National Insurance Contributions (Termination Awards and Sporting Testimonials) Bill

Lord Young of Cookham Excerpts

3rd reading (Hansard): House of Lords
Tuesday 23rd July 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that her Majesty, having been informed of the purpose of the National Insurance Contributions (Termination Awards and Sporting Testimonials) Bill, has consented to place her interest, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill passed.

Housing: Permitted Development Rights

Lord Young of Cookham Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Baroness Thornhill (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a vice-president of the Local Government Association.

[Lord Young of Cookham (Con)]

My Lords, all homes created through permitted development rights for change of use are required to comply with building regulations, including in respect of fire safety. We announced in a Written Ministerial Statement on 13 March our intention to review permitted development rights for the conversion of buildings to residential use in respect of the quality standard of homes delivered. This will inform any future decisions on permitted development rights for change to residential use.

[Baroness Thornhill]

I thank the Minister for that Answer, but building regulations are not quite the same thing as standards. Does he agree with Watford Borough Council in this instance that, with a total floor space of 16.5 square metres and containing no windows, these do not constitute homes in 21st-century Britain? As for the welcome review, the spring is quite a long way off. Can the Minister indicate how quickly changes will come into place and whether he can inject a little urgency into the process? Does he also acknowledge that these controversial permitted development rights have damaged relationships with an already anti-development public, who were quite incredulous that such standards were permitted without planning permission?

[Lord Young of Cookham]

On the case concerning Watford which the noble Baroness mentioned, the borough council may appeal against the planning inspector’s decision within the next few days, so she will understand if I put that to one side. I make two general points: first, I hope all noble Lords will agree that, if you have redundant office or industrial buildings in an area where there is a severe shortage of residential accommodation, it makes sense to convert the one to the other. That is why the coalition Government in 2013 issued the permitted development order, which said that if you have planning permission for an office, you have planning permission for residential. That policy has produced 46,000 new homes, the vast majority of which are of good quality. Secondly—here, I agree with the point the noble Baroness made in a debate last week and which the noble Lord, Lord Best, raised yesterday—there have been some very unsatisfactory applications of that policy and some homes of very poor quality have come on to the market. That is why we have announced the review. We want to learn from Watford. The review is scheduled to complete by the end of the year. I take what she says about urgency: we want the policy to produce properties of a decent quality.

[Lord Bird (CB)]

My Lords, can the Government not take this wonderful opportunity to praise the borough of Watford for not slipping us back to the 1940s and 1950s, when many of our poorest people lived in appalling conditions?

[Lord Young of Cookham]

I hope the noble Lord will understand if I do not praise the London borough of Watford, as it may be about to take the Government to court—that might get me into difficulty. However, I agree with the thrust of what he said. It is worth reminding the House that the Prime Minister said last month that,

“I believe the next government should be bold enough to ensure the Nationally Described Space Standard applies to all new homes”.

I agree with that.

[Lord Cunningham of Felling (Lab)]

My Lords, would it not be illegal to keep animals in these circumstances, let alone human beings? What advice has been given to planning inspectors about such proposed developments? It seems astonishing to anyone who has worked in local government, as the noble Baroness and others in this House have, that these permissions are being given by planning inspectors.

[Lord Young of Cookham]

Again, that is subject to the case, which may come before the courts, as to whether what was applied for in Watford constituted a dwelling house. That is the issue that may well be tested. I refer the noble Lord to the Homes (Fitness for Human Habitation) Act 2018 that comes into effect in March next year, which gives tenants additional rights if they believe their property is not fit for human habitation.

[Lord Watts (Lab)]

Although the Government are right to conduct a review, surely it is not impossible to introduce changes to the present system so that all buildings must have windows and natural light?

[Lord Young of Cookham]

At the moment, building regulations do not require that, and that is one of the issues the review will look at. At the moment, there are no requirements for a property to have windows, natural light or minimum space standards. That is why we are reviewing the position, and the noble Lord is quite right to make that point.

[Baroness Brinton (LD)]

My Lords, may I very gently correct the Minister? He said, “the London borough of Watford”, but the Borough of Watford is not in London; it proudly sits in Hertfordshire. The planning inspector says very clearly that he is constrained by the GPDO 2015 rules. He says he recognises that,

“living without a window would not be a positive living environment”.

When planning inspectors are so constrained, surely it is time urgently to review these planning regulations? They are clearly not fit for purpose. Can the Minister come back to the House as soon as possible with a revised review date?

[Lord Young of Cookham]

This Minister may not be in a place to come back to the House, but I take the noble Baroness’s point. There is clearly strong feeling in your Lordships’ House that the current position is wholly unsatisfactory. We are reviewing it and I take the point about urgency that all noble Lords have impressed on me; we will come back the moment we have some progress to report. I take on board what noble Lords have said: that people should not be required to live in properties of the kind described by the noble Lord, Lord Cunningham.

Freedom of Information Act 2000

Lord Young of Cookham Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I begin by thanking the noble Lord, Lord McNally, for securing this debate and for the speech he made introducing it. This is a policy area in which he has great expertise, and it comes as no surprise that, in his own words, he is campaigning for further reform and updating of the original FoI Act. I am grateful to other noble Lords who have spoken, each bringing their own interests to the debate: in the case of the noble Lord, Lord Shipley, local government and housing; in the case of the noble Lord, Lord Scriven, tourism in Yorkshire; and in the case of the noble Lord, Lord Tunnicliffe, his experience of managing contracts when he was in charge of London Underground. I take note of and encouragement from what the noble Lord, Lord McNally, said at the beginning—that he has very low expectations for my response and that his speech was a bit too PBL Committee for a slot in the next Queen’s Speech. He made it clear that he was not expecting any exciting announcements at the Dispatch Box and he will not be disappointed.

The FoI Act is a pillar upon which open government operates, and the Government are committed to supporting its effective operation. As the noble Lord said, it underwent post-legislative scrutiny by the Justice Select Committee in 2012, and in 2016 an independent FoI commission, which the noble Lord referred to, led by the noble Lord, Lord, Lord Burns, carried out an extensive and thorough review of the Act to consider whether it still ensured an appropriate balance between transparency on the one hand and the legitimate need for a private space for advice and discussion on the other, and also whether the costs of FoI were proportionate to its many benefits.

Overall, the commission found the Freedom of Information Act to be working well. It said:

“We do not expect that these will have a dramatic impact on the use of the Act, or on the range of information which is made available under it”.


It looked at the issue of private contractors providing public services—one of the themes of our debate this evening. By then, the principle of outsourcing was well embedded in government policy. It concluded that,

“extending the Act directly to private companies … would be burdensome and unnecessary”.

The Government welcomed the recent report— a landmark report, in the words of the noble Lord, Lord McNally—by the Information Commission and of course it is right that the Information Commissioner and the Government keep the workings of the Act under review because, as the noble Lord said, the environment in which we operate is changing. The Act covers more than 100,000 public authorities and has been in operation for more than 14 years, so of course we should keep it under review.

As the noble Lord, Lord McNally, said, the Information Commissioner laid a report before Parliament in January this year which examined how the Act engages with public sector contracts and information held in relation to those contracts by private companies. The Government carefully considered the report and responded to the commissioner on 24 May and placed a copy in the Libraries of both Houses. I note what the noble Lord, Lord McNally, said about his disappointment with our response. The noble Lord quoted from the letter from Chloe Smith. Perhaps I may have one quote of my own. The Minister made it clear that,

“as more public services are contracted out to the public sector, it is important that they are delivered in a transparent way, to ensure accountability to the user and to taxpayers”.

After the Information Commissioner published her report, we published The Outsourcing Playbook in February 2019. It introduced a package of measures that will improve decision-making, quality of service and value for money when government outsources to the private sector. One commitment was to increase accountability and transparency by publishing key performance indicators for all government key contracts. Although this government initiative was started before the IC presented her report to Parliament, it reflects the commitment that she asked for of further transparency from government with regard to contractors. I hope that noble Lords will regard that, in part, as a response to the accusation that the Act is not fit for purpose.

