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Oral Answers to Questions
(11 months, 3 weeks ago)
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Theresa Villiers (Chipping Barnet) (Con)
The Secretary of State for Education (Gillian Keegan)
After an intense negotiation with all four trade unions, we made a fair and reasonable offer, which would have been fully funded through £620 million of additional funding, on top of the additional £2 billion already announced for both this year and next—a cash injection that means that by next year we will be funding our schools at the highest level in history, totalling £58.8 billion. Unfortunately, the trade unions rejected our offer. We are in the process of reviewing the independent School Teachers’ Review Body’s recommendation on teacher pay for 2023-24, and we will publish our response in the usual way.
Theresa Villiers
I thank the Secretary of State for her answer. One issue in the dispute is recruitment and retention. Recent stats show a record number of teachers—nearly 48,000—entering the profession. That means that in Barnet there are 227 more teachers than in 2010. Does she agree that those encouraging figures are another good reason to call off the dispute and end the disruption to children’s education?
Gillian Keegan
I, too, am encouraged by the record numbers entering the teaching profession. We are doing a lot to attract the top talent into teaching through financial incentives totalling £181 million, including bursaries, scholarships and a levelling-up premium in priority areas. We are also delivering on our commitment to raise starting salaries to at least £30,000. We know that there is more to do, but the data shows that the steps we are taking are benefiting children and teachers, in Chipping Barnet and across the country.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
It is six weeks until the end of the summer term and headteachers are desperately trying to budget. They need the STRB proposals on pay now, as well as information on how they will be funded. The release of that information could prevent all the strikes, which we know will damage the education of so many. When will headteachers have the information they desperately need, including to help to retain some of the excellent teachers we keep losing?
Gillian Keegan
This is the same process we follow every year. We take the independent pay review body’s recommendations seriously, are considering the report and will publish in due course, just as we do every year.
Jonathan Gullis (Stoke-on-Trent North) (Con)
I met some National Education Union reps in my office for an hour and a half last week, and they were shocked to hear that I was going to say this to the House today. If the STRB has recommended that teachers should get a 6.5% pay rise—it was meant to report in May, something I signed off when I was in the Department—they should be given that pay rise. The Minister will rightly ask where that money is going to come from. I say we take it out of the foreign aid budget, year in, year out.
Gillian Keegan
Following the union’s rejection of the Government’s fair, reasonable and funded offer, the report has been submitted by the independent STRB. I will not comment on speculation or leaks, or indeed on funding, but we will consider the recommendations and publish our response in due course.
Peter Grant (Glenrothes) (SNP)
The Scottish Government did not stonewall the unions and have not claimed that the unions are responsible for all our social ills. The Scottish Government engaged constructively with unions, in education and elsewhere in the public sector, and have agreed a pay deal that means that Scottish teacher salaries will increase by 14.6%—I will say that again: 14.6%—by January next year. In this tale of two Governments, which Government can teachers trust to look after their interests?
Gillian Keegan
Pay awards for this year needed to strike a careful balance between recognising the vital importance of teachers and the work they do, and being affordable and not exacerbating inflation. We have taken that very seriously. We also take standards seriously, and I am delighted that the standards in England are continuing to rise. The question with teachers’ pay rises is always: are they funded? I am aware that the Scottish Government have had to take the funding from other places, including skills and higher education.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
We were all reminded today that the Secretary of State is already keen to move on, yet parents know that it is her ongoing failure to resolve the disputes that is damaging our children’s education. She told us to wait for the independent pay review body’s recommendations. Those have been made and now she refuses to publish them. Will she come clean, allow headteachers to plan for September and publish the recommendations today?
Gillian Keegan
I assure the hon. Lady that I have no intention of moving on—I am sure she will be delighted to hear that. This is the same process that we go through every year. I take the independent teachers review body very seriously. That is why, on my very first day in this job, when I had a letter from all the teaching unions asking for an additional £2 billion to fund the increase for last year that the STRB had recommended, which was much higher than the 3% that schools had budgeted, I took it seriously and got that extra funding. That takes time. I have just received the report. We are considering the recommendations and we will definitely publish it within the same sort of timeframes that we usually publish it.
Marion Fellows (Motherwell and Wishaw) (SNP)
The Secretary of State for Education (Gillian Keegan)
This is a timely question, as just last Thursday I met representatives from across the UK to discuss that very topic. In England, we have put in place significant support to help students and families alike with the cost of living. This year alone, the Government will spend around £37 billion on cost of living support. We provide free school meals to more than one third of children in education and we have boosted our student premium this year, spending £276 million.
Marion Fellows
Expanding free school meals to all children in universal credit households is not controversial. New data from the Food Foundation shows that 80% of the English general public support it. The Scottish Government have already committed to providing universal free school meals for all primary children. Why is the Secretary of State’s Department fuelling the poverty cycle and failing to give deprived children the very best start in life?
Gillian Keegan
I take my role of giving children the very best start in life incredibly seriously. This Government spend more than £1 billion annually delivering free school meals to pupils in schools. More than one third of pupils in schools in England receive a free meal, which, incidentally, compares with one sixth under Labour in 2010. We must also ensure that students are supported in school holidays; that is why we have introduced the holiday activities and food programme.
Sir David Evennett (Bexleyheath and Crayford) (Con)
I welcomed my right hon. Friend’s announcement in January that tuition fees would be frozen for the sixth year in a row. That is welcome news for students and the country. Does she agree that that will deliver better value for students and rightly keep down the cost of higher education across the United Kingdom?
Gillian Keegan
We are always committed to ensuring that students get good value for money, that they have a valuable experience at university and that they get the qualifications they need for the future. In addition to keeping tuition fees flat, we have introduced and boosted degree apprenticeships—as my right hon. Friend knows, I am a huge fan of those—where, if people want to earn and learn, they can get their degrees paid for by their apprenticeship.
Damien Moore (Southport) (Con)
Sir James Duddridge (Rochford and Southend East) (Con)
The Secretary of State for Education (Gillian Keegan)
I am delighted that we will be rolling out the local skills improvement plans from this summer. The LSIPs will put local employers at the heart of developing skills provision to meet the needs of their businesses, ensuring that people get the right skills to get good local jobs. In my own Chichester constituency, the Sussex LSIP is working to meet the needs of many sectors, including our horticultural industry, worth £1 billion a year to the local economy. Other hon. Members in rural seats will understand the recruitment challenges facing agrifood businesses. Our skills plan will bring together providers such as colleges to create more opportunities for people to get the skills businesses need, and that will be going on across the country.
Damien Moore
My Southport constituency has a unique seaside heritage and vital industry support. Can my right hon. Friend elaborate on how those steps will specifically support skills in the sectors of hospitality, tourism and coastal conservation?
Gillian Keegan
I know my hon. Friend is doing a lot to support businesses in our great seaside towns. We are increasing collaboration with colleges, employers and the chamber of commerce. The plan has been informed by hundreds of local businesses such as Lattimer, Access Point, EFT Construction, Bulldog Products and Stormspell. The visitor economy has been identified as a priority for the city region, with actions being taken to establish a working group to develop basic skills courses and to increase off-season study and training, management apprenticeships and access to work placements for students in and around the area.
Sir James Duddridge
The seaside will be grateful for that excellent response. Denise Rossiter, chief executive officer of Essex chambers of commerce, is working with local businesses such as Adventure Island to come together and deliver a local skills improvement plan that will help my seaside town to deliver a pipeline of talent for all sectors, including digitech, engineering and manufacturing. That will drive the local economy. Will the Secretary of State support the funding bid for that great work and the great city of Southend, and may I invite her to Adventure Island?
Gillian Keegan
That sounds like too good an invitation to miss. I thank my hon. Friend for being such a champion for skills development in Rochford and Southend East. I know that many local employers, including Essex & Suffolk Water, Rose Builders, Ground Control, DP World London Gateway, Adventure Island and Constellation Marketing, are working with the Essex chambers of commerce and South Essex College to steer the LSIP. Many businesses up and down the country will benefit from our £165 million local skills improvement fund that providers, including South Essex College, will apply for. I look forward to receiving the proposal for the Essex, Southend and Thurrock area.
Andrew Gwynne (Denton and Reddish) (Lab)
The reality is that almost 4 million fewer adults have taken part in learning since 2010, there are 200,000 fewer apprenticeship starts over the last decade, and part-time undergraduate student numbers have fallen by 50%. What is the Secretary of State doing to reverse the decade of decline in skills and training opportunities that is making Britain poorer?
Gillian Keegan
What I am doing is ensuring that the quality is better. It is very easy to chase numbers and targets. The Labour Government did that a lot—some of the things in which they used to invest for skills were not of any value at all, either to the individual or to a single business in this country. We are ensuring that we work closely with employers. We have worked with them to design the T-levels qualification. We have worked with 5,000 of them to build the apprenticeship standards. We have had 5.4 million apprenticeship starts since 2010, and all of them are of a high quality that will give people the skills they need to get the jobs they want.
Tim Farron (Westmorland and Lonsdale) (LD)
The hospitality and tourism industry is the biggest employer in Cumbria and is worth £3.5 billion to the economy every year. Yet those businesses are suffering a huge staffing crisis: 63% of them are operating below capacity because they cannot find enough staff. One solution is to recruit and train our own young people into the industry, and a T-level would surely be one way of doing that, but sadly, the Secretary of State’s Government have decided to kick the catering T-level into the long grass. Will she rethink that and bring it back front and centre of her campaign to ensure that young people get into that important industry with the right qualifications?
Gillian Keegan
I agree with the hon. Gentleman that that is a vital industry, not just in areas of tourism but across the country. We have many full-time hospitality and catering courses at various levels and lots of apprenticeships as well. We will bring forward and look at T-levels and at what more we need in that area, and potentially at management in the sector as well; I know that businesses are looking for more skills in that.
Mr Toby Perkins (Chesterfield) (Lab)
The Secretary of State says that she is listening to businesses, but if she were, she would hear that Labour’s plan to devolve adult education budgets to local communities and directly elected Mayors, and to change the apprenticeship levy into a more flexible growth and skills levy, has won widespread support from across the business community. Why is she so determined to stand against what employers say they want, and to hold learners, employers and our economy back?
Gillian Keegan
That is a good question. The hon. Gentleman is right that employers have often asked for that flexibility in the levy. I do not think that anybody in this House doubts my support for apprenticeships—they were my golden ticket and, I am convinced, are a very good way into the workplace. Labour Members have said that they want to build flexibilities into the levy. The problem with their calculations is that, at this moment, we are spending 99.6% of the levy on apprentices. Their policy is based on levy payer spend, not levy payer budget. That means that the biggest losers from the policy would be small and medium-sized businesses and about half of current apprentices.
Jim Shannon (Strangford) (DUP)
The Parliamentary Under-Secretary of State for Education (Claire Coutinho)
The hon. Gentleman will be aware that we published the special educational needs and disabilities and alternative provision improvement plan in March this year. Although the plan applies only to England, we shared a pre-publication draft with the devolved Administrations to build understanding of our proposals.
Jim Shannon
I thank the Minister for her response and for her interest in exchanging such ideas with Northern Ireland. Whether we are on the United Kingdom mainland or in Northern Ireland, money is under pressure. As someone who has been an elected representative in local government, in the council, as a Member of the Legislative Assembly and as a Member of Parliament, I am very aware that many more people seem to have special educational needs. When people have to wait up to seven months for an assessment, the cut in money is detrimental. Will the Minister share the ideas from the mainland here in the UK with the Department of Education back home? There are many ideas and thoughts on classroom assistants on the mainland, and it would be good to exchange those ideas and thoughts with the Assembly in Northern Ireland.
Claire Coutinho
I know that the hon. Gentleman is a passionate campaigner on such issues. He will know that education is devolved, but Ministers engage with our counterparts through the UK Education Ministers Council, and a session was held just last week, on 8 June.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Jack Brereton (Stoke-on-Trent South) (Con)
Luke Hall (Thornbury and Yate) (Con)
The Parliamentary Under-Secretary of State for Education (Claire Coutinho)
I want every child and young person, regardless of their special educational need or disability, to receive the right support to enjoy their childhood and succeed in life. The SEND and AP improvement plan, published in March 2023, sets out the next steps that we are taking to deliver a more positive experience for children, young people and families.
Debbie Abrahams
The Children’s Commissioner has expressed concerns about the gaps in the Government’s plan to improve the system for children with special educational needs and disabilities, identifying:
“A vicious cycle of late intervention, low confidence and inefficient resource allocation”
that needs addressing. In particular, she points to the issues for looked-after children with SEND. Given that the plan is to be implemented by 2025, what are the Government doing now to achieve those things?
Claire Coutinho
We have not waited to take action on this issue. We have increased, for example, high needs block funding by 50% over the last four years to 2023-24. We have set out £2.6 billion to increase the number of specialist schools. We have also hired educational psychologists. We have done a lot of work to date, but the reforms are ambitious and wide-ranging and they will, I hope, help with the issues mentioned.
Jack Brereton
The need for more specialist school places is raised frequently by parents in my constituency, and children are being bounced between mainstream providers that are simply not fit to cater for many advanced needs. Recently, I visited Hillcrest Glebedale School in my constituency, which is keen to expand the number of places. Will the Minister do more to ensure that we support such schools and grow the number of SEND places in Stoke-on-Trent?
Claire Coutinho
I thank all the special schools for the amazing work they do to support children and young people. We have announced more than £1.4 billion of high needs provisional capital allocations to support local authorities to deliver new places for academic years 2023-24 and 2024-25. Local authorities can use that funding to work with any school or institution in their area.
Luke Hall
Work has begun on the new Two Bridges Academy in South Gloucestershire, a new school that will support pupils who have severe, profound and multiple learning difficulties and autism from the age of two right through to sixth form. Will the Minister join me in thanking the educational trust, the council and all the local groups who are helping to deliver this exciting and innovative project and will she use her office to make sure that it is open by the planned date of September 2024 to help us cope with the growing demand for special educational needs services in South Gloucestershire?
Claire Coutinho
I am delighted to join my hon. Friend in thanking all those involved in the project. The Two Bridges site remains on track to open as planned and work is progressing well. We are committed to working with the trust to ensure that that remains the case.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
The Parliamentary Under-Secretary of State for Education (Claire Coutinho)
The cost of childcare depends on hours used a week over weeks per year, provider type, child’s age and region. For this reason, the Department does not produce an official estimate of the average weekly cost of childcare by the number of children in a household. However, this year, Coram estimates the cost of using 25 hours a week of childcare for a child aged under two in a nursery as, on average, £151 across England.
Luke Pollard
In low-wage economies such as Plymouth, families are struggling to afford decent childcare and are having to choose between working all the hours God sends to afford the nursery bills and leaving the workforce to look after the kids at home. I look forward to meeting the Secretary of State tomorrow to talk about how we can keep south-west nurseries financially afloat, but mums and dads need to be kept afloat as well. What can the Minister do to make childcare more affordable and, importantly, not just load those additional costs on to nurseries that are already struggling to pay their bills?
Claire Coutinho
I completely recognise that this has been difficult for families, but that is exactly why we are taking action. We are making the single largest ever investment in childcare. We will be doubling the amount we spend on it by 2027-28, and that will start with additional funding this year.
Sir Robert Goodwill (Scarborough and Whitby) (Con)
Parents were delighted to hear in the spring Budget of the extension of childcare provision, which is being phased in to allow the sector to gear up, recruit and train. Will my hon. Friend give me an update on how that is progressing, in terms of having enough highly skilled people in place to do that important work?
Claire Coutinho
That is the crucial issue when it comes to delivery, and we have already taken steps. We are consulting on flexibilities for the sector to make sure that we have the right people in place for the first part of the roll-out, which will be in April 2024. We have also been making sure that more funding is going into the system this year.
Helen Hayes (Dulwich and West Norwood) (Lab)
The early years sector has had three months to absorb the Government’s Budget announcement on childcare. Wherever I go in the country, early years professionals tell me that without a plan for expanding and developing the workforce and securing additional premises, the Government’s approach will deliver neither affordable childcare for parents nor high-quality early years education for children. They are clear that relaxing ratios is not the solution they need. What does the Minister intend to do about the deficit in the Government’s plans?
Claire Coutinho
As I said, we have already set out some flexibilities in a consultation that was published last week, and I urge every single person in the early years sector to look at that. I urge the hon. Lady to look at it too, because there are much wider flexibilities in there: for example, looking at qualifications relaxations. Overall, the Government have set out the single largest ever investment into childcare; Labour has not set out a plan at all.
Bob Seely (Isle of Wight) (Con)
The Minister for Schools (Nick Gibb)
There is overwhelming evidence that systematic phonics is the most effective method for teaching early reading. The English hubs programme is made up of 34 high-performing primary schools with exemplary practice in the teaching of synthetic phonics and reading. They are using their expertise to spread best practice to nearby schools, and have now reached over 1,600 primary schools. The English hub supporting the Isle of Wight has been helping 11 primary schools on the Island with their teaching of reading.
Bob Seely
I thank Ministers, first for the new special educational needs school for the Island—it is much appreciated—and secondly for agreeing to a phonics conference in June. The recent Islands Forum held on the Isle of Wight showed the link between education, jobs and the skills agenda and getting better opportunities for islanders, whether they are in Scotland or down on the Isle of Wight in my patch. On the phonics conference, is the Minister willing to pledge that we will get a centre of excellence for the teaching of phonics on the Island? Our nearest one, however good it is, is on the mainland in Southampton.
Nick Gibb
My hon. Friend and I have discussed education standards on the Isle of Wight on a number of occasions, and I pay tribute to him for the support he gives his schools and his determination to see standards rise in those schools. The Springhill English hub that he referred to is supporting primary schools on the Island to improve their teaching of phonics. As I said, it is already working with 11 primary schools, five of which have received intensive support, with the intention of ultimately finding a school on the Isle of Wight itself that has sufficient expertise to spread practice within the Island. That conference is taking place at the end of the month, and I hope all primary schools will be able to attend.
Rob Butler (Aylesbury) (Con)
Mrs Flick Drummond (Meon Valley) (Con)
The Minister for Skills, Apprenticeships and Higher Education (Robert Halfon)
To complement our reformed, more rigorous GCSEs, we are ensuring that high-quality vocational and technical qualifications are available. We have introduced new technical awards at key stage 4 in engineering, technology and many other subjects, and we have our own prestigious T-level offerings for those from 16 years old onwards.
Rob Butler
I am very proud to have Aylesbury University Technical College in my constituency. It provides excellent technical education for young students on a specialist pathway, but not everywhere has those specialist schools. As such, a proposal has been made to my right hon. Friend’s Department to introduce UTC-style courses in mainstream schools for some pupils who are perhaps better suited to that type of education at key stage 4. What progress has the Department made in assessing the feasibility of such courses, which would provide the qualifications, employment skills and work experience that are so important to today’s economy?
Robert Halfon
My hon. Friend is a champion of UTCs, and he knows that they are equipping students with the skills that employers need. I congratulate Aylesbury UTC on the new health and social care suite it is opening later this month. As he mentions, Baker Dearing Educational Trust has proposed a pilot for a technical curriculum in a small number of existing schools, and the Department will take a decision on that shortly.
Mrs Drummond
Students in my Meon Valley constituency who want to go to a university technical college can apply only to the excellent but oversubscribed one in Portsmouth. I am supporting the Portsmouth UTC in its bid to expand into Southampton, which will increase the numbers who are able to take advantage of this excellent education route and give choice to young people in my constituency. Can my right hon. Friend confirm when his Department will announce support for the next round of UTCs?
Robert Halfon
My hon. Friend is a champion of skills, and she is right that UTCs, such as the outstanding Portsmouth UTC, are providing students with skills that will lead to rewarding technical careers. The Department is carefully assessing the free schools applications received against the published criteria and intends to announce the successful proposals before the summer. It is worth mentioning that UTCs have high destination outcomes at key stage 5, especially into apprenticeships.
Kate Osborne (Jarrow) (Lab)
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
The Minister for Schools (Nick Gibb)
The school workforce census published last week shows that the number of teachers has increased by a further 2,800 this year. There are now more than 468,000 teachers in the state system in England. We have invested £181 million in recruitment this year, including training bursaries and scholarships worth up to £29,000, and we are delivering £30,000 starting salaries, reforming teacher training, delivering half a million training opportunities and working with the sector to address teacher workload and wellbeing.
Kate Osborne
The Minister mentions the data released last week, but it also highlights the unacceptable consequences of real-terms cuts to teachers’ pay and unmanageable workloads. It shows that posts without a teacher have more than doubled in the past two years. Last week, I met with NASUWT North East and the South Tyneside branch of the National Education Union, which raised concerns about the impact of the recruitment and retention crisis. When will the Minister take action to tackle this crisis by increasing teachers’ pay and reducing their workload?
Nick Gibb
In terms of teachers’ pay, we are waiting for the Government’s response. We have received and are looking at the School Teachers Review Body’s recommendations now, and we will respond in the normal way and on the normal timing. In terms of workload, we set up three important workload working groups, and over the years that has resulted in the working hours of teachers coming down by five hours a week, and we have pledged to do more to reduce that further.
Mr Dhesi
There were 44,000 leavers from the teaching profession last year. That is 9.7% of the total workforce, and the leaver rate is the highest it has been since 2018. The Government have missed their secondary teacher recruitment targets every year for the past 10 years bar one. All that is yet more evidence of how the incompetent Conservative Government have created the recruitment and retention crisis among teachers, and schools in Slough and across our country are lamenting the detrimental impact on our children’s education. Minister, what are the Government doing to urgently fix the recruitment and retention crisis?
Nick Gibb
If the hon. Member looks at the tables attached to the school workforce census, he will see that we have returned to pre-pandemic levels of recruitment. If he looks over a period of years, he will see that the number of teachers coming into state-funded schools and the number leaving are broadly similar.
Sir Desmond Swayne (New Forest West) (Con)
The abandonment of respectful address, such as “sir”, will not help, will it? Apparently it is because the female equivalent, “Miss”, is considered demeaning. Might I suggest the substitution of “ma’am”? It was good enough for Her late Majesty.
Nick Gibb
My right hon. Friend should not believe everything he reads in the newspapers. Behaviour in our schools is improving. We have set up behaviour hubs around the country to ensure that best practice is spread throughout the school system.
Stephen Morgan (Portsmouth South) (Lab)
Last week, the Minister’s Department celebrated the latest teacher recruitment and retention figures, with the numbers showing that 40,000 teachers left the profession last year—the highest number since records began. Does he really think that is worth celebrating?
Nick Gibb
As I said earlier, if the hon. Member were to look at the tables attached to the school workforce census, he would see that the number of teachers coming into the state sector and those leaving are broadly similar, and they have a broadly similar pattern across the years. For example, the number of teachers leaving last year—44,000—compares with the 42,500 who left the profession in 2010-11. The challenge we have faced over the last 13 or 14 years is that we have created an extra 1 million school places in our schools. However, over that period, the pupil-teacher ratio in secondary schools, particularly in the last few years, has been broadly similar—it has risen slightly, but it has been broadly similar—despite the fact that we have increased the number of school places by over 1 million.
Angela Crawley (Lanark and Hamilton East) (SNP)
The Secretary of State for Education (Gillian Keegan)
The UK is home to some of the world’s top universities, which benefit from strong international ties—so much so that it is impressive that UK universities have educated 55 of the current world leaders. My right hon. and learned Friend the Home Secretary and I are proud of our higher education sector and our commitment to having at least 600,000 international students study here every year. The change we are making will restrict the right of postgraduate students on taught courses to bring in dependants. This decision strikes the right balance to ensure that we have a fair and robust migration policy, and maintain the UK’s place as a top destination for the best and brightest from around the world.
Angela Crawley
The Higher Education Statistics Authority has shown that 55% of UK universities recorded a deficit in the last academic year. One of the key sources of revenue for universities is international students, who account for almost one fifth of the income of the UK’s higher education sector, and Scottish institutions are paying the price. Does the Secretary of State recognise that her Government’s policy change on student dependants risks jeopardising the key income stream for many financially strained universities across the UK and in Scotland?
Gillian Keegan
No. Our offer to international students remains very competitive, and we are committed to ensuring that the UK remains a destination of choice for international students from across the globe. International students do make a significant economic contribution to the UK economy and to our universities, and they make a significant cultural contribution. These changes will predominantly impact on the dependants of students and, in our view, will not impact on the competitive nature of our university offer.
Matt Western (Warwick and Leamington) (Lab)
The Opposition more than recognise the huge value brought to the world-class higher education system by international students. That said, we were clear that we would not oppose the changes the Government have made to student visa rules. However, in responding to a written question earlier today, the Home Office stated that “any indirect impact” of its student visa policies should be “proportionate” to the aims. Will the Secretary of State explain how, given that the Government have failed to conduct an impact assessment, she knows this to be true?
Gillian Keegan
The problem we were trying to solve is that we saw the number of dependants rise more than eightfold from 16,000 in 2019 to 136,000 in 2022, which is an unprecedented increase. Therefore, I fully support the Home Secretary in taking action to reduce the number. From January 2024, students coming to the UK to take postgraduate taught courses will not be allowed to bring in dependants, but students coming for many other courses, such as PhDs or research masters, will still be able to bring in dependants. The international education world is very competitive, which is why we put together an international education strategy—this is the first time we have done it—and why we have somebody working with our universities to make sure that we can attract the best and brightest into our universities, and I am sure we will continue to do that.
