fair and non-discriminatory treatment, ensuring their access to adequate remedies if those obligations are breached. The inclusion of ISDS is considered where it is in the UK’s interest and where we agree with partners that it can play a useful role in supporting the bilateral investment relationship.

I shall now address points raised by several noble Lords about deadlines, timescales and progress. I have fully taken note of all the comments made. The UK and India are different economies and there is no one-size-fits-all approach to negotiating trade agreements. When negotiations launched in January, both sides came to the table with high ambition and strong political backing—perhaps no surprise there. As far back as April 2020, Prime Ministers Modi and Johnson wholeheartedly committed to negotiating a comprehensive free trade agreement. Our negotiating objectives were based on input from hundreds of stakeholders, and we are pushing firmly and consistently to achieve results that matter to UK businesses and consumers. But for any negotiation to succeed, the outcome needs to work for both parties and, through the five completed rounds of negotiations, we have worked with our Indian friends to make progress towards a realistic agreement that benefits us both, including on a number of new and innovative chapters.

The target set by Prime Ministers Modi and Johnson to conclude the majority of talks by the end of October is a clear demonstration of continued political will to reach an agreement. It has focused minds and driven progress. With his great experience in this area, my noble friend Lord Frost, backed by my noble friend Lord Hannan, made the important point that having deadlines is helpful and important in such a process. Both nations are working hard to keep up this pace and beginning to see a potential deal that will benefit our trade relationship but, as we have made clear since the start of talks—I say this to reassure the noble Baroness, Lady Hayter, and other noble Lords—the Government will not sacrifice quality for speed. We will sign only deals that are in the UK’s best interest, whether they are with India or any other partner, so if it takes longer, it takes longer.

The noble Lord, Lord Kerr of Kinlochard, raised concerns about communications and keeping shareholders informed, so I shall move on to the related point about scrutiny and engagement. The report highlights the importance of engagement throughout the process, and I wholeheartedly agree with that objective. From the outset, this Government have engaged with UK businesses and consumers on this deal. Talks commenced only following an extensive consultation with stakeholders, as mentioned earlier, which directly shaped our objectives. We continue to connect regularly with hundreds of businesses, business representative organisations and civil society groups through our strategic advisory and trade advisory groups.

As with all our trade policy, Parliament has significant opportunities to scrutinise our deal with India. The noble Baroness, Lady Hayter, is right that it is the content of the deal that counts. I wholeheartedly agree with her on that. Ministers engage with the International Agreements Committee and the International Trade Committee throughout the life of a free trade agreement. Indeed, our chief negotiator has offered private briefings prior to signature, whenever that might be, at the committee’s leisure, which I hope this committee and the International Trade Committee will take up.

After signature, an economic impact assessment and full treaty text will be publicly available. The Trade and Agriculture Commission will then produce a report on the agreement and the scrutiny process under CRaG, which the Committee will be familiar with, will be carried out prior to ratification. In addition, any primary or secondary legislation will need to progress through Parliament in the usual way. This will take place in parallel to India’s ratification process.

Let me add a little more on the question asked by my noble friend Lord Lansley. He made the point that the Indian Secretary of Commerce made some comments on the timings in the chapters closed. I reiterate our public commitment to our shared target to conclude the majority of talks by the end of October this year. We have made good progress but we still have to work through some challenging and important areas to achieve a comprehensive FTA that respects both sides. However, I remain clear that we will sign a deal only when it is in the UK’s best interests. Given all the points raised, I hope that I have been clear about this matter this afternoon.

Moving on to standards and so-called red lines, which were raised by a number of noble Lords—my noble friend Lady McIntosh in particular—I am aware of concerns that the UK’s world-leading standards could be diminished by any new trade deal. To be clear, as in any FTA, the Government are committed to upholding high environmental, product and labour standards. We will not agree to provisions that will undermine or reduce the safety standards of products imported into the UK, including pesticides. In fact, we have already provisionally closed a stand-alone chapter on sanitary and phytosanitary standards. This will ensure that traded food is safe to consume and that animal and plant products are free from pests and disease. The noble Baroness, Lady Bennett, raised this point.

To add a little more to what I have said, our provisionally agreed chapter on sanitary and phytosanitary standards builds on our long-standing relationship and ensures that both parties can continue to protect their biosecurity, including through enhanced structures and streamlined processes. This includes provisions on antimicrobial resistance. Nothing in the provisionally closed SPS chapter changes our high food standards or strict requirements on imports from India. I say again that the UK is committed to maintaining our current high standards and will not agree to provisions that undermine the safety standards of products imported into the UK.

In addition, the Government share the public’s respect for worker protections and gender-based rights. We have already provisionally agreed a stand-alone trade and gender equality chapter with India—this was raised by noble Lords; I will say a bit more about it later—as well as a chapter on trade and development co-operation. However, we recognise that not all challenges can be solved by trade deals alone, which is why we are working across government on engaging our Indian friends to make progress across these areas. As always, the UK will continue to ensure that public services, including the NHS, are protected in all trade agreements.

Moving on, I understand that there are continuing concerns—they are usually raised in these debates—about dispute mechanisms, notably raised by the noble Baroness, Lady Hayter. These mechanisms play an important part in increasing businesses’ and stakeholders’ confidence that our international partners will uphold their obligations in such areas in FTAs. What is more, they are important deterrents; if an effective mechanism for enforcing commitments under FTAs is in place, it is more likely that our international partners will uphold their commitments.

I will say a few words about corruption, which, again, was a theme raised by the noble Baroness, Lady Hayter, and my noble friend Lord Udny-Lister. I understand that there are important concerns on this subject regarding this particular deal. Throughout our negotiations with India, the UK has made a strong case for a comprehensive anti-corruption chapter. I am pleased to say that our efforts have been successful and we have provisionally agreed one. It will be India’s first stand-alone anti-corruption chapter in a bilateral FTA and the provisional agreement goes further than the precedent set in previous FTAs. This speaks to India’s interests and intent. Although the chapter will not change India’s domestic legislation, it affirms its international commitments.

More broadly, all British businesses operating in India are bound by the UK’s Bribery Act and no FTA will change this. This matter was raised by my noble friend Lord Balfe in his comments on facilitation payments, and we know what is meant by that. Both nations are keen to combat the trade-distorting impact of bribery and corruption, as well as to provide important reassurance to British businesses.

I think I have time to cover a number of other questions that were raised. A number of Peers raised the important matter of Ukraine, and I absolutely take note of their comments and reiterate that the UK is working with international partners, including India, to co-ordinate the international response to Russia’s unlawful—and outrageous, I would say—invasion of Ukraine. Prime Minister Johnson visited India in April, where he discussed this issue directly with Prime Minister Modi and released a joint statement unequivocally condemning civilian deaths and calling for a peaceful resolution to the conflict. I should note that, historically, trade deals have not been a way to secure broad diplomatic agreements. However, I add that, as always, any decisions to agree to a trade deal will be taken at the appropriate time when talks conclude.

Innovation was raised, not least by my noble friends Lord Lansley and Lord Udny- Lister. I will say a few words on that important point as part of this FTA negotiation. The provisional agreement on innovation goes beyond the precedent set in India’s previous FTA negotiations. The UK and India, as I said earlier, share a highly productive relationship, collaborating on research and development for innovation. This will play an essential role not only for economic growth but in tackling global challenges, levelling up, building back better from the pandemic and climate change, which I hope I will have time to cover as well.

