Draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023
Joanna Cherry Excerpts(1 year ago)
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Joanna Cherry (Edinburgh South West) (SNP)
I am grateful for the opportunity to make a few comments about the human rights aspect of the regulations in my capacity as acting Chair of the Joint Committee on Human Rights. When the Committee published a very full legislative scrutiny report on the parent Act in March, we raised serious concerns about the Act’s compatibility with the UK’s obligations under international law, in particular the rights to freedom of assembly and to freedom of association under article 11. We share those concerns in relation to these regulations and the way in which they have been framed. As the Minister is aware, the European convention on human rights is, thankfully, still part of our domestic law, due to the survival of the Human Rights Act 1998. Article 11 does not refer expressly to the right to strike, but it has been interpreted as covering the taking of strike action—in a case brought against the Russian state, ironically.
When the Joint Committee on Human Rights took evidence from international law experts, the only country in the whole of Europe they could think of that had similarly draconian legislation to the United Kingdom was Hungary, as well as Russia, of course, although Russia has now left the ECHR—rightly so, after the invasion of Ukraine. I am not sure that the UK Government should want to be in the same grouping as the Government of Hungary, but by bringing in this draconian legislation, they are.
Article 11, as I said, has been interpreted as covering the taking of strike action. The European Court of Human Rights has also referred to requirements set down by the International Labour Organisation when assessing compliance with article 11. I know from my recent meeting with the TUC that it has reported the Government to the ILO in relation to the parent legislation, and it is also concerned about these draft regulations. In legal terms, a qualified right to strike is also provided for by article 8 of the international covenant on economic, social and cultural rights and article 6.4 of the European social charter, both of which bind the United Kingdom in international law.
Compliance with article 11 of the ECHR requires that any restrictions on strikes are
“in accordance with the law”,
which includes a requirement that the consequences of the law must be foreseeable for those it affects—we heard earlier that perhaps that is not so in the draft regulations. The restrictions must also be
“necessary in a democratic society”
to meet a “legitimate aim”. That condition requires the restrictions to meet a “pressing social need” and for them to be
“proportionate to the legitimate aim pursued”.
I very much question whether these draconian regulations are proportionate to the aim being pursued.
The Committee might recall that at the tail-end of the year before last, the Government introduced a Transport Strikes (Minimum Service Levels) Bill, which had an alternative mechanism in it. That was going to be based on negotiation and independent resolution of disagreements about minimum service levels. That kind of approach would reflect standards set out by the International Labour Organisation, and would involve less interference with article 11. It would therefore be more likely to meet the requirement of proportionality.
The Government have never adequately explained why they went from initially proposing negotiation and an independent resolution of minimum service levels to the draconian imposition of them. I will be interested to hear if the Minister has been able to come up with an answer to that.
As I said, the Joint Committee on Human Rights had similar concerns about the draft regulations as we did about the Act. Last week, in my capacity as acting Chair, I wrote to the Secretary of State for Business and Trade setting out our concerns about the regulations. In doing so, I was very conscious of the fact that the consequences of employees failing to work as required by a minimum service level imposed through a work notice, and of trade unions not taking reasonable steps to ensure that their members complied, would include a loss of automatic protection against dismissal for participating in a strike. That is a big deal.
Sometimes, Government Front Benchers talk about the rights of the public as though somehow those rights were in conflict with the rights of trade unions in exercising the right to strike, but trade unionists and workers are members of the public. They face very straitened times at the moment, with the cost of living crisis, and some people are struggling to make ends meet. If people are struggling to make ends meet and their wages are not being raised in line with inflation, in particular in relation to energy bill inflation, the only option they have is to withhold their labour in a dispute. It is a fundamental part of our democracy that they should be able to do that.
Chris Stephens
I am grateful to my hon. and learned Friend for her excellent speech. She is correct to say that the Government do not support decent wages for workers. I go back to the point that she made about protections from dismissal, because she is articulating the fact that, under this legislation, anyone could be dismissed without the right to an employment tribunal. Can she name any other groups of workers who do not have that basic right?
Joanna Cherry
The Joint Committee made that point in our initial report. A trade union’s involvement in an illegal strike could result in damages of up to £1 million. Any individual worker who participated in a strike that was found to have been illegal could be dismissed. The difficulty with these draft regulations is that workers and trade unions may not be able to foresee the legality of action, which is why the penalties are particularly concerning. We pointed out that lesser penalties for individuals—suspensions rather than dismissals— would make interference with the right to strike more proportionate.
John McDonnell
Let me try to give a concrete example of what the hon. and learned Member is talking about. An employer can take a union to court and argue that it has not performed its role of encouraging workers to go to work. As a result, the strike is rendered illegal. Any individuals who participate in that strike would therefore lose their legal protection against unfair dismissal. We could have employers using this as an opportunity to sack a large number of their workers. They could shed workers at will.
Joanna Cherry
To be frank, these are the kinds of laws and consequences that workers in Russia and Hungary face. We do not want them here in the United Kingdom.
Of course there should be minimum service levels; I am not arguing against that. However, they should be reached through negotiation. When negotiations between unions and the employer break down, there should be arbitration. That is what happens in a lot of other European countries.
I am concerned that the regulations on passenger trains would allow an employer to require 40% of timetabled services to run. That would allow some employees to participate in strikes, but infrastructure services such as signalling would have to be provided between 6 am and 10 pm for a substantial number of priority routes. That gives rise to a risk that employees working on those lines would be effectively prevented from striking.
I have met the TUC to discuss its concerns about these draft regulations. It made a number of points, some of which have been covered already, so I will confine my remarks to those that have not been covered. It said the rail industry is highly complex, so the effect of the draft regulations on the right to strike is difficult to quantify without access to industry information. The impact of any work notice will depend on how an employer seeks to deploy it. The TUC is concerned that the regulations will prevent many workers from taking industrial action. It says that providing 40% of a service is likely to require a lot more than 40% of staff once consideration has been given to cover staff, for instance.