Carol Monaghan (Glasgow North West) (SNP)
As a former teacher, can I just say that I was quite happy to be called “Miss”? I have been called far worse as an MP.
When asked in December about the merits of limiting visas for the dependants of international students, the Education Secretary conceded that, if such a policy was enacted, our ability
“to attract the best students from around the world is going to be reduced”.
This policy is now a reality. It is impacting on our emerging markets in Nigeria and India, and it will skew our market much further towards Chinese students. Does she stand by her initial remarks?
Gillian Keegan
The visas that we were very keen should be available are the two-year graduate route visa, to make sure that all students coming here have two years in which to find a job before they can then apply for a work visa post their study period. That is a very competitive offer and I was very keen to ensure it was in place. We have looked at this very carefully but, as I said to the hon. Member for Warwick and Leamington (Matt Western), we had an unprecedented increase—more than eightfold—in the number of dependants coming here and, bearing in mind our migration figures, we wanted to take action on that.
Carol Monaghan
The eightfold increase happened because of the Secretary of State’s Government’s policies and the collapse of the European market—things that those on the Conservative Benches must be responsible for. The vast majority of international students are temporary visitors, yet they are counted as permanent in the migration figures—a policy the former Education Secretary, the right hon. Member for North West Hampshire (Kit Malthouse), has called “bonkers”. A simple solution to halt the ongoing targeting of the students in this market would be to count only those who stay. Why is that not being considered?
Gillian Keegan
The hon. Lady is right: the vast majority of international students return to their home countries once they have finished their studies. Home Office data show that less than 1% of those granted an initial study visa in 2016 had been granted settlement by 2021, but the Office for National Statistics is responsible for the migration figures.
Helen Morgan (North Shropshire) (LD)
The Minister for Schools (Nick Gibb)
Well-maintained, safe school buildings are essential. The Department has supported local authorities and academy trusts to keep their schools in good condition by providing over £15 billion in condition funding since 2015. Our school rebuilding programme will also transform buildings at 500 schools, prioritising those in the poorest condition.
Helen Morgan
I recently visited the Corbet School in my constituency, a small, rural, academy trust secondary school. It is very well run, but 25% of its teaching space is in old demountable buildings. How can small rural schools with only 750 pupils on the roll better access funding to improve the buildings the pupils are taught in, to give them the same opportunities as pupils in more urban areas?
Nick Gibb
We take into account the condition of any school’s buildings in the capital funding we give either to the local authority or to the trust or diocesan group, and it is up to those bodies to decide how best to distribute that funding to meet local needs. All schools, including rural schools, have the opportunity to be nominated for the latest round of the school rebuilding programme, which is rebuilding and refurbishing school buildings across the country.
Sir Jake Berry (Rossendale and Darwen) (Con)
It would be remiss of me not to thank the Department for the huge rebuilding programme it is undertaking, particularly in Rossendale—not least the brand-new school in Whitworth and huge investment in Haslingden High and All Saints’ schools. However, a school I was previously a governor at, the Valley Leadership Academy, which is part of the Star chain of academies, is suffering terribly from under-investment. The estate is not fit for purpose, and I hope that when the next round of funding happens, my right hon. Friend will look favourably on the Valley Leadership Academy, and also the other Star Academies schools which are delivering brilliant quality education against the state of their school buildings.
Nick Gibb
I take on board what my right hon. Friend is saying. The condition data collection is a thorough nationwide assessment of the condition of every school in the country, and that is the data on which decisions are based when deciding how to fund capital funding.
Dame Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
Many schools up and down the country still have asbestos in them and are getting to a dangerous state. It is all very well telling governing bodies to identify the asbestos, but there is not much incentive if there is no special or directed funding available to remove it and that is beyond the budget of an individual school. What is the Minister going to do to make sure asbestos is removed from our school buildings?
Nick Gibb
Asbestos management in school buildings is, as the hon. Lady will know, regulated by the Health and Safety Executive. The Department follows its advice and works closely with it. The DFE published detailed guidance on asbestos management for schools in 2020. When asbestos is a problem in a school, that is a major factor taken into account when deciding to rebuild schools under the school rebuilding programme.
Simon Jupp (East Devon) (Con)
Children and staff at Tipton St John Primary School had to be rescued by the fire service after it flooded recently. The safety of children and staff must come first as sites for a new school are assessed by the Department in the coming weeks. Will my right hon. Friend meet me to discuss the urgent need to build a school in a safe location?
Nick Gibb
Yes, I will. I was sorry to hear about the flash flooding and its impact on the school and the local community. Tipton St John Primary School was selected in December for the school rebuilding programme, which will ensure a long-term solution for the school, protecting children and staff from flooding in the future. Officials are working with the diocese of Exeter, Devon County Council and my hon. Friend to identify and secure a new site for the school. I thank him for his support to help make that happen as quickly as possible.
Darren Henry (Broxtowe) (Con)
The Minister for Skills, Apprenticeships and Higher Education (Robert Halfon)
Preventing tragic deaths by suicide is a priority for the Government. Our approach to improving mental health outcomes and reducing suicides is focused on three pillars: funding and resourcing vital services; spreading and implementing best practice and clear responsibilities for higher education providers; and protection for students.
Darren Henry
I have been contacted by many of my constituents in Broxtowe regarding a campaign to establish a duty of care for universities towards their students’ mental health. Suicide is currently the biggest killer of people under 35 in the UK. Will the Minister ensure that we are prioritising mental health support and lay out what the Department is doing to work with universities so that such help is provided? We must prioritise mental health, and we must do so now.
Robert Halfon
My hon. Friend is a huge champion of mental health in his constituency. Based on my previous answer to him, we are giving the Office for Students £15 million to help universities with mental health support. We have asked universities to sign up to the mental health charter by September 2024. We have a new student implementation taskforce to spread best practice, which is reporting on its first stage by the end of the year. We are also commissioning a national independent review of student suicides.
Mohammad Yasin (Bedford) (Lab)
The Minister for Schools (Nick Gibb)
We are committed to providing world-class schools. Total funding for both mainstream schools and special schools and alternative provision will total £58.8 billion by 2024-25: the highest ever level per pupil in real terms. That assessment has been confirmed by the Institute for Fiscal Studies.
Mohammad Yasin
Liam, a teacher in my constituency, described the Government’s pay offer as akin to
“a mouldy carrot dangled in front of us to lead us back to the despair of the classroom.”
He works in a school that has had to make redundancies due to insufficient budgets. Does the Minister understand the impact that Government cuts to school budgets are having on children’s futures? Can he honestly say that he is giving all children equal opportunities?
Nick Gibb
The hon. Member will have seen that, in recent international surveys, standards are rising in our schools. We increased school funding by £4 billion last year, and this year it has increased by £3.5 billion. Taken over those two years, that is a 15% increase in school funding. Those of us on the Government side of the House want to have a well rewarded, well motivated teaching profession, because that is how we will ensure that standards continue to rise in our schools.
Cat Smith (Lancaster and Fleetwood) (Lab)
The Secretary of State for Education (Gillian Keegan)
Teachers are the ultimate opportunity creators, giving all of us the tools we need to reach our potential. I am delighted that new data shows a record number of teachers joining the profession, so today we have over 468,000 teachers in our schools. That is a year-on-year increase of 2,800, meaning that there are over 27,000 more teachers in classrooms since we took office.
The difference that teachers make is almost impossible to measure, but there is no doubt about their commitment to delivering results. The number of schools rated good or outstanding has risen from 68% to 88% since 2010. We have climbed the international league tables in science, maths and English, most recently coming fourth in the world for reading at primary school age in the progress in international reading literacy study. It would be remiss of me not to pay tribute to the Minister for Schools, my right hon. Friend the Member for Bognor Regis and Littlehampton (Nick Gibb) for his relentless championing of phonics, helping our fantastic teachers to drive up standards. Ahead of Thank a Teacher Day, I want to say a massive thank you to teachers, early years professionals, teaching assistants and all who play their role in helping the next generation reach their potential.
Cat Smith
The decision to make it harder for those on postgraduate courses to bring dependants will once again mean that Britain’s universities will be looking to China for international students. At a time of growing tension and concern about Chinese foreign policy, not least on the Secretary of State’s own Benches, is she confident that this is going to end well?
Gillian Keegan
I thank the hon. Lady for her question. We discussed this a little earlier. There is a large and growing desire for the education that our top universities provide and there are many countries in the world where the middle class is developing, so there is a lot of opportunity for our universities as long as they keep on delivering their world-class fantastic quality.
Gareth Bacon (Orpington) (Con)
The Minister for Schools (Nick Gibb)
As my hon. Friend knows, the Secretary of State has written to all schools to emphasise that schools can and should share RSHE teaching materials with parents. The Department will consider, as part of the review of the statutory guidance, whether any further changes are needed to reinforce that and to ensure that all resources that teachers use to teach RSHE are age-appropriate.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
Today’s announcement by Ofsted is a welcome recognition of the need for change, but it does not go far enough. Labour is the party of high and rising standards in our schools, which is why we would give parents a comprehensive picture of their children’s school in the form of an Ofsted report card, rather than a simplistic one-word judgment. Why is the Secretary of State content to sit back, rather than drive improvement in our schools?
Gillian Keegan
The last time I was at the Dispatch Box, the hon. Member for Reading East (Matt Rodda) asked me to meet the family of Ruth Perry and members of the Caversham community following Ruth’s tragic death. I have been honoured to work with Ruth’s family and friends over the last few weeks. I take this matter incredibly seriously. Today, we announced that we are significantly expanding wellbeing support, in addition to announcements from Ofsted to improve the accountability system. Overall grades provide a clear and accessible summary of performance for parents, which is why the vast majority of parents—almost eight in 10—are aware of the Ofsted rating of their child’s school. I encourage parents to read the report narrative alongside the summary grade. The Ofsted grades also mean that we can highlight the success of schools, including the 88% of schools that are now good or outstanding—a much better record than any achieved by the hon. Lady’s Government.
Angela Richardson (Guildford) (Con)
Mr Speaker
Order. These are topical questions. Questions have to be short and punchy, and not a speech.
Angela Richardson
Thank you, Mr Speaker. Has the Secretary of State made an assessment of the comments by the hon. Member for Houghton and Sunderland South, because to my ears they sound more fantasy than reality?
Gillian Keegan
I thank my hon. Friend for her very insightful question. The Labour party’s proposals would, unfortunately, mean that graduates would live unhappily ever after. Either Labour would have graduates pay back their loans at a lower income threshold, impacting people just as they are taking their first steps on the career ladder, or it intends to make graduates pay back their loans well into retirement. That would, essentially, create a graduate tax. Yet again, this is the same old Labour—
Mr Speaker
Order. Please. Questions and answers have to be short and punchy. It may be a pre-arranged question and answer, but I am not going to have such long answers.
Ms Anum Qaisar (Airdrie and Shotts) (SNP)
The Minister for Skills, Apprenticeships and Higher Education (Robert Halfon)
The hon. Lady will be pleased to know that male graduates earn more than £130,000 over their lifetime and female graduates £100,000, so graduates are coming out of university with good wages, and we know that more disadvantaged students are going to university than ever before.
Jason McCartney (Colne Valley) (Con)
The Parliamentary Under-Secretary of State for Education (Claire Coutinho)
The work of teaching assistants is incredibly important to the SEND arena. We have taken education funding to real-term historic highs for mainstream education and we have increased the high-needs block by more than 50%.
Daniel Zeichner (Cambridge) (Lab)
Robert Halfon
Just to be clear on BTECs, many BTECs will remain and people will be able to do them with A-levels. We are getting rid of BTECs that either have low outcomes, significantly overlap with the T-level, or have very low uptake. We have also introduced the T-level transition year so that people who want to prepare for T-levels are able to do so.
Alun Cairns (Vale of Glamorgan) (Con)
Robert Halfon
I thank my right hon. Friend for his kind remarks. We have already introduced flexibilities with the apprenticeship levy. As I know how deeply concerned he is about the hospitality industry, I can tell him that I have visited Greene King and seen how brilliantly it uses the levy to employ hundreds of apprentices. Of course, where we can, we will work to ensure that this carries on across the hospitality industry, which he so ably represents.
Janet Daby (Lewisham East) (Lab)
Last year, a survey by the National Union of Students found that the mental health of 90% of students had been negatively impacted by the rising cost of living, with students worrying about paying bills and paying for food. The Government have been failing students so far, so what will the Minister do about it?
Robert Halfon
The hon. Lady will be pleased to know that we increased the grant to the Office for Students by £50 million to £276 million. That grant goes to help disadvantaged students. We increased the maintenance loan and grant by 2.8%. We have energy rebates for students who live in private accommodation as well. We are doing everything possible to help students with the cost of living, but being fair to the taxpayer as well.
Anna Firth (Southend West) (Con)
Nick Gibb
I am sure that my right hon. Friend the Secretary of State will visit, but if she cannot then I certainly will. Teacher retention is key to ensuring effective teacher supply and quality. We are taking action to support teachers so that they can stay in the profession and succeed. The Department has published a range of resources to help schools address teacher workload issues, prioritise staff wellbeing and introduce flexible working.
Mike Amesbury (Weaver Vale) (Lab)
Despite the introduction of my private Member’s Bill to help reduce the cost of school uniforms, which is now law, far too many schools still require a plethora of branding and logos. What will Ministers do to ensure that those schools apply the law?
Nick Gibb
It was a pleasure to work with the hon. Member on that important legislation to put the guidance on the cost of school uniform into statutory form. I congratulate him on the Act. Ultimately, these are matters for headteachers but the guidance is there, and if parents are concerned that schools are not abiding by the guidance, each one has a formal complaints procedure.
Mark Pawsey (Rugby) (Con)
I often hear from parents whose children remain in mainstream education despite their school not being able to meet the child's special educational needs. Despite Rugby having received some additional SEN places recently, I have had such an email from a constituent in the last few hours. What is being done to make certain that more such spaces are made available?
Claire Coutinho
We have set out ambitious reforms to give parents greater confidence that their child’s needs can be met in mainstream provision. When they need specialist support, we are building many more special and alternative provision free schools—127 so far since 2010, with 67 in the pipeline.
Munira Wilson (Twickenham) (LD)
Freedom of information requests from the Liberal Democrats recently revealed that three in four primary schools will not have a mental health support team in place by 2024, when the funding runs out. Officials have suggested to MPs that hard-pressed NHS budgets could be squeezed to fund those schemes further. Will the Minister please commit to prioritising this area and committing new cash? If not, will she put a counsellor in every school?
Claire Coutinho
We take this issue incredibly seriously, which is why we are rolling out mental health support teams. We are ahead of schedule, with 35% of pupils covered this year and another 100 teams on the way to cover 44% of pupils next year, alongside other proposals.
Sir Julian Lewis (New Forest East) (Con)
If and when parents get sight of what their children are being taught about relationships and sex education, will they have the right to withdraw their children from such lessons if they deem the materials to be inappropriate?
Nick Gibb
My right hon. Friend raises an important point about the appropriateness of materials being used in schools to teach relationships, health and sex education. We have been concerned about reports on that, which is why my right hon. Friend the Secretary of State wrote to all schools to remind them of their duty to share teaching materials with parents, and why we brought forward the review of the RHSE guidance. There is no right to withdraw children from relationships education, but there is a right for parents to withdraw their children from sex education in the RHSE curriculum.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Since 1985, girls and boys from nursery age to right up to pre-university have been educated at the King Fahad Academy in East Acton. Imagine the shock of parents, pupils and staff to be told last month that none of them are coming back in September because the Saudi Government, who fund it, are pulling the plug. Could the Secretary of State urgently intervene, at least to provide some basic certainty to a stunned community? Even the road layouts around there were conceived around the school. It could mean 500 kids left in the lurch after summer.
Nick Gibb
I am happy to meet the hon. Lady to discuss this issue in more detail.
Lia Nici (Great Grimsby) (Con)
I have constituents who have been studying at the University of Lincoln for the last three years, but the classification of their degree and their graduation are being prevented because lecturers who are union members are boycotting marking their final dissertations. Can my right hon. Friend advise me and my constituents of what they should do to push through and get the qualifications that they have worked so hard for?
Robert Halfon
My hon. Friend is right that students should get their papers marked. I have been discussing these issues with Universities UK, which says that they will affect a minority of students, and a lot of universities are ensuring alternative markers. Students have recourse to the Office of the Independent Adjudicator if they feel they are not getting the service that they have paid for with their student loan.
Rachael Maskell (York Central) (Lab/Co-op)
On Saturday, I attended an inspiring conference hosted by Bootham Quaker School, where about 120 year 12 students from across the world had come together to determine the purpose and future of education. Does the Secretary of State agree with them that we need a renewed vision for education, taking into account what education achieves for communities, countries and the planet we share, rather than just its personal benefits?
Nick Gibb
The hon. Lady raises a number of important points. First, sustainability is an important part of the curriculum. Secondly, we want our young people to be able to succeed. In a global jobs market—a global trading market—they need to have the best education possible. Our schools are rising in the international league tables for maths and reading standards in PISA, PIRLS and TIMMS—the programme for international student assessment, the programme in international reading literacy study and the trends in international mathematics and science study.
Steve Brine (Winchester) (Con)
I met a group of headteachers in Chandler’s Ford, in my constituency, on Friday, and it is clear that they feel they are currently subsidising the surplus in places from falling school rolls, and particularly in universal infant free school meals. The Minister and I discussed this in my recent Westminster Hall debate, and he said he was “actively looking” at the issue. Since then, the Hampshire school meals provider has put up the price again. Will the Minister give me an update?
Nick Gibb
I am happy to discuss this further with my hon. Friend. As I said in the Westminster Hall debate, we have been looking at this issue carefully and have increased the price per pupil of the universal infant free school meal, backdated to April. We understand the cost pressures that schools and suppliers of catering to schools are facing because of higher food prices.
Alison Thewliss (Glasgow Central) (SNP)
The Glasgow science festival has just completed its 17th year communicating research and inspiring young people, and older people, in venues across Glasgow. Will the Minister congratulate Dr Deborah McNeil for her work in promoting this brilliant festival? It is an example of how young people and academics in science can be brought together.
Robert Halfon
I am delighted to congratulate the science festival and the individual the hon. Lady mentions. We need more such science festivals across the United Kingdom; I would be very interested to learn more about that science festival and how we can spread such festivals across our country.
Jonathan Gullis (Stoke-on-Trent North) (Con)
Improving educational outcomes in places like Stoke-on-Trent North, Kidsgrove and Talke relies on retaining the skills of highly qualified teachers. One way we can go about doing that is by changing levelling-up bonus payments in education investment areas, so that money can be given to teachers regardless of how many years of service they have. Will the Minister consider that action?
Nick Gibb
Having served as Schools Minister at the Department for Education for a period of time, my hon. Friend will be aware that we have levelling-up premium payments for teachers to teach maths, physics and computer science in disadvantaged schools, in order to encourage teachers in those subjects into the schools that need them the most.
Point of Order
(11 months, 3 weeks ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate
Jim Shannon (Strangford) (DUP)
On a point of order, Mr Speaker. Have you been notified that the Secretary of State for Northern Ireland will come to the House to make a statement outlining how he intends to enable the Police Service of Northern Ireland to deal with the spate of murders of women? There have been 34 murders of women over the last few years, meaning that Northern Ireland is tied for top place in Europe with Romania. How will the Secretary of State for Northern Ireland instil confidence among women and girls that they are safe on our streets and that their safety is paramount to our Government?
Mr Speaker
I thank the hon. Gentleman for giving notice of his point of order. I have not had notice of any statement on this matter. However, he has put his point of view on the record. I am sure that Ministers will have heard it and will reflect on it.
Retained EU Law (Revocation and Reform) Bill
Monday 12th June 2023
(11 months, 3 weeks ago)
Commons ChamberRead Full debate Retained EU Law (Revocation and Reform) Act 2023 View all Retained EU Law (Revocation and Reform) Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 12 June 2023 - (12 Jun 2023)
16:39 - The House divided: - Ayes: 269 / Noes: 204 - Question accordingly agreed to.
16:54 - The House divided: - Ayes: 269 / Noes: 202 - Question accordingly agreed to.
The Solicitor General (Michael Tomlinson)
I beg to move, That this House disagrees with Lords amendment 15B.
Mr Speaker
With this it will be convenient to discuss the following:
Government motion not to insist on amendment 16A, and Lords amendment 16C in lieu.
Lords amendment 42B, and Government motion to disagree.
The Solicitor General
It is an honour once again to open a debate on this landmark legislation, which we are now very close to passing. We are fully taking back control of our laws, and we are ending the supremacy and special status afforded to retained EU law.
As you explained so clearly a few moments ago, Mr Speaker, there are three motions before the House this afternoon. Let me first speak briefly about the reporting requirements in Lords amendment 16C—and let me also be the first to congratulate from the Dispatch Box my hon. Friend the Member for Stone (Sir William Cash) on being made a Companion of Honour. I thank him for the work that he did on this amendment, alongside Baroness Noakes. It is, of course, important that we continue to update Parliament on our progress in reforming retained EU law, and that is exactly what we as a Government are committed to doing with clause 16. I can reassure my hon. Friend that Lords amendment 16C is only a drafting tweak and the substance is exactly the same as what was tabled by him and supported by so many other Conservative Members, and I ask the House to agree to this final tweak.
Let me now turn to the parts of the Bill on which we have not managed to reach agreement with those in the other place. I will begin with Lords Amendment 42B. I am sure that many Members present will have followed their lordships’ debate closely. However, the Government have not just followed the debate; leading from the front, my right hon. Friend the Secretary of State for Business and Trade has worked to find solutions on the sunset provision to resolve concerns about references to higher courts. As I have already mentioned, we are committed to updating Parliament regularly on the progress of reforms.
It is clear that we have accommodated many of their lordships’ wishes, but I respectfully suggest that now is not the time for their lordships to insist on a novel and untested method of parliamentary scrutiny on the reform powers in the Bill. It has been asserted that the Lords amendment has a precedent in the Civil Contingencies Act 2004, but in fact those powers have never been used. Let me be clear: it is not the Government’s intention for the powers in the Bill to languish on the statute book. My right hon. Friend the Secretary of State has already made the first announcement on regulatory reform and how we intend to reduce burdens for businesses and spur economic growth, and that is only the beginning of our ambition.
Caroline Lucas (Brighton, Pavilion) (Green)
Will the Solicitor General give way?
Mr Speaker
Order. May I just say that I was very sorry to hear the news that the hon. Lady will not be standing in the next general election?
Caroline Lucas
Thank you very much, Mr Speaker.
May I put it to the Minister that it is a bit odd to object to something simply because it will be a novel procedure? Everything is novel once. If we are to improve the effectiveness of Parliament, surely some novel procedures are precisely what we need.
The Solicitor General
May I express exactly the same sentiments as you, Mr Speaker? I know that the hon. Lady’s campaigns will continue outside the Chamber, and I know that she will have plenty to offer between now and the election in any event, not least during this debate. However, I disagree with what she has said, not just because the procedures are novel, although they are. I followed the debate in the Lords very closely, and it is fair to say that it is accepted that these are new measures, but they are also unnecessary, and this is why.
The amendment would unreasonably and unnecessarily delay our important reforms. It would introduce what my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) termed “extra friction” during our previous consideration of Lords amendments. He was right to say that, and right to say that the amendment would delay the meaningful reforms that can now be achieved as a result of Brexit. I do not believe that the public would accept those delays, and nor, in my view, should we.
Stella Creasy (Walthamstow) (Lab/Co-op)
Will the Solicitor General give way?
The Solicitor General
I will give way to the hon. Lady, because that will give her an opportunity to apologise for getting the Government’s position on pension reforms so wrong.
Stella Creasy
I hope that the Solicitor General will speak to his colleagues in the Department for Business and Trade, who made it clear in Committee on, I believe, 22 November that they were intending to abolish the Bauer and Hampshire judgments. Perhaps he will ask his colleagues to amend that, rather than suggest that I was misleading the House.
I also note—and it is welcome—that the Solicitor General now accepts that there is a parliamentary precedent for amendable statutory instruments. He talks about “friction”. Another way of describing that would be Members of Parliament holding the Government to account if they come up with proposals that their constituents do not like. When Ministers were in front of the European Scrutiny Committee, they seemed to think that it was an impertinence for MPs to have concerns and questions about what might be on the list of measures to be deleted. Is this another name for what we are calling parliamentary sovereignty?
The Solicitor General
No, not at all; the hon. Lady is wrong, I am afraid. I will come in a moment to the detail of the parliamentary scrutiny that is already inbuilt in the Bill and the schedule to the Bill. The hon. Lady’s comments over the weekend about pension reform were also wrong, and that is important because people will have been scared by what she said. The Hampshire case clarified that all scheme members should receive at least 50% of their expected benefits in the event of the employer’s insolvency. The Secretary of State has been crystal clear on this and we have announced our intention to retain the Hampshire judgment beyond the sunset clause. The hon. Lady was wrong on that and she is wrong on the provisions in the Bill. I will explain why in a few moments.