The important matter of labour rights and trade and gender equality was raised by my noble friend Lord Udny-Lister, with a focus on women. Let me say a little about that important point. The UK and India have provisionally agreed a chapter on trade and gender equality, which is the first of its kind for India and will enhance opportunities for women to access the full benefits of trade between the UK and India. This reflects our shared commitment to advancing gender equality and women’s economic empowerment, recognising that women often face disproportionate barriers across the economy and in trade. There is more work to be done on this, but I reassure noble Lords that it is very much a priority as part of this negotiation.

On labour rights, raised by the noble and right reverend Lord, Lord Harries, the noble Lord, Lord McNicol, and my noble friend Lord Balfe, both parties reaffirm their respective commitment to international labour standards while providing assurances that they will not fail to enforce domestic labour protections in order to gain a trade advantage—an important point to make. Also, any agreement must protect our regulatory sovereignty; a non-regression clause would constrain this. The provisions we seek on labour protections provide assurances for workers and businesses without undermining our security.

The noble Earl, Lord Sandwich, spoke about the important matter of intellectual property in respect of medications, or perhaps medicines. It could be both; generic versus brand, if I can put it that way. Briefly, it is an important point about a huge sector, particularly the pharmaceutical sector, for us in the UK. Our approach considers industry, which relies on the period of exclusivity provided by patent protection, while ensuring that the system facilitates the entry of generic medicines on patent expiry. While we cannot speak to specifics in the negotiation room, as I alluded to earlier, the UK remains committed to the Doha declaration on the TRIPS agreement and public health.

On the important subject of climate change, particularly in relation to this agreement, I will make some brief comments. We have been consistently clear that we will uphold our high environmental protections in our FTA, and this applies to this particular deal. We are seeking a range of provisions that support the Government’s ambition on climate change. I think I will write a letter to give more on this, but in terms of the point on decarbonisation raised by the noble Lord, Lord McNicol—I am sure that the noble Baroness, Lady Bennett, will have raised it—it also includes facilitating trade in low-carbon goods and services and strengthening co-operation to achieve environment and climate change objectives, including decarbonisation.

The noble Lord, Lord McNicol, raised a very important point about the DAs. I will cover them in my letter, but I reassure him that, whatever he may have heard, the opposite is true. The relationship with the DAs is very good. We are in constant contact with them. I would like to speak to him, perhaps outside the Room, as to where he got his information from, but I think a letter is in order to reassure him.

I will conclude, as there are other things going on which I think we are aware of. I thank the noble Baroness, Lady Hayter. As always, the International Agreements Committee’s report has provided the Government with welcome insight. We really are listening and plan to respond in detail later this month. I reiterate my thanks to the committee.

We appreciate that the final stages of the negotiations will be challenging, but I say again that we are making progress. As India’s middle class continues to grow towards a quarter of a billion people, its spending power will increase and increase. A free trade agreement will put British businesses at the front of the queue to satisfy this demand for decades to come. This is the prize. We must grasp it and be sure that we do not lower standards at the same time.

Elections Bill

Viscount Younger of Leckie Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th March 2022 Lords Chamber

[Lord Stunell (LD)]

My Lords, I support the amendment, probing as it is, from the noble Baroness. As she quite rightly said, this in large measure prefigures the next debate we are going to have. I await with interest the answers that we will hear. Particularly in the case of the borrowing power, it seems somewhat otiose to put in a power that has never been exercised in any way at all.

[Viscount Younger of Leckie (Con)]

My Lords, it seems that it is time for a change of horse—although it is fair to say that the highway that this one is on is broadly the same. On this amendment from the noble Baroness, Lady Hayman of Ullock, I respect her wish to explore the issue; I understand that it is a probing amendment on the question of whether the Electoral Commission can borrow money. I will try my best to answer the questions that have been raised. It is our view, at the outset, that we do not think that this is necessary, but it is of course incumbent on me to explain why.

It is important to note that the Electoral Commission is funded through Parliament each year, following scrutiny by the Speaker’s Committee on the Electoral Commission. The commission submits a main estimate, outlining its required funding for the financial year ahead for approval by that committee, with the estimate then laid before the House of Commons. Should the commission require any further funding for the year, it is able to submit supplementary estimates throughout the year to the Speaker’s Committee on the Electoral Commission as necessary. This could be where project costs have risen for unforeseeable circumstances or for unscheduled electoral events. Given this annual funding through Parliament, and with the ability to seek further funding if required for unforeseen projects or events, it is the view of the Government that the commission therefore does not need to borrow money. I think that is probably what the noble Baroness was seeking confirmation of, and I can confirm it. It is further noted that this restriction has been in place since the establishment of the commission.

On the noble Baroness’s specific question as to why it therefore needs to be in the Bill, I am seeking that answer. It may just be that it is confirmatory and needs to be put in but, if there is anything further to say on that, I will most certainly write to the noble Baroness, as it is a very fair and rather basic question.

On the other public bodies that might be in a position to borrow money—that is, who they are and perhaps to what extent—again, that is something I will need to write on. It may be a very long list or it may be a very short list, but it is a fair point in terms of providing some sort of context to this matter.

I hope that that provides a little reassurance. With that, I ask that the amendment be withdrawn.

[Baroness Hayman of Ullock (Lab)]

I thank the Minister for his response and look forward to his letter. I thank him for agreeing to write to me so that I have the details of the response. On that basis, I am happy to withdraw my amendment.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

My Lords, I am happy to respond to Amendments 18 and 19, which were spoken to very eloquently by the noble Lord, Lord Rennard, and my noble friend Lord Young of Cookham.

I start by saying that I am aware that the Committee on Standards in Public Life recommended as part of its report, Regulating Election Finance, that the Electoral Commission’s fining powers be increased to 4% of a campaign’s total spend or £500,000, whichever is higher, as was mentioned during this debate. This proposal mirrors the amendments in their intent to raise the fining powers of the commission beyond its current limit.

First, we should differentiate between civil and criminal cases. The Government’s view is that the commission already has adequate powers to impose civil sanctions on political parties and non-party campaigners up to £20,000 per offence—and I underline “per offence”. Criminal matters can be, and are, referred to the police and, in certain cases, taken to a criminal prosecution. The courts have the power to levy unlimited fines for some offences and, as the Committee is probably aware, to impose custodial sentences where appropriate.

As set out in the Government’s response to the Committee on Standards in Public Life’s report, any extension of the commission’s fining powers would need to be considered carefully to assess its necessity and proportionality. This is because it is vital that they are an effective deterrent but do not cause a chilling effect on electoral participation and campaigning. I will say more about that, because a point was made, particularly by the noble Lord, Lord Rennard, about a comparison with the Information Commissioner’s Office. Any direct comparison with the fines that can be issued by the ICO should note the clear differences between the two regulators and the types of entities they regulate. I understand his point in making the comparison, but political parties across the spectrum are not global corporations. I am pleased that the noble Baroness, Lady Jones of Moulsecoomb, has popped in for this last group. I am sure the Green Party aspires to be global, but I hope I do not offend her by saying that it is not at the moment.

[Baroness Jones of Moulsecoomb (GP)]

I will just say that there are Greens all over the world, and I have not popped in just for this last one—I have been here several times today for different groups.

[Viscount Younger of Leckie (Con)]

I have been corrected on two points, and I am glad that the world is full of Greens, I am sure, doing a lot of very good work.

There are over 350 political parties currently registered with the Electoral Commission, and many are predominantly made up of volunteers. While it is vital that the sanctioning regime is effective, it needs to be ensured that such deterrents do not cause a chilling effect on electoral participation and campaigning.