The TUC also fears that many infrastructure staff on priority routes, including signal operators, will be denied the right to strike completely because their presence is necessary for the routes to run. It shares the concern I articulated in my letter to the Secretary of State for Business and Trade.
The TUC also made the point that the Government seem to have given little consideration to safety and the role of transport workers in ensuring that passengers are safe. Overcrowding could be a real issue when only a partial service is running. Rail workers need to know that they can apply “work safe” principles and, if necessary, stop working. It needs to be clear that, in those situations, staff would not face legal consequences—or political opprobrium from the Government.
The TUC also raised the significant uncertainty over whether the draft regulations include or exempt those working on freight services. Will the Minister clarify that?
The main point I want to raise with the Minister, and on which I want an answer, is this: what assessment have the Government made of the extent to which the article 11 rights of those working on passenger rail infrastructure on priority routes would be protected in cases when services must be provided between 6 am and 10 pm on strike days? A proper, full assessment with regard to the law is required to have been made in that respect in order for this to be proportionate interference with rights under article 11. I do not believe that that has been done, and I do not believe this is proportionate interference.
Oral Answers to Questions
Joanna Cherry Excerpts(2 years, 7 months ago)
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Andrew Stephenson
Let me gently correct the hon. Gentleman: last year, we set out our integrated rail plan, which is a £96 billion investment in the railways of the midlands and the north. It is the biggest ever investment by any Government in the railways of this country, and that is five times as much money as was spent on Crossrail. We are committed to delivering improvements across the north of England to more places sooner than under previous plans, and I encourage him to get behind the plans. I am more than happy to meet anyone, including Transport for the North and the Mayor of Greater Manchester, and I meet the hon. Gentleman’s colleagues from Bradford regularly to talk about other options. The Government have said that we will take an adaptive approach, and we will continue to work with all stakeholders to ensure that we get this right, but £96 billion is a huge investment in our railways.
Joanna Cherry (Edinburgh South West) (SNP)
The Minister of State, Department for Transport (Andrew Stephenson)
The Department consistently monitors how transport costs impact the cost of living and is investigating ways to reduce them further.
Joanna Cherry
I thank the Minister for his answer. Of course we all know that petrol and diesel prices have hit record highs, and now the prospect of an embargo on Russian oil means they could increase further. Many of my constituents are struggling to fill up their tanks for essential use. The RAC has called on the Chancellor to reduce VAT on fuel costs, and many EU countries operate essential user fuel rebate schemes. What discussions has he had with the Chancellor about employing similar schemes and similar cuts in the UK?
Andrew Stephenson
At the spring statement, the Chancellor announced a temporary 12-month cut of 5p a litre in duty on petrol and diesel, to support motorists. The Secretary of State for Business, Energy and Industrial Strategy recently wrote to the fuel companies to ensure that that cut was being passed on. Treasury Ministers continue to keep the matter under review and Transport Ministers continue to have regular conversations with Treasury Ministers about the importance of ensuring that motoring remains affordable.
International Women’s Day
Joanna Cherry Excerpts(2 years, 9 months ago)
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Sir Bernard Jenkin (Harwich and North Essex) (Con)
I thank the hon. Member for Motherwell and Wishaw (Marion Fellows) for that inspiring close to her speech. I do not wish to disabuse her in any way, but I think she will find that quite a lot of men do quite a lot of pretending too. We may cover it up better, but the hon. Lady gave the right advice: everyone is better if they are just themselves, and we are better if we feel empowered to be ourselves.
This should be a debate in which we celebrate the re-empowerment of women. I say “re-empowerment” because there is now some evidence suggesting that in prehistoric societies women were not disempowered or subjected to male patriarchy. However, recent progress is being thrown into reverse, and not just by terrible wars and by that terrible list that the hon. Member for Birmingham, Yardley (Jess Phillips) reads out every year. In particular, the rights of women to women-only safe spaces are threatened—safe spaces such as public toilets, women’s hospital wards and women’s prisons.
Nearly all violence against women is committed by men, but there is a new and growing category of violence against women committed by people who call themselves women but are biologically male. We should always respond positively to people with genuine gender dysphoria, and I deliver this speech with kindness in my heart, but the Sexual Offences Act 2003 defines rape as when a person
“intentionally penetrates the vagina, anus or mouth of another person…with his penis”
without consent. The Crown Prosecution Service reports that between 2012 and 2018 more than 436 cases of rape were recorded as being committed by women. The penis is a male organ, so these rapes are committed by men presenting themselves as women.
Sir Bernard Jenkin
Bastions of feminism—and I hear one on the other side of the House—who highlight this risk, and others such as Germaine Greer, Professor Kathleen Stott and Professor Jo Phoenix, and journalists such as Suzanne Moore, are bullied online and even hounded out of their jobs because they talk about this. But we, as legislators, must be clear and courageous about what a man is and what a woman is.
Today’s interim report from the independent review of gender identity services for children and young people by Dr Hilary Cass notes the rapid increase in the number of adolescent girls presenting with gender distress. It states:
“At present we have the least information for the largest group of patients—birth registered females first presenting in early teen years”.
It is essential that we understand why we are witnessing this historically unprecedented number of young girls who are finding puberty so difficult to navigate. The Government’s proposed conversion therapy Bill must be reviewed in the light of this, and we must wait until the full report comes out before we present the Bill for Second Reading.
It is a scientific fact that our biological sex is immutable. Professor Lord Winston said on the BBC’s “Question Time”:
“I will say this categorically—that you cannot change your sex. Your sex actually is there in every single cell in the body.”
The responsibility for clarity starts with us as legislators. We have to be clear about what words mean in our legislation—but, astonishingly, some of us are reluctant to be clear. A woman is an adult female human. Only this week, the hon. Member for Oxford East (Anneliese Dodds) was asked to define a woman on the media, and she was unable, or unwilling, to give a clear answer.