In addition, the Cabinet Office has created a transparency and data team, which has been given the mandate to proactively publish government data. It is continually looking at how the range of information published by government can be expanded and made as useful as possible to citizens, business, the voluntary sector and government itself. The open contracting data standard was put into place in 2016 and ensures that citizens can see a clear public record of how government money is spent. We are looking for opportunities to build on this initiative.

I think that FoI is working well but it seems that it is essentially reactive. The Government are interested in complementing FoI by encouraging public authorities, where appropriate, to put more information in the public domain and therefore to be proactive.

Outsourcing was one of the themes of our debate. It remains an important component in a mixed economy of government service provision, which includes the voluntary sector. Outsourcing has been used by Governments and local authorities of all colours for decades, and systematic reviews across a number of studies between the 1970s and the 1990s show clear cost benefits of outsourcing, delivering cost savings of 20% for basic services. The Government are committed to building a healthy and diverse marketplace of companies bidding for contracts to deliver quality public services at good value for the taxpayer. As the noble Lord, Lord McNally, said, estimates are that outsourced services represent about 8% of GDP and perhaps two-fifths of public expenditure.

We remain committed to spending £1 in every £3 of that sum with small and medium-sized enterprises. Listening to the speech of the noble Lord, Lord Tunnicliffe, I am concerned that increasing the reporting burden on these small organisations, as well as some of the other measures that he mentioned at the end of his speech, risks reducing for those SMEs the attractiveness of government as a buyer and therefore might weaken the resilience of our market and reduce the value for money that government is able to deliver.

Supplier failure—again, mentioned by the noble Lord, Lord Tunnicliffe—is rare, but extending FoI to the organisations would not, I believe, help prevent it. Financial information is often commercially confidential and is therefore exempt from disclosure under the Act.

Much of the debate was about information which should be provided when a public authority enters into a contract. There is a revised FoI code of practice, which recommends that when a public authority enters into a contract, there should be agreement on what information will be held by the contractor on behalf of the public authority and that this should be indicated in an annexe or schedule to the contract. Contractors must comply with requests from a public authority for access to such information and must do so in a timely manner. For example, if a contractor holds information relating to a contract on behalf of a public authority, this information must be considered in the same way as information held by a public authority, and it is subject to the FoIA. Examples could include information that a public authority has placed in the custody of a contractor or a contract that stipulates that certain information about service delivery is held on behalf of the public authority for FoI purposes.

The noble Lord, Lord Tunnicliffe, raised a number of questions and perhaps I may write to him. He asked specifically why we were continuing to place a number of contracts with organisations in the private sector.

Housing associations—an issue raised by the noble Lord, Lord Shipley—are already required to make public a significant amount of information. They have to publish their accounts annually, including a strategic report covering issues such as the remuneration of key personnel. Of course, many housing associations have tenants on the board.

The Regulator of Social Housing, which regulates the sector, also publishes information supplied by housing associations at individual provider level, including details of their stock holdings, rent levels and evictions. The review of social housing regulation will be looking at how transparency and accountability for tenants can be further improved, including better access to landlord information. As I understand it, although this would not be a conclusive factor, housing associations are generally opposed to being included under the FoI Act.

The noble Lord mentioned Grenfell. I recognise the significant concerns in this area, particularly over information that should be available to tenants about the buildings they are living in. The review of social housing regulation, announced in the Government’s social housing Green Paper last summer, will look at how transparency and accountability for tenants can be improved. I will ensure that this review takes on board the points made by the noble Lord, Lord Shipley, about the legitimate requirements of tenants. I was struck by the parallels he drew between the rights of local authority tenants as contrasted with the rights of housing association tenants.

I turn to an issue raised by the noble Lord, Lord Scriven. I thought that his noble friend Lord Lee of Trafford raised a pertinent question about what those who are funding the body were doing. It was not clear to me how the public body—which I understand it was, namely the Yorkshire tourist board—became a private body, and who was party to that decision. Of course, I understand his concern about allegations of fraud. My understanding is that, following the allegations he referred to, Welcome to Yorkshire appointed two independent professional services businesses—the accountants BDO and the external lawyers Clarion, which the noble Lord referred to in his speech—to undertake separate investigations following the departure of the CEO, Sir Gary Verity. They investigated and recently reported on the culture, governance, procedures and management of the organisation. I am sure that the noble Lord welcomed that publication, along with Welcome to Yorkshire’s commitment to implement the recommendations in the report. I understand that more than £40,000 of expense claims have been repaid by Sir Gary. However, despite a number of exchanges, it is not the case at the moment that FoI would cover organisations of the specific nature of the current body.

There are a number of other issues that I will need to write to noble Lords about. I will conclude by saying that the Government are committed to the principles of transparency and openness across the public sector. We are proud of our global reputation as a leader on transparency. The Justice Select Committee said that freedom of information was a significant enhancement to our democracy when it carried out post-legislative scrutiny of the FoI Act. I would go further. Freedom of information is an intrinsic part of our democracy, extending to cover more than 100,000 public bodies and enabling the public to find out what has been done in their name. Those words are probably the last from Prime Minister May’s Administration from this Dispatch Box in your Lordships’ House.

Extension of Franchise (House of Lords) Bill [HL]

Lord Young of Cookham Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I thank my noble friend Lord Naseby for re-introducing a measure of constitutional importance to noble Lords, even if, as we have heard, it does not cause a great deal of excitement outside this place. My noble friend and I go back a long way, having been elected to another place on the same day in 1974. My majority that year was 808—by comparison a huge increase on his own. He has consistently taken an interest in constitutional issues, not least, as he reminded us, in his capacity as Chairman of Ways and Means in another place, and which he has maintained since his elevation to your Lordships’ House in 1997.

My noble friend has been around long enough to know that the more lavish the praise a Minister heaps on the mover of a Private Member’s Bill, the less likely he is to support it. He will also know that the life expectancy of a Private Member’s Bill introduced at this stage of a parliamentary Session is poor. None the less, the measure is to be taken seriously, as indicated by the number of noble Lords who have spoken in the debate. I am grateful for their contributions.

As my noble friend pointed out, Peers who are Members of this place are not entitled to vote at general elections, along with other minority groups such as prisoners, as my noble friend Lord Norton of Louth reminded us. The long-standing rationale is that Peers who are also Members are already able to represent themselves in Parliament and therefore do not require separate representation by a Member of Parliament, unlike members of the general public. My noble friend Lord Norton made that point in his excellent speech: we have an ability to scrutinise legislation that is simply not available to others. The noble Lord, Lord Desai, described this as a price we pay. One could also regard it as a consequence of a privilege; maybe that is the sort of language that the noble Lord, Lord Dubs, would prefer.

The argument put forward by my noble friend Lord Norton seems sound, so I have reservations about my noble friend Lord Naseby’s proposal to change the current legal incapacity that prevents Peers who are Members of this place voting in general elections. If we ask for a say on who sits in another place, MPs might want a say on who sits here. I say to my noble friend Lord Sherbourne that I am not against piecemeal reform. Indeed, I am in favour of it—I took through the other place the Bill on the expulsion of Peers—but only if I believe it makes sense.

The principle that Peers could not vote in general elections clearly has a long history, dating back as far as 1699. The 1699 Commons Journal, volume 13, stated at column 64:

“Resolved, Nemine contradicente, That no Peer of this Kingdom hath any Right to give his Vote”—


“his” vote—

“in the Election for any Member to serve in Parliament”.

This principle has been upheld for the following 320 years and is premised on the fact that Peers are already able to represent themselves in Parliament, unlike members of the general public.

The bar has long been established within the common law. The courts have conclusively decided that Peers have no right to vote or to be entered upon the register of electors in a series of cases, including Earl Beauchamp v Overseers of Madresfield, and Marquess of Salisbury v Overseers of South Mimms 1872. In these related cases, Earl Beauchamp and the Marquess of Salisbury challenged being taken off the electoral register in their respective counties. The judgment that followed ruled that a Peer of Parliament was incapacitated from voting at an election for a Member of the House of Commons and was therefore not entitled to be placed on the register of voters.