I have more of a general point to make, which I think chimes with the views expressed during this very short debate, following up on the Committee on Standards in Public Life’s recommendations. The Government are committed to making sure that elections are secure and fit for the modern age. As part of this, we keep the Electoral Commission’s role, powers and regulation under review regularly to ensure that it is able to discharge its responsibilities effectively and that electoral law can be upheld in the most effective manner.

As part of further work looking at the regulatory framework for elections beyond the Elections Bill, the Government intend to look at all the recommendations of the report by the Committee on Standards in Public Life, alongside similar reports. These include a forthcoming report from the Public Administration and Constitutional Affairs Committee into the work of the Electoral Commission.

Regarding the question about statistics, which was raised by the noble Lord, Lord Khan, I will have to write to him about how many times the £20,000 has been levied. However, the fact that he says it has not been used lately suggests that there is not an urgent need to raise it. I have attempted to answer the question on raising the amount. I appreciate the points raised. I am afraid that for this evening, at this late hour, being a Scotsman, it is not £50,000, or even £500,000. It remains at £20,000.

However, for these reasons, I hope that the House will accept my explanations. I ask the noble Lord to withdraw his amendment.

[Lord Rennard (LD)]

I thank the Minister for his kind remarks at the outset of his reply. I might have hoped that the notes in his folder were still those of the noble Lord, Lord Young of Cookham, as opposed to the ones that he read out this evening, since I suspect that they might have been slightly different.

All the debates today have shown that the House overwhelmingly wants to have an election watchdog, and wants it to be independent and effective. The Committee, and the whole House in due course, will have to return to the issue of the role and powers of the Electoral Commission, in particular the report on election finance by the Committee on Standards in Public Life. I was surprised that the Government committed just now to looking at those recommendations; they should have been looking at them in time for them to be considered in the passage of this Bill. That might have assisted us all.

However, the hour is now late enough. We will return to these issues in due course so, on that note, I beg leave to withdraw the amendment.

Office for Demographic Change Bill [HL]

Viscount Younger of Leckie Excerpts

2nd reading
Friday 4th March 2022 Lords Chamber

[The Earl of Shrewsbury (Con)]

My Lords, I support my noble friend’s Bill and congratulate him on bringing it to your Lordships’ House.

[Viscount Younger of Leckie (Con)]

My noble friend should be aware that the noble Baroness, Lady Greengross, should be speaking.

[The Earl of Shrewsbury (Con)]

I beg your pardon.

Covid-19 (Public Services Committee Report)

Viscount Younger of Leckie Excerpts

Thursday 22nd July 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, since coming here 10 months ago, I have read a lot of legislation and reports and to be honest, it has all been a bit of a chore. However, this report sparkled. I know it has had lots of plaudits, but I commend the noble Baroness, Lady Armstrong of Hill Top, and all the members of the Public Services Committee for an accessible, informative and thought-provoking document. There is lots in it I disagree with, but it was just so useful—and unusual for these toxic times, in that it was free from rancour and “gotchas”. As it says itself, it is not about apportioning blame for past failures, but making constructive suggestions for future reforms—a great relief.

One caveat: in general, I am wary of any sphere allowing the normal of the pandemic to automatically become a new normal by default. The call in the report is to lock in innovations, but that makes me nervous. Yes, it is very useful to kickstart debate, but not to institutionalise as a rigid fait accompli. For example, we all know that digital technology may have facilitated everything from working from home to digital health consultations. But as the report itself points out, Zoom teams and the like could never, and should never, replace face-to-face services. I note with concern that too many GPs and, for example, university lecturers and senior managers, seem reluctant to resume real-life interaction, at the expense of service users.

One striking feature of the report that I would like to make explicit is the cost of treating the NHS as almost a sacred cow public service. It is understandable to celebrate and almost sacralise the health service in a health pandemic, but this can be at the expense of other services. Testimony in the report noted that support for the NHS, especially during the initial part of the pandemic, might have been necessary but should not have come at the expense of preventive and public health services. I agree.

The Nuffield Trust is quoted as noting how the Covid crisis highlights the startling inequality between health and social care services. Many of us felt uncomfortable that that initial “clap for the NHS” neglected care workers. Even today, all the focus is on the pay rise for the heroic NHS staff, whereas social care is plagued with poor wages and awful employment conditions; and now we have even singled out social care workers as the only workforce facing mandated vaccines or the sack.

So, it is important that the report highlights that, long before Covid, successive Governments prioritised funding the NHS—especially acute services—and neglected funding social care. The Nuffield Trust notes that the NHS received generous emergency funding from the Treasury in the early stages of the pandemic, which then enabled a dramatic expansion of capacity. Care providers, in contrast, said that extra funding did not reach them. Also, and related, the deputy director of the New Local Government Network contrasted the experience of local government with the NHS. The NHS had its costs met in full and deficits written off unquestioningly, but that was a privilege not afforded to councils or other public services. I do wonder about this hierarchy of priorities.

The consequences go beyond material funding. As ADASS points out, the historical tendency to prioritise the NHS has influenced policy decisions, sometimes with tragic consequences. In the name of saving the NHS, rather than the NHS saving lives or the public, we now face the collateral damage of non-Covid deaths from cancer and heart disease and huge waiting lists for many in dire need of medical interventions, with the terrible news of an increase of 50% of under-20s hospitalised with eating disorders. In a different debate earlier today, we also heard about the use of “do not resuscitate” in hospitals. We cannot ignore these things.

But perhaps the greatest horror associated with the focus on the mantra of protecting the NHS was the scandal of patients being discharged from hospital into care homes without testing—what the Nuffield Trust called, as quoted in the report, a

“rapid clearing of hospital beds in the early stages”,

regardless of the

“lack of preparedness of the care settings”.

The most vulnerable died as a consequence and, at the very least, it is important that we be able to query NHS policies without being shut down as somehow disloyal to NHS staff who, I agree, have been and are heroic and hard workers—but so are other workers. I do not think that you should be called a traitor to the institution if you query it.

Another striking aspect I read from the report is the wasted potential of civil society in helping deal with the pandemic. On a positive note, of course, the report gives lots of examples of innovation happening because bureaucracy was swept away. In fact, sometimes to tear up the red tape is caricatured as a laissez-faire, careless approach, but the removal of overly bureaucratic hurdles allowed public services to work alongside charities and community groups and volunteers, and the private sector stepped up. Altogether, this played a huge role in delivering services.

The surge of civic action, such as the 4,000 Covid-19 mutual aid groups and the local WhatsApp and Facebook groups I am sure we were all in as volunteers, showed a real appetite for providing practical solidarity in the emergency from so many people. We saw the generosity of 750,000 people signing up in four days when NHS England’s Royal Voluntary Service was launched in April 2020, but sadly that was wasted. The Institute for Volunteering’s research rightly notes in the report that overcentralised co-ordination was not aligned to locally organised activities, significant time was taken to respond, enthusiasm dwindled and people became demoralised. I think it was just so sad when volunteers could have helped, for example, relieve the pressure on social care workers, or indeed NHS workers.

In general, the official approach to Covid was to demobilise the public—to squash initiative and volunteerism. The report notes how the German public health service, in contrast, mobilised and seconded public servants from across departments: forestry, museums—

[Viscount Younger of Leckie (Con)]

I am sorry to interrupt the noble Baroness—

[Baroness Fox of Buckley (Non-Afl)]

Sorry, have I gone on?

[Viscount Younger of Leckie (Con)]

I am afraid that her time is up.