Sir Bernard Jenkin
I am afraid that a great many women do not agree with my right hon. Friend, and I am speaking for them.
Joanna Cherry
Following on from that point, does the hon. Gentleman agree that there has been some confusion in the past about the extent to which single-sex services can be provided under the Equality Act, and that the planned updated guidance from the Equality and Human Rights Commission will be very welcome?
Sir Bernard Jenkin
I thank the hon. and learned Lady for that intervention, and I note what she says.
The SNP Minister Shona Robison said when she was introducing the Bill:
“There is no evidence that predatory and abusive men have ever had to pretend to be anything else to carry out abusive and predatory behaviour.”—[Scottish Parliament Official Report, 3 March 2022; c. 65.]
That comment really misses the point. The point is that the Bill does create new opportunities for predatory men and I am afraid that my right hon. Friend the Member for Basingstoke (Mrs Miller) has to accept that there are plenty of instances where biological men have taken advantage of this new freedom being granted them, to the detriment of the safety of women.
Joanna Cherry (Edinburgh South West) (SNP)
I am pleased to follow the hon. Member for Devizes (Danny Kruger). There are many things about which we disagree, but there are some things about which we agree, and I thank him for his kind comments. I congratulate the right hon. Member for Basingstoke (Mrs Miller) on securing this debate, and the many hon. Members who have made interesting and valuable contributions, especially my hon. Friend the Member for Motherwell and Wishaw (Marion Fellows), who is such a doughty campaigner for disability rights and the rights of disabled women in particular.
During this International Women’s Day debate, it is the women of Ukraine who should be uppermost in our minds. This morning I and other female MPs—a cross-party group—met the Ukrainian ambassador’s wife. She impressed on us the terrible burden that Ukrainian women face as they flee their country with their children, often leaving their male relatives behind and uncertain of their destination. The majority of the now millions of refugees fleeing Ukraine are women and children, and they need visa-free access to the United Kingdom with their children. We must match the European Union on this, no ifs and no buts. Let’s get on with it.
Women are particularly vulnerable in war because of their sex. This is because women are particularly vulnerable to sexual violence at the hands of men. That violence is sex-based and directed at women because of our biology and the fact that we are weaker than men. Sex matters. I do not know why we call it gender-based violence, because it is not gender-based violence; it is sex-based violence. Gender is a social construct. Sex is a material reality. I would like to hear us talk more about sex. I would like to hear us talk about the sex-based pay gap. I would like to hear us talk about the fact that, as Professor Alice Sullivan has said so powerfully in The Guardian today, it is mothers and not fathers who bear the burden of parenthood. Research shows that men often get a pay premium as a result of parenthood, but women’s pay goes down.
I would also like us to be able to say, as is the case in law, that lesbians like myself are same-sex attracted women, not same-gender attracted. What you cannot define you cannot protect, and what you cannot name cannot be properly discussed and debated. That is why the stealthy erasure of sex-based language from our statute book and public and private policy making should be resisted.
It is also why politicians and policy makers should be precise in their language, and should not conflate sex and gender.
Last month, one of Scotland’s Supreme Courts reminded lawmakers that reference to the protected characteristic of sex in the Equality Act 2010 is a reference to a man or a woman for which purpose
“a woman is a female of any age.”
The court said:
“Provisions in favour of women”
based on the protected characteristic of sex
“by definition exclude those who are biologically male.”
That is the law. I am quoting from paragraph 36 of the judgment by the highest court in Scotland in the case of For Women Scotland Limited against the Lord Advocate and the Scottish Ministers. So I defy anyone to claim that what I have just said is transphobic. It is not; it is the law, and it is based on the Equality Act, which also protects trans people from discrimination by means of the very widely drawn protected characteristic of gender reassignment.
The Equality Act was passed by the Labour party; all credit to them for doing so. I know that the right hon. and learned Member for Camberwell and Peckham (Ms Harman)—who is not in the Chamber, but for whom I have the highest regard—was instrumental in the passing of that Act. It is also hugely valued by my party, so much so that when our current First Minister was drafting the constitution for an independent Scotland in 2014, she decided to enshrine in that constitution the protections afforded to women and the other protected characteristics in the Equality Act. It was going to be part of the fundamental law of Scotland. I think it would be good if more Scottish politicians remembered that and celebrated it.
I want to quote from an excellent column in today’s Telegraph. I am not in the habit of buying or reading the Telegraph, although a very dear friend of mine—who is now dead—used to say that she bought it every day so that she would have something reliable with which to disagree. However, this is a very good column by Suzanne Moore, who says:
“Words matter, because women naming ourselves and our experience matters. As the American social reformer and women’s rights activist Susan B Anthony had it: ‘No self-respecting woman should wish or work for the success of a party who ignores her sex.’”
And, in my view, no self-respecting woman should wish or work for the success of a political party that makes her rights as a woman or a lesbian conditional on her acceptance of gender identity politics. My rights as a woman and a lesbian are not conditional on my accepting gender identity politics. Nevertheless, as a member of the advisory group of the organisation Sex Matters—and I refer the House to my entry in the Register of Members’ Financial Interests in this respect—I am aware of many cases across the United Kingdom of women being harassed and investigated at work for expressing gender-critical views.
Now, however, we can fight back. Thanks to the courage and resilience of a woman called Maya Forstater and her legal team, we have an Employment Appeal Tribunal ruling that gender-critical beliefs are protected under the Equality Act. That was a major victory for freedom of belief and freedom of speech across these islands. Professor Jo Phoenix of the Open University and postgraduate student Raquel Rosaria Sanchez of Bristol University are just two of the brave women who are taking their universities to court for failing to defend them from harassment because of their gender-critical views. Across the United Kingdom, many women, and indeed men, are now taking their employees, and membership organisations such as the Green party of England and Wales, to court for discriminating against them on the grounds of their belief that sex is real and immutable.