Considering the long-standing rationale for your Lordships’ voting rights, I would therefore have hoped that my noble friend Lord Naseby would agree with the statement of Lord Campbell, as Lord Chief Justice in 1858, that by,

“an ancient, immemorial law of England … Peers sat in their own right in their own House, and had no privilege whatsoever to vote for Members to sit in the other House of Parliament”.—[Official Report, 5/7/1858; col. 928.]

My noble friend referred to the legislation as being archaic, but as recently as 1999, Section 3 of the House of Lords Act explicitly enfranchised hereditary Peers who were not Members and disfranchised Peers who were. It says:

“The holder of a hereditary peerage shall not be disqualified by virtue of that peerage for … voting at elections to the House of Commons, or … being elected as, a member of that House”,


but that:

“Subsection (1) shall not apply in relation to anyone excepted from section 1 by virtue of section 2”,


which is those Peers who remained.

However, as the noble Lord, Lord Desai, mentioned, the House of Lords Reform Act 2014 has allowed for the retirement and expulsion of Peers. Under this legislation, those Peers who give up or are disqualified from their seats in the House of Lords are no longer regarded as Members of your Lordships’ House and are unable to return. As such, they regain their right to vote in general elections, or indeed to stand for election. The bar applies only to Peers who are Members of this place.

In 2011, the Joint Committee on Human Rights wrote to the Government, questioning whether the disqualification of Peers who are Members of the House of Lords from voting in general elections is compatible with the right to participate in free and fair elections under Article 3 of Protocol 1 of the ECHR. The then Deputy Prime Minister, Nick Clegg, responded to confirm its compatibility, explaining that the right is not absolute and limitations may be imposed on it, and the fact that Members of your Lordships’ House have a voice in Parliament makes these arrangements legitimate. The then Deputy Prime Minister confirmed that the Government had no plans at that time to review the issue, confirming the position taken by the previous Labour Government.

The noble Lord, Lord Rennard, used this opportunity to raise the case for Lords reform, voting reform and other issues. As the noble and learned Lord, Lord Brown, pointed out—in a seven-minute speech this time—that is a debate for another time.

Peers who are Members of your Lordships’ House can, of course, vote where appropriate in elections to the devolved Parliaments and Assemblies, local government elections, police and crime commissioner elections, and in national and local referendums.

I will deal with one or two points raised. The noble and learned Lord, Lord Brown, raised an issue concerning the noble and learned Baroness, Lady Hale. Supreme Court judges appointed since 2009 are not Members of the House of Lords and therefore can vote. The noble and learned Baroness, Lady Hale, joined the House of Lords in 2004 and served as a Law Lord until 2009, when, along with other Law Lords, she transferred to the Supreme Court. On retirement, she will return to the House of Lords, of which she is already a Member, and continue to be unable to vote.

I agreed with the point made by the noble Baroness, Lady Sherlock, and others that there are other issues we could discuss. I will come on to that in a moment, once I have responded to my noble friend Lord Sherbourne. I am afraid I disagree with the point he made about taxation and representation. Taxation is quite rightly not connected to democratic representation in the UK. An American or Japanese citizen of voting age who works and pays taxes in the UK does not have the right to vote in parliamentary elections, and a citizen of voting age who is not a Member of the House of Lords but who pays no income tax retains the right to vote. There is not a direct connection.

In response to the issues raised by the noble Baroness, there is more to be done to encourage those who are entitled to vote to vote. We have youth engagement projects and National Democracy Week; we are supporting disabled people to stand for office; we are making changes to anonymous registration; we are making it easier for disabled people to register to vote and to stand for election; and we are reducing barriers to registration.

I look forward to 5 September—by which time I hope that the noble Baroness, Lady Hayter, may be in a position to continue to represent the Opposition Front Bench on these issues—when there will be an opportunity for further discussion on the Bill introduced by the noble Lord, Lord Grocott.

In conclusion, I recognise my noble friend’s dedication to this cause. This is not the first time he has endeavoured to introduce these measures. In March 2015, he asked a Question in your Lordships’ House on Peers’ exclusion from voting in general elections. The noble Lord, Lord Wallace of Saltaire, replied:

“My Lords, the Government have no plans to review in this Parliament the long-established legal incapacity that prevents Peers who are Members of the House of Lords voting in a general election”.—[Official Report, 23/3/15; col. 1224.]


That was the position of the Liberal Democrats at that point; I note that it has now changed. However, the position of this Government has not changed.

In our democracy everyone should have a voice, but I would argue that noble Lords have that by virtue of participation in this Chamber. It is a respected voice, which adds depth and wisdom to our legislative process, and allows us full participation in the life of the nation. My noble friend’s Bill may clear its hurdle today but I doubt it is going to complete the course.

EEA Nationals (Indefinite Leave to Remain) Bill [HL]

Lord Young of Cookham Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

[Lord Young of Cookham (Con)]

If my noble friend looks at the list, he will find that we were hoping to hear from the noble Viscount, Lord Waverley.

[Earl Attlee]

My Lords, I have made this mistake before, many years ago—probably about 24 years ago. So I think we should hear from the noble Viscount first.

Detainee Issues

Lord Young of Cookham Excerpts

Thursday 18th July 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, with the leave of the House, I will repeat a Statement made earlier today in another place by my right honourable friend the Chancellor of the Duchy of Lancaster. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement on the Government’s approach to the detention and rendition of detainees overseas. Our policy on this issue remains clear: the Government do not participate in, solicit, encourage or condone the use of torture or of cruel, inhuman or degrading treatment for any purpose. To do so would not only be wrong, and incompatible with the United Kingdom’s commitments under international conventions—such as the UN convention against torture and other cruel, inhuman or degrading treatment, to which this country is a signatory—but would be a betrayal of everything that we stand for as a nation in terms of our promotion of human rights and the protection of human dignity.

There is already clear guidance and training for UK personnel dealing with detainees who are held by others. That guidance has been reviewed, at the Prime Minister’s request, by Sir Adrian Fulford, the independent Investigatory Powers Commissioner, to see how it could be improved further, taking account of the views of the Intelligence and Security Committee and those of civil society. The Government have accepted Sir Adrian’s proposals in full, as set out by my right honourable friend the Prime Minister in a Written Ministerial Statement earlier today. We have published new guidance, entitled The Principles Relating to the Detention and Interviewing of Detainees Overseas and the Passing and Receipt of Intelligence Relating to Detainees, which will replace the current consolidated guidance at the end of the year. The principles will be extended so that they explicitly cover the National Crime Agency and SO15 Metropolitan Police Service.

I would like to thank Sir Adrian for his work. The principles address many of the points raised by the Intelligence and Security Committee in recommending changes to the consolidated guidance. The new document will now be explicitly engaged when there is a risk of extraordinary rendition, rendition or unlawful killing occurring in the context of detention. It will also apply not only when UK personnel are working with Governments, but when non-state actors or groups are involved. The principles also introduce a formal error-reporting obligation and a formal whistleblowing provision, in line with the commissioner’s statutory responsibilities in the Investigatory Powers Act.

These new principles are part of steps taken by successive Governments to understand what happened in the aftermath of the appalling terrorist attacks of 11 September 2001, and to put in place improved policies and practice. As the Prime Minister said in a Written Statement on 28 June last year:

‘With the benefit of hindsight, it is clear that UK personnel were working within a new and challenging operating environment for which, in some cases, they were not prepared. It took too long to recognise that guidance and training for staff were inadequate, and too long to understand fully and take appropriate action on the risks arising from our engagement with international partners on detainee issues’.


The agencies responded to what they thought were isolated allegations and incidents of mistreatment, but the ISC concluded that the agencies should have realised the extent to which others were using unacceptable practices as part of a systematic programme. As the Prime Minister noted last year, the agencies acknowledge that they did not fully understand this quickly enough, and they regret not doing so. It is important to say, however, that the ISC found no evidence to support allegations that UK personnel directly carried out physical mistreatment of detainees.

Lessons have been learned from these challenging events, and from the various independent examinations of detainee issues that have taken place over the past 15 years or so. These have included three separate investigations and reports published by the ISC in 2005, 2007 and 2018; Sir Peter Gibson’s Report of the Detainee Inquiry, published in 2013; related police investigations; and thorough internal reviews by the security and intelligence agencies of their involvement in detainee cases from 2001 to 2010, which the ISC examined in its most recent report.