[Baroness Fox of Buckley (Non-Afl)]

I am sorry. I hope that we can mobilise the public in the future. I thank the committee for the report, and I apologise to the House.

EU-UK Trade and Cooperation Agreement

Viscount Younger of Leckie Excerpts

Friday 8th January 2021 Lords Chamber

[Lord Trimble (Con)]

My Lords, I want to exploit my position here at the moment, standing right behind the Minister. He opened the debate by referring to some of the major achievements that have been made, in particular that the European Court of Justice no longer applies in Great Britain, and other related matters. I am sure the noble Lord will realise that I could, and perhaps should, exploit my position here by saying that what the Minister said is not true. The ECJ still operates within the United Kingdom. It operates with regard to Northern Ireland. Northern Ireland is still governed by Europe. This is not what we fought for. This is not what we voted for. It could be tolerated as something for the short term that will be dealt with speedily, but there is no sign of that happening. This process continues.

The man in the street in Northern Ireland does not understand what is going on, does not know is going on, because very little information seeps through. That should be addressed rapidly. I ask the Government to find ways of communicating with the people of Northern Ireland through their elected representatives and those of us who are here. I would like to know what happens in the various meetings. People come out and say that they have achieved something, but they do not explain what they have achieved. I would like to know that.

Without information coming through, people will look, for example, at the problems that some of the supermarkets have had recently: they have not got the material that they want to come through and in some cases have been quite embarrassed. There is also concern over the line that is basically driven down the Irish Sea. It is there, despite assurances being given to us several times that that was not going to happen. It has happened.

I want to pick on just three matters, one of which is hugely important, and that is the question of legislation in Northern Ireland. Where will that come from? At the moment, it will come from Brussels, not from this House or the other place. Legislation for Northern Ireland is done by Europe, and will continue to be done by Europe. I have heard Ministers say that if any legislation comes through, they will not do anything but just let it go through automatically.

I have two specific questions to ask the Minister—

[Viscount Younger of Leckie (Con)]

I am sorry, but the time is up for my noble friend. It is well over two minutes.

House of Lords Appointments Commission

Viscount Younger of Leckie Excerpts

Tuesday 5th January 2021 Lords Chamber

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Private Notice Question has elapsed.

[Viscount Younger of Leckie (Con)]

No.

[The Lord Speaker (Lord Fowler)]

I beg your pardon. I am so sorry; I just got carried away. We will continue with the noble Lord, Lord Jay.

European Union (Future Relationship) Bill

Viscount Younger of Leckie Excerpts

3rd reading & 2nd reading & Committee negatived & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Wednesday 30th December 2020 Lords Chamber

[Lord Sterling of Plaistow (Con) [V]]

My Lords, when we last held a referendum on Europe in 1975, like many businessmen I strongly supported membership. The entrepreneur in me felt that to be part of a bigger bloc would give us the advantages that American companies already enjoyed in their huge home market. In the early 1990s, as president of a group representing European ship owners, I spent a great deal of time in Brussels meeting many Commissioners on a regular basis, and in the following years in connection with the European interests of my own company, P&O SN Co, I continued those meetings.

Why did I change my mind? Taking account of what I have just said, the original aim of it being a trading bloc has been lost. The European Commission is the sole initiator of policy, and the ambition of most in Brussels is a fully united Europe instead of a confederation of nation states. That is why I worked with Michael Gove, Boris Johnson and Gisela Stuart in the leave campaign—and, subsequently, with David Davis for four years, when he was Brexit Secretary. Our 40-year membership of Europe is a very short period in this country’s history. Many keep referring to our decision to reassert control of our own destiny as a divorce; I never understood why because we were never married—at most, we were engaged.

Power today is no longer about possessing territory and heavy industry; nor is it even dependent on having a large population. Increasingly, it is a corollary of the extraordinary advances in technology and the expansion of world trade through the ever-increasing global supply chain—economic strength is vital. One lesson I have learned in international commerce is as valid today as it ever was: trade is a natural human activity—as natural as communicating with each other. It should not be dictated by government bureaucracy. That is why this country has always believed that free trade and freedom are inextricably linked—a view strongly held by Margaret Thatcher. I have no doubt whatever that we can more than hold our own outside the EU, working closely through strong long-term relationships worldwide, particularly with the Commonwealth, the USA and the far east—and, of course, by enlarging and enhancing our trade relations with the European Union.

We must never forget the magnificent role of our armed services in defending our realm night and day. Hearing the comments of many others, I emphasise that Gibraltar is of extreme importance to the Royal Navy, and we must make certain that, in due course, this is addressed in a way that helps it and our interests.

I have never liked the word “deal”. In business, long-term relationships are founded on an agreement, where trust and respect are fundamental. At the announcement referred to by the noble Lord, Lord Butler, Ursula von der Leyen, President of the European Commission, spoke warmly about the ongoing relationship with partners in the United Kingdom. Many of us have deep friendships and family in continental Europe, and, with such sentiment, I have no doubt that our relationship will only deepen in the years to come.

I strongly welcome this agreement and congratulate the Prime Minister and all those involved in the negotiation. Having been involved in major negotiations in many ways over 50-odd years, I have to say that the Prime Minister’s judgment in the last two to three weeks before they came to an agreement, the risks he took and the courage he showed are something to be admired—

[Viscount Younger of Leckie (Con)]

The noble Lord is over the time limit.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Viscount Younger of Leckie Excerpts

2nd reading (Hansard): House of Lords
Friday 8th September 2017 Lords Chamber

[Lord Grocott]

Well, I will give the answer—and I hope that Members will give their answers during their speeches as well. Even in the 12 months since the last Bill, there have been a number of developments, all of which make the case for ending the by-elections stronger, and the case for retaining them inexorably weaker—so much so that any neutral observer would surely conclude that it is not so much a matter of whether the by-elections will cease, but when.

The debates on the Bill last year, and the discussions that surrounded them, have shown beyond doubt that there is overwhelming support in this House for the reform that I am proposing. Support has come from Labour, Liberal Democrats, Conservatives and Cross-Benchers—including a very large number of hereditaries themselves, who have come to me and, understandably, find it difficult to speak on this subject. I would love to know what the actual numbers were among the hereditaries of those in favour and those against the change. When the opinion of the House was tested in Committee—of course, on a Friday, when Divisions are rare—the first vote on the principle of the Bill resulted in a defeat for its opponents by a majority of 93. There can be no reasonable doubt that the number of Members of this House who are resolutely opposed to this Bill is minuscule.

The weakness of the Bill’s opponents could not be better illustrated than by the tactics they employed in Committee. In the three months last year between Second Reading and Committee stage, just six amendments were tabled. Then, lo and behold, on the day before the debate, inspiration and creativity overwhelmed two Members of this House: the noble Lord, Lord Trefgarne, and the noble Earl, Lord Caithness, tabled 50 amendments overnight. My Lords, we all know what that is about: a tiny number of Members knowing they were in a hopeless minority in the House and knowing that they could not win by votes so they had better win by tricks. Fifty overnight amendments—if you are going to wreck a Bill, do it a bit more subtly.

This time, my appeal to anyone who is thinking of trying these tactics is to please think again. They do neither noble Lords’ nor the House’s reputation any good. They should win by the arguments and in the Division Lobbies, not by tricks. It is the opinion of the House that should prevail, not the opinion of one or two of its Members.

I also say to anyone who is thinking of wrecking the Bill this time to please think of the adverse publicity for our House that that will attract. I will give three examples from the media since then:

“Hereditary Peers Set To Ambush Bill Aimed At Scrapping Their ‘Laughable' By-Elections”.