Mr Toby Perkins (Chesterfield) (Lab)
I am one of the relatively few Labour Members of Parliament whose constituents voted by a majority to leave, and the issue of parliamentary scrutiny was often raised during the referendum. I have had a number of them get in touch to tell me how disappointed they are that we are now not going to be getting the parliamentary scrutiny that we were promised as one of the benefits of Brexit.
The Solicitor General
I am sorry to say that the hon. Gentleman is wrong, and I will explain why in a few moments, but I am grateful for his intervention because it means that I can re-emphasise the point that demanding this additional scrutiny is not a comfortable position for Labour Members to hold because they had no concerns about the lack of scrutiny during our EU membership.
This amendment is not only novel and untested; it is unnecessary because there are already measures within the Bill. We have already made provision for a sifting Committee and Members will recall the speech from my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones), the Chairman of the European Union Statutory Instruments Committee, who clearly set out the important work that he and his Committee do. He described it as dry, but it is important work that he and his Committee do upstairs to scrutinise this legislation. That provision continues in the body of this Bill.
This will allow a specified Committee in each House to recommend the affirmative procedure for the more substantive powers in the Bill. In this way, either House will be able to ensure that there are active votes on the reforms that this Government bring forward under the Bill. This is significantly more scrutiny than the EU law had when it was first introduced. It is tried and tested. My hon. Friend the Member for Harrogate and Knaresborough chairs that Committee ably and I would like to thank him and all hon. Members who serve on the Committee for their work.
Mr Perkins
With the greatest respect, under the previous arrangement we had Members of the European Parliament doing that scrutiny. It is not really comparable to say that nothing has changed and this is somehow more. Because we have got rid of our representatives in the European Parliament, it is all the more important that these matters are considered, but for the Minister to say, “There is a Committee that deals with this. None of you will hear about it, but none the less its work is important” sounds exactly like the sort of thing that my constituents thought we were getting away from.
The Solicitor General
I am sorry that the hon. Gentleman was not in the Chamber for the exchange when my hon. Friend the Member for Harrogate and Knaresborough gently pointed out that Labour Members had not taken up their places on the EUSI Committee. As Chairman of the Committee, he rightly encouraged Labour Members to take up their places on that Committee and I would add to that encouragement.
The Solicitor General
I will give way but I am conscious that a number people want to speak, so I will then make some progress.
Sir William Cash
With the greatest respect, I just want to say through the Minister to the hon. Member for Chesterfield (Mr Perkins) that, although the European Parliament does its job, the laws are actually made by the Council of Ministers behind closed doors, by qualified majority vote and without even a transcript in Hansard. That is not a basis on which one could make any assumption that we would ever agree to them. It was always done by consensus.
The Solicitor General
Mr Speaker, you were absolutely right to encourage me to take that intervention, and I am grateful to my hon. Friend the Member for Stone (Sir William Cash). I pay tribute to him for all his work in this House. His announcement over the weekend came as a great sadness, shock and surprise. I know that he has a lot of work to do between now and the next election, and I look forward to these debates in the future. Thank you for encouraging me to take his intervention, Mr Speaker.
Lords amendment 42B is both unnecessary and potentially detrimental to this country’s environmental standards. We have made a commitment at every stage of this Bill that we will not lower environmental protections, and that we will ensure the continued implementation of our international obligations. Indeed, I am reminded of the rare moment of agreement between my hon. Friend the Member for North Dorset (Simon Hoare) and the right hon. Member for East Antrim (Sammy Wilson) during our last outing. They found common accord, and they are both right that there is simply no reason or incentive for the Government not to uphold our high environmental standards, of which we are rightly proud. It is simply not necessary for this commitment to be on the face of the Bill, especially not in a way that would make it more difficult to achieve any meaningful reforms that benefit the UK.
I will not try your patience, Mr Speaker, by listing all the Government’s post-Brexit achievements, but some of the steps we are taking go above and beyond EU law. [Hon. Members: “What are they?”] The Opposition are encouraging me to do so, and who am I to say no?
The Solicitor General
I am keeping a very careful eye on timings and on your indication, Mr Speaker. I will not abuse your patience, but let me list some of the important measures passed by this Government. Our environmental standards are now world leading, thanks to the Agriculture Act 2020, the Fisheries Act 2020 and the landmark Environment Act 2021, which will deliver the most ambitious environmental programme anywhere.
Furthermore, Lords amendment 42B is not just unnecessary but may even endanger our environmental standards. The amendment would make it harder to retain the effect of existing regulations, as it applies to restatements of retained EU law. [Interruption.] It is very timely that the Secretary of State for Environment, Food and Rural Affairs arrives in the Chamber just as I am championing all the steps that she and her predecessors have taken to protect and lead the world through our environmental standards.
Lords amendment 42B would add friction. It is unnecessary and potentially self-defeating. The Government want to ensure that we capitalise on the UK’s competitive advantages now that we are no longer restrained by our membership of the EU. I invite the House to support the motions in the name of the Secretary of State for Business and Trade.
Justin Madders (Ellesmere Port and Neston) (Lab)
Here we are again. It has been nearly nine months since the Bill was introduced, during which time five different members of the Government have spoken in support of the Bill from the Front Bench, most of them making one appearance before never being seen again. I congratulate the Solicitor General on making it back for a second appearance.
Although, of course, the question of retained EU law needs to be addressed, our main contention is that the way in which the Bill attempted to do that was reckless, unnecessary and undemocratic. To some extent, we have seen an end to that kamikaze approach, which is of course welcome, although it does not mean that all our concerns have been dealt with.
Mr Perkins
The point that my hon. Friend makes light-heartedly is actually very relevant. The truth is that we have seen chaos on the Government Benches. We have seen Ministers speak extremely boldly about the Bill’s powers, only to water them down when they come face to face with reality. Does not the farcical way in which this Government have conducted their affairs give people real concern, including about what is in this Bill?
Justin Madders
I am grateful for that intervention. I note that, again, the Secretary of State for Business and Trade is not here to defend the Bill in its current form. We have consistently been told by businesses throughout the Bill’s passage that it is so chaotic that nobody can possibly plan ahead. How can any business prepare for the future if it cannot understand what the rules will be six months hence, never mind 12 or 18 months into the future.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
Many of my Slough constituents are concerned, because they feel that non-regression, upholding international treaties and consulting experts should be wholly uncontroversial. Does my hon. Friend feel that, with the Government’s approach, we will merely have more watering down of our high environmental standards, and that such watering down must be blocked at every opportunity?
Justin Madders
I thank my hon. Friend for that intervention, as he sets out what this amendment is attempting to secure, which is a bit of security.
I shall make some progress, as I am aware that a number of people wish to speak. As we have heard, Lords amendment 15B seeks to introduce conditions on some of the powers in sections 12, 13,15 and 16 relating to the environment. As my hon. Friend says, it stipulates that any regulations made may not
“reduce the level of environmental protections”
or
“conflict with any…international environmental agreements to which the United Kingdom is party”.
It also sets requirements on consultation. Given that the Government are supposedly committed to maintaining the highest environmental standards, one might think that those conditions are uncontroversial; they are the actions I would expect any Government committed to maintaining high standards would want to undertake. That view is shared by a range of experts, including, but certainly not limited to, the Government’s own watchdog, the Office for Environmental Protection. Its written evidence submission endorsed all three of those suggested conditions, with its chair, Glenys Stacey, remarking:
“Worryingly, the Bill does not offer any safety net, there is no requirement to maintain existing levels of environmental protection.”
The Government are not listening to their own watchdog and have instead chosen to refer to those conditions as “burdensome” and “unnecessary”. I have yet to hear any rational explanation as to how the conditions in the Lords amendment can be both of those things at the same time; if these steps are, as the Government tell us, things that they would be doing in any event, how can they possibly be an additional burden as well? When we are met with illogical and unconvincing arguments such as that, we are right to be concerned. I note the assurances given at the Dispatch Box on this and previous occasions, but, as we have seen with this Bill in particular, Ministers come and go, and if we were to rely on everything said at the Dispatch Box as having the same weight as actual legislation, Acts of Parliament might be half the length that they are. There is a reason we do not do that.
Of course, we can all imagine what might be said by the public if the worst was to happen and environmental standards were to slip as a result of this Bill. We would say to our constituents, “But we were promised this wouldn’t happen” and our constituents could point to the 40 hospitals not having been built, Northern Powerhouse Rail not having been started, the ditching of the Animal Welfare (Kept Animals) Bill or any number of other broken promises, and they would call us naive at best. So we are right to insist that these protections stay in the Bill.
Lords amendment 42B tackles one of the most controversial clauses, the one that the Hansard Society referred to in its written evidence as the “do anything we want” powers for Ministers. The Hansard Society is not prone to exaggeration and its comments have merit. As we know, clause 15 empowers Ministers to revoke regulations and not replace them; replace them with another measure which they consider appropriate
“to achieve the same or similar objectives”;
or
“make such alternative provision as the…national authority considers appropriate”.
In the face of such untrammelled concentrations of power in the Executive, Lords amendment 42B seeks to put a democratic check on the use of those powers. Actually requiring a Minister who wishes to use these powers to set out their proposals before each House is entry-level transparency that should have been part of the procedure to start with. Allowing a Committee of this House to consider them seems a fairly uncontroversial suggestion, even if some people now think that Committees cannot act in a bipartisan way. Of course, giving a Committee the power to request a debate on the Floor of the House will be reliant on its making the judgment that such a debate is necessary, but this does secure a degree of scrutiny over ministerial decisions. It also hands at least some power back to Parliament, which was, of course, for some, what Brexit was all about.
Stella Creasy
Does the debate about the Bauer and Hampshire judgments not make the case that my hon. Friend is making? I hope Mr Speaker will forgive me here, but the Minister said that I was wrong and that is perhaps unparliamentary. Let me read into the record what the shadow Minister and I heard in Committee. The Minister of State, Department for Business and Trade, the hon. Member for Wealden (Ms Ghani) said:
“the Department for Work and Pensions does not intend to implement the Bauer judgment through the benefits system…The Hampshire judgment is a clear example of where an EU judgment conflicts with the United Kingdom Government’s policies. Removing the effects of the judgment will help to restore the system to the way it was intended to be.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 168-69.]
If Ministers are changing their minds now about using the powers in this Bill to revoke these protections for the pensions of our constituents, it is only because they have been caught out doing it and using the powers in this Bill. Does this not make the case—
Mr Speaker
Order. I am not going to have this private debate carrying on. You have put it on the record and the Minister has put it on the record, but people can be accidentally wrong. I do not need a lecture on what is wrong and what is not. In the end, you have put the case, and we have a lot of people who want to speak in the debate, including yourself.
Justin Madders
I remember that exchange very well, not least because it was on my 50th birthday. It certainly shows the importance of having proper scrutiny and transparency about ministerial decisions, which has been one of our main critiques of this bill throughout. I remind hon. Members that it was said in 2016 that we needed to reassert parliamentary sovereignty and that that was what taking back control was all about. However, I said in Committee, “we” does not mean
“Ministers sitting in rooms on their own, answerable to nobody, and under no requirement to explain their actions”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 22 November 2022; c. 126.]
“We” means this place.
I know that the oft-repeated and erroneous argument, which we have heard again today, that those laws were passed without proper democratic involvement in the first place has been offered as a reason why we should not follow such a process now. To make a pithy comment on that, two wrongs do not make a right. I would have expected those who were shouting the loudest about our sovereignty back in 2016 to be with us today.
The lack of transparency and desire to bypass scrutiny that are the hallmark of this Bill demonstrate a lack of confidence from the Government in their own programme. It is clear that either they do not know, or they do not want to tell us what they intend to do with the powers conferred by the Bill. Even the addition of a schedule listing regulations to be revoked does not really offer any clues about how the Government plan to approach the bulk of retained EU law.
In her recent appearance before the European Scrutiny Committee, the Secretary of State for Business and Trade referred to that list as merely containing regulations
“that are redundant, rather than things that are holding us back”,
meaning that we still do not know what the substantive changes will be. Maybe one day we will find out what exactly it is that has been holding us back.
If the Government cannot tell us what they intend to do with the powers they hand themselves under this Bill, and they clearly do not want the light of scrutiny shone on their intentions, it is even more important that this amendment is passed. It also suggests that this Government are not confident about what the public or indeed Parliament will have to say when their intentions become clear. That is why as many safeguards and as much transparency as possible should be injected into this Bill.
In closing, I refer again to the evidence given by the Secretary of State to the European Scrutiny Committee, because if anything sums up the shambolic approach to this Bill by the Government it is her comment:
“The retained EU law Bill became a process of retaining EU law. That is not what we wanted.”
I do not know whether to laugh or cry at such comments. What I can say for sure is that, if anything sums up just what a tired, out-of-touch and broken Government we have, that is it.
Sir William Cash
I have a strange sense of déjà vu about the speech I have just heard from the hon. Member for Ellesmere Port and Neston (Justin Madders). I am afraid that he does not quite get it. I have made the same point with regard to the hon. Member for Chesterfield (Mr Perkins); the fact that I happen to rather like him, and always have done—I come from Sheffield—does not alter the fact that I fundamentally disagree with him.
The way the House of Lords has dealt with these amendments demonstrates that the Lords are determined to try, by hook or by crook, to obstruct the House of Commons, which is the democratic Chamber in these matters as far as the electorate is concerned, in pursuance not only of the referendum on leaving the European Union, but also of the Bill as a whole—which I do support, as it has moved forward. I had some reservations in the past, but we have made a lot of progress.
I congratulate the Minister very much on his calm common sense and the way he has approached the subject. I also agree with the tweet he referred to. Parliamentary counsel are rather like holy priests, if I may say so, and they have their own particular way of wanting to deal with something. I would not want in any way to criticise the way they have gone about this, because it comes to exactly the same thing that I proposed when the Government adopted my own amendment.
Coming to the question of parliamentary scrutiny, the new clause introduced by Lords amendment 42B places a prohibition on the making of regulations under section 15, unless
“a document containing a proposal for those regulations has been laid before each House of Parliament”.
It goes on to say that the document is to be
“referred to, and considered by, a Committee of the House of Commons”.
That sounds suspiciously as if it might fall within the remit of the European Scrutiny Committee. If it does not, that creates a problem with our Standing Orders for a start. It is not defined, so what on earth that Committee will do, and how it relates to the functions of the European Scrutiny Committee and/or to any other Committee of the House of Commons, is so completely vague and impossible to understand. That, in itself, condemns that new clause.
The amendment goes on to say:
“a period of at least 30 days has elapsed after that referral”.
When it turns to the next question, it says:
“If the Committee—
the Committee of the House of Commons—
determines that special attention should be drawn to the regulations in question, a Minister of the Crown must arrange for the instrument to be debated on the floor of each House”.
They “must”; there is no option on that.
Suddenly, we move into a completely new dimension for each House. If the Committee—my own Committee, were it to be the Committee in question—makes a decision about special attention, that is then thrown to the mercy of each House of Parliament. We know from everything that we have heard over the last few weeks on the Bill that there is an intransigence—a stubbornness, if I may say so politely—from our noble Friends in the House of Lords in the face of any attempt to get rid of retained EU law in the way in which we are proposing, through revoking or reforming it.
By taking that particular course in the clause, all the Lords are doing is saying, “We want to take back control. We want to put this whole procedure into a cul-de-sac that will be effectively controlled.” I would go so far as to say that, by the sounds of it, the House of Lords will try, to use that hallowed expression, to “take back control.” They will try to take back control of this to the House of Lords. That is what this is all about, and we are not so stupid that we will fall for this one, let me assure the House.
Let me come to the question of regulations and statutory instruments, and the way in which they areb made. I have spent a lot of time on that, as I have said before. I am most grateful to you and others, Mr Speaker, for referring to the fact that I will retire from the House of Commons at the next election, but I have a lot of work to do between now and then. This debate is part of that, by seeing the Bill brought to a conclusion through its elimination of the supremacy of EU law and the opportunity to diverge and create economic growth and competitiveness. All these matters are part of that.
I find it really astonishing that the Lords do not seem to understand—it is as if they are trying to take us for fools, which I can assure the House we are not. I have sat on the European Scrutiny Committee since way back in 1985. Day in, day out, every single week, regulations and statutory instruments were brought in to implement decisions made behind closed doors in the Council of Ministers, as I said to the hon. Member for Chesterfield. Those decisions were made by majority vote of the other countries—there used to be fewer but then the number went up to 27—and without even a transcript. I challenge any Labour or SNP Member to get up and say that they think that is a very good idea, and that they would love to tell their constituents that they should be governed in that way, with all their laws for made for 50 years by that method of completely closet operation and without a transcript. It is unbelievable.
What are we doing here other than having a debate in this Chamber? I challenge Opposition Members to go out and say to their constituents: “We want to have you governed in that manner, behind closed doors and without a transcript.”
Sir William Cash
It is no good the shadow Minister shaking his head, because he will not ask that question and nor will the hon. Member for Chesterfield, because their constituents would very quickly turn around and tell them to get lost.
Justin Madders
I just point out to the hon. Gentleman that my constituents would wonder why we are rehashing the arguments from 2016 when we have this Bill before us today.
Sir William Cash
I am so delighted that the hon. Gentleman asks that question. It is very simple: we had a general election that gave us a massive majority on the basis of getting Brexit done—and this gets Brexit done. We are doing exactly what so many of his constituents voted for, even though, I am sure, he got a reasonable majority. There are people who are now not in this House and were driven out because they did not respect the views of the people in that referendum. That is a very simple and straightforward answer to his point.
Hywel Williams (Arfon) (PC)
The hon. Gentleman is referring to processes in the past in Brussels, but the Lords amendment suggests that a Committee should examine such matters. I believe that in this place Committees meet in public.
Sir William Cash
With respect to the question of how the laws are made in the first place, that is what I am saying. The reason the Bill is so important is the need to overtake and, effectively, deal with the mistakes made in the past, over that 40 or 50-year period, whereby the laws were made in the way that I have described—and they were. They were done by consensus, because everybody knew before they walked into the room that the majority vote would work against them. I have spent a lot of time scrutinising such things—I was going to say a lifetime, and I almost have—and all that I can say is that nobody would seriously doubt that that is how the system operated at that time.
We are talking about these laws because we want to revoke or modify them. We are not going to get rid of all of them—we will modify some and revoke others, and that will be by a simple test. That test will not be whether or not it was decided by 27 other countries to which we were subjugated by law—[Interruption.] We did that in the European Communities Act 1972, which was a great mistake. We have moved to a situation as the result of a general election in this country, the result of which is that we are allowed to make our own laws here in this House on behalf of our constituents. I think that is a very reasonable position. It is not only reasonable but absolutely essential, because it is about democracy and sovereignty and self-government. That is what the people decided in the referendum.
Stella Creasy
And I thank the hon. Gentleman for it. I note his comments, although I also note that the legislation already provides for a Committee to look at the statutory instruments generated by the Bill. That is not a novel procedure. He says that it will be this House that determines matters, but it will only be this House reflecting what Ministers bring to us in a Delegated Legislation Committee, will it not? Unless Lords amendment 42B is passed, MPs will not be able to influence the content of an SI. The hon. Gentleman says that he did not like that in the European Parliament, so why does he want to take back control to Downing Street rather than to this Chamber with a process whereby, when changes are substantial, MPs have influence over them?
Sir William Cash
First, I did not say the European Parliament; I actually said the European Council of Ministers. There is a big difference and I am sure that she understands that, because that is where the law making is done. Secondly, with great respect, it is a bit disingenuous to suggest that this will all be decided by the Committee. I think it would be my Committee that would do this, but if we leave that aside the real point is that the amendment goes on to say that even if that Committee
“determines that special attention should be drawn to the regulations in question, a Minister of the Crown must arrange for the instrument to be debated on the floor of each House and voted on”.
That is the point. In other words, the lock is created by the House of Lords—
Sir William Cash
Of course it is. If I may say so to the hon. Lady, with the greatest of respect, that is the intention that lies behind it. I know that she is quite obsessive about this point, but, with the greatest respect, she does not seem to quite understand how it is— [Interruption.] I am trying to be factual about this. The fact is that when the original regulations were made, they were made as statutory instruments implementing the laws made in the way I have just described, behind closed doors and so on.
Those regulations came in that way and it is perfectly legitimate, in the light of the fact that those laws were not made in the manner in which we would traditionally expect them to be made and, constitutionally, should be required to have them made, which is by this House, these Members of Parliament—including current Opposition Members of Parliament if they are in government—and for those decisions to be taken democratically on behalf of our electorate, who happened to say that they wanted to leave the European Union and endorsed it with a general election in 2019. The position is perfectly clear: what we are doing in this Bill is not only completely legitimate, but constitutionally correct. That is a big difference. Robin Cook once said to me, “Legitimacy is one thing, Bill; constitutionally, it is quite another matter.” That is not a constitutional way of doing things. What came into this Parliament and affected the voters of this country for 40 or 50 years was done in a manner that was completely, totally and utterly objectionable in democratic terms, because those laws were not made by our voters and our Members of Parliament representing those electors in this House.
I will simply say that I am not going to buy into this at all. I think I have probably made myself pretty clear but, having said that, I recognise the way in which the Minister has handled the Bill. I am extremely impressed and grateful to him for not only his comments, but the fact that he has handled the Bill so well.
Mr Deputy Speaker (Mr Nigel Evans)
Congratulations on your latest recognition, Sir Bill.
The debate finishes at 4.39 pm, and Members can see how much interest there is. Alyn Smith is next, and I have to put the question at 4.39 pm, irrespective. All I would ask now is for some time discipline, in order to get as many views in as we possibly can. I call Alyn Smith.
Alyn Smith (Stirling) (SNP)
Thank you, Mr Deputy Speaker. I would be perfectly happy to summarise the Bill in one word, if you would allow me some unparliamentary language, but I will be brief.
The SNP’s position on the Bill is well rehearsed. We regret this piece of legislation. We do not think it is necessary. We do not like what it is trying to achieve, because we think targeting laws on the basis of where they came from, rather than what they do or how effective they are, is a poor way of doing it. We also are not interested in fighting old battles, but the Bill is all about fighting old battles—that is where it has come from.
I will focus only on amendments 15B, 16C and 42B. During the Bill’s passage, we of course saw the gutting of its major provision—the sunset clause—so it is not as bad as it might have been, but we think it remains a significant blank cheque for Ministers, with insufficient scrutiny. Ministers want as much power as possible, with as little scrutiny as possible. Ministers in any Parliament want that, but I think it is perfectly legitimate for the House here to demand greater scrutiny than we have seen.
We on the SNP Benches are particularly concerned—it staggers me that this has not been mentioned throughout the debate—that the Scottish Parliament and the Welsh Senedd have not consented to the Bill. I have much respect for a number of people on the Government Benches, but I would gently say that, if one wants to talk about a precious Union, it is quite important to observe it. We have yet to hear a proper answer to that point. We have had various reassurances, but we are not going to see sufficient protection in the Bill. We are concerned that this Bill, when it becomes an Act, is going to be used to undermine the devolution settlement that was endorsed by the people of Scotland and the people of Wales. We think that is a poor way of making law.
On amendment 15B, which deals with environmental standards, I found much to agree with in how the Labour spokesperson, the hon. Member for Ellesmere Port and Neston (Justin Madders), presented it. We are taking the Ministers at face value that we do not want to see a regression from international standards—the standards that we have. Let us put that in the Bill. We think that is a proportionate and workable thing to do, and I do not see how it would fetter the Government to any great extent. We are glad to see a bit of a compromise on amendment 16C, although I have to say that it is pretty weak beer when it comes to clarity on the EU law dashboard and its operation. We will not stand in its way.
On amendment 42B, which would provide for greater parliamentary scrutiny of future revocations of EU law, I think it is workable. I urge Members on the Government Benches to think hard about the fact that enough people in the House of Lords and in this place think it is necessary, as part of the Bill, which gives Ministers a lot of power, to find a new way of scrutiny. I accept the point that it is a novel way of doing things, but we think that is proportionate, and I think history will vindicate us on that view.
Mr Deputy Speaker, we regret the Bill. We are not about fighting old battles, but we do not think this is the way to go. Sadly, I think we will see that the Bill is a bad piece of legislation. There are ways of making it better, which we will support, but the Scottish Parliament have not consented to the Bill. Government Members should be in no doubt that the Bill will be passed against the interests of Scotland.
Mr Deputy Speaker (Mr Nigel Evans)
Alyn, thank you for your co-operation—I appreciate it. Whoever is on their feet at 4.37 pm I will ask to resume their seat, because I am going to give the Minister two minutes to respond to contributions.
Sir Robert Buckland (South Swindon) (Con)
It is a pleasure to follow the hon. Member for Stirling (Alyn Smith). His remarks are always couched in a pithy and clear way, but I disagree fundamentally with his point about a legislative consent motion. It is entirely within the rights of the devolved Administrations and their Parliaments to consent or not, but the very fact that a consent has not been granted should not be regarded as either legally or politically fatal to a Bill that clearly deals with the competences that lie here at Westminster.
I am afraid that the characterisation of the hon. Gentleman and the nationalists—the SNP and nationalist parties elsewhere—that this is a power grab away from Cardiff and Edinburgh in favour of Westminster is a complete misreading of the situation. These powers lay in Brussels, at the European level, and they are coming back to the next level of Government. That is not in any way some sort of reverse grab away from the devolved Administrations. It cannot be, and it does not follow. I speak not only using my experience as a lawyer, but as a former territorial Secretary of State. That characterisation has to be resisted at every turn.