The position now is very different from the one confronting UK personnel in the immediate aftermath of 11 September 2001. Better guidance and training are coupled with a world-leading independent oversight regime, underpinned by the Justice and Security Act 2013 and the Investigatory Powers Act 2016. This legislation has given enhanced powers to the ISC to oversee the activities of the security and intelligence agencies, alongside the statutory role of the Investigatory Powers Commissioner, who reports annually on his remit, including the application of detainee policy. The consolidated guidance and the new principles make clear that Ministers must be consulted if there is a serious or real risk of detainee mistreatment occurring at the hands of others, and, of course, the Ministerial Code reflects the overarching duty on Ministers to comply with the law.

I turn now to the question of whether there should be a further inquiry into detainee mistreatment and rendition issues. As I told the House on Monday, in response to an Urgent Question from my right honourable and learned friend the member for Rushcliffe, since publishing its response to the ISC community reports on detainee mistreatment and rendition on 22 November 2018, the Government have given serious consideration to the examination of detainee issues, whether any more lessons could be learned, and, if so, how. My right honourable and learned friend the Member for Rushcliffe, as the then Cabinet Office Minister without Portfolio, told the House on 19 December 2013 that, once the ISC had completed its most recent work, the Government would,

‘take a final view as to whether a further judicial inquiry still remains necessary to add any further information of value to future policy making and the national interest’.

I undertook to give a definitive answer to that question, and I can confirm today that the Government have decided that it is not necessary to establish a further inquiry. There is no policy reason to do so, given the extensive work already undertaken to improve policies and practices in this area. The Government’s position is also that there is no legal obligation. These matters have been subject to a number of police investigations over the years, including Operations Hinton, Iden and Lydd, and a joint panel was set up by the Crown Prosecution Service and the Metropolitan Police in January 2012 to consider allegations of UK involvement in detainee mistreatment. None of these police investigations has resulted in further action being taken, although some inquiries are continuing.

Parliament and the public can have confidence in the effectiveness of measures taken since 2010 and the new principles announced by the Government today to strengthen accountability and oversight by Ministers, Parliament and the independent commissioners of the vital work of our security and intelligence agencies. I commend the Statement to the House”.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I thank the Minister for repeating the Statement. However welcome it is that the Government have accepted the Investigatory Powers Commissioner’s recommendations to replace the current consolidated guidance with new principles, the refusal to re-establish a judge-led inquiry, which was promised nearly a decade ago, is deplorable. The Intelligence and Security Committee, under the chairmanship of Dominic Grieve, did its best in the reports it produced a year ago, but the Prime Minister denied it access to relevant witnesses such that it was unable to conduct an authoritative inquiry and produce a report, so it had to stop.

However, the ISC estimated, on the basis of the research it was able to do, that UK personnel had been involved in 2,000 to 3,000 detainee interviews in the period 2002 to 2004. It found 166 incidents recorded, and there were huge gaps in the records, where UK personnel either witnessed detainee mistreatment, were told of it by the detainees themselves or were told of it by foreign agencies. In addition, the ISC found 198 recorded cases where UK personnel received intelligence that they knew or should have suspected was tainted as it resulted from detainee mistreatment. That makes getting on for 400 cases, some of which would surely have involved torture or illegal behaviour by British officials. Since the ISC found a lot of gaps in those records, it could be many more. Then there is complicity in illegal rendition, secret imprisonment and disappearance. It is not acceptable to try to bury this sorry, disgraceful history. There needs to be transparency and accountability in establishing the truth, not a continued cover-up. Anything less may well breach the requirements of the European Convention on Human Rights.

Like this Statement, today’s Written Statement from the Prime Minister on the new principles asserts that the Government’s policy is not to,

“participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment”.

It would be extraordinary if it were otherwise. However, there still seems to be wriggle room for Ministers to authorise co-operation with torture and inhuman treatment, in breach of international law. Can the Minister assure us that the Ministry of Defence document revealed in May—it made clear that Ministers permitted themselves to share intelligence with allies even if there was a serious risk of torture—is now redundant and has been withdrawn, and that the principles would ban both Ministers and personnel from taking such a real risk?

On that note, can the Minister assure us that the extradited Hashem Abedi, the brother of the perpetrator of the appalling Manchester Arena bombing, was not mistreated or tortured in Libya?

The suspicion must exist that this brushing under the carpet is to please President Trump at a time when the likely next Prime Minister is keen to be chummy with him. That would be morally shameful. The ISC reported MI6 as saying that, post 9/11, there was,

“an unconditional reflex to support the United States, which … came from the political centre”—

namely, No. 10. The ISC concluded that,

“the UK saw itself as the poor relation to the US, and was distinctly uncomfortable at the prospect of complaining to its host”.

I am afraid that, once again, this sounds all too familiar.

In 2010, the coalition Government resolved to establish the truth through the powers of a judge. It is shocking that this Conservative-only Government have abandoned that attempt.

[Lord Young of Cookham]

My Lords, I begin by saying that I understand the disappointment of both Front Bench spokespeople at the decision not to hold a further judge-led inquiry. Perhaps I can amplify the reasons that I gave in the Statement.

[Lord Garel-Jones (Con)]

I fully understand noble Lords’ disappointment. On amplifying those reasons, am I wrong in thinking that one factor is the cost of such a judicial review? If so, what precedents are there on that?

[Lord Young of Cookham]

Once the Front Bench exchanges have been completed, there will be 20 minutes for Back-Bench Members to interrogate the Minister. I will be happy to address the issue raised by my noble friend at the appropriate time.

I was trying to explain the thinking behind the decision not to have a further judge-led review. It is common ground that there were shortcomings in our response to detainee issues following the atrocities of 9/11. The Government have recognised that. Since then, there have been five independent inquiries—four by the ISC and one by Sir Peter Gibson—into exactly those shortcomings.

Last year, to ensure that we learn the lessons from not just those inquiries but the investigations carried out by the police and the internal reviews carried out by the security and intelligence agencies, we invited Sir Adrian Fulford to review and update the consolidated guidance issued in 2010. He completed his report last month; it was published today along with his covering letter. We have said that we will accept all his recommendations in full. Between now and when they are implemented at the beginning of next year, there will be appropriate training and guidance for all security personnel involved. That is all underpinned by a regime made up of the Justice and Security Act and the Investigatory Powers Act, supervised by an independent Investigatory Powers Commissioner who reviews compliance with that guidance annually. In an exchange in the other place, the ISC chairman welcomed the Government’s response to Sir Adrian’s recommendations.

To come to the point made by the noble Lord and the noble Baroness, against that background of very substantial progress, the Prime Minister decided that a lengthy and complicated inquiry, part of which would likely be held in private because of the security issues involved, would not yield proportionate benefits. That is the position as I see it.

I am grateful to the noble Lord, Lord Collins, for welcoming the publication of the report. He said that some of the civil society recommendations had not been adopted. The Government have been clear that Sir Adrian Fulford is independent. In his letter to the Prime Minister, he says:

“I have been keenly aware of the need to maintain my independence when seeking the views of … officials”.


In producing his report, he may not have incorporated all the recommendations from all those from whom he took evidence, but that is a matter for him. The Government are not minded to second-guess the recommendations of Sir Adrian in that respect.

The noble Baroness, Lady Ludford, mentioned the cases mentioned by the ISC and asked how many had been investigated by the police. These cases have been thoroughly reviewed by the Government, including in the context of the ISC’s 2018 detainee reports, which were extensive and detailed. Sir Peter Gibson had access to all relevant written records for his detainee inquiry and the entire Gibson archive was handed to the ISC for its review. On us being junior partners to the United States, the decisions taken by the UK Government are taken in the interests of the UK and nothing else. In response to the noble Baroness’s final questions, Ministers must of course abide by the law. She mentioned the MoD internal guidance. That is now being revised in light of the new principles published today.

Finally, Foreign Office officials have been in contact with Hashem Abedi since his detention in May 2017 to provide consular assistance. They have been in contact on consular matters since then. As the noble Baroness knows, he landed in the UK on 17 July and has been charged. It is important to allow the judicial process to take place. We ask media colleagues and the wider public to respect this.