I say to all the gender-critical women who are watching this debate today that we are starting to win this debate, and people like me will not give up no matter what is thrown in our road. Maya Forstater’s win is not the only significant one since the last International Women’s Day. I have already mentioned For Women Scotland’s win in Scotland’s Supreme Courts; Fair Play for Women also achieved a major court victory in a case about the meaning of “sex” in the census in England and Wales, although it was not so successful in Scotland.
Sir Bernard Jenkin
The hon. and learned Lady is making a terrific speech. Would she agree that men have to stand up for women’s rights, too? There are too many men who stand back from this debate and say, “Oh well, this is a women’s issue. I’m not going to get involved.” I think that is a shame, and that is why I spoke in today’s debate.
Joanna Cherry
I entirely agree with the hon. Gentleman. Even worse, there are many men—young men—involved in this debate who have embraced a new form of misogyny. I know that to my cost, and I hope that that will start to change.
But I am trying to be positive, and I want to list a couple of the other successes there have been in the last year for gender-critical women such as myself. My friends at the LGB Alliance are registered as a charity now, and they held a major conference that was attended by many parliamentarians. I see some of them here today. Sadly, however, a straight, married Member of this House saw fit to protest outside the conference, which was organised by lesbians to discuss the rights of same-sex-attracted people. I thought I had seen the last of that sort of lesbophobia in the ’90s, but it turns out I was wrong. I repeat that lesbian rights are not conditional on our accepting gender identity theory.
Another positive development has been the Equality and Human Rights Commission entering the debate on self-identification and on how to frame the quite appropriate ban on conversion therapy. The commission entered the debate with a voice of calm common sense, reminding us that human rights are universal and that all protected characteristics under the Equality Act deserve protection. Others have mentioned the very welcome interim report on the Cass review today, and I hope the Minister will be able to assure us that the Government will look carefully at that report and look into the alarming phenomenon of so many young women feeling so uncomfortable with their identity as women as they go through puberty in our society that they feel they have to change their identity to cope with those pressures.
Sir Peter Bottomley
Can I make two points to, and through, the hon. and learned Lady? First, Suzanne Moore ought to have been able to write her column for The Guardian, and I hope that The Guardian will report the hon. and learned Lady’s speech in full tomorrow and explain why Suzanne Moore cannot publish her thoughts in her own newspaper, as it once was. Secondly, on the LGB Alliance conference, which I attended, I went up to some of the people protesting outside and asked if they had read the book “Trans” or the book “Material Girls”. They said no. I invited them to join me in asking Liam Hackett, the chief executive of the anti-bullying charity Ditch the Label, if he would withdraw his words describing Kathleen Stock as a dangerous extremist for giving her plain views on women’s rights.
Joanna Cherry
I agree with what the hon. Gentleman says, and I am proud to call Professor Kathleen Stock a friend. She is an admirable scholar, a feminist and a lesbian who has written carefully about these issues, and the way she has been traduced by students at her university and, sadly, by some politicians in one of my favourite cities, Brighton, is absolutely disgraceful. I want to be positive today, however, and I think that on this issue the tide is turning. I am living proof that cancellation does not always work.
Just before I sit down, I have a couple of questions for the Minister. Will she back the Equality and Human Rights Commission to produce solid guidance on the definitions of protected characteristics and single-sex services? A lot of the harassment I have described stems from women setting out the case for single-sex services and then facing wrongful accusations of transphobia. Secondly, will she push for Government Departments to end the use of external human resource benchmarking schemes for legal compliance with the Equality Act? As we saw in the Akua Reindorf report from Essex University, some external benchmarks—sadly, some from Stonewall, of which I used to be, but no longer am, a supporter—have been wrong in law. Finally, once the EHRC has published some decent guidance, will she review civil service HR policies to ensure that they are in line with the law of the land under the Equality Act, rather than in line with prejudiced lobbying groups?
EU Exit Preparations: Ferry Contracts
Joanna Cherry Excerpts(5 years, 9 months ago)
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Chris Grayling
We did not receive legal advice saying, “Do not do this.” We received legal advice saying that there was a risk in taking the approach, and we judged collectively across the Government that it was a necessary risk to take in the national interest.
Chris Grayling
I am going to make a bit of progress, because I have given way many times.
Let me touch briefly on the issue of Seaborne Freight, which was raised exhaustively by the hon. Member for Kilmarnock and Loudoun, and on which I have answered question after question in the House. First, to be clear, the agreement with Eurotunnel was not about the contract with Seaborne Freight; it was about the procurement process, and particularly about the continuing contracts we have with Brittany Ferries and DFDS for additional ferry capacity into the UK, to provide us with resilience. I have spoken exhaustively in the House about Seaborne Freight. I am disappointed that the contract had to be terminated. I stand by the decision to give that company a chance, particularly since it was backed by Ireland’s biggest shipping firm at the time. We have, as a Government, paid no money at all to Seaborne.
The hon. Gentleman keeps asking me about spending money on due diligence. We spend money on due diligence for contracts that we do not award as well as for contracts that we do award, because rightly and properly in government due diligence is applied to a tender of any sort. That is what we did in this case, and what we do in all other situations. That, again, is the right thing to do.
So it is absolutely clear—I want to be absolutely clear—that when it comes to the Eurotunnel litigation, the settlement struck between the Government and Eurotunnel was separate to the issue of the Seaborne debate, and it was struck, I think, in a way that is designed to ensure that the taxpayer actually receives value through the addition of important facilities at the border that will smooth the flows.
Chris Grayling
It was a challenge to the procurement process, on which I said I took detailed legal advice at the time of procuring, which I and my accounting officer took into account when awarding these contracts. We expected that if a legal challenge were brought, any court determination would be brought well after Brexit and would not disrupt the process. All this, as the hon. Member for Kilmarnock and Loudoun will be aware, has already been looked at by the National Audit Office. We have invited it to take a further look, but I stand by the decisions that we took.