I will now deal with the three particular issues that we have before us today.
Sir Oliver Heald (North East Hertfordshire) (Con)
Before my right hon. and learned Friend departs from his remarks in response to the hon. Member for Stirling (Alyn Smith) about Scotland, does he agree that, if laws are passed in Europe, they are a compromise representing the interests of 27 different countries? There is an opportunity for some smart deregulation, and that would be as beneficial to Scotland as to any other part of the UK.
Sir Robert Buckland
I entirely agree with my right hon. and learned Friend. At the risk of invoking the ire of my hon. Friend the Member for Stone (Sir William Cash), the new Companion of Honour, it is right to say that, although consensus was indeed the means by which regulations were agreed by the Council of Ministers, it usually involved the UK and its assent to that consensus. I know that is not quite the narrative that he agrees with, but we risk fighting the old battles that he and I were on either side of.
Sir Robert Buckland
No, we are not going to do that today, but I will end on this basis: my hon. Friend knows I am right.
In my next breath, I want to violently agree with my hon. Friend about his work on the dashboard and the amendment that we now have to make a particular tweak to Lords amendment 16. I entirely support the new clause under Lords amendment 16. The dashboard has been a source of much concern in recent months, which was then reflected by the Secretary of State’s wise decision to change course. That dashboard has to be authoritative, so I am glad to see it in law, but it now needs to work. We need to make sure that it is populated, that the National Archives is very much part of it, that we are not given any more surprises and—my hon. and learned Friend the Minister will get this—that we do not end up with repeal by accident, which is bad for the rule of law, bad for certainty and bad for investment. We all agree on that.
To deal in short order with Lords amendment 15, with the best will in the world, on one level, it seems to be a sincere attempt to reflect the legitimate aspirations of the British people about food and environmental standards. Frankly, they are the aspirations of the British Government, too. It is not right to say that at any time, any Minister on the Treasury Bench under this Government has said that they want to use the Bill as an attempt to railroad the undermining of strict environmental protection and food standards. One therefore has to ask: what is the purpose of this particular amendment? Some of its purpose I am afraid is nakedly political. It seeks to make a political point that imputes to this Government a motive that they just do not have. In addition, it is beset by problems. The particular way in which it is structured, and the requirements for consultation in particular, seem to me to be a litigator’s paradise.
Jim Shannon (Strangford) (DUP)
On the point about the environment and how important it is, the right hon. and learned Gentleman will have got the same circular as the rest of us. It states:
“Many of the laws that could be weakened using the powers contained in the Bill as currently drafted are vital to nature’s recovery. They help improve the quality of our rivers and coasts, keep dangerous chemical use at bay, and protect some of our rarest and most important habitats and species.”
Does he believe that the Minister is going to deliver on that? I think he will, but does the right hon. and learned Gentleman think that as well?
Sir Robert Buckland
Well, answer that! I entirely agree with the hon. Member. There is no evidence at all that this Government seek to take a different course from their stated aim of protecting world-leading environmental protection and food standards. Therefore, we have to ask what the purpose of Lords amendment 15 is. It seems to me that many parts to the amendment would give rise to a significant amount of litigation. I do not think that is at all what the drafters of the amendment want, and it certainly does not help with regard to clarity of the law.
That brings me to new Lords amendment 16C, which, with absolute candour, seems to me to be a step back by their lordships from the previous iteration of that amendment. It is now narrowed down just to clause 15. I understand the concerns that the noble Lords have about the use of the power in clause 15 because it is, on the face of it, a dramatic power that the Government would have. On one level, the power of revocation seems to me to be welcome. I note within it particular caveats about the creation of new functions, particularly the creation of criminal offences. There has been a long-established convention about the use of such powers, and we all have a concern about the creation of criminal offences that are more serious than ones they seek to replace or, indeed, are serious new offences. I note the taxation and public authority restrictions as well, so a lot of the normal restrictions are built into the provision, which are welcome.
What the noble Lords are asking for is more reassurance about the process. I do not criticise them at all for that, because it does not seem unreasonable to me that there should be at least some process, particularly when new regulations are being created. I would gently press the Minister to consider that discrete point. It may well be, in response to anything that I or other hon. Members say, that he has an opportunity to enlarge on that. It does seem to me not unreasonable to ask for that further check and balance. I do not think it is the sort of unwelcome additional bureaucracy that perhaps he and others are concerned about. Fundamentally, we have a duty as parliamentarians to protect the role of this place in particular in the scrutiny of the passage of important new regulations, whatever form they may take.
If we take Brexit out of this and take the temperature right down, I do not think that is an unreasonable point at all. I do not accept the characterisation that a number of noble Lords are embarking upon some mission here to frustrate the approach that the Government are taking in the Bill. It is a Bill I have supported, and a Bill I have said is absolutely necessary as a special mechanism to deal with retained EU law. We all agreed that this was a particular area of law that needed to be held in suspense and then looked at carefully in its individual parts. Lords amendment 16C does seem to me to reflect that and respect that. The other two matters I have dealt with, and I am more than satisfied with the Minister’s response to that, but I do press him on that particular aspect and that particular amendment. I will not trouble the House any further.
Stella Creasy
Getting any detail out of this Government about what they intend to use the powers in the Bill for has been like pulling hens’ teeth. Even now, with the Bill before us today, about to be passed imminently, we still do not know the full effect it will have. I will make a few brief comments.
The right hon. and learned Member for South Swindon (Sir Robert Buckland) talked about the Government’s recognition that we need to know not just the regulations but the direct effect cases that are being deleted. In the other place last week, the Government said they
“will add Section 4 rights to the dashboard as identified at least as frequently as every six months, as per the reporting requirement clause that is already in the Bill.”—[Official Report, House of Lords, 6 June 2023; Vol. 830, c. 1263.]
Nothing has changed since last week, so we still do not know what legal judgments the Government intend to delete—legal judgments that cover multiple rights including employment rights and environmental standards.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am sure the hon. Lady knows what she did; please withdraw any accusation of dishonesty.
Stella Creasy
Of course I withdraw that; I meant to say “open”. I want the hon. Member for Stone to be open, but he has not even bothered to have the courtesy to read Lords amendment 42B. If he had, his objection to the idea of a Statutory Instrument Committee looking at these amendments—[Interruption.] Well, I am sure he has made complaints to the Government, who have already written to the other European statutory instruments scrutiny Committee to say they will be doing exactly that. He opposes the idea of a report about what impact a statutory instrument might have. In any other language that is called an impact assessment; we get them on all sorts of pieces of legislation, but not on this.
Stella Creasy
I have listened to the hon. Gentleman. I listened to him tell us at length about the European Union, but he has failed to tell us why he is opposing an amendment that gives this Chamber primacy over what happens when legislation changes. As the right hon. and learned Member for South Swindon says, it matters.
The hon. Member for Stone opposes the Lords being able to come back with SI amendments. Actually, this House would be able to override them under Lords amendment 42B. If he had bothered to have the courtesy to look at what the Lords had said, and bothered to listen to a former parliamentary Clerk of the House who helped draft it—not a great remainer by any means, but somebody who cares passionately about parliamentary democracy—he would recognise that this is about trying to make the process better. He would recognise that our constituents deserve better than a simple email saying, “We have no idea what’s being deleted and we could not stop it anyway,” because that is the point about SI Committees.
I am done with being lectured that this is somehow about Brexit and that those of us who have concerns about parliamentary democracy in 2023 should look at the 1972 Act, because I can see what could happen in 2024 and 2025, and my constituents deserve better than this. We cannot have a legislative process that simply says we have to trust the chaps and chapesses who are Ministers and in Downing Street to do the decent thing. If the hon. Gentleman had sat in his own Committee and listened to Ministers dismiss his own concerns, he would know the folly of such a position.
Conservative Members will vote down these amendments yet again, and they will go back to their constituents and tell them not to worry, but the truth is that they should be worried because we do not know what rights will be affected. As far as I can see, given that Ministers committed to abolishing them, the only reason why the Bauer and Hampshire judgments are now being kept is because they have been caught red-handed using a Bill to override something they know our constituents would want us as MPs to speak up about. We must never let anybody on the Conservative Benches or who said they were speaking up for democracy through Brexit tell us ever again that Brexit was about taking back control. It is taking back control to Downing Street, not this place, and our constituents deserve to know that truth.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
We will squeeze one more in, but please resume your seat at 4.37 pm. I call Sarah Olney.
Sarah Olney (Richmond Park) (LD)
We welcome these amendments. Despite the Government’s screeching U-turn, the Liberal Democrats are still extremely concerned that this legislation could see around 600 EU-era laws slated for removal by the end of this year alone, with a further 4,000 potentially being scrapped by 2026, each removed without any consultation or vote in Parliament. This brazen attitude poses risks to hard-fought gains in workers’ rights such as holiday pay, agency worker rights, data protection rights, and protection from downgraded terms and conditions when businesses are transferred.
Further, my Liberal Democrat colleagues and I are extremely concerned about the risk that environmental protections for our rivers and natural habitats could be softened should the Government choose to block Lords amendment 15B. The amendment seeks to ensure that the Government could not reduce levels of environmental protection. As the hon. Member for Stirling (Alyn Smith) said, if that is the Government’s intention, why not say so in the Bill? The amendment also seeks to ensure that UK law cannot conflict with relevant international environmental agreements to which we are party. That is extremely concerning to my constituents in Richmond Park.
Thames Water has proposed an extraction scheme to replace water from the river near Ham and Petersham with treated sewage effluent. Should environmental protections that govern water quality be weakened in any way—that may happen should Lords amendment 15B not be agreed to—such schemes would be subject to less scrutiny, which could lead to irreversible damage to the waterways that we all enjoy.
I also speak in favour of Lords amendment 42B, which, if supported by the House, would ensure a debate on the Floor of both Houses on any change proposed by the Government to any legislation under the Bill. That solution would prevent any undemocratic power grab by the Government by ensuring that no arbitrary and binding decisions over the laws that affect us all can be made without following a proper and thorough legislative process.
I urge all colleagues across the House to join the Liberal Democrats in supporting both amendments that we will vote on. In doing so, we will be voting to protect thousands of crucial protections for our environment, food standards and working conditions and to prevent an undemocratic power grab by this Conservative Government.
Caroline Lucas
Thank you, Mr Deputy Speaker.
Lords amendment 42B is a critical amendment to rein in what is quite simply an Executive power grab, with the Bill handing Ministers enormous powers to review legislation with little to no scrutiny and replace it with provisions that they consider to be “appropriate”. I think we can all agree that that word is open to wildly different interpretations.
Government Members should remember that the Bill will give powers not just to this Government but to any future Government, which they may not agree with. Indeed, a legal opinion on the likely constitutional, legal and practical effects of the Bill found that Ministers would be given
“largely unfettered…discretion for…substantive policy changes.”
Lords amendment 42B really matters.
Lords amendment 15B is about ensuring that we have safeguards for environmental protections. If the Government really are serious about saying that they want to protect the environment, why would they not put that into statute and on the face of the Bill?
The Solicitor General
Thank you, Mr Deputy Speaker. With the leave of the House, it is a pleasure to respond, not least to the warm welcome afforded to me by the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders). He missed the previous exchange when my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) noted that Solicitors General both took us into Europe with the 1972 Act and took us out of Europe with the 2018 Act, so there is a certain symmetry to a Solicitor General being at the Dispatch Box for the close of these proceedings.
May I reassure my right hon. and learned Friend on some of his remarks? Not least, he is right that his name was on the Bill when he was Secretary of State for Wales. I am grateful to him for his contributions. I hope to reassure him that parliamentary scrutiny is already well provided for and that the existing sifting procedure is there and set out in schedule 5.
I am sorry to say that the hon. Member for Walthamstow (Stella Creasy) is wrong. The Secretary of State has been clear and explicit that we are retaining those 50% protections. I am grateful to my hon. Friend the Member for Stone (Sir William Cash), and I agree with him. He was absolutely right in his comments about the Office of the Parliamentary Counsel, and about parliamentary counsel being the high priests of parliamentary drafting. He was also right that the Bill will eliminate the supremacy of EU law.
There have been repeated comments about our commitments to the environment and the world-leading standards and environmental protections that we have. It is crucial that we bring this most important Bill to Royal Assent as quickly as possible. We must capitalise on our competitive advantages now that we are no longer restrained by membership of the EU.
I add my thanks to the members of the Bill Committee, who, as has been mentioned, were certainly the finest. We must make the view of the House as clear as possible and avoid any further delay.
Mr Deputy Speaker
Just to direct the House, I am anticipating two Divisions. I hope to be helpful in indicating which amendments are being voted on—we will see.
Public Order
(11 months, 3 weeks ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
18:29 - The House divided: - Ayes: 277 / Noes: 217 - Question accordingly agreed to.
The Secretary of State for the Home Department (Suella Braverman)
I beg to move,
That the draft Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023, which were laid before this House on 27 April, be approved.
The regulations propose amendments to sections 12 and 14 of the Public Order Act 1986. These sections provide the police with the powers to impose conditions on harmful protests that cause or risk causing serious disruption to the life of the community. These regulations have been brought forward to provide further clarity. I want to place on record my thanks to the Minister for Crime, Policing and Fire, my right hon. Friend the Member for Croydon South (Chris Philp), and to policing colleagues and officials for their hard work on this issue.
People have a right to get to work on time free from obstruction, a right to enjoy sporting events without interruption and a right to get to hospital. The roads belong to the British people, not to a selfish minority who treat them like their personal property. The impact of these disruptors is huge. Over the past six weeks alone, Just Stop Oil has carried out 156 slow marches around London. That has required more than 13,770 police officer shifts. That is more than 13,000 police shifts that could have been spent stopping robbery, violent crime or antisocial behaviour, and the cost to the taxpayer is an outrage, with £4.5 million spent in just six weeks, on top of the £14 million spent last year. In some cases the protests have aggravated the public so much that they have taken matters into their own hands. They have lost their patience. The police must be able to stop this happening and it is our job in government to give them the powers to do so.
Jim Shannon (Strangford) (DUP)
I have noticed over the last few weeks, and others will have noticed this as well, that some of those who are protesting and stopping people getting to work, getting to hospital and going about their normal lives habitually and regularly protest. It seems to me that the law of the land is not hard enough the first time round to ensure they do not do it again. If they continually do it, we need a law to reflect that. Is the Secretary of State able to assure the House that the law will come down hard on protesters who wish to stop normal life?
Suella Braverman
The hon. Gentleman is right to emphasise the impact of repetitive, disruptive protesters. That they are behaving disruptively again and again is evidence that we now need to ensure the police have robust and sufficient powers to prevent this from happening.
Sir Edward Leigh (Gainsborough) (Con)
I fully support what my right hon. and learned Friend is doing. She can relax, as I have not come with a pot of glue in my pocket to glue myself to the Bench next to her in protest at what is happening with RAF Scampton. Does she accept that if people with good arguments put them politely and relentlessly, this Government will listen and they will eventually win?
Suella Braverman
My right hon. Friend is absolutely right. I pay tribute to the noble and honourable way in which he advocates for his constituents in relation to RAF Scampton. We live in a democracy in which freedom of speech must prevail. That means advocating and campaigning through lawful methods and lawful means, not breaking the law and causing misery and disruption to the law-abiding majority.
Richard Burgon (Leeds East) (Lab)
Will the Home Secretary come clean and admit that this authoritarian clampdown on our society’s hard-won democratic freedoms is being intensified by this Government because their policies are becoming ever more unpopular? Their heavy-handed, antidemocratic response shames us all.
Suella Braverman
The Chamber will not be surprised that I disagree with the hon. Gentleman. The right to protest is an important and fundamental right that I will ferociously defend, but serious disruption, nuisance and criminality are unjustified, which is why the police need the right powers to police protesters.
John Redwood (Wokingham) (Con)
I am grateful for what my right hon. and learned Friend is seeking to do. Can she confirm that there could, indeed, be cases in which protesters stop one getting to hospital for an emergency operation or procedure, or stop a woman who is about to give birth from getting to hospital in a hurry, and that they are risking people’s lives?
Suella Braverman
Their tactics are dangerous. They are putting people’s lives at risk by stopping ambulances getting to emergencies and stopping people getting to hospital appointments. They are stopping people getting to work, school and funerals. The instances are infinite, and the disruption must stop.
Sammy Wilson (East Antrim) (DUP)
I was a serial protester in Northern Ireland, so I understand the importance of people being able to express their peaceful opposition to whatever it happens to be. Regardless of the regulations that the right hon. and learned Lady puts in place, some police officers seem to have a sympathetic attitude towards some of these causes. Is she not concerned that some courts are prepared to allow people to walk out of court, having committed acts of criminal damage, without imposing any sanction? How does she believe these regulations will change that mindset?
Suella Braverman
The right hon. Gentleman raises an important point. The Government’s job is to provide sufficient, lawful and proportionate powers for the police to exercise. They have operational independence, and they need to make decisions and judgments based on the particular circumstances. Our job is to give them the powers to enable them to take the fullest and most lawful approach.
Dame Diana Johnson (Kingston upon Hull North) (Lab)
Have the police specifically requested these new powers? The deputy assistant commissioner of the Metropolitan police, Ade Adelekan, has said about recent slow-march protests
“once a protest is deemed to have caused serious disruption or may do so, we are taking swift action to stop it.”
Does the Home Secretary disagree with what he is saying, that the police already have the powers they need?
Suella Braverman
One of the first things I did when I became Home Secretary, along with the Minister for Crime, Policing and Fire and the Prime Minister, was to meet policing leads, in the Metropolitan police and nationwide, to hear about the challenges they have been and are facing in policing protests. They have requested extra powers and extra clarity in the law.
I find it surprising and disappointing that Labour MPs are not supporting the measures before us today, given how important they are to the public and how damaging serious disruption can be to everyday life. I have been trying to think about why that would be. Has it got anything to do with the fact that the Labour party—the Leader of the Opposition and his deputy—has taken £1.5 million of donations from a businessman who bankrolls Just Stop Oil? Is it because Labour’s botched environmental policies now seem to be directed by the eco-zealots? The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) should be embarrassed that Labour is more interested in supporting Just Stop Oil than standing up for the law-abiding majority. This Government and the police have always maintained that the powers are necessary to respond effectively to guerrilla protests.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
Clearly, it is important that the Home Secretary gives accurate information to Parliament, so will she clarify her answer to my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson), the Home Affairs Committee Chair, as to whether the police and the National Police Chiefs’ Council have requested the precise wording that she has put forward in these regulations? She said to the Chamber a week ago that the
“asylum initial…backlog is down by 17,000”.—[Official Report, 5 June 2023; Vol. 733, c. 557.]
She knows that that is not true and that the asylum initial backlog, which includes legacy and flow, has gone up. Will she now correct the record, as she is before the House and she knows the importance of the ministerial code and correcting any errors at the first opportunity?
Suella Braverman
Sadly, we see unsurprising tactics from the Labour party. Again, Labour Members seek to distract from their woeful failure to stand up for the law-abiding majority, who want us to take these measures on protesters, and to cover up the fact that they have absolutely no policy to stop the boats. It is disappointing but unsurprising.
These regulations will ensure clarity and consistency in public order legislation in the following ways. First, they clarify that the police may take into account the cumulative impact of simultaneous and repeated protests in a specific area when considering whether there is a risk. Secondly, they permit the police to consider the absolute disruption caused by a protest—in other words, their evaluation may be irrespective of the disruption that is typical in that area. Thirdly, the regulations define the term “community” to include “any group” impacted by a protest, extending beyond those in the immediate area. That definition better reflects the cross-section of the public affected by disruptive protests in cities today. Finally, the regulations align the threshold of “serious disruption” with that in the Public Order Act 2023. This definition, proposed by Lord Hope, the former deputy president of the Supreme Court, is rooted in protest case law. It was debated at length by Parliament and deemed appropriate for use in the Public Order Act 2023. It should now be incorporated into the Public Order Act 1986 to ensure consistency across the statute book.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Will the Secretary of State give way?
Suella Braverman
I will not give way, as I have taken a lot of interventions.
The regulations will make it clear that serious disruption to the life of the community includes
“the prevention of, or a hindrance that is more than minor to, the carrying out of day-to-day activities (including…the making of a journey)”.
These regulations do not create new powers but instead clarify powers that already exist. In support of that, we held targeted engagement with operational leads. The NPCC, the Metropolitan Police Service and the chief constables of the affected forces all welcome further clarity in law. To summarise, these measures ensure that public order legislation is clear, consistent and current.
In conclusion, I will always defend the rights of Just Stop Oil or anyone else to express their views, even to protest—that is free speech, that is the foundation of our democracy. However, its methods are deplorable. That is what millions of people, the law-abiding majority, and this Government believe to be true. These measures are for them—for the people trying to get to work, the people trying to get to a family funeral, the people trying to get to hospital. This Conservative Government are on their side.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
This is, at least, the Government’s fifth set of proposals on public order in the space of two years. They make the same claims about the latest set of proposals that they did about all the previous ones, and they keep coming back again and again, making all the same promises about what this piece of legislation will achieve as they did about the last one and the one before that. This is groundhog day, and we have to wonder how chaotic and incompetent this Home Secretary is that she has to keep legislating for the same things again and again.
We can see why Conservative Ministers might be worried about an organised minority of people causing disruption—people who want to protest against decisions made by the Prime Minister, who ignore all normal rules and have no respect for everyone else, causing serious disruption to the nation and the Government, lighting skip fires from Uxbridge to Selby and causing chaos in our public services, our transport system, our economy and our financial markets. Yes, to quote the Home Secretary, those disruptors are selfish; yes, the public are sick of them and yes, we have had enough of them. That is why we want to get rid of them all, not just through by-elections but through a general election.
We can also see why the Conservatives are so sensitive about extinction and rebellion. As a party, they are now so addicted to rebellion that it is taking them to the point of extinction. They should stop inflicting this chaos on everyone else. They have brought forward two new Bills on public order in the last two years, two further sets of entirely new proposals that were brought forward in the House of Lords halfway through those Bills’ passage, and now this statutory instrument. If only they had found similar time in Parliament for legislation on violence against women and girls, we might not have such disgracefully low charge rates for rape and sexual assault or such appallingly high and persistent levels of domestic abuse.
Instead, we have the chaotic repetition of the same debates and the same promises about legislation. It is total chaos—a coalition of chaos, as the Home Secretary might say herself. Indeed, she did say it when we debated the Third Reading of the Public Order Bill, which she claimed would sort everything out—and that was just eight months ago. In that debate, she accused Labour of being a
“coalition of chaos, the Guardian-reading, tofu-eating wokerati”—[Official Report, 18 October 2022; Vol. 720, c. 628.]
That is from the party that has crashed the economy and given us record inflation, the highest tax burden for 70 years, the worst train cancellations, NHS cancellations and public sector strikes in decades, and total chaos in the criminal justice system.
That party has given us three Prime Ministers, four Home Secretaries and four Chancellors in the space of 12 months, and since then three more Cabinet Ministers have been sacked, including the Deputy Prime Minister. There have been public hissy-fits today between the Prime Minister and his predecessor on the honours system, and now there are three upcoming by-elections. The Conservatives are definitely not a coalition of chaos, not least because any internal party coalition they ever had has clearly collapsed—oh, and on that bit about the wokerati, I have since discovered the Home Secretary is a vegetarian. She eats more tofu than I do!
The police need to take action against serious disruption and damaging protest tactics that cause harm and problems for others. Here in Britain, we have historic freedoms to speak out against things we disagree with, but we also have rights to be protected against serious disruption and dangerous protests by others. We have historic freedoms to object and to peacefully protest—that is part of our democracy—but blocking our roads so ambulances cannot get through is not legitimate protest. It is dangerous, irresponsible and against the law. Climbing up motorway gantries is not legitimate protest either. It is wholly unlawful and it puts lives at risk. That is why Labour supported increasing the penalties for blocking roads, and it is why we put forward measures to make it easier to get injunctions to prevent damaging protests, and measures to prevent intimidation and protest outside contraception and abortion clinics and vaccine clinics. It is why we have criticised groups such as Just Stop Oil and Extinction Rebellion for damaging protests that even put lives at risk.
The police have a serious and important job to do in a democracy—ensuring that people can go about their business, and protecting our historic freedoms—but they already have the powers to do exactly that. The Home Secretary claims that this latest measure is about slow walking, but that is already a breach of the law. Since 1986, the police have had the power to impose conditions on public processions—that is what slow walking is—and since 1980 it has been against the law to obstruct a public highway.
Indeed, the Minister for Crime, Policing and Fire, the right hon. Member for Croydon South (Chris Philp), said himself last month that
“the police are…using section 12 of the Public Order Act 1986… Following recent disruptions in the past 10 to 14 days, the roads have typically been cleared within 10 minutes”.—[Official Report, 9 May 2023; Vol. 732, c. 210.]
The Met said just this week that
“putting in conditions from Section 12 of the Public Order Act has encouraged protesters to exit the highway within minutes; from the 156 slow marches that have taken place, 125 Section 12…conditions have been imposed”,
including 86 arrests where people were not complying. The chief constable of Greater Manchester police said:
“We have the powers to act and we should do so very quickly.”