[Lord Tyrie (Non-Afl)]

My Lords, we need to remind ourselves what we are talking about. In the 21st century, our country has facilitated the kidnapping and brutal torture of large numbers of people. The recent Intelligence and Security Committee report revealed 166 further cases of such facilitation. It told us that it was thwarted from investigating these, and concluded last year that the “conditions imposed” on the inquiry,

“were such that we would be unable to … produce a credible Report”.

It went on to say that its report,

“is not, and must not be taken to be, a definitive account”.

Therefore, does the noble Lord accept that this makes the Government’s decision not to proceed with an inquiry all the more unacceptable?

[Lord Young of Cookham]

I begin by paying tribute to my noble friend who founded and chaired the All-Party Parliamentary Group on Extraordinary Rendition in another place. He has consistently campaigned, in another place and now here, for greater transparency on this subject.

On the UK’s reputation, it is worth quoting what Sir Adrian said in his letter about the posture we have adopted. He says:

“The Consolidated Guidance was drafted and published in 2010. It can fairly be said to have led the field internationally in terms of providing guidance to personnel on intelligence sharing in a manner that protects human rights”.


We want to build on that reputation by implementing the proposals mentioned today.

On the ISC inquiry which my noble friend referred to, I very much regret that it was not possible to find a way for the ISC to conclude its inquiry. The Government’s Memorandum of Understanding with the ISC under the Justice and Security Act 2013 permits the committee to take oral evidence from Ministers, agency heads and senior officials. The committee wanted to take evidence from junior officials, but this is not the usual practice with Select Committees—as a former chair of a Select Committee, my noble friend will know this. We offered senior officials to speak on behalf of more junior ones, but this did not turn out to be acceptable. Having said that, all relevant documentary evidence was provided to the ISC. It took 50 hours of oral evidence and had 40,000 original documents and 30,000 staff hours. I pay tribute to its thoroughness and just have to disagree with my noble friend about his conclusion that, without the further judicial inquiry, this matter remains unresolved.

[Lord Cormack (Con)]

My Lords, as one who shares the concerns and misgivings of the noble Lord, Lord Tyrie, I ask my noble friend: might it be possible to have a judicial panel to review and monitor the implementation of the Fulford recommendations, so that we can have real confidence that they have been properly implemented?

--- Later in debate ---

[Lord Young of Cookham]

It will be for Sir Adrian’s successor as the Investigatory Powers Commissioner to report annually to the Government, in particular on how the guidance on detainees is being implemented. I hope my noble friend will accept that, having set up the Investigatory Powers Commissioner with statutory powers, it would be right to leave it to him—or, indeed, her—to carry out the very important supervisory work that my noble friend refers to and to report as impartially and independently as he can on the progress being made in implementing the recommendations adopted today.

[Lord Garel-Jones]

I apologise to my noble friend for intervening during the time set aside for Front-Benchers. In addition to the reasons he has given, will he let the House know to what extent the cost of a judge-led review has influenced the Government’s decision? If it has, can he refer to any other similar judge-led reviews and their cost?

[Lord Young of Cookham]

I mean no disrespect to members of the judiciary, but having a judge-led review does not always lead to closure, which is the case that has been made in this example of a reason for having a judge-led review. In addition to the cost, which I will come to in a moment, there would be a serious diversion of energy and attention by those involved were we to carry out a judge-led review. As for the cost of inquiries, the Saville inquiry cost £192 million, the Chilcot inquiry cost £13 million, and the Gibson inquiry, which was incomplete, cost £2.3 million. My noble friend is right to put on the table the fact that these judge-led reviews have resource implications.

[Baroness D’Souza (CB)]

My Lords, on Monday we were reminded by the noble Lord, Lord West, that no UK personnel were directly involved in the torture and abuse of detainees, but in view of the 2018 report from the ISC, which revealed that the practice of rendition and the mistreatment of detainees were much more prevalent than we had hitherto known, does the Minister accept that there must therefore be people in the UK, sometimes at very senior level, who were aware of these practices and the mechanisms by which detainees were transferred around the world, and were therefore complicit?

[Lord Young of Cookham]

The short answer is that I do not know whether there were people who were aware but did not take the appropriate action. One of the recommendations of Sir Adrian’s report is that in future, if you become aware of any mistreatment, you are under an obligation to report it. On her first point, the noble Baroness is absolutely right that the ISC found no evidence of direct maltreatment by our staff. It is right to pay tribute to our intelligence and security staff, who work hard to keep us safe, often in challenging circumstances. I pay tribute to that work but, against the background of the exchanges we have had, it is right that they should be held to the highest possible standards.

[Lord Deben (Con)]

Is it not rather surprising that only now is it suggested to people that if they become aware of such a matter they should report it? After all, any company that becomes aware of such a matter in its supply chain has a legal requirement to report it and can be held responsible. This is, in a sense, part of our supply chain and I find it extraordinary that we did not take that view before. It is for that reason that I am not surprised that the public as a whole are pretty questioning about the degree to which we are prepared to own up to our responsibility in these circumstances. Perhaps further measures should be taken, merely for public confidence.

[Lord Young of Cookham]

Perhaps it would help my noble friend if I refer to the specific paragraph in Sir Adrian’s letter. He said:

“It was argued in number of responses to the consultation that there should be a post-notification process for individuals who have been mistreated following a failure properly to apply any new guidance or principles. This would enable them to seek redress. Reprieve and Freedom from Torture, in a joint submission, made substantive representations regarding the UK’s international obligations in this regard”.


I will write to my noble friend when I have discovered the other part of Sir Adrian’s recommendations, which builds on the current position, but makes more explicit that there is now an obligation, if people come across mistreatment, to pass it up the chain. I recognise that the paragraph I just read out was not directly relevant to my noble friend’s question.

[Lord Hannay of Chiswick (CB)]

The Minister has revealed the Government’s recent steep learning curve on extraordinary rendition, helped along the path by the activity of my noble friend Lord Tyrie. Do the Government now take the view that extraordinary rendition and what happens to people so rendered could bring anyone complicit in it within the scope of the International Criminal Court? That seems the common-sense conclusion from what they have found.

[Lord Young of Cookham]

The noble Lord may be right. If it were an offence under the law just referred to, as Ministers are obliged by the Ministerial Code to abide by national and international law, they would be precluded from taking action that ran the risk of that breach.

[Lord Janvrin (CB)]

I draw attention to my membership of the Intelligence and Security Committee. I take the forward-looking element of the Statement and welcome the publication of The Principles, which take into account the comments of Sir Adrian Fulford and many of the important changes that the ISC recommended. One point of interest is the reference to new principles coming into effect when the necessary training and guidance are in place. That implies, as I think is the case, that further guidance will be produced by agencies and the various departments. Will that guidance be made available to Sir Adrian or his successor and to the ISC?

[Lord Young of Cookham]

I am grateful to the noble Lord for his work on the ISC. He is absolutely right: The Principles, published today, will lead to internal guidance being produced by the MoD, for example, which will take the overarching principles and turn them into more specific guidance relevant to the context in which people in the MoD will work. That internal guidance will be available to the IPCO. I will take advice on whether it will also be available to the ISC; I see no reason why it would not. Sir Adrian is minded to encourage, where possible, this internal guidance being made public.

I have discovered the right paragraph for my noble friend Lord Deben. I refer him to the section called “Reporting non-compliance” in Sir Adrian’s report. On not reporting any non-compliance, it says:

“Non-compliance for these purposes is a failure to comply with these Principles. An instance where a sustainable assessment, made in good faith, subsequently proves to be incorrect will not count as an incident of non-compliance”.


That is the serious section of The Principles that addresses my noble friend’s point, which I have now located.

Detainee Mistreatment and Rendition

Lord Young of Cookham Excerpts

Tuesday 16th July 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office in another place yesterday. The Statement is as follows:

“As my right honourable and learned friend indicates, this issue has a lengthy history. It was in July 2010 that Prime Minister Cameron announced Sir Peter Gibson’s inquiry into allegations that the United Kingdom had been implicated in the improper treatment of detainees held by other countries in the aftermath of 9/11.