Another headline is:

“‘An embarrassment to our politics!’ Fury as Lords prepare to elect new hereditary peer”.


Finally, we have:

“Tory aristocrat joins Parliament for life by winning 143 votes in a ‘Blackadder’ by-election”.


I am the last person on the planet to argue that we should change a good policy because of some bad newspaper headlines, but it is noticeable that there is absolutely nobody, apart from a handful of people in this House, who is prepared to defend these by-elections. The argument for their continuation is friendless, and surely that is because simply there are no such good arguments.

I challenge anyone today who is thinking of opposing my Bill to not give us a history lesson. Instead, come clean and explain to us, in 2017, what added value the by-elections provide to our parliamentary system. Tell us precisely why we continue to replace the 90 hereditary Peers. Tell us what the distinctive characteristics of the 198 people on the Register of Hereditary Peers are that mean that we need to provide them with a reserved place in our legislature? Once elected, what is special about their parliamentary talents that distinguishes them from other Members of the House? To make it personal, what is the justification for the heir of a hereditary Peer in this House having a one in 200 chance of becoming a member of the legislature while for everyone else in the country, that chance is something like one in 90,000? Tell us, here and now, 18 years after the House of Lords Act 1999, what it is about these by-elections that enhances and enriches our parliamentary democracy. If they cannot answer these questions, surely it is time to call it a day and stop playing King Canute.

There have been significant developments in the last 12 months that have strengthened the case for my Bill. Among them has been the evidence provided by yet more by-elections. For those of us in favour of scrapping them, the by-elections are the gift that keeps on giving. There have been two such elections this year. The first, on 21 March, was for a hereditary Peer to be elected by the whole House. The second, on 18 July, was for a Cross-Bench Peer, when only hereditary Cross-Benchers could vote. It is the first of these two by-elections that provides the richest vein for satire. This, remember, was an election for a place in our Parliament—or rather, a parliamentary by-election. The figure for the electorate was 803 and the number of votes cast was 436, meaning that the turnout was 43%. By way of comparison, it is worth noting that in the general election in June, the lowest turnout in all 650 constituencies was Glasgow North East, with 53%. The propensity to vote in a House of Lords by-election, where voters need only walk down the corridor from their offices and put a ballot paper in a box in the Committee room, is 10% lower than the parliamentary constituency with the lowest turnout. That, to me, provides pretty clear evidence that the majority of Members of this House feel no great attachment to the practice of re-electing hereditary Peers.

Then there was the little matter of the ballot itself. No fewer than 27 candidates put themselves forward, 19 of whom got fewer than 10 votes. Under the alternative vote system there were 25—yes, 25—rounds of balloting before the winner was declared. What is more, the same person led in all 25 ballots, so if the voting system had been first past the post, the same result would have been achieved with a lot less trouble. I just thought I would point that out. There was a 43% turnout, 27 candidates, 25 ballots, and only hereditaries could stand. In 1999 when the original Act was passed, surely no one could have intended that 18 years later we would still have that system of recruiting people to our Parliament, and with no prospect of an end in sight.

The other matter is the very important Motion that this House passed last year, moving that,

“this House believes that its size should be reduced, and methods should be explored by which this could be achieved.”

As a result of that debate, the Lord Speaker established a committee under the noble Lord, Lord Burns, to consider the issue. The committee is due to report in October. What has that to do, you may well ask, with my Bill to end the by-elections? The answer is that if we are to reduce the size of the Lords to around 600 Members so that it is smaller than the Commons, surely we will have to amend the legislation that preserves in aspic 90 places for hereditary Peers. If we reduce the size of this House without changing the law on the hereditary bloc, the proportion of hereditaries would rise from 11% to 15%. For us to embark on an important modernising measure to reduce our size with the result of significantly increasing the proportion of hereditaries really would be a case of Alice in Wonderland.

I should point out that we are not the only ones looking for ways to reduce our size and of the way in which that might involve the hereditaries. Since I introduced my Bill last year, the size of the Lords and the issue of the hereditary Peers have been discussed several times in the Commons, in a Select Committee inquiry, a Private Members’ Bill, a Westminster Hall debate and a 10-minute rule Bill. Most recently, on Wednesday this week, the Commons gave the First Reading to a Bill introduced by my right honourable friend David Hanson, which is scheduled for Second Reading in April. The Bill would end the right of all hereditaries to sit in the Lords with effect from 31 December 2019. Surely the initiative for sensible reforms of this House should come from this House. With the help of the noble Lord, Lord Steel, and the noble Baroness, Lady Hayman, we have had a number of very good reforms in recent years and I believe that with the Lord Speaker’s committee due to report next month, there will be more to come. We should reform ourselves, not wait for someone else to do it for us.

I submit that the case for ending the by-elections has strengthened inexorably since I introduced my Bill 12 months ago. We now have the opportunity in this House to initiate a simple sensible reform that would hurt no one and cost nothing. My Bill was first in the ballot and we are at the start of a two-year parliamentary Session, so parliamentary time should be no obstacle to the passage of a simple two-clause Bill. The case is overwhelming, the time is right, so let us do it. I beg to move.

[Viscount Younger of Leckie (Con)]

My Lords, as a hereditary Peer I have a brief say at the beginning of this debate. We have a long day of three debates and a large number of speakers ahead of us. I remind the House that there is an advisory speaking time of five minutes for this debate and I urge speakers to adhere to that.

Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I wonder to what extent this amendment focuses on the general questions that have been raised. As I understand it, the amendment focuses on whether students at a particular institution should be eligible for loans. If an American university, or some other foreign university, set up a campus here, would the amendment provide that students at such a campus will not be eligible for student loans? I am not certain whether they would be.

[Viscount Younger of Leckie (Con)]

My Lords, the Government want to provide students with options and choice, and to enable them to pursue the path through higher education that is best for them. We want a globally competitive market that supports diversity, where providers that demonstrate that they have the potential to offer excellent teaching and can clear our high quality bar can compete on a level playing field. To deliver that competitive market, we are introducing through the Bill a single, simple regulatory system appropriate for all providers, with a single route to entry and, for the first time, a risk-based approach to regulation.

It is through imposing conditions of registration that are directly linked to risks that we are able to improve and strengthen regulation of the sector. The Bill will enable us to go further than ever before and protect against the very issues that I know noble Lords are concerned about, in that, for the first time, we can focus attention where it is needed, rather than having the current one-size-fits-all approach. This means we do not have to take such a blanket approach as proposed by the amendment, which would automatically exclude potentially excellent providers.

Let me be absolutely clear: we are talking about providers which are carrying out their activities principally in England, so inevitably there will be a presence of some kind in England. Although each case will depend on its own facts, in determining where a provider carries out its activities, questions such as where the provider’s management activities take place, where its courses are designed, where course material is prepared, and where supervision, marking or other evaluation takes place, will need to be considered. It is not simply a matter of where students are studying.

Clauses 4 and 79 are clear that only those providers which carry on, or intend to carry on, their activities wholly or principally in England can successfully apply for registration. Only registered higher education providers can benefit from their students having access to student support. While there is no requirement in the Bill that providers must be incorporated in the United Kingdom, this does not mean that the Bill has inadequate safeguards in respect of foreign-established registered providers. If, following its assessment of risk, the OfS considers that particular risks arising from the fact that a provider is incorporated outside the United Kingdom need to be addressed, these will be mitigated through the imposition of specific registration conditions.