However, instead of working with the police so that they have the training, resources and support to appropriately enforce the law, the Home Secretary just keeps coming back to Parliament waving another bit of legislation to chase a few more headlines and distract people from the fact that the Government are hellbent on causing chaos and disruption for the British people. The Government bring this statutory instrument before the House claiming that it is to clarify the law, but instead it makes it even more confusing. They failed to bring it in through the normal parliamentary legislative processes so that it could be scrutinised and amended. Heaven knows, we have had enough primary legislation when the Government have had the opportunity to introduce it.
The regulations refer, for example, to “normal traffic congestion” now being a significant factor. What does that mean? Does it mean that if roadworks are causing a local traffic jam and some protesters happen to cross the road, they can be arrested for the traffic jam? The regulations redefine “serious disruption” to mean everything that “may” be “more than minor”—may. Does the Home Secretary really think that the police should be able to ban anything that may—only may—create more than minor noise, for example?
Once again, the regulations are not about the seriously disruptive Just Stop Oil protests, which are rightly already against the law. Instead, they give the police the power to prevent any and every campaign group from protesting outside a local library or swimming pool that is about to be closed because it “may” be a little “more than minor”. That makes it harder for law-abiding, peaceful campaigners who want to work with the police to organise a limited protest—something that we should all want people to do—all for the sake of the Home Secretary getting a few more headlines. She says that she wants to defend free speech and our pluralist free society very robustly indeed—but only if it is speech that she agrees with, and only if it is not too noisy. Once again, instead of focusing on the damaging disruption, which we all believe should be stopped and on which we want the Government to work with the police to sort things out, the Government are simply making it possible to go after peaceful protesters and passers-by, even though that is not the British tradition.
The Home Secretary is now so obsessed with serious disruption because she and her party are busy creating it. That party has become addicted to causing serious disruption in politics, our economy, financial markets, workplaces, our transport system, our NHS, our public life and our communities, and has no idea what stability and security looks like because it is too busy seriously disrupting itself. So yes, the country is sick of the serious disruption that the Conservative party is causing. Yes, we do want to put an end to the serious disruption and chaos that is letting everyone down, by kicking the Conservatives out of office. This is not about Just Stop Oil; it is about a Conservative party that has just stopped governing. That is why we need a general election now.
Dr Kieran Mullan (Crewe and Nantwich) (Con)
The main point I want to emphasise today is that these issues are of course to do with balance. Opposition Members want to make it black and white, but we know that these things are not black and white. I am also interested in the fact that some of the same Members who have been so opposed to these regulations made complete counter-arguments when they proposed legislation, which I supported, to say that people should not be able to protest within a certain distance of an abortion clinic. These are common arguments and it is about the individual interpretation of them.
In a free society, we have responsibilities as well as rights. Our right to protest does not offer absolute relief from our responsibility to allow other citizens to go about their lives freely. Of course they have a right to do that. Much attention is paid to the rights of the protesters, but what about the rights of everyone else? We must view the impact in the context of the cost of resources to taxpayers, because they have a right to see their resources used sensibly. If we are going to say that something is acceptable—disruptive protest, disrupting sporting events, going on the road—let us imagine what would happen if we were not spending millions of pounds to minimise that behaviour. That behaviour would run rife. We would not be able to have a public event in this country without one or two people running into it and disrupting it. We would be unable to have any kind of major event without spending millions of pounds to stop people from protesting en masse, so it is quite right that we should look at making sure that we can do that more efficiently.
I would encourage the Home Secretary to consider going further. We are talking today about serious disruption and people perhaps not being able to go to hospital, but what about just being able to go to work, to catch up with a friend that they have not seen for a few months or to go out for dinner in a restaurant? Why do we say that one individual person can block a road and prevent all sorts of people going about their daily lives because they care deeply about an issue?
Kit Malthouse (North West Hampshire) (Con)
My hon. Friend is making a very strong point. Does he agree that part of the disconnect on this between the Labour party and the rest of the country is that with these protests, the disruption is the objective, not the message? That is what makes the British people feel so aggrieved. Here in Westminster, more than anywhere, we understand that disruption can be a by-product of protest, but that is a by-product, not the primary objective.
Dr Mullan
Indeed, and the protesters brazenly admit it. It is not about protesting with a by-product of disruption; they brazenly admit that they want to do ever-escalating things to get into the news. They should go on a hunger protest and disrupt their own lives. Do not eat—that will get in the news. Why do they think they can go around disrupting everybody else’s lives just to make their point? Importantly, they can still protest. I was flabbergasted by the reporting of the apparent crackdown on protest at the coronation. I was on the parliamentary estate, and I saw loads of people holding up signs saying, “Not my King”. It was all over the news and I saw lots of people who were not arrested and who were not moved on. They were within feet of the procession and were perfectly able to go about their protesting.
I urge the Home Secretary to think about this. In my view, people should not be able to disrupt a road. They should not be able to stop traffic because they care particularly about an issue.
Sammy Wilson
Does the hon. Gentleman not find it even more amazing that the Labour party opposes this legislation when many of the protests impact on the poorest in society? I remember being in Canning Town tube station when two idiots jumped on top of the roof of the tube, and the guy beside me said, “If I don’t get to work today, I get my wages docked. I am not earning a great deal of money but I will lose money because of those two guys.” Thankfully, they pulled them off, which was a good idea, but this is the impact. Ordinary people who cannot afford the disruption are the victims of it.
Dr Mullan
The right hon. Gentleman is absolutely correct. We have all seen the footage online of people saying that they are just trying to get to work. Opposition Members say that that is not serious disruption, but they should tell that to the individual who is trying to go about their daily life. It is disruption, it is not acceptable and people have other ways to make their point. I would also say to Opposition Members and members of the other place that they cannot have it both ways. They cannot say that this is unnecessary and a waste of time and then block it in the Lords. If it does not make any difference and will not impact on anything, why are they blocking it? They should just let it pass.
Sir Edward Leigh
Are there not double standards on the left? They believe that in their cause they can disrupt people’s daily lives, but when some old lady is praying outside an abortion clinic, that is absolutely outrageous and must be banned by law.
Dr Mullan
Indeed. As I said earlier I supported the proposals for protection zones for abortion clinics, but that makes the exact point. When it suits them, they are perfectly happy to sign up to these arguments, but they take a different view when it does not suit them. As the Home Secretary mentioned, they are very happy to get into bed financially with the people supporting these protests, so I think we all know where their loyalties lie.
Mike Amesbury (Weaver Vale) (Lab)
If the laws are already there, what difference are these regulations going to make? How are they going to strengthen things?
Dr Mullan
The other point that I think the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), completely ignores is that we have a common law legal system in this country. It is perfectly normal for Parliament to pass legislation and attempt to apply that law via the police. That is another reason why I think the hysterical reaction to the police beginning a process of using new law and not getting it right every single time totally betrays the normal way in which law is developed in this country. We legislate, we use certain terminology and we try to be clear, but it is for the courts and the police to operationalise it and feed back if they think we need to go further. It is all very normal, and again, this is just histrionics from the other side, because it suits them to put their clips on social media standing up against us over these “draconian” protest laws that are not in the least bit draconian.
Bob Stewart (Beckenham) (Con)
My hon. Friend made a point about social media. One of the main intentions of this disruption is to get publicity for the protesters’ cause, so they make maximum effort to try to get maximum publicity, which is cheap.
Dr Mullan
Indeed. I am going to finish by making a point to the protesters. If they want to change opinions, they should do what we all have to do most weekends, on both sides of the Chamber: put leaflets through doors, knock on doors, persuade people and run for election. If they do not believe in that, they do not believe in democracy, and whether it is for Extinction Rebellion or any other cause, that is not how we get things done in this country.
When people hark back to the suffragettes, let us remember that they did not have the vote. They were campaigning for the vote in order to be participants in the process. We have a universal franchise: everyone has a say. Everyone can run for election and can campaign, so why do these protesters not put their energies into that? I am sorry that the British public are not open to their arguments, but that is not my fault. I agree with the public, because those arguments are so extreme. The answer is not to stop the public going about their daily business, and I suggest to Opposition Members that they should be in keeping with what the British public want, not with what the people who are funding them millions of pounds want.
Alison Thewliss (Glasgow Central) (SNP)
I want to start where the hon. Member for Crewe and Nantwich (Dr Mullan) left off: with the suffragettes. The suffragettes protested their cause for decades because this place did not listen to them, and many people feel that way about this Parliament and this Government—that they are not listened to. That is why people make the protests that they do. I recommend that the hon. Gentleman goes along to the Admission Order Office off Central Lobby and reads some of the experiences of those suffragettes, and what they had to do to get their cause heard. They got the vote after many decades because this place ignored them.
That is the crucial point, because what the Home Secretary is saying today is that people can protest, but only in the way that she wants them to. It is the latest response to the evolving nature of protest across these islands. It is as if the Home Secretary is playing some game of whack-a-mole, but whack-a-mole is not a mole eradication strategy: it just means that you keep going, squeezing down on the bubbles in the wallpaper forever. It will not actually change the attitudes of people who are so despondent at the way in which this Government are behaving that they feel that they have to go out and cause this disruption. They do it not for social media clicks, but because they think their cause is important and worthy of attention.
Sammy Wilson
For many of these people who are out protesting—Just Stop Oil, for example—it is not that they are appalled at the fact that we use fossil fuels, since they sometimes fly halfway around the world to join those protests. It is simply because of their sanctimonious attitude that their views are more important than others’, and that they are entitled to disrupt the lives of ordinary people.
Alison Thewliss
The right hon. Gentleman makes an interesting point. I would take a lot more from him if he actually believed climate change was real in the first place, before he starts lecturing other people.
The UK Constitutional Law Association has described this statutory instrument as
“an audacious and unprecedented defiance of the will of Parliament.”
This Government are bringing in things through this SI that they could not get through in legislation. The UKCLA says that
“The Government set about drafting regulations that would reverse the defeat in the House, relying on Henry VIII powers to amend the Public Order Act 1986 conferred by the Police, Crime, Sentencing and Courts Act 2022. These draft regulations were laid before the Public Order Bill had even completed its Parliamentary stages. In this way, the Government sought to obtain through the back door that which it could not obtain through the front.”
That goes to the heart of this shoddy process this afternoon.
While this regulation is an England and Wales regulation, it does have implications for my constituents and other people from Scotland who wish to come and protest. If the WASPI women campaigners in my constituency wanted to come down here to complain about the injustice of having their state pension robbed from them by consecutive Westminster Governments; if they wanted to protest outside Parliament, as they have done on many occasions; and if they wanted to invoke the spirit of Mary Barbour, to bang pots and pans and stand in the road outside of this building, they would not be protected just because they are Scottish. They would be at risk of causing serious disruption under these regulations and would be lifted by the police forthwith. They would be at risk of causing serious disruption under these regulations and would be lifted by the police forthwith. That goes to the heart of these proposals. Those actions are just and important, and they want to draw attention to that injustice.
Alison Thewliss
No, the right hon. Member has been extremely obnoxious to me many times in the past, so I will not take his intervention.
Groups, including Liberty, have pointed out that these are not insignificant changes. Liberty says that the Government’s attempt to redefine serious disruption from “significant and prolonged” to “more than minor” is
“effectively an attempt to divorce words from their ordinary meaning in ways that will have significant implications for our civil liberties.”
The statutory instrument refers to
“the prevention of, or a hindrance that is more than minor to, the carrying out of day-to-day activities (including in particular the making of a journey)”,
but what is “minor”? We do not know. Is a couple of minutes late “minor”? What is “more than minor”? Is that 10 minutes late rather than five minutes late? There is nothing in these regulations to say. They will give significant discretion to the police to figure out exactly what is “minor” and what is “more than minor”, because nobody can really tell us.
Dr Mullan
There is an offence called “drunk and disorderly”. Disorderly can have any number of meanings. The common law legal system over time has sought to define it more narrowly and the police operationalise that. Why does the hon. Lady not think that that could be done in exactly the same way with this offence?
Alison Thewliss
Because the regulations are extremely unclear and extremely discretionary. [Interruption.] It is not clear at all in the regulations what is “minor” and what is “more than minor”, and neither of those things seem to me to be serious disruption. “More than minor” is not the same as serious disruption.
The regulations also refer to a “community”, which
“in relation to a public procession in England and Wales, means any group of persons that may be affected by the procession, whether or not all or any of those persons live or work in the vicinity of the procession.”
What does “affected” mean? Does that mean people saw it on the TV and they were upset by it? How are they “affected”? Again, that is unclear in the regulations, which will give police officers a huge amount of discretion to carry out the enforcement of this pretty lousy legislation.
Mr Carmichael
The hon. Member for Crewe and Nantwich (Dr Mullan) says that we have a common law system whereby common law offences are defined by precedent over many years—sometimes centuries. We are dealing here with a statutory instrument, and statutory instruments are different. That is why in the normal course of things, well-drafted legislation coming before this House has an interpretation section that defines such terms. Can the hon. Lady think of any good reason why we would not have a definitions section in this SI?
Alison Thewliss
The right hon. Gentleman’s point is correct, and it seems clear to me that not having a definitions section suits the Government perfectly. It will make it incredibly difficult for any police officer to do their job in these circumstances, which is why the police are perhaps a bit nervous about it.
Liberty points out that the police could consider, for example, that a static assembly outside of a train station by a trade union could result in a more than minor delay to access to public transportation. The police could subsequently impose a condition that the trade union cannot protest outside the train station, even though they are trying to protest against that particular employer. People therefore might be sent a way off somewhere else and have to say, “Instead of standing at Central station, we will go and protest at Glasgow Green.” That is just not logical and would make no sense in Glasgow, just as it makes no sense in this legislation here in Westminster. It is why the House should have nothing to do with this legislation.
I do not want to detain the House unduly, because I know that other Members want to speak, but this legislation is flawed and wrong. The Home Secretary mentioned people taking things into their own hands, but people are doing that because they are egged on by a lot of the rhetoric coming from those on the Government Benches and from the press. I have seen people being hauled out of the way and hit in some of the footage that has been shown, and that is disturbing. This Government suggest that people can protest only in a way that suits them, not in the way that people want to make their voice heard in this democracy.
The only slow walking we should be concerned about in this place is the slow walk on which the Government are taking this House towards a lack of democracy and fascism. Independence is now the only way that Scotland can be assured that our right to protest will be retained.
Paul Maynard (Blackpool North and Cleveleys) (Con)
May I congratulate the shadow Home Secretary on spending more time scrolling through her phone while sitting on the Front Bench than she did standing at the Dispatch Box making her speech? I regard that as a discourtesy to the House and to Members of the House.
I merely wish to remark on a paragraph in The Economist last week. It reads:
“Police in the Netherlands arrested 1,500 climate-change protesters and deployed water cannon when they refused to leave a motorway they had blocked in The Hague. Forty are to be prosecuted.”
I read today in the newspapers that there has been concern that these changes will mean that the police will decide what protests will be able to take place and that they will be able to choose. There is always choice on the issue of a protest. Protesters can choose to protest in such a way that the sick can still get to hospital, and people can still get to work and earn a living. Equally—[Interruption.] I am glad that I now have the attention of the shadow Home Secretary; it is quite an achievement that she can lift her head up from her phone. Equally, the Metropolitan police also have a choice as to how they police these protests and the decisions they can take.
Paul Maynard
No, I am not giving way, because the shadow Home Secretary has not paid attention to anything anyone else has said in this Chamber. On that note, I am resuming my seat.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Can I first say something about the process this afternoon? The hon. Member for Crewe and Nantwich (Dr Mullan) highlighted in his speech the many significant issues that this legislation brings to the House, and there are serious debates to be had about the balance between public protest and individual rights. I am not entirely sure that I buy his thesis that the need for protest ended when we achieved universal suffrage, but taking that as we may for the moment, these are significant and serious issues. That is why this House has evolved, over the centuries, a series of measures by which we are able to scrutinise legislation.
The Home Secretary spoke for only 12 minutes to persuade the House why this legislation was necessary. I cannot decide whether or not I am displeased. I generally like her speeches best when they are finished, so 12 minutes was not mercifully short. However, I think that for issues such as this, we deserve something more.
Some of the interventions we have heard from the Government side of the Chamber have also been quite telling. The right hon. Member for Gainsborough (Sir Edward Leigh), who has just left his place, said that this was to do with the understanding of the left about protest, as if those who protested were always from the left. I remember that in the early years after I was first elected to this House there were significant protests, causing massive disruption, by those opposed to the Bill to abolish hunting with hounds. I do not think that many of them would welcome being labelled as left-wing, and the view taken by the Conservatives in Parliament at that time was very different from the one we hear from them in government.
Sir Julian Lewis (New Forest East) (Con)
I have a lot of time for the right hon. Gentleman, but I think his memory is playing him false. I also remember the Countryside Alliance protest marches, and I believe they were organised in full co-operation with the police. It was similar with most of the Campaign for Nuclear Disarmament protests on the other side of the political spectrum. We are talking here about people who act unilaterally to obstruct others from going about their lawful business. The Countryside Alliance did not do that, so far as I recall.
Mr Carmichael
The right hon. Gentleman is actually correct in his recollection but also incomplete, because not all those protests were organised by the Countryside Alliance. I can remember the night when this House debated the Second Reading, and it was impossible for Members of this House to get on to the parliamentary estate because of the violence going on in Parliament Square. So if we are to take a view on the right to protest, that view must apply equally across the board to everybody, of whatever political persuasion, instead of simply, as we seem to be doing today, focusing on one aspect.
John McDonnell (Hayes and Harlington) (Lab)
The right hon. Member for New Forest East (Sir Julian Lewis) forgets that, when he was a member of the Labour party, he used to blast out very loud music at CND marches down Whitehall—he most probably would have been arrested by now.
Mr Carmichael
I doubt that the constable who would arrest the right hon. Gentleman has yet been commissioned, but the right hon. Member for Hayes and Harlington (John McDonnell) makes a good and fair point.
My concern is about not just the process but the weakness in the way in which this legislation has been drafted and brought to the House. On the lack of any proper definition of what constitutes “minor”, for example, we should not be leaving these things to the courts. The courts are not there to fill in the gaps that Parliament leaves behind. There may well be a serious body of case law that will define “minor”, but we know now that it is the job of this House to insert that definition and we are not doing it.
I confess that I have been somewhat surprised to hear the enthusiasm of the Democratic Unionists in relation to this legislation. I can only presume that that is because the territorial extent of this legislation is England and Wales only. However, as the hon. Member for Glasgow Central (Alison Thewliss) said, it could of course affect anybody who comes from there. We define community not just as people who live or work in a place but also those who would be affected by the process, and I wonder how the right hon. Member for East Antrim (Sammy Wilson) would feel if hundreds of people, or perhaps several thousand, deciding to walk slowly down a road playing flutes and banging a Lambeg drum were to be covered by such legislation.
Mr Carmichael
Of course; I will give way in a few seconds.
Frequency is at the heart of the offence being created here, and as many people resident in Belfast and elsewhere in Northern Ireland would tell us, in the month of July such incidences are frequently to be found. I give way with pleasure to the right hon. Gentleman.
Sammy Wilson
I can assure the right hon. Gentleman that this House legislated a long time ago to ensure that people who engage in those activities are fully regulated by the law, and the Parades Commission has been set up for some time now, and causes great anxiety at home with some of its rulings. So there is that legislation and Members across this House, including members of his party and the Labour party who are protesting about this legislation now, were quite happy to legislate for the Parades Commission to regulate the Lambeg drummers, the fluters and those who celebrate the glorious 12th in Northern Ireland every year.
Mr Carmichael
I think the glorious 12th comes in August actually, but I bow to the expertise of those on the Conservative Benches on such matters.
In fairness, however, the right hon. Gentleman has a reasonable point, and I understand that the legislation to which he refers pertains only to Northern Ireland and that is perhaps why it is not part of this legislation. Essentially, however, as the shadow Home Secretary said in her remarks, this is an area of law that is already well regulated. Very few areas of lacuna remain within the law and this legislation is not in any practical, meaningful way going to fill any difficulties. What would fill difficulties is a better resourced police force that is better able to engage with people and take on board their wish to protest.
Kit Malthouse
Will the right hon. Gentleman comment on the fact that it is not just Northern Ireland that has regulation of protest? He will be aware that in Scotland it is a criminal offence not to notify the police within 28 days of an organised moving protest, and that people may face criminal sanctions if they do not do so. What is the difference between the legislation we are currently discussing and the law under which his constituents operate, where they may go to prison if they do not tell the police about a protest that is coming?
Mr Carmichael
I could be wrong because I am hopelessly out of date on so much of this stuff, but I think from memory that the right hon. Gentleman refers to the provisions of the Civic Government (Scotland) Act 1982, which was brought into force under a previous Government—a Government for whom I had very little time, but in terms of the way in which they went about their business were a model of parliamentary propriety compared with the mince that has been brought to the Chamber this afternoon. This comes back to the point I made about the hon. Member for Crewe and Nantwich: there are serious issues here to be decided—serious issues about the balance between the rights of the individual to protest and the rights of the community to go about their business—but this is not the way to deal with them.
The shadow Home Secretary made the point that this is an area where there is already extensive legislation. Problems arise not from the lack of legislation but from the lack of the ability to implement properly and with consent the laws we currently have.
Caroline Lucas (Brighton, Pavilion) (Green)
This statutory instrument is oppressive, anti-democratic and downright wrong. It is anti-rights legislation by Executive diktat, and it is a profound insult to people and to Parliament, of which this Government should be ashamed. In short, it is authoritarian in both style and substance.
On the substance, the police do not need yet more power to restrict protest. We need only look at what happened at the recent coronation: Ministers had to be summoned to this House to explain why police gravely overstepped the mark. As other hon. Members have set out, these regulations hand new, unprecedented powers and discretion to the police. They seek to redefine “serious disruption” from “prolonged” and “significant” to “more than minor”. This will gift the police greater powers to impose conditions on public assemblies and processions, as well as powers to consider the legally vague concepts of “relevant” and “cumulative” disruption. Requiring the police to consider all “relevant” disruption is dangerously vague and places far too much discretion in the hands of the police as well as placing an unfair burden on frontline officers. It could mean peaceful protest activities are restricted because of other forms of disruption not linked to the protest, such as traffic congestion in the area.
The so-called “cumulative” disruption that the SI allows lets police add up disruption from other protests when considering whether to impose conditions on a particular protest. That runs the serious risk of the police facing pressure from the Government of the day to restrict particular protest movements based on their content.
Jeremy Corbyn (Islington North) (Ind)
The hon. Member is making an important point about the right of protest. On the idea of giving long-term notice to the police, if, for example, an eviction is due to take place and fellow tenants arrive at the scene to support and defend the tenant due to be evicted, the urgency of that means they could not possibly gain permission in advance for their demonstration, yet that is a wholly legitimate right of protest that a neighbourhood would be performing to protect somebody.
Caroline Lucas
I thank the right hon. Gentleman for his intervention and I agree.
This SI comes in the wake of our official police watchdog warning that public trust in police is “hanging by a thread”. This is no time to risk increased politicisation of the policing of public order.
The Equality and Human Rights Commission has made it clear that it has grave concerns about this measure, advising that
“the measures go beyond what is reasonably necessary to police protest activities.”
Its briefing warns of its concern about incompatibility with the European convention on human rights and of a “chilling effect” on the right to freedom of expression.
Moving on to the style—the way in which this is being done—the Government are trying to do something which has never been done before: they are trying an abuse of process that we must not permit, whatever we think of the content of the SI and the intentions behind it. The restrictions on protest rights that this SI seeks to impose were explicitly rejected by Parliament during the passage of the Public Order Bill—now the Public Order Act 2023—in February 2023. This is the very opposite of the integrity that the current Prime Minister promised when he took over. It is a blatant continuation of the casual disregard for Parliament’s democratic standards that he promised to discontinue.
My Green party colleague in the other place, Baroness Jenny Jones, has tabled a fatal motion to kill off this affront to our rights and our democracy, and it will be before that House tomorrow. Rightly, for primary legislation the unelected House of Lords is a revising Chamber. As Members will know, this is secondary legislation and it needs the approval of both Houses. Presumably, that is to avoid the type of situation we face now, where an SI could be used by the Executive to reverse a Lords revision to primary legislation that they do not like.
Mr Carmichael
I am grateful to the hon. Member for giving way, because that gets to the heart of the matter as far as the other place is concerned. The Government, in bringing the regulations to the House in this way, are riding roughshod over the conventions of this House. We have a system that relies on checks, balances and conventions, so when our noble Friends in the other place come to consider this legislation, might they also be entitled to say that, with a check having been removed, they are entitled to adjust the balance and pay the same regard to the conventions of their House that the Government have done to the conventions of this House?
Caroline Lucas
I thank the right hon. Gentleman very much for that contribution. He makes a valid and legitimate point, which I had not considered.
The regulations represent a gross Executive overreach. I sincerely hope that the motion is defeated. If it passes because hon. Members choose to allow this twin attack on our right to protest and on parliamentary democracy, I encourage every Member of the other place, whatever they think of the content of the statutory instrument, to vote for Baroness Jones’s fatal motion tomorrow, because to ride roughshod over primary legislation in such a way is a truly dangerous path to tread.