In December 2013, the Government published Sir Peter’s preparatory work and asked the Intelligence and Security Committee of Parliament to follow up on the themes and issues which that work had identified, to take further evidence and to make a report. At the same time, the Government said that they would,

‘take a final view as to whether a further judicial inquiry still remains necessary to add any further information of value to future policy making and the national interest’.—[Official Report, Commons, 19/12/13; col. 916.]

In June last year, the Intelligence and Security Committee, its work having been interrupted by two general elections and the task of reconstituting the committee after those elections, published two reports: Detainee Mistreatment and Rendition: 2001-2010 and Detainee Mistreatment and Rendition: Current Issues.

In response to an Urgent Question from my right honourable and learned friend on 2 July last year, the Minister for Europe and the Americas, my right honourable friend the Member for Rutland and Melton, said that, in responding to the ISC reports, the Government would,

‘give careful consideration to the calls for another judge-led inquiry and will update the House’.—[Official Report, Commons, 2/7/18; col. 26.]

The Government responded formally to the ISC on 22 November last year, and my right honourable friend the Prime Minister, in a Written Statement, said:

‘The Government continues to give serious consideration to the examination of detainee issues and whether any more lessons can be learned and, if so, how’.


That serious consideration has included the question of a further judge-led inquiry.

As the House will understand, this has been complex work which has involved some of the most sensitive security issues. I confirm to the House today that the Government will make a definitive statement setting out their decision about a judge-led inquiry later this week and, at the same time, we will announce to the House our response to Sir Adrian Fulford’s recommendations on the consolidated guidance”.

[Baroness Chakrabarti (Lab)]

My Lords, I am so grateful to the Minister for repeating that Answer. I declare my interest as the former director of Liberty, which was formerly the National Council for Civil Liberties. Will the Minister join me in paying tribute to the right honourable Father of the House of Commons for a wholly principled and non-partisan position on that most absolute of human rights, the rule against torture? He spoke quite poignantly yesterday of the solemn promises for a judge-led inquiry that he gave in 2010 and 2012 as Justice Secretary in the former coalition Government. What greater tribute or gift could the outgoing Prime Minister, who was Home Secretary in that Government, give to the Father of the House of Commons on her way out than to grant his wish of the judge-led inquiry that so many have waited so long for?

[Lord Young of Cookham]

I join the noble Baroness in paying tribute to my right honourable friend Ken Clarke, who has pursued this issue with commitment for many years, not least because of undertakings he gave when he was Lord Chancellor in the coalition Government. I note her very strong wish that his campaign should be rewarded with the announcement of a judge-led inquiry later this week. The noble Baroness will understand that I cannot anticipate my right honourable friend’s Statement, but I know she will take into account the views that noble Lords express in this exchange.

[Baroness Ludford (LD)]

My Lords, can the Minister confirm that the Statement on a judge-led inquiry and the updating of the consolidated guidance promised yesterday by the Deputy Prime Minister will be an Oral Statement, as requested by the Speaker? Can he confirm on which day it will take place?

The sudden spurt of speed is welcome, but very belated. It is 17 years since the US rendition and torture in which the UK colluded began, and nine years since the Gibson inquiry was first set up. Is this because Prime Minister May fears that a Prime Minister Johnson would succumb to pressure from President Trump not to revive the inquiry? We have already heard only this afternoon that the Government have made no representations to the Trump Administration about that Administration’s child migrant detention.

Last year, the ISC was concerned to note that HMG,

“has failed to introduce any policy or process that will ensure that allies will not use UK territory for rendition purposes without prior permission”.

It appeared to be quite concerned that the,

“shift in focus signalled by the … US administration”,

meant that,

“reliance on retrospective assurances and the voluntary provision of passenger information”,

was not “satisfactory”. Are these kinds of concerns now driving this welcome but slightly mystifying sudden promise of a Statement?

[Lord Young of Cookham]

I am not quite sure that the noble Baroness can complain about a sudden Statement when at the beginning of her question she complained about the length of time it has taken to reach a decision. In answer to her first question about whether the Statement will be oral or written, I cannot add to what my right honourable friend the Chancellor of the Duchy said yesterday in response to a request from the Speaker that it would be an Oral Statement:

“I will make sure that your comment to that effect is faithfully reported to my colleagues in Cabinet, Mr Speaker”.—[Official Report, Commons, 15/7/19; col. 589.]


I am afraid I cannot add to that.

I understand what the noble Baroness said about the length of time. This is an important and sensitive decision, as are any decisions involving intelligence and security, and requires careful analysis. In the exchange yesterday, my right honourable friend made it clear that,

“the Prime Minister has been very clear that she regards it as her responsibility to ensure that the decision is taken and announced to Parliament before she leaves office”.—[Official Report, Commons, 15/7/19; cols. 590-91.]

I might need to write to the noble Baroness on the other issues she raised, but Ministers must be involved in any case where an intelligence officer believes a detainee is at risk of mistreatment by a foreign state. The Ministerial Code obliges us to abide by international obligations such as the UN convention on torture and the ECHR.

[Viscount Hailsham (Con)]

My Lords, given that this matter has been considered since at least July last year, and that we are to have a definitive Statement later this week, that must mean the Government know their position already. What is the procedural or substantive reason for not making a proper response to the Question before the House?

[Lord Young of Cookham]

Because I do not have it. My noble friend will know that there is a process to be gone through. The announcement yesterday was in response to an Urgent Question; it was not planned by the Government. The announcement planned by the Government will take place later this week, as announced by the Chancellor of the Duchy of Lancaster yesterday.

[Baroness D'Souza (CB)]

My Lords, at a time when the UK needs to do all it can to boost its reputation for upholding the rule of law, and when it is possible that next week we will have a Prime Minister who has publicly condoned waterboarding, could the Minister reassure the House that any forthcoming Statement will be the result of examination of and statements from all witnesses to these practices?

[Lord Young of Cookham]

The Government will take all the relevant evidence into account when they announce their decision later this week. As I said, we are clear in opposing torture. The issue in debate is the extent to which it is alleged that there was knowledge of, or complicity in, the treatment of detainees in other countries. It is worth making the point that there is now a robust independent oversight regime that we have introduced over recent years. The changes in the Justice and Security Act 2013 and the Investigatory Powers Act 2016, the changes in the powers of the ISC and the statutory basis for the Investigatory Powers Commissioner have all ensured we have a robust, independent oversight regime, which I think is more transparent than nearly every other country.

[Lord West of Spithead (Lab)]

My Lords, does the Minister not agree that it is important that we remember that none of our men and women in any of the agencies was directly involved in torture? They might have been inadvertently one or two steps removed and we took a lot of actions to try to make it clear how they should behave in those difficult circumstances, because it had not been clear before. In all this discussion we must not assume, because it did not happen; our men and women were not involved directly in torture.

[Lord Young of Cookham]

The noble Lord is quite right. Our officials were not involved in torture. I take this opportunity of saying that our intelligence and security personnel try to keep us safe, in very difficult and challenging circumstances. None the less, it is right that we hold them to the highest possible standards.

[Lord Campbell of Pittenweem (LD)]

My Lords, I declare an interest as a member of the Intelligence and Security Committee between 2008 and 2015. With the benefit of hindsight, does the noble Lord consider that it was appropriate to prevent that committee from continuing with its investigations, and that it would have been entirely proper for it to continue an investigation which it had already begun?

--- Later in debate ---

[Lord Young of Cookham]

The noble Lord will know better than I do the reasons why that inquiry could not proceed. There were extensive discussions and negotiations between the ISC and the Prime Minister to see if it could find a way through and interview witnesses. I am only sorry those discussions did not end in agreement and the inquiry came to an end.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I declare an interest as treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Can I probe my noble friend a little further on the answer that he has just given? The ISC said its report, which he referred to, was incomplete, because access to key witnesses had been blocked. Therefore, the inquiry could not and must not be taken as a definitive account. We surely cannot leave this hanging over our country’s reputation. Will the announcement to be made later this week or next week answer those questions and definitively lay out the relationship between the ISC and the Government in the future?