I can commit today that the Government will give clear guidance to the OfS about carrying out its risk assessment in the case of providers that are not incorporated in the UK, and outlining factors for the OfS to consider and address when it decides what registration conditions to apply to these providers. As an example, the OfS will need a clear understanding of how it can effectively regulate this sort of provider, backed up through registration conditions where appropriate. This will include understanding how the necessary verifications on matters such as quality and financial sustainability can take place before a provider can be granted entry to the register, as well as how effective enforcement action can be brought by the OfS and how students’ complaints can be dealt with.

To provide some specifics, it will be open to the OfS to seek financial guarantees from parent or holding companies so that it may have sufficient confidence that the provider can deliver ongoing high-quality provision. As happens now, we would expect the designated quality body to have in place arrangements with overseas quality assurance bodies to share information about higher education providers operating in their respective jurisdictions. It is also open to the OfS, through Clause 15, to impose a public interest governance condition on registered higher education providers that requires the provider’s governing documents to be consistent with public interest principles listed by the OfS. The list must include, but is not limited to, the principle that all academic staff have the freedom within the law to question and test received wisdom, and put forward new ideas and controversial or unpopular opinions without placing themselves at risk of losing their jobs or privileges.

Furthermore, it is clear that in respect of a registered higher education provider’s activities in England and Wales, the applicable law will be that in the Higher Education and Research Bill, and other relevant English and Welsh law. For example, its activities in England will be subject to the relevant applicable law as it applies in England, such as tax and equalities legislation. It is not necessary for a provider to be incorporated under the law of the United Kingdom for English courts to have jurisdiction. It is worth noting that English higher education providers operating overseas are not subject to restrictions that relate to where they are incorporated. The noble Lord, Lord Stevenson, hinted at this in his speech. If we were to unilaterally impose such restrictions this could be seen as a barrier to free trade and consequently there is a real risk that other countries might retaliate. This risks damaging a valuable export industry for the UK.

We must also be mindful that until we exit the EU we should not legislate in a way that conflicts with EU law. A requirement that a provider is incorporated in the UK may breach EU law on freedom of establishment and freedom to provide services. As such, we do not believe that there is any benefit to be gained from insisting on a requirement that registered higher education providers are incorporated in England and Wales or another part of the United Kingdom.

I hope the House will bear with me while I speak briefly about a slightly different issue before I ask for the amendment to be withdrawn. We have been looking again at Clause 114, on the pre-commencement consultation. Noble Lords will recall that this enables the Office for Students to rely on consultations carried out by the Secretary of State, the Director of Fair Access or HEFCE before the OfS has the power or duty to do so. Where the power or duty would, once it exists, require the OfS to consult registered higher education providers, we want it to be as clear as possible that the Secretary of State, the Director of Fair Access or HEFCE may satisfy this requirement by consulting an appropriate range of English higher education providers before any such providers have been registered. To this end, the Government undertake to bring forward at Third Reading a minor and technical amendment to provide that clarity. I hope that Amendment 146 will therefore be withdrawn.

[Baroness O'Neill of Bengarve]

My Lords, I thank noble Lords who have spoken in this short debate, and I thank the Minister for taking the time to give a detailed and, I think, useful reply. The issue may not be just incorporation. However, some franchise operations will leave the student in the other jurisdiction with remarkably slender forms of redress. That is the fundamental issue.

I will withdraw the amendment at this stage but I hope to bring back an improved amendment at Third Reading and, if possible, to have conversations with the Minister before then. This is a problem that I am sure we would all wish to get right and it is not clear to me that the elastic definition of “English higher education provider” plus great faith in the regulatory competence of the OfS are sufficient. We have all known the happy thought that a free market provided with a capacious regulator will deliver everything that is desired. The experience of the past 30 years has not borne that out so we need to take due care. With that, I beg leave to withdraw the amendment.

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Moved by

[Viscount Younger of Leckie]

148: Clause 85, page 57, line 17, leave out from “insert” to end of line 18 and insert ““, and includes an institution which is treated as continuing to be a qualifying institution for the purposes of Part 2 of that Act (see section 20A(2) of that Act)”.”

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[Lord Stevenson of Balmacara]

Follow that. My Lords, this has been a terrific debate. We have rightly taken our time over it, taking perhaps a little longer than we should have done, but it has been worth it. We have explored the issues that the noble Lord, Lord Hannay, wished us to and come to a resounding conclusion on all sides of the House—apart from the noble Lord, Lord Green. He stated in parentheses that he was not in a majority on this occasion. My noble friend Lord Blunkett put the case rather well, and I have to say that the noble Lord, Lord Green, is never in a majority on this issue. However, I am glad that the arguments have been made so that we can knock them down.

At the heart of this debate are relatively straightforward issues to do with counting, reporting and transparency. The point was made rather well by the noble Lord, Lord Broers—by the noble Lord, Lord Krebs, rather. I apologise to the noble Lord, Lord Broers, who also made a very good speech; I am in no sense comparing the two, but it is the point made by the noble Lord, Lord Krebs, that I want to pick up. The Government are in a quandary over this. When introducing his amendment in the previous group, my noble friend Lord Dubs said that he was trusting a single government voice. Perhaps more in hope than experience, he has agreed to go with the Government and trust them on that. This amendment, however, is one on which the Government are speaking with many voices. We are going to get the Government’s view tonight, but I am afraid that it is not going to be the view that many in the Government would like to see. The fact that we got as much support from the Conservative Benches as we did from elsewhere in the House suggests that this is not an argument that the Government can win.

I urge the Government to agree that we have before us a straightforward set of amendments that would solve the problem of students coming here to study being treated as economic migrants when they are not, help with the staffing issues that are going to be so important for our industrial strategy and our future post Brexit, and provide a common sense, no-brainer solution, as so many speakers have said. We have covered the economic, industrial, cultural, educational and local perspectives on why having overseas students here is good for us in every respect. We have been told how much money is involved. However, at the end of the day, as many have said, it is about perception.

The noble Lord, Lord Holmes of Richmond, quoted the Prime Minister of India, who said: you want our trade but you do not want our students. It is about the perceptions that have built up. I am sure that when he comes to respond the Minister will say that there is no cap and that every overseas student who is qualified to do so can come. However, as the noble Lord, Lord Cormack, said, the signal being sent out to the world, and which the world believes, is that we do not want students to come here. We have to take a stand and make our case absolutely clear to the world. The fight back can start now. This is a flag that we should all be waving. We must join together, around the House and across the country, to say that this is something that we want to happen. I leave it to the Minister to say that he agrees.

[Viscount Younger of Leckie]

My Lords, for the second time I am grateful to the noble Lord, Lord Hannay, and to my noble friend Lord Lucas for providing your Lordships with an opportunity to discuss the issue of international students. I also send my best wishes to my noble friend Lord Patten, who cannot be with us today. I say at the outset I am left in no doubt about the passions expressed in this debate by noble Lords around the Chamber. As I have previously indicated—and as the noble Baroness, Lady Royall, indicated—we have indeed said this before. But I will say it again so that the House is in no doubt. The Government very much welcome the contribution that international students and academics make to the United Kingdom’s higher education and research sectors and we have sought to nurture and encourage that.

I will deal first with the amendment from my noble friend Lord Lucas. I entirely share its goal of ensuring maximum transparency. I am pleased to say that there is already a wealth of information in the public domain about the contribution of international students. Provisions in the Bill will add to this. As I have previously indicated, the Bill already includes provisions requiring the Office for Students to monitor and report on the financial health of higher education providers. This can be done only if the OfS understands the types of students and the income they bring to the sector. Clause 9(1)(b) requires all registered providers to give the OfS such information as it needs to perform its functions. This will ensure that the OfS has the power to gather the information it considers it requires on international student numbers.