Finally, I want to distance myself entirely from the comments made by Conservative Members about the right to protest. I remind them that when people take peaceful direct action, they are doing so because they have generally been driven to feel that they have no alternative. They feel that the Government are careering over a climate cliff edge and they are trying to get a hold of the wheel. As the UN Secretary-General António Guterres reminded us:
“Climate activists are sometimes depicted as dangerous radicals. But the truly dangerous radicals are the countries that are increasing the production of fossil fuels. Investing in new fossil fuels infrastructure is moral and economic madness.”
I could not agree with him more.
Apsana Begum (Poplar and Limehouse) (Lab)
It is appallingly apt that this widely recognised repressive and authoritarian Government are using a widely recognised repressive and authoritarian power to implement a widely recognised repressive and authoritarian measure to give the police almost complete discretion over which protests they want to ban. It is not as though the police are not already equipped with excessive and unaccountable powers.
Indeed, such powers were on display in my constituency recently when up to 100 police officers evicted 29 homeless people, including some thought to be subject to no recourse to public funds, from 88 Hardinge Street—a building understood locally to be an unofficial homeless shelter. The operation included a large number of territorial support level 2 public order officers with riot shields to deal with residents who had gathered in shock to protest against the action. A dispersal order was issued that stretched almost a full kilometre around my constituency. A constituent said:
“as a local resident, if I could file a complaint against the actions of the police today, I would.”
Apsana Begum
I will not—the hon. Member has had his say.
It is chilling that these measures are being forced through when trust in the Metropolitan police is at an all-time low, not least following the killing of Chris Kaba, who was fatally shot by a Metropolitan police firearms officer in September last year; the treatment of Child Q; the kidnap and killing of Sarah Everard by a serving police officer; the evidence of institutional racism and misogyny, and so on. Even more unaccountable power is being handed to the police when so many are concerned about long-standing failures on the part of the police to be accountable for their actions.
The truth is that the Government’s actions today would never be right. This attack on democracy and civil liberties is akin to that of many repressive regimes that the UK has been right to criticise, but now it seems to be seeking to emulate or perhaps compete with them. Does the Home Secretary agree that Dr Martin Luther King, with his non-violent civil disobedience, is one of the most widely celebrated activists worldwide? Does she acknowledge that many recognise, and some even celebrate, the suffragettes and the role they played in advancing the democratic rights of women? She referred to harmful protests and repeated protests that will be outlawed through the powers to be given to the police. So harmful were the protests that the suffragettes engaged in that they won women the right to vote. She and I both enjoy the privileges of that today as parliamentarians in this House.
We cannot allow the Government to get away with this repressive change to the laws of protest. I will vote against the regulations, and I urge colleagues across the House to consider doing the same. This is so much more important than all of us individually and more important than political parties; it is about the future of democracy itself.
John McDonnell (Hayes and Harlington) (Lab)
I concur with everything said by my hon. Friend the Member for Poplar and Limehouse (Apsana Begum), the hon. Member for Brighton, Pavilion (Caroline Lucas) and others.
I want to bring this down to a parochial level for my constituents. When we sit here and see legislation going through, we can sometimes spot the legislation that we realise will never work, and we know that we will be back here shortly to try to put it right. I think that is the case now, so I want to take up the point made by the right hon. Member for Gainsborough (Sir Edward Leigh) —he is not in his place at the moment—and followed up by the hon. Member for Crewe and Nantwich (Dr Mullan).
I fully agree that, in a democracy, what should happen is that constituents and members of our communities should be able to raise issues and argue a case, put their views to their relevant elected representatives and vote as constituents in elections for Governments who will fulfil their wishes. That is what happened with my constituents in west London on the third runway issue, which we have been campaigning on since the late-1970s. David Cameron assured people that there would be no third runway, “no ifs, no buts”. Some of my constituents—I forgive them now—even voted for the Conservative party on that basis. However, what happens if the governing party, after its election, puts in a caveat saying, “Actually, that commitment was only for the life of this Parliament and no further”? All the insecurities come out about the continuation of blight on communities.
People felt, “Where do we go from here?” They had tried to use the democratic process—all that they could—and secured a political commitment, but that was reneged upon. People felt betrayed, so naturally they came out in the streets. They were joined by Conservative MPs, including Justine Greening. In fact, one Conservative MP got so excited that he said he would lie down in front of the bulldozers. Is this an anti-Boris Johnson piece of legislation as well?
Dr Mullan
The right hon. Member is postulating an argument that if a particular group of people are not successful in their protests because the Government do not follow through, that means that the system is not working. We have had people protesting against vaccines. They could say, “The fact that we protested vociferously against vaccines being rolled out and did not get our way means that it is perfectly legitimate for us to go on and disrupt everyone,” but that is not an argument for protest.
John McDonnell
I think that the hon. Gentleman was not listening. What my constituents and the constituents of Uxbridge did was follow the process, exactly as he advised them.
John McDonnell
No. He was not listening, was he? What happened was that they campaigned and they were given a commitment by the leader of a political party, but that was reneged upon as soon as he got elected. Where do they go? They had used the democratic process and they were betrayed—they were so angry. They went on to the streets, and they were joined by Conservative MPs. What do they do? They block roads, they sit down in the street and they threaten to sit down in front of bulldozers. That was my invitation to Boris Johnson when he was first elected, and he said, “Yes, I’ll be with you in front of that bulldozer.” Why? Because John Randall, the Conservative MP before him—by the way, he was an excellent constituency MP—said exactly that. In fact, he had raised the issue himself.
People felt completely frustrated. What I am arguing, on behalf of my constituents, is that this measure puts the local police and local protesters in an almost impossible position.
Jeremy Corbyn
My right hon. Friend is making a very good point about the third runway. History will show that the demonstrations absolutely worked: the third runway has not yet been built. Personally, I hope it never is. There are those who say protest does not work, but the right to roam our countryside happened only because of the mass trespass of Kinder Scout in the 1930s. People took brave action to win rights for all of us. Those are the rights we all enjoy. We should not just legislate them away, which is what this law is doing.
John McDonnell
I welcome that intervention.
The regulations put the local police in my area, as well as local protesters and the local communities in both the Hayes and Harlington constituency and the Uxbridge and South Ruislip constituency, in an impossible position. They seem to apply almost perfectly to our local situation. If I go through the various criteria, the first is “cumulative” impact. I am not sure how we judge cumulative. Is that over a limited period of time or a short period of time? We have been protesting there since 1978. Is that cumulative? Does the police officer have to take that into account at the local level, or should he or she set a limited timescale on that?
Mr Carmichael
I am grateful to the right hon. Gentleman for giving way, because this again comes to the heart of the process in the legislation we are passing. The proposition from the Government Benches is that it is all right, because the courts will fix out these things. Long before it gets anywhere near a court, it will be a decision for police officers on the street, the borough commander or whomever it will be. Is that fair on police officers?
John McDonnell
The history of protest around Heathrow is actually an example of a model relationship between protesters and local police. It has worked very well up to now. We have had some issues. One protester who was with me in the negotiations between the police and the climate camp was, I now discover, a police officer—part of the spycops situation. But what I am saying is that it puts people in an impossible position. What is cumulative?
On absolute disruption, the explanatory memorandum states:
“For example, serious disruption may be caused if a procession or assembly causes a traffic jam in an area where traffic jams are common.”
At certain times of the day in my constituency, I cannot find many streets where there isn’t a traffic jam on the main roads, to be frank. It goes on to talk about the meaning of “community”. Define the term community. Is that just the Heathrow villages, or is it Hayes and Harlington? The protesters came in from Uxbridge as well. It goes on to list the types of facilities where protests will be banned, and it includes “a transport facility”—so, Heathrow airport. The regulations have almost been designed to prevent any form of protest against the third runway. In fact, they are almost perfectly designed to arrest the former right hon. Member for Uxbridge and South Ruislip—perhaps that is what the Conservative party is up to.
I just think that this is one of those pieces of legislation, like the old Dangerous Dogs Act 1991, that is unworkable. It will be back here next year or the year after, but after having put police officers and protesters in a virtually impossible position. The Government need to think again. This is not the way to legislate anyway, without proper due consideration.
Sammy Wilson (East Antrim) (DUP)
I am a Protestant. I have sought to live up to that title throughout my political involvement. I have taken part in many protests, as Protestants should. That is why we got our name: protesting about various things. I have been involved in noisy protests, disruptive protests, protests about the closure of schools, about traffic running through streets and about the Housing Executive knocking down houses, and protests about major political decisions made in this place that were going to disadvantage Northern Ireland as a part of the United Kingdom. Sometimes we did not need megaphones, because we had our previous party leader. I suspect that some of the protests we engaged in may well have fallen foul of this legislation.
The one thing I do know, however, is that when we engage in protest, we have to recognise that if we step beyond the bounds of what is allowed, we have to take the consequences. It is as simple as that. There have to be consequences, because protests cannot be unlimited. They have to be balanced against the impact they have on the lives of people who are not interested in the protest or maybe even oppose it, but who are nevertheless affected by it. That is why this legislation is necessary.
Over the last number of years, we have increasingly seen protest methods used by people who are entirely selfish. Sometimes they represent a very small minority—usually protesters are minorities anyway—but are determined to have their cause listened to. They do not even make any bones about it. They go out of their way to have a detrimental impact on other people in order to, as I have heard some of them say, make them listen, to make them wake up and to make them pay attention to their cause, even though, as I pointed out in an intervention, sometimes that cause is totally hypocritical. For example, they protest against taking oil and gas out of the ground, yet are quite happy to drive miles to their protest. Some even fly on private jets to join protests, yet seem to have no idea or awareness of the hypocrisy of their actions.
Sammy Wilson
Well, let us take the Extinction Rebellion protests we had here. Stars were flying in from America to join them. They did not feel any qualms about it. They did not even see the hypocrisy of it. For some protesters, the important thing is that other people should be affected by their concerns—that they should be able to live a lifestyle and engage in actions that have no impact on them but that do have an impact on others. People go out of their way consciously to cause disruption to others and cause anger, frustration and sometimes a detrimental impact. They protest about the quality of air in London and the burning of fuels, and what do they do? They cause traffic jams where people are belching out smoke from the back of their cars and burning petrol. Yet it seems that we should tolerate that. Unfortunately, it has been tolerated. I saw the frustration it caused many commuters. We see it on our television screens time and time again. The Government are, I believe, obliged to do something about it.
There is a certain hypocrisy and inconsistency about some of the arguments we have heard tonight. It has already been referred to that there are those on the Labour Benches who are quite happy to say that someone who glues themselves to a road or causes physical destruction to paintings in an art gallery should be tolerated, but someone who stands outside an abortion clinic and prays should not be tolerated. That kind of inconsistency shows that this is not so much about the methods that the Home Secretary is introducing today, but about who they are targeted at. I think that is the important thing. I was challenged by the right hon. Member for Orkney and Shetland (Mr Carmichael) about parades in Northern Ireland. This House supported the parades legislation for Northern Ireland, which is quite draconian. In fact, it can ban a parade that may take three minutes to pass a flashpoint, because sometimes people have come from 50 miles away to be offended by it. If they protest, the Parades Commission can make a ruling against the parade. So, we can see an inconsistency in attitudes across the House.
Mr Carmichael
The good news, I suppose, for the right hon. Gentleman is that those seeking to stop his walks or marches would not have to travel 50 miles. They would just have to say that they were affected by it, because that is the definition of community.
Sammy Wilson
A number of Members have made the point that that leaves interpretation for the police. Has the community been affected? What has been the cumulative effect? Is the protest too noisy? But that is true in every situation where a policeman or policewomen on the ground has to make an operational decision. Do I take this drunk out of the pub, or do I allow him to stay there? Do I talk to him and let him walk away, or do I stick him in the police van? Of course those operational decisions will always be with the police. However, having seen some of the attitudes not just of police officers on the ground, but of some of those in command and in the courts, my worry is that regardless of what legislation we introduce here tonight, the interpretation of what is happening will come down to what the officers or the judges think of the protesters’ case. That is where the real difficulty lies.
As a protester, I do not want to see us living in what one Member has rather exaggeratedly described as a fascist regime. This is not fascism. This is about a Government having to make a decision as to what we do in a democracy to allow people to make their point even if we do not like the point that they are making, and to stop people being impacted by the protest even though the protester has made it quite clear that that is their main aim anyway. Although I am always more sympathetic to protesters than I am to the legislation against them, I think that this measure is necessary tonight and we shall be giving it our support.
Suella Braverman
I thank all right hon. and hon. Members for their contributions in what has been a fruitful and lively debate. I will not spend too much time responding to Labour’s position. The response of the shadow Secretary of State was almost totally devoid of anything serious on the issue of public order. She would rather spend her time in the Chamber glued to her phone, as my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard) remarked.
Yvette Cooper
Can the Home Secretary confirm that slow walking is already against the law and that that is how the Metropolitan police and other police forces have already managed to stop a whole series of slow-walking incidences that have caused significant disruption for communities?
Suella Braverman
The fact that the right hon. Lady has to ask that question reflects her total misunderstanding of what we are debating here today. Of course the police have powers enshrined in legislation already, but we are trying to clarify the thresholds and boundaries of where the legal limit lies, so that they can take more robust action and respond more effectively. Perhaps if she had not looked at her phone so much she would know what we were talking about. She would also rather spend her time at the Dispatch Box playing pantomime politics than engaging with the serious issue of public safety and the right to protest.
People cannot get to work. They cannot get to school. Ambulances cannot get to patients. People cannot get to funerals. Hard-working people are paying well-earned cash to attend live sporting events, public galleries and public shows not for them to be ruined by a selfish minority.
Bob Stewart
I thank my right hon. and learned Friend for allowing me to intervene. I endorse entirely what the right hon. Member for East Antrim (Sammy Wilson) said. The reason for these measures is that the nature of protests on our roads—the blocking of our roads—has changed over the past few years. No one wants to impose more restrictions on anyone in our country, but what is happening now is making it impossible for normal people to have decent lives.
Suella Braverman
My right hon. Friend is absolutely right that the evolving tactics—the guerrilla tactics—that we are now seeing being deployed by these campaigners are unacceptable and the police need more clarity as to how to use their powers. The sad fact is that Labour Members would rather look after their Just Stop Oil friends and obstruct this Government from giving the police more powers. Frankly, they are on another planet if they think that they speak for the British people. They are on the wrong side of this debate and they are on the wrong side of the public.
I thank hon. Members who made powerful speeches. In particular, I thank my hon. Friend the Member for Crewe and Nantwich (Dr Mullan) who spoke very powerfully, and with the benefit of his own experience from the frontline of policing as well, about the careful balance that is involved in tackling this issue. As he said, we need to balance rights with responsibilities. This is about protecting the public and enabling the law-abiding majority to go about their business. It is about stopping them from being impeded, obstructed, delayed, inconvenienced and frustrated. These measures are designed to support them.
I thank the right hon. Member for East Antrim (Sammy Wilson) for his potent words, As he said, this is about crossing a boundary. This is about making it clear that when protesters use disruptive means and deliberately seek to cause misery and disturbance through physical disruption, a line has been crossed. These measures clarify the law, so that the police can take more robust action.
There has been some mention of the coronation this afternoon. I want to put on record my thanks to the police for delivering what was the largest operation that the Metropolitan Police Service has ever led, with more than 11,000 officers, staff and volunteers. They ensured that the coronation operations were delivered successfully, safely and securely in a challenging environment. I was proud of their work and proud of the fact that they enabled millions of people to enjoy such an historic event peacefully. At the same time, they struck the right balance. When they received intelligence that indicated that groups were seeking to disrupt the coronation, including by using rape alarms to disrupt the procession, they took the requisite action that they deemed fit within the bounds of operational independence. Hundreds of individuals participated in peaceful protests in and around the coronation footprint on 6 May, including a large group of Not My King supporters in Trafalgar Square. I thank the police for their incredible effort in policing the coronation and enabling millions of people to enjoy such an important event.
The hon. Member for Glasgow Central (Alison Thewliss) and the right hon. Member for Orkney and Shetland (Mr Carmichael) have, with respect, missed the point when it comes to these measures. This is not about banning protest. This is not about prohibiting freedom of assembly. No one in this House is suggesting that at all. Those are human rights, and they are protected by law. I will fiercely defend the right of anyone to exercise those rights lawfully, but they are not absolute rights; they are qualified rights, as set out in the European convention on human rights. These measures are about the balance to be struck, and they turn on the need for clarity, so that law enforcement knows where the boundary is and how to exercise their powers.
The hon. Member for Brighton, Pavilion (Caroline Lucas) spoke with characteristic alarmism, if I may say so. We have become accustomed to her doom-mongering over the years, and I will actually miss it when she leaves this House. Let me take this opportunity to thank her for her years of hard work for her constituents and for the causes about which she is so evidently passionate.
Members in this House now have a choice before them: do they support the disrupters, or are they on the side of the law-abiding majority. Are they here to help the grafters and the strivers, or to facilitate the obstructors and the fanatics? We know that Labour is here to support the militant few rather than the law-abiding majority. It is this Conservative Government who are on the side of all reasonable people across the country and on the side of common-sense policing. These measures will ensure that public order laws are clear, consistent and current, and I commend this statutory instrument to the House.
Question put.
Members of Parliament: Risk-based Exclusion
(11 months, 3 weeks ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Mr Deputy Speaker (Sir Roger Gale)
Before we start the debate, I wish to say something about references to other Members. This issue understandably generates strong feelings, but may I remind the House of the words of Erskine May?
“Good temper and moderation are the characteristics of parliamentary language.”
That means, among other things, that it is not orderly to criticise the conduct of a Member, unless the motion debated directly addresses that conduct. This motion does not do so, and so such criticism would not be orderly.
The Leader of the House of Commons (Penny Mordaunt)
I beg to move,
That this House has considered the House of Commons Commission Report, Risk-based exclusion of MPs: consultation response and proposals, HC 1396.
I welcome the opportunity for the House to consider the publication of the House of Commons Commission report on risk-based exclusion of MPs, and for all right hon. and hon. Members to see and discuss the proposals. It is important for all Members to have a chance to express their views on the proposals. Hon. Members from all parts of the House have requested such an opportunity, including the Chairs of the Liaison Committee, the Standards Committee and the Procedure Committee.
I will also close the debate, so I will keep my opening remarks brief. Hon. Members will have seen the details in the papers provided by the House, so I do not intend to outline the scheme in detail. It has been consulted upon, and I and other Commission members want to hear colleagues’ views today. However, I want to set the scene, not so much for our sake as for the public’s sake.
Seeing this debate and thinking about events in the media and swirling around outside the Chamber, the people of the United Kingdom may be thinking, “Why the heck are the talking about themselves again today?” In comparison to many issues we could be debating at this hour, what happens on the parliamentary estate may seem rather irrelevant, but as well as making legislation to make the laws of the land, we also make the laws that govern this place.
No Committee or the work it undertakes in the service of the House happens without the permission of the House; no standards framework or Standing Order is born without the House giving consent; and no process an hon. Member is subjected to can be done without the will of the House. This is House business—it is important, which is why we have made time for it. For Parliament to be effective, it must be as good as it can be, so from time to time we need to hold debates such as this one to formulate these narrow points of process. The process in front of us today is so narrow that it may well never be used, but it is still important. However, there are other matters that rarely get an airing and are just as relevant to this, and arguably more important.
When I met the Standards Committee recently, its members suggested there were more than a dozen different bodies that oversee the conduct of Members. There is the Parliamentary Commissioner for Standards; the Committee on Standards, upon referral by the Parliamentary Commissioner for Standards; the Independent Complaints and Grievance Scheme, which as Members will know is subject to a review; the Independent Expert Panel, upon referral by the commissioner; the Independent Parliamentary Standards Authority; Mr Speaker and his deputies, relating to conduct in the Chamber; the Committee of Privileges, upon referral by the House; the Electoral Commission; the Advisory Committee on Business Appointments, covering Ministers, peers, special advisers and senior civil servants; the Independent Adviser on Ministers’ Interests; the Committee on Standards in Public Life; and internal party mechanisms for investigation. I could go on, but I will spare the House.
Sir Jacob Rees-Mogg (North East Somerset) (Con)
My right hon. Friend makes the very important point that there are lots of bodies, but there is no body that can suspend a Member from this House without a vote of this House. The constitutional problem with the proposals before us today is that they would allow a suspension by bureaucracy, rather than the democracy of this House.
Penny Mordaunt
I expect many Members will focus on that point, and it is a trade-off. I reassure my right hon. Friend that no rule that we will make in this place will be arrived at without the consent and the will of the House. It is we who govern ourselves, and that is why we are having this debate and have made time for it today. He makes an important point of principle that will sway many Members, but there will be other Members who will be more concerned with confidentiality. These are the points that we should discuss this afternoon, and I thank my right hon. Friend for being here today to do precisely that.
Jim Shannon (Strangford) (DUP)
The Leader of the House knows that I am very fond of her, and I understand why she has brought these matters before the House for consideration, but I am always minded that people are innocent until proven guilty. Looking from the outside in, it seems as if these proposals say, “You are guilty; now prove your innocence.” Surely that is entirely against the law of the land?
Penny Mordaunt
I completely agree with that point, but we are talking about a very narrow set of circumstances. This is not about asking people to make a judgment on whether someone has committed an offence, but about the risk that an individual poses to other people. Obviously we are talking about what happens on the estate, although it could be argued that such measures are pointless unless we are also tackling what, in this set of circumstances, happens off the estate. These are the issues that we will discuss this evening, and I thank the hon. Gentleman for being present to do that.
Kevin Brennan (Cardiff West) (Lab)
I understand that when all this was first being discussed there was a debate about whether the right time for intervention for the purpose of exclusion should be at the point of arrest or at the point of charge. Am I right in saying—having read the proposals—that the Commission envisages that in certain circumstances a Member who had been neither arrested nor charged with an offence could be excluded?
Penny Mordaunt
When, at the time of the Commission’s original proposals, there was a debate about arrest or charge, we decided that that was not relevant. This is about a set of circumstances in which a Member wishes to attend and there is evidence that that individual would be a harm to other people on the estate. That is the set of circumstances that the Commission was asked to consider. It could apply to a variety of cases. Although these proposals are limited to violent or sexual offences, this is not about an allegation made against an individual; it is about the risk assessment made of that individual. I believe that the details of the process involved accompany the papers that have been made available to Members.
We have an incredibly complicated standards landscape with myriad bodies providing oversight of Members’ conduct, yet barely a week goes by without something happening that calls into question our adherence to the rules. We seem to remain in a permanent swamp of complaints, cases and concerns, and the need for professionalism and the need to build trust have never been greater. It is therefore vital that, as well as examining the minutiae of schemes and reports, we focus on the principles that should govern our behaviour and culture, and, crucially, the duty of care that we have to one another in this place, as well as our duty to protect the good functioning of democracy.
Sir Christopher Chope (Christchurch) (Con)
In November 2022, the Commission launched
“a consultation on excluding Members charged with violent or sexual offences from the Parliamentary estate until any such cases are concluded”.
That is a very narrow and specific subject for consultation. There seems to have been a heck of lot of mission creep since then, does there not?
Penny Mordaunt
As my hon. Friend will know, the original proposal that was put together and issued for consultation by the Commission has been altered, which is why we wanted to hold this debate: the spirit in which it was initiated was a wish to listen to Members’ concerns. There is no point in the Commission presenting proposals, whether they have been widely consulted on or not, if they are not acceptable to the House. There are strong and important points of principle here, some of which have already been raised this evening and are at the heart of how we operate as a Parliament. There are also concerns about how to deal with some very difficult situations which, as I am sure my hon. Friend will recognise, present difficulties to the House authorities and to Members on the estate as well as our staff. The reason we are having the debate is that this is genuinely open, and I hope we can air these issues and make some progress on the scheme.
Nickie Aiken (Cities of London and Westminster) (Con)
As a House of Commons Commissioner, I think it important that we hear of Members’ concerns. This is about ensuring that everyone’s views are heard. Given how many Members there are in this place, the number who took part in the consultation was fairly small, so we need to hear from more of them—and does the Commission not also have a duty of care to the thousands of members of staff who work on the estate?
Penny Mordaunt
I agree with my hon. Friend, and thank her for the work that she has done. We have an obligation to members of staff on the estate, and we have an obligation to Members to ensure that matters are treated confidentially. We also have an obligation to ensure that our principles and the minutiae of our schemes are compatible with fairness and natural justice.
Sir Geoffrey Clifton-Brown (The Cotswolds) (Con)
Will those accused have an adequate opportunity to present their own defence, and will they be informed of what the offence is?
Penny Mordaunt
The answer is yes, in both cases. The scheme does not sit in isolation. In circumstances such as this, there tends to be a conversation with the Member concerned and with the Whips Office, and the Member may remove himself or herself from the estate on a voluntary basis. This will apply in a tiny number of cases, and the motivation for it is not just a duty of care to colleagues and members of staff on the estate, but ensuring that an individual who is trying, in what we all know are very difficult circumstances, to keep matters confidential is not put in a position that could make the situation a great deal worse. These are very difficult, complicated matters, and it is good that we are discussing them this evening.
When we decide rules and processes in this place, it is important that we stick with them. We as individuals cannot outsource consideration of such matters to other individuals or Committees, or pretend that the problems do not exist. We cannot shirk our responsibility to find solutions to them, or turn a blind eye when we see wrong being done. The letter of the law requires the spirit of the law to be followed as well, and trust will not be built without a commitment from all of us.