These decisions were not simply taken by me and by my Department; they were decisions taken collectively, in the national interest.
Joanna Cherry
Can the right hon. Gentleman confirm, just for the record, that not a single penny of the £33 million paid out to Eurotunnel will be returned in the event that there is a deal?
Chris Grayling
The deal that we have done is to pay for additional facilities at the border, to create a smoother flow at the border. That is something that we will benefit from at the borders.
Mr Speaker
Order. Look, I understand passions are high, but the hon. and learned Lady must not say that the Secretary of State is not telling the truth, because that—[Interruption.] Order. That is an imputation of dishonesty. The hon. and learned Lady may think that the Secretary of State is wrong, but I am afraid before the debate proceeds further she must withdraw that charge.
Mr Speaker
I say to the hon. and learned Lady that I am chairing this debate. The hon. and learned Lady will speak in full, or otherwise, if and when she catches the eye of the Chair. Thank you.
Andy McDonald (Middlesbrough) (Lab)
It is good to see the Transport Secretary finally in his place today, after I tried and failed to bring him to the House yesterday. Instead he sent the Health Secretary as his human shield, but that came as no surprise, considering how the Transport Secretary has made a habit of treating this House with disdain. Perhaps he will reflect upon that.
I thank the hon. Member for Kilmarnock and Loudoun (Alan Brown) for securing this debate. Understandably, the Health Secretary was not able to answer the questions put to him yesterday, so I am going to have another go at getting some answers out of the Transport Secretary, but I am not holding my breath. In the papers filed at court in the weeks before the case was due to be heard, the Government lawyers described Eurotunnel’s case as “embarrassing”. They were bullish and confident, yet in the early hours of the morning of 1 March a settlement was reached between the Government and the company. This sequence of events raises many still unanswered questions.
Joanna Cherry
Does the hon. Gentleman agree that there is at least an apparent conflict between the reported out-of-court settlement of £33 million and the Secretary of State’s claim that the £33 million is to pay for “improved security”, and that we ought to be trying to get to the bottom of whether that is accurate?
Andy McDonald
The hon. and learned Lady makes an important point on an issue to which I will be returning in a few minutes.
Andy McDonald
I am grateful for that clarification that it took a Cabinet Committee to make such a mess of things. Can the Secretary of State specifically say what is in this standard settlement—or are there other clauses within it? Ordinarily, when such cases are settled, they are done by reference to a consent order, in which there would be a paragraph dealing with the sum of money to be paid. In these circumstances, it may say “£33 million” and it may say the date upon which that sum is to be paid. It may also say that the costs are to follow the event. So we want to know the answers to those questions.
Joanna Cherry
Does the hon. Gentleman agree that it would be highly unusual in an out-of-court settlement for the party settling to stipulate how the party receiving the settlement would spend the money?
Andy McDonald
I absolutely agree with the hon. and learned Lady on that. Having been in practice for the thick end of 30 years, I have never entered into a settlement where the defendant has told me what I am going to spend the money on. That is absolutely ludicrous, so we need to know the answers.
Andy McDonald
The right hon. Gentleman says, “This is really poor” from a sedentary position, and I agree with him: this is really, really poor. It would be unacceptable at any time, but it is especially outrageous following the years of austerity and neglect that have left our towns and communities hollowed out and our public services in crisis.
Joanna Cherry
The hon. Gentleman is giving an excellent speech. Does he agree that if the SNP Government in Edinburgh or the Labour Government in Cardiff were guilty of this sort of profligacy with public money, we would never hear the end of it from Conservative Members?
Andy McDonald
The hon. and learned Lady is exactly right: it is one rule for the Tory party and another for everyone else. [Interruption.] No, it is not a funny issue. The right hon. and hon. Members on the Government Front Bench would condemn such waste, and with some justification; they really cannot complain when other people hold them to account for their continuous errors and wastefulness.
There are now 8 million working-age adults in poverty, while child poverty has grown to more than 4 million and rising; councils have had their funding slashed by half; violent crime is rising; and school budgets are seeing cuts for the first time in 20 years. In my constituency and many others throughout the country, there is appalling poverty and people are struggling. We are told that there is not the money to properly fund our schools, hospitals or social care services, yet the Prime Minister always finds the money to indulge the Secretary of State’s latest blunder. A further £1.9 billion has been spent on planning for a damaging no deal. For some, it seems, austerity is over. It is one rule for Tory Ministers and another rule for the rest of us. This cannot be allowed to continue. On behalf of the country, I implore the Secretary of State to resign.
Charlie Elphicke
I thank my hon. Friend for making exactly the point that I am coming to. I set out how we needed to invest to be ready on day one, deal or no deal; as I argued at the time, to get the best negotiation, we needed to be able to get up and walk away from the table. I also set out detailed legal reasons why we did not owe any of the divorce bill—another point that was important to our negotiation.
The Government as a whole—the Cabinet—decided not to spend money at that time. The Cabinet decided not to invest at that time. The Cabinet decided not to take forward contingency planning at a substantial level until after the Chequers discussions. To visit that on the Secretary of State would not be fair, right or proper.
Kevin Foster (Torbay) (Con)
Thank you for your guidance, Mr Speaker. I will of course observe that courtesy. I would not wish to prevent other Members from having the opportunity to contribute to this debate.
It is interesting to follow the hon. Member for Glasgow North West (Carol Monaghan), particularly given her interest in Coventry airport. As a former deputy leader of Coventry City Council, I know that one of the issues for that airport is that it is quite an underutilised resource since passenger flights from it were ended a couple of years back, when, sadly, the then Labour Government decided not to allow the airport permission for a terminal that would have allowed that service to become financially sustainable. Helpfully, there is quite a large resource there and an ability to develop it further. I hope that gives her some reassurances. Certainly, it is an airport that could contribute a lot more to our economy more generally. I will now focus my remarks more on Torbay.