Furthermore, the Higher Education Statistics Agency already publishes detailed information about international student numbers, along with a breakdown of the countries they are travelling from. We envisage that these arrangements will continue. This amendment would also require information about the proportions of visas granted when set against the total number of applications submitted by each institution. The Home Office already publishes a breakdown of tier 4 visa applications, including the number granted and the number refused.

As I explained in Committee, I do not support providing this information broken down by institution. If there is an institution which, for any reason, has seen its visa refusal rate rise, that does not necessarily make it a failing institution. Provided that it passes the Home Office’s basic compliance assessment, and there are no other compliance issues, no action will be taken against it by the Home Office. But I am sure that the institution concerned would want to make any changes to its system that it deemed appropriate out of the public spotlight. I dare say that any institution that finds itself in that position would support the Government’s position on this.

My noble friend and I both support transparency and the publication of as much information as possible. Much of the information that he seeks is already available and published, and the Bill will strengthen those arrangements. There are small elements of his amendment where, for the reasons of practicality or commercial confidentiality that I have given, I would not favour publication of the data in question. However, those cases are very much the exception, and I can assure my noble friend that the information in which he is interested will be collected and published for all to see.

I turn now to the amendment from the noble Lord, Lord Hannay. These topics, as the House will know, were covered at some length in Committee and I do not propose to repeat all that I said then. However, it is important that I put on record again that there is no limit on the number of genuine international students whom educational institutions in the UK can recruit. I make no apology for repeating that. Equally importantly, the Government have no plans to limit any institution’s ability to recruit international students. Likewise, as recently emphasised by the Prime Minister, the Government are committed to ensuring that the UK continues to be one of the best places in the world for science and innovation.

I previously pointed out that the United Kingdom has a very competitive offer when compared to other major recruiters of international students, whether you look at speed of visa processing, proportion of successful applications, work rights during study or post study opportunities. While, of course, there is no room for complacency, the United Kingdom continues to be the world’s second most popular destination for international students and we have welcomed more than 170,000 international students to the UK for the sixth year running.

The noble Lord, Lord Hannay, spoke eloquently, backed up by statistics, about the importance of overseas students to the UK. We continue to look for ways to promote the UK as an attractive place to come to study and we have a very generous offer for international academics who want to come to work in UK universities. The Chancellor’s recent Budget acknowledged that the continued strength of UK research and innovation depends on access to world-class skills, ideas and talent. It set out how the UK is investing in our industries of the future and that the Government have committed to invest more than £100 million over the next four years to attract the brightest minds to the UK. This will help maintain the UK’s position as a world leader in science and research. It includes £50 million ring-fenced for fellowship programmes to attract global talent and more than £50 million from existing international funds to support fellowships that attract researchers to the UK from emerging research powerhouses such as India, China, Brazil and Mexico.

In the tier 4 visa pilot, four universities are involved in a trial which involves less paperwork surrounding applications and a longer period of post-study leave. The noble Lord, Lord Bradley, mentioned a similar issue. This is an excellent example of taking sensible steps to try to ensure that the UK is as welcoming as possible for international students. It covers exactly the ground in the first limb of the amendment from the noble Lord, Lord Hannay. I do not believe that a general statutory duty, which would be impossible to measure and bound to give rise to litigation, is the way forward here. The noble Lord, Lord Green, stated that these were not matters appropriate for legislation.

I turn now to the second part of the amendment from the noble Lord, Lord Hannay, which seeks to stop students being treated as long-term migrants. Incidentally, I have noticed that the noble Lord has moved from the description of “economic migrant” in his amendment in Committee to “long term migrant” now. However, I fear that, whatever the terminology, the difficulties with what he proposes remain the same.

[Lord Hannay of Chiswick]

I am sorry to disappoint the noble Viscount, but the reason I changed the wording was because he asked me to in Committee. I think a word of thanks might be in order.

[Viscount Younger of Leckie]

I do not believe that was made clear in the noble Lord’s speech, but of course I thank him for that.

A “long term migrant” is defined by the United Nations and the OECD as someone who moves to another country for a period of more than a year. That is the definition that the Office for National Statistics, the UK’s independent statistical authority, chooses to follow. As such, virtually all of those who come to the UK on work visas are long-term migrants. These are people who, like students, come for a time-limited period and intend to return home at the end of their visa.

I remind your Lordships of the key features of our work visa regime. People are issued with time-limited visas, which specify the terms on which they can come, including their right to work and whether they can bring dependants. On the expiry of their visa, they are expected to return home. All of these are equally important features of the visa regime for international students. As a result of this amendment, we could potentially be unable to apply basic visa checks, such as pre-issue security checks, or impose conditions, such as the right to work or a time limit, on a student visa. I am sure your Lordships will see why this is not a sensible approach.

The final part of the amendment from the noble Lord, Lord Hannay, would prevent any more restrictive conditions being applied to international students and academics than currently exist. I pointed out in Committee the difficulty that could be created if there were changes to Immigration Rules that everybody agreed were desirable but could be seen as more restrictive. The noble Lord’s suggestion was that, in such circumstances, there should be further primary legislation, but I remind your Lordships that Immigration Rules are already laid before Parliament and can be debated, if appropriate. That seems to me the best way to accommodate those minor changes to our immigration system that are, from time to time, required and a more proportionate way of dealing with them than fresh primary legislation.

The effect of this part of the amendment would also mean that no future changes could be made to the rules as they relate to citizens of the European Union and therefore set in stone in perpetuity free movement rights for EU students and academics. As your Lordships know, we have indicated that future arrangements for students and academics will be subject to negotiation with the EU and need to be considered in the round, rather than that a particular approach be written into legislation now.

International students consume services while they are here, so it is right that, in line with international norms, they feature in net migration statistics. I reassure your Lordships that, as I have explained, that has not led, and will not lead, to the Government seeking to cap numbers or restrict institutions’ ability to continue to attract students from around the world. The Government want our world-class institutions to thrive and prosper. International students and academics will always be welcome in the UK. However, I do not believe that we can pass an amendment which would be likely to make operation of the visa system impossible.

Before I invite the noble Lord to withdraw his amendment, I want to respond to a point made by the noble Lord, Lord Bilimoria, who said that a report is held by the Home Office showing that only 1% of students overstay. I am afraid that we do not recognise that 1% figure, which was cited in the media. Over time, the data obtained through exit checks will contribute to the statistical picture and the ONS data on net migration figures, but it is too early to draw conclusions. I ask the noble Lord, Lord Hannay, to withdraw his amendment.

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Perhaps the Minister can address these points and satisfy us. If not, I urge him to look carefully at Amendment 152 to see whether a joint approach can be brought back at Third Reading which will solve this problem once and for all.

[Viscount Younger of Leckie]

My Lords, I thank the noble Baroness, Lady Deech, and noble Lords for this valuable opportunity to discuss freedom of speech further. As the noble Lord, Lord Stevenson, and the noble Baroness, Lady Garden, said, we all recognise that it is a crucial principle at the heart of higher education. I am particularly grateful for the meetings and discussions I have had with the noble Baroness, Lady Deech, my noble friend Lord Polak and Sir Eric Pickles, who have encouraged us to consider even more closely the responsibilities that universities must have, including in relation to their students’ unions.