With that in mind, I am taking forward two new pieces of work that are relevant to the matter we are discussing this evening. First, I recommended to the Commission that we get someone to take a look at the entire standards landscape. Was it fit for purpose? Was it something of which we could be proud? The Chair of the Standards Committee, the hon. Member for Rhondda (Sir Chris Bryant), is engaged in that work, and I know that he wants to look at the whole landscape. I, as Leader of the House of Commons, am bringing someone in to advise me on these matters, which I hope will provide us with an additional sense check on the quality of what we do, the culture of our unique community, and its alignment to justice, fairness and good practice. I will make the findings available to the Commission, the Standards Committee and others with an interest in these matters.
Secondly, I have long argued that we will only arrive at what good looks like if we, as the House of Commons, work in partnership with political parties and others who can help to strengthen democracy and improve the work that we do here. I am therefore launching a forum enabling political parties, Government, Parliament and other relevant stakeholders to come together and tackle specific practical issues of concern. That will complement the work of the defending democracy taskforce.
Sir Bill Wiggin (North Herefordshire) (Con)
In order to assess the risk, the body of experts—whether they are democrats or Members of this House in all different forms—is surely the key. That is why my right hon. Friend’s inquiry is very welcome, but it all hinges on who the experts are. Is she going to tell us a bit about that in her comments?
Penny Mordaunt
Nobody has been appointed to those roles. I understand that, on points of principle that have already been mentioned, many Members feel strongly that it should be Members of this House who form the panel. Others take a different view. These are the matters that we need to discuss, but I can tell my hon. Friend that no one has been appointed to those roles.
Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
I was not planning to take part in this debate, but I was reading through the notes and my concern—returning to the point made by the hon. Member for Strangford (Jim Shannon)—is that we are in a difficult and delicate area. My right hon. Friend the Leader of the House talks about confidentiality, and the key to all this is process. It is about how it will actually work, not what we might wish it to be. Of course we have a duty of care to staff and to each other; I hope that that is a given. Working within that, we need to remember the reputational damage that has been done in previous cases. The police have done this themselves, where individuals who subsequently died lost their reputations unfairly because of allegations that turned out to be wrong and unjust. My concern is that we are trespassing slowly into the criminal code, which is not perfect. We have to be really careful here, because reputational damage is the end for Members of Parliament. Their reputation often cannot be regained, and their character is all. How do we protect that if people are going to be sent away? How can they not do the work in their constituencies and still retain their reputation as Members of Parliament? These are important issues.
Penny Mordaunt
I completely agree with my right hon. Friend. Even if a scheme looks good on paper, it is the practical issues about how it will operate that matter. He refers to particular things that a particular police force has done. If they are part of the scheme, Members will want to have trust and confidence in their ability to play their part. It is well understood that Members of Parliament have a unique vulnerability to false allegations. My right hon. Friend will know that there are Members who are currently off the estate for various reasons on a voluntary basis. I feel strongly that in those circumstances —particularly when investigations are taking a long time—their ability to represent their constituencies should not be compromised. I want to thank the Procedure Committee and others who have done work to bring forward the option of a proxy vote for Members who find themselves in those circumstances.
Penny Mordaunt
I will take one more intervention as it might help us later in the debate.
Sir Edward Leigh
Does the Commission accept as a general principle that the people have elected Members to this House and that only the people should remove Members from this House?
Penny Mordaunt
Yes. I think I speak for all Commissioners when I say that we do, which is why we have been keen to ensure that when people are not on the estate, for whatever reason, they have access to a proxy vote. This is an important point of principle. We are talking about a very narrow and rare set of circumstances. That is the question that the Commission was set, following concerns from members of staff and others on the estate, and that is why this work has been done, but it will be up to this House whether to take this scheme forward, and if so, in what form. That is why we are having this debate today.
Jim Shannon
The hon. Member for The Cotswolds (Sir Geoffrey Clifton-Brown) asked whether a person in this House would know whether they had been charged and what the charge was. The document that we have all been given contains a “proposed process flowchart”, but I say respectfully to the Leader of the House that I cannot see anywhere in the process where that happens.
Penny Mordaunt
I completely understand. As I say, this is a rare set of circumstances. The way things are dealt with normally has stood us in good stead, with the exception of the fact that those people are disadvantaged because they cannot vote on the estate. We are talking about a narrow, hypothetical set of circumstances that we have been asked to suggest an answer to. The hon. Gentleman is absolutely right: this needs to be compatible not just with the principles of this House but with the individual’s human rights. That is an important, fundamental point.
Penny Mordaunt
I am sorry, but I am going to conclude because I am trying the patience of colleagues. I will be happy to respond to any points on behalf of the Commission this afternoon and I thank all Members and House staff who have helped to bring forward these proposals. I want to reassure Members that these matters are for the House to decide and that all members of the Commission are here to listen this afternoon.
Thangam Debbonaire (Bristol West) (Lab)
I want to start by thanking all colleagues and members of the Commission, the secretariat and House staff for all the work they have done to get us to this point. This is not a decision-making evening. This is an airing of the issues and a time for the questions that hon. and right hon. Friends, Members and colleagues quite rightly have. This is a good time for us to get through them. I have been noting down some of the questions that have already been raised, and if I do not cover them in my opening speech, I will also, with the leave of the House, be closing for the Opposition. I hope that the Leader of the House and I between us can cover the questions that Members rightly want answered.
I am grateful to the Standards Committee, which has done a thorough job and made some thoughtful, measured and considered recommendations. I would like to thank those colleagues and staff who responded to our consultation last year and earlier this year, and I would like to thank the trade unions and staff reps who also engaged with the consultation and consulted their members. All of that consultation and feedback has informed our revisions to the proposals, but as yet they are just that: proposals. We are here to listen.
The Leader of the House, the other Commissioners and I have worked closely and constructively and I am proud of the fact that we started out in a very different places—I am not completely sure that we are not still in different places—but we managed to find common ground on the specific area of risk management and mitigation. We have been studying and consulting on this issue for nearly a year now, and I have tried to talk to as many colleagues as possible, not just in my own party but in other parties as well. I have consulted colleagues—I have consulted the women’s parliamentary Labour party several times—as well as promoting the Commission’s consultation to Members, staff, House staff and members of the Lobby. I have also been trying to share the report that we are debating today. I regret that the report was published only a week ago, as I would have liked a longer period of time, but I am glad that we are now able to debate its contents. I hope that all Members who are contributing today have read it. If not, copies are available in the Vote Office.
I want to bring people with us on this process. I do not want the process simply to go through Parliament when it concerns something so serious as to be including but not confined to the possible temporary exclusion of a Member of Parliament. That is a serious business. Three important principles are at stake here. The first is democracy, which matters to every single one of us. Voters have a right to be represented once they have elected us and they get to decide who represents them in this place. Democracy matters. So, too, does the principle of British justice that a person is innocent until proven guilty, which is absolutely fundamental. Concerns have already been raised about whether Members will know the charges against them. Yes, they will, because this procedure can be triggered only if there is a live criminal justice investigation of a Member for a serious sexual or violent crime, so they will know because they would already have been investigated.
That is difficult to balance with the principle of safety at work for Members, for House staff, for Members’ staff, for visitors and for child visitors. We have tried hard to balance those principles, and we have fiercely debated, as I know others have, how we can make them balance. I do not know whether we have them all right, but we want to hear from colleagues about how we can make them better.
Some colleagues have said to me, “In any other workplace, including local government, a senior person being investigated by the police for a serious sexual or physically violent crime or harassment would at least prompt consideration of how to mitigate the risks while they await the outcome of that investigation.” That is not a presumption of guilt; it is an attempt, as any significant workplace does, to balance an accusation and the risks it may pose with the fact that a person has the right to be presumed innocent until proven guilty.
I want to protect both of those principles in this place but, until now, we have relied on informal processes to deal with allegations. Those informal processes put the person who is confided in, whether they are a Whip or a friend, in an impossible position because, if there is no formal procedure in place, there is not much they can do if there has been no complaint and no allegation to the criminal justice system, because that would be, in effect, acting on a rumour rather than a formal complaint.
I am not saying that any of our processes are perfect. We all know from our case loads the many drawbacks that, in particular, women who are victims of rape go through with endless delays and difficult procedures. I do not think the criminal justice system is perfect, I do not think the independent complaints and grievance system is perfect and I do not think our party systems are perfect, but we are trying to find a way so that, when the House authorities know about a serious sexual crime, we no longer rely on a quiet word here and a nudge there, which does not feel right either for the complainant or for the person about whom a complaint is made.
I have already said that an MP will know if a complaint is made about them, because the process can be triggered only if there is a live criminal justice process, but I also do not want candidates to be put off coming to this place. Being an MP is an amazing privilege. It is an incredible job and an honour. I do not want journalists or staff to be put off coming to work here, and I do not want visitors to feel that this is not a safe place. I think we have to be an exemplar, not just the best we can scrape along with, and I think we are capable of being that exemplar. We have tested that in many different ways, and I think we are capable of doing it now.
What is being proposed is an evidence-based risk assessment and management process, which has come about as a result of consultation. Again, I thank the Standards Committee because, after looking at our initial proposal, it concluded that, although a procedure is necessary, ours was drawn very narrowly in scope and that we should not only focus on the sanction of exclusion. I think it is important to be clear that a range of risk-mitigation responses is proposed by this document, of which exclusion is only one, and that it is only temporary until a criminal justice investigation is concluded.
Some colleagues have also said that they would like the independent complaints and grievance system to feed into this process. As the Leader of the House said, the system will be reviewed later this year. I encourage all colleagues to feed into that review. When we brought in the ICGS, workplace reps in particular, and others too, felt that confidentiality was important to the process, and that there should be a firewall around it. That is where we are at the moment and, until we have had the review, there is no mechanism for it to trigger this procedure.
The Standards Committee made recommendations to widen the scope on the range of mitigations, and we have incorporated a good deal of them in our current proposals, but I look forward to hearing more from my hon. Friend the Member for Rhondda (Sir Chris Bryant), the Chair of the Standards Committee, on where he and his Committee feel we could strengthen it still further.
Like the Leader of the House, I do not want to go into the detail of the proposal, but I will quickly summarise it. If the police feel there is something about which they need to notify the House authorities, whether at charge or arrest, I want there to be a proper process for the House authorities to deal with it, a process that we, as MPs, have considered, debated and voted for. Under the Commission’s proposal, a named group—and they are named in the proposal—of very senior, experienced House staff will consider the initial allegation and investigation that is sent to them, and it will consider whether or not a risk-assessment process is necessary. If the group considers it not to be necessary, the process would stop there; if it thinks it is necessary, based on the evidence supplied, it will then do a risk assessment and make a recommendation—I emphasise this—to a panel. There will be debates in this Chamber, and among colleagues who are not in this Chamber, about whether the panel proposed by the Commission is what they want, or not, but we are proposing a panel with two named Members and one external commissioner. Members, one from the Government party and one from His Majesty’s official Opposition, will outnumber the commissioner on the panel.
Wendy Chamberlain (North East Fife) (LD)
In some respects, I have an issue with describing it as a staff panel. It sounds to me like a risk assessment, and it sounds to me like exclusion is the final option when every other option has been considered. Can the shadow Leader of the House clarify that for me, please?
Thangam Debbonaire
The panel will be the decision-making body that comes after the four senior members of House staff have considered an investigation and the evidence; have done a risk-assessment process, which they will consult on with relevant external experts; and have then made a risk-mitigation plan, which they will then propose to the decision-making panel. I agree that we use the term “exclusion” too often when, actually, it is only one of many possible mitigations.
When the ICGS was introduced, people made a strong case for it to be confidential, so it will not feed into the process at the moment, but I remind all colleagues of the review later this year.
If this proposal is passed by the House, investigations will initially be assessed by a group of senior House staff and a mitigation plan proposed. The mitigation plan will then go to the decision-making panel, which will make a decision on behalf of us all. It is very important that MPs can be excluded only by other MPs, which is why we came up with this proposal. We have also responded to some people’s concern that we need an external voice. I am keen to hear from other Members about whether we have the right composition.
The mitigations could include exclusion. Before I came to this place, I worked with very violent offenders at different points in the process, usually pre-trial or pre-civil proceedings, and our aim was safety. At the same time as trying to achieve safety, we had the important principle, which Members have raised, of people being presumed innocent until proven guilty.
Sir Geoffrey Clifton-Brown
The shadow Leader of the House is making a very thoughtful speech. She has satisfied me on the first of my two points: that a person knows there has been a complaint, because there will have been a complaint to the police. My second point is that it is a fundamental tenet of universal human rights that a person who is complained about should have the right to make their own defence. Can she confirm that, under this procedure, such a person will have the right, at every stage, to make their own defence? They might have a perfectly good and reasonable defence as to why this should not take place.
Thangam Debbonaire
Yes, they will, in so far as the criminal justice system provides it. This is only until the criminal justice system concludes its investigation, which could be because the police drop the case, because the Crown Prosecution Service concludes that there is not enough evidence or because the case proceeds to trial—that will be where an accused person has the right to defend themselves, because they are not being accused by this House or by an individual Member. It will be the police who bring the information to the House.
Sir Geoffrey Clifton-Brown
I am sorry to try the House’s patience but, politics being what it is, there is every possibility that a serious vexatious complaint will be made, and the police would have to take it very seriously because it is a serious complaint, but it might be totally fallacious. It is only right that, in this procedure, whoever is accused of a very serious offence should have the full right to defend themselves.
Thangam Debbonaire
I understand the point the hon. Gentleman is making, and I have made a clear note for us to consider it in our further deliberations following this debate.
Sir Iain Duncan Smith
I want to follow that up, as one of the points made earlier was important. We know of previous problems where cases have been brought against people and we later discover that the witness was not credible, with that leading to serious and significant difficulties, even in the criminal justice system. That is sure to happen in the same way here. Is there anything in these proposals that talks about trying to figure out at any stage whether the witness is credible, what the record has been and so on—or is that left completely for the police to decide?
Thangam Debbonaire
If the right hon. Gentleman is saying that our criminal justice system could do with improvements, I heartily agree. We are talking about a situation where criminal justice proceedings—an investigation—are taking place, and the police, along with the Crown Prosecution Service, are responsible for that. Even now, they will, at a certain point, let the House authorities know if a Member is being investigated, and we do not have an adequate process for responding to that.
The criminal justice system has many significant flaws, which I would dearly love to help fix, but we have the system that we do. We have to be in a position where we trust that system, as far as we can, to give us information when the police feel that is warranted. We need to look at whether or not this system works. There is plenty of time, not only this evening, but before we have the votable motion and then if we decide to vote for the process to be tested and developed, for further opportunities to do that. I am happy to take away the concerns of the right hon. Gentleman and others, which are reasonably expressed. That is what the debate is for.
Sir Chris Bryant (Rhondda) (Lab)
I wonder about this word “defence.” I understand where the question is coming from, but it might be misplaced. It is quintessentially important that the panel should never be deciding on the innocence or guilt of the individual; that matter is solely for the criminal justice system. The panel is only deciding whether, given the circumstances and the investigation that is ongoing—the arrest or whatever stage it has got to—mitigations need to be put in place to ensure that this is a safe workplace.
Thangam Debbonaire
I thank my hon. Friend for expressing it much better than I just did. The proposal is not a replacement for the criminal justice system and it is not a parallel system; it is about finding a way to take on board, when there is a criminal justice system investigation of a serious crime, how we mitigate the risks, in a limited and time-limited way, because we are not like any other workplace. Whether or not it goes on for one month or two years will be the responsibility of whether or not the criminal justice is operating as it should. As I said to the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith), I would like to get my hands on that system and help to institute some reforms. In the meantime, we are not a substitute for it and I am grateful to my hon. Friend for expressing that so well.
Sammy Wilson (East Antrim) (DUP)
It is easy to give an assurance that the panel is not there to decide innocence or guilt. However, the fact that it decides on the basis of information from the police, with a very low threshold, does convey in the public mind some suggestion of guilt. Otherwise, why would such stringent measures be taken against a Member?
Thangam Debbonaire
I thank the right hon. Gentleman for that, but the idea is for this not to be done in a public manner. We probably will face criticism for this, but the Commission has gone to some lengths to try to protect the anonymity and confidentiality in respect of a person against whom allegations of a serious crime have been made. We have built into this process as many opportunities as we can, and some Members are not happy about those. The point is that we should not be deciding guilt, as that would be quite wrong; the separation of powers is an important principle to every one of us in this Chamber. However, we must address the confines of the fact that our workplace is not like any other. It is a workplace for staff here, as well as for our own staff and for each other, and we have a duty at least to try to work out how we mitigate the risk to them, while protecting the confidentiality of the person against whom allegations are being made.
I wish to come to a conclusion because I know that many right hon. and hon. Members want to contribute. While taking those interventions, I have covered a few parts of the speech I was going to make. I started out by talking about three values, and democratic representation is vital. We owe a lot to those on the Procedure Committee and other colleagues who developed the proxy vote system, as a result of which we have a way whereby a Member can be added to the list of proxy votes without saying why and can continue to represent their constituents. Every Member will know what some of the criticisms were of the proxy vote system when it was first introduced. No Member is forced to use it and they can also use the option of pairing, which some will prefer. It is an important principle of democracy that Members’ voters, the people they represent, can continue to be represented.
Other Members have asked about constituency activities. We as a House have no way of legislating to stop Members undertaking those. There may be some who have concerns about that. The police can make bail conditions but we do not have that power. We are not in a position to restrict the constituency activities.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
My hon. Friend is making an excellent speech. I understand that there will be a review process. It is right that we are doing this, as public confidence in our system as a whole is at an all-time low and how we moderate such behaviour and the associated issues are important. To allay some of the fears that have been expressed, will she say what review system will be put in place to see how effectively or not this is working?
Thangam Debbonaire
I thank my hon. Friend for that question. In the past week, the Leader of the House and I have met several times to discuss how we might propose to the Commission what a review process might look like. At the moment, our commitment is that by the time we get to the motion—she will correct me if I am wrong—we will have a proposal to put to the House about how and when we will review. That is desperately important.
Members have raised with me their concerns, which I share, about the damaging impact of untrue allegations being made against someone. I completely share that anxiety, but I also share the anxiety that others, and sometimes the same Members, have raised with me about the damaging impact on victims of feeling as though nobody is taking them seriously. I know that there may well be, as there certainly are in other workplaces I have been involved with, victims who feel that because their complaint is not taken seriously, their career ends.
We talk a lot in this place about the possible damaging, career-ending impact on Members. I want to make sure that we do things in a proper and just way, but I also want to place on the record my concern about the damaging and career-ending impact on victims who feel that their complaint is not taken seriously. We cannot ignore them either. The hon. Member for Cities of London and Westminster (Nickie Aiken), who is no longer in her place, made the correct point that thousands of people work here and we should be an exemplar in how we treat them.
I want to come to the end of my speech, as I know many Members wish to speak. I know there are those—I have heard them already today and I have had private conversations with them—who are uneasy about the idea of any exclusion of MPs whatsoever. I understand those concerns, and my respect for democracy is too high for me to ignore them; we have to explore how they can work meaningfully in this process. But I also think that we are in danger of putting others at risk if we do not come up with a formal method of dealing with that which at the moment is dealt with merely by informal, hidden, not transparent and unaccountable means, by well-meaning people who simply do not have the routes to deal with what they are told about.
To those who feel that the proposal does not go far enough, let me say that I understand that view as well. When I worked with violent men, our aim was safety and that can come about through may different routes. In the system I worked in, one of those routes was exclusion, whose equivalent in non-parliamentary terms was imprisonment. That happens only where there is an end to a proper and just process, and we are not talking about there here. I worked occasionally with women but I worked mostly with men accused of violence, and I know which men I worked with changed the most. If we gave them an opportunity to engage with a constructive process and to think about whether or not there was behaviour that they themselves wanted to change, safety was more likely to be sustained. That did not always work, but I want a process that honours the experience that I and others have gained about how to do meaningful change-making work with people who have behaved on a scale from inappropriately to downright criminally.
There will be times when we have to exclude somebody. I hope it is not many, and it would be nice if it was never, but it is time we took responsibility for making sure that everyone who wears a parliamentary pass can come to work each day knowing not only that we have a complaints system, as we now do in the ICGS, but that, if they have reported an MP to the criminal justice system, there is a formal, thorough, risk-based way of dealing with it. We are not a workplace like any other; we are a representative democracy and we exist in a political world. It is not beyond us to come up with a system to balance those principles in a way that is just, that protects victims and that protects democracy.
Sir Christopher Chope (Christchurch) (Con)
It is a pleasure to follow the hon. Member for Bristol West (Thangam Debbonaire); perhaps she can answer the question why the Commission has changed its remit completely. In November last year, as I said in an intervention, it agreed to launch a consultation on excluding Members charged with violent or sexual offences from the parliamentary estate until such cases were concluded. That was limited to people who had been charged with violent or sexual offences.
The paper before us today says that that remit has been changed because one or two of the 22 people who responded to the consultation said it was too inflexible. What is the explanation for that change? It is said now that, because several consultees mentioned the need to allow for some flexibility in the system, the Commission’s approach is
“focused on the nature of the risk and the severity of the alleged offence rather than the stage of the criminal justice process”.
However, nobody has explained why we are making that change.
There is a fundamental difference between somebody who has been charged with an offence and somebody who has not. The person who has been charged knows exactly what offence they have been charged with. It is public knowledge. Connected with that charge is the ability of the courts to put that person on remand awaiting trial, either remanding them in custody or on bail and, if remanding them on bail, remanding them on particular bail terms and conditions. Sometimes those conditions can include a requirement that the person shall not go within so many hundred yards of a particular place or visit a house of an alleged victim or complainant.
If we stick to the original proposal from the Commission, if somebody has been charged with an offence and, when the bail conditions are considered, representations are made to the effect that somebody working in the House of Commons feels vulnerable or threatened by that person pending the conclusion of the proceedings, conditions can be placed upon that bail that would provide the necessary safeguards against the risk assessment. That process would be dealt with by the courts, it would be subject to appeal if the person concerned did not like the terms of those bail conditions and it could mean that, in certain circumstances, a person awaiting trial would not have the free run of this House of Commons if it meant he would be in close contact, in particular parts of the estate, with somebody who had brought an allegation against him.
That is a perfectly coherent, logical position. I note that one of the people who responded to the consultation effectively said that, if the charge is made and the person is the subject of bail conditions, those conditions could cover the scenario that we are concerned about. Obviously, if the charge is so serious, the person will be remanded in custody, so he will not be able to attend the House at all.
Charlotte Nichols (Warrington North) (Lab)
Does the hon. Gentleman know how long on average it takes for someone to be charged? What does he suggest might happen in the intervening period to ensure that people are safe, without having a risk-based policy such as that proposed in place? What does he suggest we do?
Sir Christopher Chope
The hon. Lady is prejudging the situation. She is saying that, if somebody makes a complaint and it is taking the police a long time to investigate it, the person under investigation should be jeopardised and treated as though they are guilty rather than innocent. I am not prepared to accept that as a proposition.
Charlotte Nichols
I am worried that the hon. Gentleman has misunderstood what I was trying to get across. I am not suggesting that somebody awaiting a charge is in any way guilty; that is the whole point of the fact that they are awaiting a charge. However, without a system that comes in before the point of charge—which can take a few years—and if measures should be taken to mitigate the risk to others, what does he suggest we do without the proposal we are discussing?
Sir Christopher Chope
In a situation where a specific person who is working on this estate has brought a complaint against somebody that is the subject of investigation but has not yet reached a charge, there is nothing to stop the House authorities making provision to look after that person and perhaps enabling them to be absent from the estate or to move somewhere else on the estate. There is no reason at all why an elected Member of Parliament should be put in jeopardy and face the prospect or the threat of being humiliated in public because he is the subject of an investigation—or she is the subject of an investigation.
Investigations are not the same thing as charges. That is why, in my view, the report we are discussing is ill-conceived and should be sent back and be subject to fresh consultation. Let the hon. Lady not forget that Members of Parliament are not subject to the Disclosure and Barring Service. As long as they are not currently serving a sentence of imprisonment of more than a year, they can stand and be elected as Members of Parliament while still on the sex offenders register. Are we suggesting that we should change the Representation of the People Act 1981 to restrict—
Sir Christopher Chope
Okay, the hon. Gentleman thinks we should change the Representation of the People Act. That is fine. Let somebody bring forward the proposal to do that. Let them do that expressly and overtly and say that there is a certain additional category of people who are ineligible to stand for election or to be elected to this place. What we have here is a back-door attempt to try to achieve that objective without changing the primary legislation.
Sammy Wilson
Does the hon. Gentleman accept that the reverse of what the hon. Member for Warrington North (Charlotte Nichols) says is that a Member could be excluded from this House, the police process could go on for a year or two years, as she has said—and quite rightly; it does happen—no charge could be made at the end of that and, meantime, because we have set the threshold so low, the Member could find himself unable to do his duties?
Sir Christopher Chope
I agree with the right hon. Gentleman completely. That is my concern. Essentially, this proposal opens the floodgates to vexatious accusations that will deny the accused the right to make representations or appeal against any decision to exclude.