There is a bit of a groundhog day feeling to this debate. Those who come here to tell us how dreadful no deal would be and to raise legitimate concerns about what that may mean for business and the economy, normally the next day pop back to complain about measures to mitigate no deal. There was always going to be a need to try to move with some urgency, particularly in relation to what the contract is actually about. We keep on talking about the ferries, but what we were actually talking about yesterday is the fact that this is about securing the supply of vital medicines into the UK if there is disruption at the border.
It is worth noting that there was not a contract just with Seaborne Freight; that is how it is regularly portrayed, for pretty obvious reasons. There are also contracts with DFDS and Brittany Ferries, which represent the majority of the capacity. Those contracts are still in place, even though the one with Seaborne Freight is not. As I said in my intervention on my hon. Friend the Member for Dover (Charlie Elphicke), whose speech I found quite informative and useful, this is about the balance of the debate. Let us be candid: if the Secretary of State had refused to take a decision to create additional capacity, we would probably be here debating the potential lack of capacity for medicines to be transported into this country in a no-deal scenario. Instead, we are debating whether the legal risk was the right one to take. That is ultimately the nub of this debate.
In any scenario, we cannot say 100% exactly what the legal risk will be. No one presenting a legal case to court, particularly with any move towards reaching an out-of-court settlement, is going to start with the gambit, “We think we’re done—now we’re going to come here and negotiate.” That would clearly be an absolutely ludicrous position to adopt at the start of any discussions. I have taken part in such discussions myself. Both sides are always going to start with the fact that they feel their case is strong. We would be surprised if Eurotunnel walked in the door having decided that its case was not.
Joanna Cherry
Has the hon. Gentleman, like myself and the official Opposition spokesman, ever come across a commercial case where the settler stipulates how the settlee must spend the money? That is simply unheard of. Will he contradict that?
Kevin Foster
I thank the hon. and learned Lady for her intervention, which gives me an opportunity to confirm that this is not about £33 million going straight into Eurotunnel shareholders’ pockets—it is about spending it on specified outcomes. I am perfectly content to see what the settlement is being used for.
Joanna Cherry (Edinburgh South West) (SNP)
I am grateful to be able to speak in this debate. I want to start by dealing with the red herring we frequently hear from Conservative Members that this debate is about impugning the Government’s responsibility to prepare for a no-deal Brexit. It is not about that. It is about their ability to make those preparations competently and without squandering taxpayers’ money.
Of course, the Government have to prepare for no deal because they are insistent on keeping no deal on the table, and last week they voted against the SNP amendment that would have taken it off the table. As some Conservative Members have generously accepted, no deal could be taken off the table by a number of routes, including an extension of article 50 or the option of revoking it—the lifeline thrown to the British Government by a number of Scottish politicians, including myself. In that respect, I declare an interest, with the backing of the Good Law Project.
Let us get that red herring off the table. This is not about the Opposition querying whether the Government should prepare for a no-deal or Brexit. This is about the Opposition doing their job and holding the Government to account for making those preparations in a shambolic, chaotic fashion that is wasteful of public money.
Last week, the Government settled out of court litigation brought against them by Eurotunnel for the legal reasons laid out by the hon. Member for Nottingham South (Lilian Greenwood). They paid more than £33 million to buy off the risk of losing the action and having to pay more, and the action was brought because they had failed to put three contracts—not just Seaborne Freight, so far as I am aware, but all three contracts—out to competitive tender. That £33 million was in lieu of a larger sum that would have had to be paid out in damages if the court case had gone ahead and the Government had lost.
That is why I, as a lawyer, am so puzzled by the insistence of the Secretary of State for Transport and the Secretary of State for Health that this £33 million will somehow pay for increased security at the ports. In my long experience of 30 years—20-odd years at the Bar and a number of years as a solicitor—I have never heard of such a stipulation in an out-of-court settlement in this type of case. That is why I was so puzzled, and perhaps expressed my puzzlement in terms that were unparliamentary.
I want to know. The Under-Secretary of State for Transport, the hon. Member for Harrogate and Knaresborough (Andrew Jones), is looking at his phone and is not interested in what SNP Members have to say, as usual, but this is not going to go away because I am going to pursue it with Eurotunnel and others. I want to know—[Interruption.] Well, perhaps he could just listen and be quiet while he is listening. I want to know whether Eurotunnel—
Sir Peter Bottomley (Worthing West) (Con)
On a point of order, Mr Speaker. Is it customary for the Member who is speaking to provoke a Minister into looking at her directly and then to say that he is somehow interrupting her. It seems to me it would be far better if the hon. and learned Lady went on addressing the Chair and left the Minister to listen, like the rest of us.
Mr Speaker
The hon. Gentleman has his own interpretation of the chronology of events, which those attending to observe our proceedings can make a judgment about for themselves, and that is one point of view. If I may say so, there is another point of view, which is that the hon. and learned Lady was somewhat disquieted, not to say mildly irritated, by the junior Minister’s evident fascination with the contents of his electronic device. It might be thought courteous not to be focusing intently on the said contents when a Member is addressing the House. I hope the hon. Gentleman will not take offence when I say that he is in the end a very loyal sort of person, and it is not terribly surprising that he should spring to the defence of his ministerial colleague and fellow parliamentarian. It was very gracious of him and a nice try.
Joanna Cherry
It may have been a nice try, but I am not going to leave this one alone. I want to know how much of that £33 million will be repaid in the event of there being a deal. I think I know the answer: it will be nil. I want to know whether there was any legal agreement that any amount of that £33 million was to be spent on improved security, and if so, to what extent. I will not be leaving those issues alone either today or in the future.
I was the first person, to my knowledge, to raise this issue on the Floor of the House or in Committee earlier this year. When I got hold of a copy of the contract with Seaborne Freight, which was readily available on the internet, I, like any lawyer worth their salt, looked up the public contracts regulations and realised that it looked very much as though the Government had avoided the competitive tendering process that they are bound to carry out under law.