[Lord Young of Cookham]

It will be this week rather than next week. The announcement later this week will give an answer to whether there should be a judge-led inquiry, and it will publish the conclusions and recommendations of Sir Adrian Fulford’s report, which was completed last week, together with the Government’s response. I do not have in front of me the answer to whether it will address all the issues raised by my noble friend.

Brexit: European Investment Bank (European Union Committee Report)

Lord Young of Cookham Excerpts

Tuesday 16th July 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I begin by thanking the noble Baroness, Lady Falkner, for selecting this important topic for debate, for her speech in introducing it, and all noble Lords who have participated in our discussion this evening. I am grateful to the noble Lord, Lord Vaux, for his good wishes on my birthday. I am not sure I wanted to spend it taking a supply and appropriation Bill through the House of Lords, then answering an Urgent Question on rendition, then listening to 90 minutes of trenchant criticism from a Select Committee—but at my age, it is nice that anyone wants to employ me.

I join other noble Lords in thanking the noble Baroness for her work as chair of the EU Financial Affairs Sub-Committee, which is a particularly important role in recent years, providing detailed, expert scrutiny of key issues. She mentioned her five reports and an excellent example of her work is the report before us this evening. I enjoyed reading it, raising, as it does, a number of important issues regarding the EIB, SME finance and infrastructure. I have also read the Government’s response to the consultation paper on infrastructure finance.

One theme running through our debate has been the uncertainty about the future, mentioned by the noble Baroness at the beginning. What is to replace the EIB? Others have been the disappointment at the outcome of negotiations on capital and concern about the drop-off of investment by the EIB, although we remain members of the European Union. There is concern about a shortfall in infrastructure investment. Finally, there are the Government’s proposals for replacement, or the suggestion that the Government should replace the EIB with a national infrastructure bank. I shall try to cover as many of those issues as I can.

I begin by saying that we recognise the role that the EIB has played in providing access to finance in the UK. That is outlined in the committee’s report. We joined the EIB in 1973. We have contributed to its capital and have maintained a callable guarantee of €36 billion. The EIB and its sister organisation—again mentioned by the noble Baroness—the EIF, have operated in two critical areas, with the EIB lending for infrastructure projects and the EIF providing finance for high-growth firms. As the noble Baroness said, the EIB has cumulatively lent approximately €118 billion to UK infrastructure projects. Noble Lords mentioned a range of those investments. Higher education was mentioned by the noble Lord, Lord Giddens, while High Speed 1 and Crossrail were mentioned by others, as was investment in hospitals and schools.

In recent years, preceding the triggering of Article 50, the EIB lent an average of €6 billion per annum to UK projects alongside private investors. Compared to those private investors, the EIB typically offers competitive rates, as the noble Baroness mentioned, as well as support to projects through technical assistance. Another theme running through the debate has been the stamp of approval—the term used, I think, by the noble Baroness —or crowding in, mentioned by the noble Baroness, Lady Liddell, as the influence of the EIB in attracting other investments. I was impressed, as were other noble Lords, by the fact that it employs 3,000 full-time staff, many of them experts, providing the reassurance that other investors might need that these are worthwhile projects to support. Looking at SME finance, the EIB has been particularly important in funding regional SME funds, such as the Midlands engine and the northern powerhouse investment funds.

As we leave the EU, our relationship with the EIB will change. The EIB was established under the treaties, which state that only member states can be members of the EIB, so when we cease to be a member of the EU, we have to leave the EIB. Without being party political, I understand that the Labour Party’s policy is to leave the EU. Therefore, it follows inevitably that we would have to leave the EIB.

Under the terms of the withdrawal agreement financial settlement, the UK has secured the return of its €3.5 billion paid-in capital in the EIB, with payments being made annually for 12 years following exit. That agreement has run into a heavy volley of criticism, led by my noble friend Lord Trenchard, but I say to all those who criticise it that the final agreement was an improvement on the original EU position, which was to return the capital at the end of the loan portfolio’s amortisation. In the final deal, the UK’s capital will now be fully returned by 2030—some 30 years earlier than originally proposed.

The Government’s view is that this represents a good deal for the UK taxpayer, particularly by ensuring that there is no disruption to existing projects as a result of the UK’s departure from the EIB. We will of course continue to be able to draw down funds agreed prior to our departure.

There has been much comment about the future relationship with the EIB once we have left. The Chancellor has made it clear that we are open to the prospect of a future relationship and that discussions on a mutually beneficial relationship with the EIB group will take place during the next phase of the negotiations. The noble Viscount, Lord Waverley, talked about some of the options. We will look at the existing precedents and more bespoke options will be considered and explored as part of the next phase of the negotiations, as the Government have made clear.

The €3.5 billion represents the return of our full paid-in capital. As was mentioned in the debate, the EIB is not a typical commercial bank in that it does not pay dividends from its reserves to EIB members, and nor does the statute provide a precedent or a clear path for anyone to leave. It is important to recognise that the statute does not give members an automatic right to recover either capital or reserves—and, as I have just explained, the negotiated position was a significant improvement on the EU’s opening position. One cannot draw parallels with shareholders in conventional companies. Shareholders in a conventional company cannot expect the company to give their money back when they exit their shareholdings. Rather, they sell their shareholding in the market. However, given the nature of the EIB, that option is not available.

The noble Viscount, Lord Waverley, mentioned the Commission’s original investment, which was financed by member states through the EU budget contribution. The total value of the Commission investment based on the latest EU accounts is €581 million. The UK will receive a share of that proportionate to its budget contribution which, using an estimate of 12.4%, gives an estimated UK figure of €72 million—I think that that was the figure mentioned by the noble Baroness—or €14.4 million each year for five years. The repatriated amount will form part of the overall Article 141 process, so it is likely to be netted off UK contributions for that period.

The noble Viscount also asked whether we have a contingent liability of €36 billion. The answer is that we will maintain a declining financial commitment to the bank in order continually to financially back loans, including those given to projects in the UK granted by the bank during our period of membership—that seems to be fair. However, the commitment will decrease as the existing loans run down. This means that we could be called on to contribute further amounts to the bank, but this financial support will be called on only in very exceptional circumstances, and it is a matter of public record that the bank has never made a call on its callable capital.

Considerable concern was expressed that the EIB has reduced its funding for UK projects although we are still a member. We are aware that the EIB and the EIF are undertaking extra due diligence on UK projects in relation to the UK’s exit from the EU. We have been clear that while we remain a member of the EU, we enjoy the same rights as other member states to access EIB funding. More recently, good progress has been made with several UK projects receiving broad approval over the past year. There has been a loan of €350 million for the UK windfarm project. Triton Knoll was approved in April, while a loan of €1.65 million was approved for the Trafford Park tramline extension in June. In addition, in December last year two loans of €126 million each were approved for the UK companies South West Water and Stonewater social housing. Most recently, the Luton mass transport project had €120 million approved in February.

As the Chancellor has stated, we need to be prepared for all scenarios. We have taken action already by providing additional funding to support SMEs and we have launched a comprehensive consultation process on infrastructure finance to ensure that good infrastructure projects can raise the finance they need. We are determined to make the UK one of the best places in the world to start and grow a business. This means keeping taxes low and ensuring that businesses can access the finance and support they need. We have a comprehensive programme of activity to support businesses. The British Business Bank, which was announced in 2012 and became fully operational in 2014, aims to make finance markets work better for smaller businesses in the UK. British Business Bank programmes are supporting more than £5.9 billion of finance to over 82,000 smaller businesses, as of September last year.

In recent years, as I have just mentioned, the activity of the EIF has declined. We have taken action to address the gaps left by it. At Budget 2018 the Chancellor announced that, as the UK leaves the EU,

“the government will provide the British Business Bank with the resources to enable it to make up to £200 million of additional investment in UK venture capital and growth finance in 2019-20”.

That initiative was welcomed by many noble Lords who spoke in the debate, including the noble Baroness, Lady Falkner, and my noble friend Lord Trenchard. The Government made this funding available on 17 April to ensure that smaller businesses can access the funding they need.