In response, the Minister for Universities and Science will be writing to the higher education sector shortly, highlighting the importance of the freedom of speech duty and reminding universities of their responsibilities in this respect. The letter will focus particularly on students’ unions—and all students—and will reiterate how freedom of speech codes of practice should be enforced. It will also emphasise the importance and expectation of rapid resolution of any freedom of speech issues. I hope that that reassures the noble Baroness, Lady Deech, that speed is of the essence, as she made clear in the meetings we had.

The existing freedom of speech duty requires all those concerned in the government of certain higher education establishments to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students, employees and visiting speakers. This includes an express duty to ensure, so far as reasonably practicable, that the use of any of the provider’s premises are not denied to anyone on the grounds of their beliefs, views, policy or objectives. In order to help staff, students and visitors understand their obligations, providers within scope must also have in place an active code of practice. This must explain how they should approach events on any of their premises, and the conduct expected of them.

I stress that students’ unions also have a role to play in this. The same duty requires that student members of a students’ union be subject to the code of practice issued by their higher education establishment. Students’ unions established at higher education institutions are typically charities, and the Charity Commission has a statutory function to identify and investigate mismanagement and misconduct in the management and administration of charities. In addition, the freedom of speech duty clearly applies to premises that are occupied by students’ unions, whether or not they are premises of the higher education establishment. I hope that provides clarity on another point the noble Baroness raised.

I completely agree with noble Lords that legal duties and codes of practice take us only so far. We fully expect providers not only to have robust codes of practice in place but to take reasonably practicable steps to ensure that they are adhered to. This includes taking disciplinary action where appropriate. In the occasional case where the duty is not complied with, legal proceedings have been brought against providers. In a recent case, the judge found that freedom of expression was alive and well in the university involved.

As part of its monitoring of the Prevent duty, HEFCE found that higher education providers showed a strong understanding of their responsibilities concerning freedom of speech and 93% had already put in place strong policies for assessing and managing the risks associated with any speaker event. We want to ensure that all relevant providers now do this. Therefore, for those that have not yet met this standard, action plans are in place for outstanding issues to be resolved by spring of this year. More generally, HEFCE regularly engages with higher education institutions, both informally and formally, in relation to balancing free speech with Prevent. While I understand the reasons for the noble Baroness’s amendment, unfortunately it is not clear how this additional duty would interact with the existing duty. We believe there is a genuine danger that in practice it would introduce ambiguity in relation to both duties.

However, I fear that to ensure that something happens without reasonable caveats unreasonably and unnecessarily imposes a burden on providers. It may well require them to address matters that are realistically out of their control. For example, it could result in an institution that faced concerns about violence at an event therefore being mandated to spend unreasonably large amounts of money on a significant security presence. Forcing such an event to unreasonably go ahead, or creating a situation where the duty to ensure freedom of speech may override concerns about the security of attendees, cannot be the desired effect. We need to allow institutions to make their own decisions, balancing the requirements of the duty against other responsibilities and enabling them to assess each individual case according to the situation.

We must also not overlook the fact that students, on the whole, do not think there is a problem with free speech. A 2016 survey by the Higher Education Policy Institute of over 1,000 full-time undergraduates at UK higher education institutions found that 83% of students felt free to express their opinions and political views openly at university. Noble Lords will also be reassured that Clause 15 enables the OfS to impose a public interest governance condition on registered providers. Such a condition would require applicable providers to ensure that their governing documents are consistent with a set of public interest principles relating to governance. The OfS will determine the list of principles following consultation. While we cannot prejudge that consultation, a principle underscoring the importance of free speech could be included in the list if the OfS considered it appropriate in light of the consultation.

In Committee I assured noble Lords that we would consider how to make sure that higher education providers continue to be subject to the existing freedom of speech duty under the new definitions created by the Bill. We have now considered this and we propose to extend the vital freedom of speech duty to all registered higher education providers under the Bill. This extends the duty beyond its current application of providers that broadly are eligible to receive HEFCE funding. It means that all providers on the OfS register will need to take reasonably practicable steps to ensure that freedom of speech is secured, to issue a freedom of speech code of conduct, and to ensure that it is complied with. We consider that this duty is comprehensive and strikes the right balance between ensuring that the higher education sector remains a vital place for debate and discussion and ensuring that providers are not burdened by a disproportionate and ambiguous requirement. The duty is just as relevant today as it was at its inception more than 30 years ago.

Freedom of speech is vital but must always be within the law. We all stand against illegal hate speech, discrimination, intimidation or harassment against anyone, including on the basis of their race, religion, gender, sexuality or disability. I am sure we all agree that there is no place for anyone who is trying to incite violence or support terrorism. In addition to legislation, there are effective mechanisms for reporting hate speech and other incidents; for example, through university internal complaints procedures, to the Office of the Independent Adjudicator, directly to the police, or to organisations including the Community Security Trust, Tell MAMA and the Equality and Human Rights Commission. Most providers already have clear policies on discrimination, harassment and hate incidents. Providers subject to the Prevent duty are also required to have due regard to the need to prevent people being drawn into terrorism, and as part of this to consider the impact of extremist speakers on campus.

Despite the good intentions of this amendment, its introduction adds little to existing legislation and risks confusion in relation to freedom of speech. It is not clear what measures would be required to prevent speech in advance of it happening. Unfortunately, this could lead to providers being too risk averse, with the unacceptable consequence that lawful free speech could be stifled. We believe that government Amendment 204, extending the existing freedom of speech duty to all registered higher education providers, strikes the right balance by requiring providers to do all they can to protect free speech. For unlawful speech, the answer is to continue to work with the sector to implement existing laws instead of creating new legislation. I hope that, with that explanation, the noble Baroness will see fit to withdraw her amendment.

[Baroness Deech]

My Lords, I greatly appreciate the Government’s involvement in this topic. I support Amendment 204 and am very pleased to see that the Government wish to extend the width of the freedom of speech duty. I appreciate the fact that the Minister has listened, as has his counterpart in the other place. They have taken this topic seriously—indeed, no Government could possibly reject the notion of freedom of speech while passing a higher education Bill.

What I would hope to see in correspondence between the Government and the universities in the next few days or weeks before we come to Third Reading is a clear explanation that students, individually and in their unions, are covered wherever they may speak or block speech, both on university premises and off them. I would hope to see provisions for prompt enforcement. We are all well aware of how brief the university year is: if you are a student, you can commit an offence in April and by June you are history and the university no longer has any control over you and you may well get away with it. I also hope that the letter would support the matter that the Minister mentioned: what could be more simple than to include a freedom of speech condition in the governance conditions to be set down by the OfS? It would be excellent if those conditions were set out and sent to universities.

I have some slight caveats. First, a recent letter from the Minister in the other place disseminating the definition of antisemitism, which I believe was also signed by the noble Viscount, Lord Younger, has been ignored and rejected by one of the places that most needed to hear it—namely, the School of Oriental and African Studies. Secondly, we have had provisions about freedom of speech on our statute book for 30 years, yet some universities have still not implemented them or do not know how to. I know for sure that one of them had never heard of them until 2011. Thirdly, it would be a pity if violence is still allowed to close down free speech. I would not wish to see, as I am sure noble Lords would not wish to see, a situation whereby the threat of violence prevents lawful speech and the university says that it simply cannot afford to police it. An atmosphere has to be created in universities and, I am afraid, security put in place so that violence does not close down free speech—whether that is in the university or anywhere else in society. If those conditions are met, as I hope they will be before Third Reading, then I will be content to withdraw the amendment now while reserving my right to revert to this topic.