That is why I raised this issue with the Secretary of State for Exiting the European Union in the Chamber on 7 January. I am going to go through the chronology because I want to make the point that I have raised at least half a dozen times the question of what was the urgent or unforeseeable event that justified there not being a competitive tender, and that on no occasion have I received the answer that has been given today by the Secretary of State for Transport that it was to do with a decision taken collectively by the Government last autumn to improve the supply of medicines in the event of a no-deal Brexit. The very first time I heard such an explanation was on the television at the weekend, when the Secretary of State for Health used it, and he of course used it again yesterday. However, it is very odd—again, this informs my puzzlement and frustration earlier this afternoon—that we have never heard that explanation before.
Let me go through the chronology. On 7 January in this Chamber, I asked the Secretary of State for Exiting the European Union why the contract with Seaborne Freight had proceeded under the negotiated procurement procedure without prior publication—that is to say, not competitively—because it seems to me that it must have been foreseeable for quite a long time that there might be a no-deal situation and it was therefore hard to say that no deal had come out of the blue and was urgent or unforeseeable. I received the usual non-answer from the Secretary of State. I will not bore hon. Members with the contents of the answer—they can look it up in Hansard—but there is nothing about a requirement to prepare for the urgent supply of medicine and, indeed, no kind of explanation at all.
The following day, 8 January, I raised the same point with the Secretary of State for Transport on the Floor of the House. I said I was concerned about the legality of the procurement process, that I had a copy of the contract notice and that, as my hon. Friend the Member for Kilmarnock and Loudoun (Alan Brown) reminded the House earlier that day, no deal has always been a possibility because the Prime Minister said right at the beginning that no deal is better than a bad deal. I asked the Secretary of State what the urgency was and whether the Government had set aside any funds in the event of legal action. I got a non-answer, other than to say it was a “matter of extreme urgency”, and there was no reference to the supply of medicine.
The following day, 9 January, I raised the matter in some detail with the Under-Secretary of State for Exiting the European Union, the hon. Member for Daventry (Chris Heaton-Harris), at a question and answer session before the Exiting the European Union Committee. I am proud to say that the segment where I questioned him went viral on the internet. I asked him a number of times to tell the Committee what the urgent and unforeseeable event was that justified these contracts not going out to competitive tender, and he was unable to tell me.
If the explanation that it had been a collective decision by the UK Government to put these contracts out non-competitively to secure the supply of medicines, I would have expected the Minister in charge of no-deal planning at the Department for Exiting the European Union to know that. The fact that he did not know and, under sustained questioning, did not mention it does raise a suspicion in my mind that it is an explanation that has been invented after the fact, rather than an explanation that has always been the case.
Joanna Cherry
I will finish the chronology, and then I will give way.
That was on 9 January. Later, I put in a written question:
“To ask the Secretary of State for Transport, what unforeseeable events led his Department to award contracts for additional shipping freight capacity under Regulation 32 of The Public Contracts Regulations 2015.”
I received the reply:
“A negotiated procurement procedure without prior publication was concluded…to ensure that capacity can be in place in time for a No Deal exit whilst at the same time securing value for money for the taxpayer.”
There was no mention of the need to secure the urgent supply of medicines in the event of no deal, but there was a mention of value for money for taxpayers. Do the Government still think they have provided value for money for taxpayers, given what we have heard this afternoon? I very much doubt it.
On 31 January, I asked the Attorney General about this matter. I asked him whether he was concerned that the Government could face legal action in respect of their failure to put these contracts out to competitive tender, whether he had been asked to advise on the matter and whether any money had been put aside for the contingency of such court action. He fell back on the Law Officers’ convention not to answer that question, but he certainly did not mention that the reason why these contracts had been awarded as a matter of urgency and non-competitively was the need to secure the supply of medicines.
On 11 February, I raised this matter with the Secretary of State for Transport. I asked:
“Will he state clearly for the record, as I have asked this question of him and other Ministers five times now: what were the reasons of extreme urgency and the unforeseeable events that justified his Department proceeding without competitive tendering”?
He said it was
“a change to the assumptions on the levels and length of disruption that might arise in a no-deal Brexit scenario.”—[Official Report, 11 February 2019; Vol. 654, c. 624.]
Perhaps the junior Minister could take a note that I want to know from the Secretary of State for Transport why he said on 11 February that the explanation was a change to the assumptions on the levels and length of disruption that might arise, and why he is now saying that it was a decision back in the autumn to secure the supply of medicines in the event of no deal.
Joanna Cherry
I will finish the chronology, and then I will give way.
Finally, I raised the point again on 14 February with the Secretary of State for Transport, asking him what he meant by a “change in the assumptions”. I asked:
“Would he care to elaborate on exactly what he meant by that? Does he think that that defence will stand up in court?”
Those were my exact words. He said:
“I recall explaining on Monday precisely what the circumstances were, and I do not want to detain the House any longer by repeating an answer that I gave to the hon. and learned Lady three days ago.”—[Official Report, 14 February 2019; Vol. 654, c. 1038.]
Again, he had an opportunity to say that the explanation was a requirement to secure the urgent supply of medicines in the event of a no-deal Brexit, but he did not. In fact, he told me that he had already told me precisely what the circumstances were, three days before, when he referred to a change in assumptions and said nothing about medicine.
I am going to give way to the hon. Member for Dover (Charlie Elphicke) in a moment, but the point I am making is that this is just an example of the number of times that I have pursued this question. I know that other hon. Members have done so, too, particularly my hon. Friends the Members for Kilmarnock and Loudoun and for Glasgow North West (Carol Monaghan). They have pursued in some detail their concerns about the supply of medicines after a no-deal Brexit, and never has anyone said to them, “Don’t worry, we so are concerned about this that we have risked breaking the law on competitive tendering to sort it all out.” That is why I am highly sceptical.