Since the Autumn Budget that year, the bank has been a key partner in implementing the 10-year patient capital action plan announced by the Chancellor, which will unlock over £20 billion to finance growth in innovative firms. In addition, at the 2018 Autumn Budget the Chancellor announced new measures towards ensuring that defined contribution pension schemes can invest in patient capital.

The increased support through the Patient Capital Review means that UK government support for venture capital is now at a record high. Even before the announcement of the additional £200 million of funding for this year, the British Business Bank had the capacity this year to make commitments exceeding the combined average annual commitments from the EIF and the British Business Bank in the three years preceding the referendum.

Creating high-quality infrastructure—mentioned by many noble Lords—is critical. That is why we are increasing infrastructure investment, with the national roads fund reaching £28.8 billion and the biggest investment in the railway since Victorian times. Overall public investment is set to reach levels not sustained in 40 years.

The noble Lord, Lord Giddens, was concerned that the taxpayer would have to fund this investment in infrastructure, but it is not just the public sector that has this role. The private sector has a critical role to play, with around 50% of the £600 billion infrastructure pipeline due to be met by the private sector.

[Lord Bruce of Bennachie]

Will the Minister comment on the committee’s recommendation that the Government consider setting up a national infrastructure bank? That is exactly the mixture of private and public funds.

[Lord Young of Cookham]

Yes, I will come to that. That is one of the most important themes that has run through this debate.

Many noble Lords mentioned investment in decarbonisation and in green projects. We have a suite of tools to support private investment in infrastructure. The contracts for difference scheme has made the UK a world leader in offshore wind. The world’s largest offshore wind farm, the Walney extension, opened off the coast of Cumbria in September last year. Elsewhere, the offshore transmission owner regime has brought down the cost of connecting offshore wind farms to the grid, and we have reached 96% superfast broadband coverage.

Also relevant to the debate on infrastructure is the UK Guarantees Scheme, delivered by commercial experts in the Infrastructure and Projects Authority, which has £40 billion of capacity to ensure that good projects can raise the finance they need. We have given the UKGS additional flexibility to offer construction guarantees.

So while the EIB has been active in the UK market, it has worked within a successful and road-tested framework that supports investment. There is a strong appetite from the market to lend to UK infrastructure projects. Untypically injecting a note of party-political asperity, I mention that threats of renationalisation might constitute a threat to inward investment in UK infrastructure projects. We need to be absolutely clear that we do not frighten off the private sector from investing in infrastructure.

We recognise that there are still some challenges in financing infrastructure; for example, in how we respond to new technologies that carry higher risk and how we raise finance for very large projects. That is why at the Spring Statement earlier this year the Chancellor launched the Infrastructure Finance Review. This is looking at the strengths and weaknesses of the market, the role of the EIB, the Government’s existing tools and the institutional structures needed to deliver them. The review also explores a recommendation from the National Infrastructure Commission that if the Government do not maintain a relationship with the EIB, we should consult on establishing a new, operationally independent UK infrastructure finance institution. As the noble Lord, Lord Bruce, has just said, this links to the committee’s recommendation on consulting on a new UK infrastructure bank through the Government’s national infrastructure strategy.

This was one of the themes that I heard running through the debate: that this is something that the Government should consider very seriously. It was mentioned by the noble Baroness, Lady Bowles, the noble Lords, Lord Butler and Lord Bruce, the noble Viscount, Lord Waverley, and many others. The Government should reflect seriously on the points made not just by the committee in the report but during our debate about the need to try to replicate the characteristics of the EIB in generating crowding in of other investment, creating loans at a lower rate of interest and creating the stamp of approval, which was referred to earlier.

The formal consultation period closed in June, and while it is too early for me to share with noble Lords the formal results of the consultation, I can say that we have engaged widely and heard a range of views on the EIB, which we will consider when negotiating any future relationship. The Government have set out our intention to publish a national infrastructure strategy in the autumn. The results of the Infrastructure Finance Review will form part of that strategy, and there will also be a formal response to the consultation.

The noble Lord, Lord Giddens, asked whether UK business would be able to participate in Galileo post Brexit. In a no-deal scenario, future EU programme participation, including in Galileo, will need to be determined as part of any future relationship.

I am conscious that I may not have covered all the points raised in our debate and I will write to noble Lords on those that I have not dealt with. I cannot pre-empt the Government’s spending review at this stage. Obviously, that will be important when it comes to investing in infrastructure, but the Infrastructure Finance Review consultation shows that the Government are taking this issue very seriously.

The noble Baroness, Lady Bowles, and the noble Lord, Lord Butler, asked about debt management, the ONS and definitions. That is venturing into almost theological territory as the noble Lord, Lord Butler, will remember the Ryrie rules and the unending debate about whether or not something scored as public expenditure. It says in my brief that we will leave questions on the interpretation of the guidance to the experts at the ONS, which is an independent body. It is highly likely that a UK bank would fall within the PSND measure. However, the Government will take the views that we have heard on board as we develop our policy following the Infrastructure Finance Review.

[Baroness Bowles of Berkhamsted]

The point that I was trying to make with regard to ESA 2010 is that it should be in our laws because it was from the EU and we have actually now transposed it into our Brexit preparation legislation. It is not a question of us running on our own version of what we think national accounts are: we should be running on the version that we are supposed to have in our law. That is why there was ultimately the change with regard to student loans. I feel the urge coming upon me now to suggest that this must be looked at formally, because it appears that we have been doing it wrong. The response that the Minister just gave appears to be wrong. I have the advantage of having been chair of the Economic and Monetary Affairs Committee at the time of ESA 2010 and, even more, I had to be the rapporteur because it was so complex that nobody else would do it. I have a reasonably good vision of this point because it was very important.

[Lord Young of Cookham]

I have in front of me the relevant paragraph in the Select Committee report, which states that:

“The EIB’s liabilities do not feature on the national balance sheets of EU Member States”—


which was the point that the noble Baroness was just making—

“but we were told that a similar UK institution would almost certainly feature within the Government’s measure of public sector net debt. While such an institution would also have assets and would probably be able to fund the interest on its paid-in capital, this could have significant implications for the Government’s commitment to reduce public debt as a proportion of GDP”.

The report went on to say:

“The measure of Government debt does not fall within the scope of this inquiry”,


and that it,

“is for the Government to choose the best way to calculate public sector debt”.

The report then continued with the point made by the noble Lord, Lord Butler, that,

“such accounting decisions should not determine economic decisions about the optimal form of support for long-term infrastructure investment in the UK”.

That is a proposition with which I broadly agree. At the end of the day, we have an independent ONS that resolves these theological decisions as to what does and does not score as public expenditure.

[Baroness Bowles of Berkhamsted]

I must come back very briefly. I was not saying where the EIB should or should not be; the point is that national investment banks should also not be within the public sector accounts. It is clearly made in The Role of National Promotional Banks (NPBs) in Supporting the Investment Plan for Europe, which was issued by the Commission on 22 July 2015.

[Lord Young of Cookham]

I hope the eloquence of the noble Baroness will be heard by the ONS, which is at the moment the arbiter of what does and does not score. I have almost overrun my time. I thank once again all those who have participated in this debate. No doubt the committee will want to pursue this subject later this year when we have announced our conclusions on the consultation and have published our national infrastructure strategy and we have the result of the spending review. I hope that on that occasion the exchange may be more cordial.

Supply and Appropriation (Main Estimates) (No. 3) Bill

Lord Young of Cookham Excerpts

2nd reading (Hansard): House of Lords & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard): House of Lords
Tuesday 16th July 2019 Lords Chamber

Moved by

[Lord Young of Cookham]

That the Bill be now read a second time.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time, and passed.

National Insurance Contributions (Termination Awards and Sporting Testimonials) Bill

Lord Young of Cookham Excerpts

Order of Commitment discharged (Hansard): House of Lords
Wednesday 10th July 2019 Lords Chamber

Moved by

[Lord Young of Cookham]

That the order of commitment be discharged.

[Lord Young of Cookham (Con)]

My Lords, I understand that no amendments have been set down to this Bill, and that no noble Lord has indicated a wish to move a manuscript amendment, or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.