Charlie Elphicke
I thank the hon. and learned Lady for giving way, and I have been listening carefully to her submissions. The question of purpose is dealt with in the National Audit Office report, which states that the decision was meant
“to prioritise the flow of critical goods into the UK”.
Specifically, the report says that in September and October 2018, the intention was to
“‘ensure that capacity and flexibility exists for government to prioritise the flow’ of certain…goods”.
In November 2018, the Department’s business case was
“to ensure that capacity and flexibility exist for government to enable the prioritisation of…certain goods”.
It seems to me that critical goods were always in the mind of the Department, so I am not sure that her submissions to the House are borne out.
Joanna Cherry
I am grateful to the hon. Gentleman for that, because he actually reinforces the point that I sought to make. The National Audit Office has that information, and the House of Commons has had it today and yesterday, but my point is that on repeated occasions when I asked a number of Ministers from different Departments what the explanation was for this urgent need to tender non-competitively, not once did any of them mention what we are told was a collective decision to do it for a particular purpose. I therefore question whether that explanation has been invented after the fact.
Andy McDonald
The hon. and learned Lady is doing a brilliant job of exposing the facade that has been put up to excuse this reprehensible behaviour, but is the bottom line not that the Government knew that they were in breach of their own procurement rules and that Eurotunnel was going to win? That is why they settled the case.
Joanna Cherry
That is the bottom line. The hon. Gentleman is absolutely right.
I am going to draw to a conclusion, because I know that others want to speak. The history of this whole event, which the Government now say that they all knew about as it was a collective decision, has been one of evasion and obfuscation. I and others are left with the inevitable conclusion that they are trying to cover up a monumental error of staggering negligence in their preparations for a no-deal Brexit, which is costing the British taxpayer a lot of money. I would like to point out that Scottish taxpayers did not even vote for all this nonsense in the first place, and their representatives in this House have, apart from the Scottish Tories, done their best to try to get a no-deal Brexit off the table.
I came to the House this afternoon planning to ask for the resignation of the Secretary of State for Transport. That has been asked for by others already. But now that we know that this was a collective decision and that the Government are taking collective responsibility for it, let me say that in any normal, healthy and functioning democracy this scandal would bring the Government down.
Oral Answers to Questions
Joanna Cherry Excerpts(5 years, 10 months ago)
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Jesse Norman
That sounds like a local transport matter, but I am of course happy to meet my hon. Friend and any local councillors whom he may wish to bring.
Joanna Cherry (Edinburgh South West) (SNP)
On Monday, the Secretary of State justified the non-competitive tendering process for Seaborne Freight by referring to a “change in the assumptions”. Would he care to elaborate on exactly what he meant by that? Does he think that that defence will stand up in court?
Chris Grayling
I recall explaining on Monday precisely what the circumstances were, and I do not want to detain the House any longer by repeating an answer that I gave to the hon. and learned Lady three days ago.
Seaborne Freight
Joanna Cherry Excerpts(5 years, 10 months ago)
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Chris Grayling
I am grateful to my hon. Friend; it has been good to see Members from around Plymouth welcoming the extra traffic that would flow through Plymouth as a result of these contracts. I should also take the opportunity to provide a message of reassurance to Hampshire, where we have done extensive work around the port of Portsmouth in respect of just a couple of extra sailings a day. Let me put it clearly on the record that there is no expectation of major road disruption affecting the surrounding areas of either Plymouth or Portsmouth.
Joanna Cherry (Edinburgh South West) (SNP)
The UK Government have been aware of the possibility of a no-deal Brexit since article 50 was triggered in March 2017, so can the Secretary of State tell us why this contract, which was awarded only at the end of December 2018, proceeded under regulation 32 of the Public Contracts Regulations 2015 without competitive tendering? Will he state clearly for the record, as I have asked this question of him and other Ministers five times now: what were the reasons of extreme urgency and the unforesee- able events that justified his Department proceeding without competitive tendering under regulation 32?
Chris Grayling
The hon. and learned Lady was not listening a moment ago when I answered that very same question from the Chair of the Select Committee. I said that the thing that prompted the move was a change to the assumptions on the levels and length of disruption that might arise in a no-deal Brexit scenario.
Seaborne Freight
Joanna Cherry Excerpts(5 years, 11 months ago)
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Chris Grayling
I absolutely agree. Of course, if we find ourselves in a no-deal scenario, a number of other ports, including Tilbury, will play a part. I hope we do not reach that point, and I think we all agree that we want a sensible free trade agreement with the European Union after 29 March, but the reality is that we need to make sure we are prepared for all eventualities. In such a situation, many of our ports up the east coast and along the south coast will play an important part in making sure that trade flows freely.
Joanna Cherry (Edinburgh South West) (SNP)
I am very concerned about the legality of this procurement process. In his statement yesterday, the Secretary of State said that he had proceeded under regulation 32 of the Public Contracts Regulations 2015, which allows the Government to circumvent the normal, transparent and EU-mandated procedures. I have a copy of the contract notice here, which is freely available on the internet, and it says that the basis for proceeding under regulation 32 is “extreme urgency.” As my hon. Friend the Member for Kilmarnock and Loudoun (Alan Brown) said, the idea that no deal is a possibility and, to quote the Prime Minister, that no deal is better than a bad deal has been around for some time, so how can the Government, at this late stage, justify proceeding with procurement that is appropriate only in the case of extreme urgency?
I have two questions for the Secretary of State and, just for once, my constituents would like to hear an answer. First, will he release the legal advice that permitted him to proceed under regulation 32? Secondly, as he will be aware, if he has proceeded wrongly under regulation 32, his Department and the Government are open to legal action. How much money has been set aside for the contingency of court action about the illegality of the procurement process and a claim for damages?
Chris Grayling
It is my view that, as we move towards leaving the European Union, preparing for all eventualities is a matter of extreme urgency, which is also the advice that my Department has received and has given to me.