The specific proposal before the House is that somebody who is the subject of one of these vexatious accusations would not have the right to make representations to the panel or, if they did not like the outcome of that panel, to appeal against the decision. The Commission goes on to say that the system will depend
“upon the provision of concrete information from the police… In practice, this is very unlikely to happen prior to an arrest.”
Surely, though, if the police have such concrete information, as it is put, there is nothing to stop them bringing a charge? If they bring a charge, the proposals that I have referred to will be triggered, but unless and until a charge is made, the provisions will not be triggered.
Charlotte Nichols
To go back to the question that I asked the hon. Gentleman in my first intervention, is he aware of how long it takes, from the point of arrest, to reach the point of charge? He says that if there is evidence, the police should charge people, and of course we all agree with that, but is he not aware that the average time for that to happen is between two and three years? That does not mean that there is no evidence in those cases for the police to act on.
Sir Christopher Chope
Such a lengthy period of investigation between arrests and possible charge is, I agree, totally unacceptable. It is capricious and oppressive. If that is where our criminal justice system is, there is plenty of room for improvement, but two wrongs do not make a right. Delays in the criminal justice system do not mean that we should intervene in an unjust way against somebody who is the subject of an investigation rather than the subject of a charge. That is a simple point. I think that the hon. Lady is biased in favour of the potential or alleged victims, while I am biased in favour of the person who is innocent until charged and proven guilty.
Certainly, prior to the charge, when there are accusations in the air, it is bad enough that the accused may not have any idea of exactly what will happen. We know from colleagues on both sides of the House that that sometimes has a severe impact on the mental health and wellbeing of the individuals who have hanging over them the threat of a potential charge and the knowledge that an investigation of their conduct is under way. The point I am making is that the police should bring forward proceedings quickly if there is evidence in such cases. Then, the bail or remand conditions would determine the risk assessment, which goes to the heart of this discussion.
Risks relating to risk-based exclusion of MPs should, in my view, be decided by the courts as part of that process. The proposal that we should do that in-house is completely wrong. The Commission’s proposal that two MPs and one non-executive member of the Commission should comprise the adjudication panel is even odder. That would mean that people who are not Members of this House and have not been elected would be able to exclude a Member of this House who has been elected, and that that Member, once excluded, would not be able to appeal. How can that be fair?
The Commission recognises the risk of prejudice to a Member by what it is proposing, and it therefore suggests that, to ensure privacy and confidentiality, Members should be able to vote by proxy, but that proposal is totally flawed. We discussed it in the Procedure Committee—our Chair, my right hon. Friend the Member for Staffordshire Moorlands (Karen Bradley), is unfortunately unable to be here this evening because she is away on parliamentary business overseas—and we found it totally unacceptable, because the proxy system is designed for those who are on maternity leave and those with serious health conditions.
As soon as somebody is in receipt of a proxy not because they are ill, expecting a child or on maternity leave, but because they are accused of having committed a serious violent or sexual offence, the proxy system will be contaminated. How do we know that it will be contaminated? When proxy votes are exercised, that information appears in Hansard, and from what we have been told in the Procedure Committee, we know that some Members have been subject to vilification and abuse for acting as proxies for people who are absent. That is exactly the sort of situation that will arise should the proposals go forward: people will be able to work out who is acting as the proxy for those who are the subjects of suspicion and have been excluded from the House under these conditions, and those exercising the proxy will be vilified. As I say, that will completely discredit the whole proxy system.
My right hon. Friend the Leader of the House says that the proxy system is the way to avoid prejudice through lack of confidentiality, but I think that that is wholly ill-conceived. It is certainly not acceptable to members of the Procedure Committee, and it does not fit easily with the proposals that we are bringing forward for the revision of the whole proxy process. We have good, constructive proposals, but they would be completely wrecked if they were confused with the proposal before the House.
If we want to change the Representation of the People Act, let us be open and say, “We do not want people in this House who are on the sex offenders register. We do not want people to be Members of Parliament unless they have been submitted to the Disclosure and Barring Service.” Unless or until we take that route, which would mean changing primary legislation, I do not think that we should mess around by indulging people who make accusations—often vexatious ones—against Members of Parliament. We should not indulge them by saying that, prior to that accusation resulting in a charge, the Member of Parliament will be excluded from his duties in this House.
Deidre Brock (Edinburgh North and Leith) (SNP)
I will start by repeating the words of the Leader of the House and the shadow Leader of the House: the Commission is here to listen, and we will take note of Members’ comments today in further consideration of this issue.
I will try not to repeat the many excellent points that the Leader of the House and the shadow Leader of the House made, but it seems to me that Westminster is very often accused of being an institution stuck in its ways and unable or unwilling to change. The excellent Clerks working on these proposals requested information from Parliaments and legislative Assemblies whose procedures share a common history with the UK, and although it is true that there was a limited number of comparisons, that should not in any way be seen as an argument for not reforming our procedures. Yes, this is a difficult and delicate area, as has been said, but given that some Members of this place like to refer to it as the mother of all Parliaments, should that not be seen as a challenge to go further and lead by establishing best practice, rather than used as an excuse not to change?
Of course, as has been mentioned, the reforms are not just about restoring the image of this Parliament and the public’s faith in democracy, but about real and tangible efforts to protect staff, and indeed other Members, through mitigation measures. In the development of the proposals, there has been a lot of discussion and consultation with a number of organisations and individuals. There has been recognition of the need to give greater priority to protecting staff and the wider parliamentary community from the risk of potential harm while also ensuring continued representation for constituents and fairness to the individual under investigation. The Commission felt that the constituents of an excluded Member should not be deprived of their right to representation in Parliament, so progress in the safeguarding of our staff should go hand in hand with looking again at forms of remote participation.
We all have a duty of care towards staff. Parliament cannot claim adherence to that principle if it fails to reform when so many people working in this place feel concern. They feel that this environment has to change, and we in the Commission have to demonstrate that we hear them. It is crucial that we provide a safe and supportive environment for individuals to voice their concerns, and that there are clear protocols to follow when reporting and taking action. We must also acknowledge the unique environment that we work in: this is not a shared office floor or open office space but a complex host to restaurants, bars and cafés where MPs and staff socialise freely. It is vital that we all feel safe here.
Sir Christopher Chope
Does the hon. Lady think it essential that all people who work in this building should be subject to disclosure and barring?
Sir Christopher Chope
Should all people who work in this building be subject to disclosure and barring checks?
Deidre Brock
I think that this place must recognise that it is the 21st century and that that protections have to be offered to staff. Staff are expressing these concerns to us. I am not sure whether the hon. Gentleman is familiar with the concerns that have been raised, but we have certainly heard them loud and clear and we are attempting to respond to them. I think that that is an important principle that we should be supporting. We have not finalised what the final report will look like or what the decisions of the House of Commons Commission will be—that is what today is all about. The hon. Gentleman has had his say; I am trying to make my points and I will continue.
It is worth noting that testimony given to the GMB union’s parliamentary staff branch said that while many MPs were wonderful, others could mistreat their staff with relative impunity. The circumstances in which MPs can be excluded under the proposals are not limited to actions against staff, of course, but we must remember that this is an attempt to directly help to keep staff, and indeed other Members of Parliament, safe.
There are other points that I would have made, but they have already been admirably expressed by the Leader of the House and shadow Leader of the House. In closing, I want to thank very much the Clerks who worked on the report. They worked very hard on the proposals, with great sensitivity. I thank the members of the Commission, of course, the contributors to the consultation and the many other staff who contributed.
I stress again that we in the Commission are here to listen. We are keen to hear the views of other Members on the proposals. It might be that some finer details change in the future, but I hope that everyone in this House recognises that the Commission is attempting to respond to the genuine concerns raised by staff and, indeed, by many members of the public.
James Sunderland (Bracknell) (Con)
As a member of the Procedure Committee, this subject is of great interest to me, as it is to all members of the Committee. My position may not be completely beholden to that of the Committee’s Chair, so I declare that interest straight away.
For three and a half years, I have spent much of my time in this place inadvertently comparing the two institutions in which I have served: the Ministry of Defence, and the Army in particular, for 26 years and this place, as an MP since 2019. They are quite different as institutions. I shall make just a few comparisons that are, I think, useful to the debate.
First, if a member of the armed forces is accused of a crime, serious or otherwise, there is a presumption of innocence. That should be at the heart of this particular debate, as we heard earlier. The MOD has a “leave no man or woman behind” policy. It is very important that an individual who is charged or under investigation for a serious complaint is not excommunicated. The MOD deals with that often by managing it in-house or, if necessary, by moving the individual to another unit so that they can continue their responsibilities and duties elsewhere. It is important, of course, that they are not separated from the chain of command. Why? Because it is important that the chain of command gives them the moral, legal and welfare support that they need, although they may well be separated from members of the unit who might be involved or who made the accusation. It is important that we manage it in the right way, and I think that that responsibility is important in the House, too.
I thank the Leader of the House and the shadow Leader of the House, as well as the Commission, for the effort that has gone into the report so far. We are 95% there and I am very happy with the recommendations as they stand, but I just want to draw attention to a couple of things that I think can be improved. The important thing for me is that we have a clear duty of care to all those in this place, no question about it, but that duty of care also exists towards the individual who might be accused of a particular offence. That is the theme I want to focus on.
I will be quite honest. I have been appalled at times by the ease with which we hang colleagues out to dry here in Westminster—not mentioning any names at all. When we come to this place, it is a big thing. We work hard to get here. Reputations are important and the way in which colleagues have been asked to leave the estate, or asked voluntarily to do so, for things that have been alleged is quite a brutal process. We have to respect the fact that that colleague might also need some support. We are, of course, a team, whether we are the Conservative party, the SNP, the Lib Dems or Labour, and we as Members have a responsibility to each other irrespective of the colour of our cloth.
When the headlines hit, phones can go silent. Colleagues are in the spotlight. They are vilified on social media and they are on their own. We must also remember that we are all colleagues, and all those who are not currently on the estate are also colleagues. Let us not forget that. Reputations are in tatters and it may be impossible for someone to recover from that, even if they are completely innocent of all the charges.
I think that we can do better in this place not just for the staff who are here, but for the accused. For me, the basic tenet of the entire debate is that colleagues have to be innocent until proven guilty. Yes, we are MPs; yes, we have to maintain a certain standard; but it cannot be the case that we are guilty until proven innocent. We must be innocent until proven guilty. That must lie at the heart of how we take this forward as a House.
I want to raise just three core tenets for the process. The first is the make-up and scope of panels. In this place, they have to be run by Members. For me, Members cannot be subjugated by a staff panel, irrespective of what job we are trying to do. Therefore, this must be managed and run by Members for the benefit of Members. When it comes to voting, it is up to this House to vote on which way we want to take it, not up to staff panels to do that on our behalf.
The second tenet is that the point of assessment for exclusion cannot be proposed at any point in the justice process, as is currently in the Commission’s report. In my view, it needs to be dependent on a charge being brought. In my view, just being accused of something is not justification enough for separating a Member from this place—we must be innocent until proven guilty. The report says:
“If charged, were it considered that a member was dangerous to the public, then he or she would be held on remand, and therefore, unable to be present on the estate…To exclude a member who has not even been charged, whatever accusations might be made, would be a fundamental denial of the principle that people are innocent until guilt is properly determined.”
That came out loud and clear in the report and, again, lies at the heart of the matter. A criminal charge, in my view, is the right threshold, although I accepted earlier there are difficulties with the point at which an arrest may be made and the time that it takes between the arrest and the charge. I do not have an answer for that particular issue.
Charlotte Nichols
I want to make the hon. Gentleman aware that a charge in criminal law means there is a high likelihood that a jury, reasonably instructed, would find the defendant guilty beyond all reasonable doubt. That is what a charge means in law. It is not, “There is a case to answer. We’ll see you in court.” That is what it means. Does he not think that in a civil process, which this is—this is a workplace, it is a civil process—setting the point at which we as a House might act at that point in the criminal process is just too high?
James Sunderland
The hon. Lady is not wrong and I concur with her point of view, but of course it is entirely possible that when a charge is brought an individual may be found not guilty in a court of law. A charge does not itself define guilt. By that same token, if someone is arrested on a charge, ultimately they have to allow that process to play out until the point at which they are castigated and removed from the estate voluntarily or otherwise. I take her point, but, for me, the Commission has work to do to draw a distinction between the point at which someone is arrested and the point at which a charge is made.
Stella Creasy (Walthamstow) (Lab/Co-op)
The hon. Gentleman has just said that somebody can be charged but still be found not guilty, in the same way that somebody could be arrested and not charged. It is about the evidence that is presented. As he said at the start of his speech, we have a duty of care. We are talking about a risk-based exclusion process. It is not actually about the perpetrator, alleged or otherwise. It is about the evidence presented at that time of risk to those who remain. Can he say a little about what he proposes to do to tackle that risk if he wants to wait until charge, based on the evidence presented to the House by the police at that moment?
James Sunderland
I thank the hon. Lady for that intervention and, again, she is not wrong. I do not have an answer, but this is the key thing for me: evidence is what is used in a court of law. Are we judge and jury? Is a staff panel judge and jury? Is the evidence presented to a quango body of individuals here enough, without a charge being brought, to exclude a Member from the Estate? As I said, I think there is work to be done between the point of arrest and the point of a charge being brought.
Stella Creasy
By the hon. Gentleman’s logic, there is no evidence of risk that could be presented by the police to this place on which we could act. Is he really saying that, or do we need a process that could assess the evidence being presented? Is he that specific about it: there is nothing that he could be told about the risk posed by somebody to people in this place that would cause him to act?
James Sunderland
Once again, I find myself concurring with a lot of what the hon. Lady is saying, but my view on this question is that because we are debating it now, the answer is not clear. Ultimately, we have to allow the Commission to make further findings in respect of what the evidence does. My personal feeling is that we have to wait for the charge to be brought before we give enough credence to the evidence. Arrest, in my view, is not enough.
The second issue is how we as a House manage complaints that may be vexatious. We discussed that question earlier, but I would like the Commission to do a bit more work on it. If a complaint has been made and it is entirely vexatious, we have to be able to spot that very early on and deal with it. For example, another Member said during the consultation that
“I am concerned about malicious claims towards MPs, which are constantly on the rise and members being excluded without it being a charge, often these are politically motivated.”
If we follow that logic through, it basically means that any Member can be asked to leave the estate for any reason. Therefore, we have to put in place a process whereby credence is given to an allegation. An arrest may or may not be made, and in my view, it is the point at which the charge is brought that gives that credence to the process. As such, we have to make sure that we can properly define the gap that is in the middle.
I would like to make a further point about management of risk. For me, the important thing in this debate is how we manage the risk-based exclusion, which again is not clear from the Commission. Basically, I want to better understand how we manage the risk: who is responsible for managing that risk? Who is responsible for determining the evidence, if it exists, and who is judge and jury? How do we manage that risk? Who decides, and what factors are involved? In my view, those questions need more work before we can go firm on any vote or otherwise.
The last issue I will address is that of the proxy vote. In my view, a proxy vote has to happen. MPs are elected to do a job, and they must do that job until the point at which they are no longer able to do it—again, innocent until proven guilty. There is a requirement for MPs to exercise their judgment and represent the interests of their constituents throughout the process. Therefore, unlike the earlier recommendation from the Procedure Committee, I am completely happy with the extension of the proxy vote in this case. MPs are still MPs; they are still part of the team and need support. They must not be left on the scrapheap, either. It is important for them—for their own peace of mind and their own validation—to be able to exercise that vote via a proxy. Again, I am not comfortable with the idea that the names of those who have a proxy vote would somehow be published. Those who have a proxy vote should not necessarily be identified as having one, for all the reasons of confidentiality that we have already discussed.
I also welcome the fact that the Commission is now actively considering extending the proxy vote scheme for other reasons. Historically and currently, it has been for maternity and paternity leave, but it should be extended beyond that, to illness and those who may be excluded from the estate.
Sir Christopher Chope
At the moment, there is a question as to whether people who have voluntarily excluded themselves from the estate because of allegations made against them should be able to exercise proxy votes. I think the line has been taken that they should not be able to do so, because of the special circumstances surrounding their case. It would put them on a par with people who are very ill or on maternity leave.
James Sunderland
My understanding is that proxy votes are part of this process. No doubt the Leader of the House will verify that in her summing-up remarks, but as far as I am concerned, it is entirely appropriate that if someone is elected as an MP to do a job, they have to be able to do that job if—for reasons of force majeure or otherwise—they cannot be on the estate. Therefore, I entirely support the notion that a proxy vote should be extended to all those with legitimate reasons to not be on the estate, and I welcome that further work by the Procedure Committee.
The first point of my conclusion is that exclusion should absolutely be a last resort, as I think we have agreed this afternoon. Ideally, it should also be at the behest of the individual. I totally agree that these are unique circumstances, and that what we are discussing deals with the unlikely event that a Member might not voluntarily exclude himself or herself from the estate. My second point is that both the Procedure Committee and the Committee on Standards have suggested that the final decision to exclude could or should be put to the House. I am absolutely clear, as an individual and a Member, that that is entirely right. It is up to us as Members to make the finding in such a case—it is up to us as Members to vote.
Sir Christopher Chope
If it is put to the House on a vote, how will confidentiality be retained?
James Sunderland
That is another element of what the Commission, the Leader of the House and the shadow Leader—the hon. Member for Bristol West (Thangam Debbonaire)—have to work through. Ultimately, I think it is up to us as Members to make that finding on behalf of fellow Members; it cannot be made for us by a sub-panel or a committee. Therefore, that is a further bit of work that the Committee has to go through.
My final point is an obvious one: should a Member be found guilty of a relevant offence, they would most likely receive a custodial sentence or otherwise and be subject to the Recall of MPs Act 2015. That is the point at which we are likely to cease being an MP, and I think that until that point is reached, due respect and credence should be given to all of us as MPs. A duty of care should also be given. In my view, Members should be careful what they wish for. This is a difficult debate and there is work to be done, so let us please not ignore both the duty of care that we have towards staff in this place and our duty of care to each other.
Sir Chris Bryant (Rhondda) (Lab)
It is a delight to follow the hon. Member for Bracknell (James Sunderland). He made a thoughtful contribution to the debate, and he is absolutely right: this is not plain sailing. It is not simple. There are complexities here, and there are moments when different principles clash. We just need to make sure that, in so far as we possibly can, we align those principles rather than let them clash.
For me, there are two principles. The first is that everybody who works in Parliament—whether as a chef, a cleaner, a contractor, a journalist, a Member of Parliament or someone who works for a Member of Parliament, or a Clerk—should have absolute certainty that this is a safe place to work in relation to both bullying and sexually inappropriate behaviour. I know there are colleagues who think that it is a safe place, but there are lots of staff who do not think it is. The ICGS is a great thing; I would argue that we are probably the first Parliament in the world that has introduced such a confidential system. It is still in its early days, but it does not entirely have the confidence of all the staff yet. One has only to look at the polling that has been done by the GMB and Unite, or speak to any of the other trade union officials—or, for that matter, those who are not members of any trade union here—to know how staff feel about some of the practices and the way we do our business in Parliament. There is a job of work to be done.
Sir Chris Bryant
Can I just do my second principle and then give way to the hon. Gentleman, if he does not mind? They fit together in my head.
The second principle is that an MP, just like any other member of the public, is entitled to due process and a fair hearing. It is unfortunately true that the court of public opinion is in permanent session, 24 hours a day, seven days a week. There are no rules of evidence or proceeding in that court, and everybody involved in it thinks that they are the judge, the jury and the executioner. I want to make sure that everything we do in this House ensures that those two principles are met: first, that it is a safe place to work, and secondly, that there is fair due process for MPs just as for anybody else.
Andy Carter
I am in complete agreement: those two principles are incredibly important. The point I wanted to raise with the hon. Gentleman is one we have discussed before in the Standards Committee. Quite often, there is media reporting that 56 MPs are being investigated in relation to bullying or sexual abuse. Those figures are just completely wrong, and they give a completely misleading perspective on issues in this House. That would be around 10% of Members of Parliament. In fact, that figure relates to the total number of employees on the estate—about 7,000 Does the hon. Gentleman agree that, when reporting like that takes place, the Commissioner has a responsibility to correct those figures in order to ensure that the people who work here appreciate that safety and security are important, and so that people understand that those sorts of figures are not accurate?
Sir Chris Bryant
I think it was Tom Lehrer who wrote a song that goes:
“Plagiarise,
Let no one else’s work evade your eyes…so don’t shade your eyes,
But plagiarise, plagiarise, plagiarise,
Only be sure always to call it please, ‘research’.”
The hon. Member must have seen my notes, because what he said is what I was about to say, almost word for word. I am disturbed by his eyesight, frankly. What he says is true. I have rarely been so cross as when I saw reports, repeated in several newspapers, that 54 or 56 MPs —I am not sure which—were under investigation by the ICGS at that time. I spoke to the ICGS, and I knew that the figure was absolutely untrue. I spoke to the journalist concerned, who insisted on publishing the report because they had been told by a Member of Parliament that it was true. It was not true; it was utterly untrue, and it cast the whole of Parliament in a much worse light than is necessary.
As the hon. Member knows, I am one to try to insist on fairness and to ensure that when somebody has broken the rules, they are dealt with properly. My anxiety is that if people keep on writing stories that are untrue, unsourced or no more than gossip or rumour, it will undermine people’s confidence in the ICGS and the system, and that makes it more difficult for us to get a place where we have a safe workplace for everybody involved.
I am grateful to the Leader of the House for what she said about what I call the crazy paving of different bodies in Parliament. I am slightly worried that at the end of this process we will add another body to the many bodies that presently govern how we operate. It is difficult for an ordinary Member of Parliament to understand, but it is even more difficult for staff and the public to understand the different sets of rules that we have. Sometimes they do not fit together properly, and that undermines confidence in democracy and therefore is a problem. That is why I hope we can do a big piece of work in the Standards Committee, and I am grateful for what the Leader of the House said about the work she will do, to see whether there are ways we can at least align things better.
I am aware, for instance, that the way a complaint might be dealt with by the police or the ICGS might remain entirely confidential right the way through to the very end, or until charge in the case of the police. In the ICGS, confidentiality will remain right through until the end. For instance, we had an ICGS case that started in the last Parliament. The person knew they were under investigation, they stood for Parliament, nobody in the political party knew that was happening, they got re-elected and the ICGS process finished and that person left Parliament. However, if someone complains to the political party, the party will suspend the Whip immediately and that is publicly known. Somewhere in that, it is not quite right and fair, and that is a place where we need to do a piece of work.
Sir Geoffrey Clifton-Brown
I greatly respect the hon. Member’s work in this whole area, and I agree with his two principles on safeguarding and fairness. What we have been debating and asking about is how the panel comes to a decision. It is a serious decision, because that person who is excluded from this place may well eventually be found innocent, but the reputational damage is so great that he might lose his job as a Member of Parliament. This is therefore an extremely important matter. How can it possibly be fair that that panel, in coming to that judgment, cannot hear from the person himself or herself as to why they should not be excluded? Surely that cannot be a fair system.
Sir Chris Bryant
I will come to that point, but I will take it in a slightly different direction from the one the hon. Member is aiming at, for the simple reason that when the panel meets, it is not deciding whether somebody is innocent or guilty. I presume that in every instance, the Member themselves would want to co-operate with that process, because it will be in their interests so to do. That would mean they would probably take a voluntary exclusion and decide not to be here, which need never come to public attention. We have got a bit obsessed with exclusion in this process when the likelihood of an exclusion is maybe one or two a Parliament at most.
There are other measures it might be sensible to take. For instance, say a Member has been charged, for the sake of argument, with a violent offence in a pub. We might decide that it would be wise for the House to say that that person should not attend any of the bars in Parliament. Say somebody has been charged, for the sake of argument, with an offence relating to a younger member of staff. Although that name would not be known publicly, we might decide that it was sensible to say that they should not be working in an office environment where there are closed doors or where it is just them and that member of staff. We might say, “We are going to move your office. We will put you in a place where you are working in a set of rooms with other people around as well.” That would be a sensible measure.
My point is that what we do would always have to be proportionate to two things: first, the offence we are talking about; and secondly, the stage at which we are in the process. As the hon. Member for Bracknell said, nearly all these things might only apply at charge, but it might apply at police bail. If the police have gone to a court and explained to a judge that they need to take measures, the House might want to take similar measures. My point is that it all has to be proportionate to the potential offence we are talking about, to the risk that there genuinely is and to the stage at which we have got in the process.
James Sunderland
I thank the hon. Member for his kind words earlier. He is making some persuasive comments, but is there a danger with how the House of Commons Commission might be taking this that somehow we need to be proving a higher level of law? In other words, the rights that exist for people generally across the UK will not necessarily be afforded to MPs, because we are intervening here much earlier in the process than other workplaces might be required to do. We are different in this place—Parliament is unique and sacrosanct—but are we not in danger of demeaning ourselves by allowing each of us a lower bar of legal representation and rights?
Sir Chris Bryant
Well, no. The evidence given to the Standards Committee—if the hon. Member has time to read it, I urge him to do so—was that an awful lot of other workplaces do something similar and start considerably earlier than at charge. For instance, there are proper issues for a school, which is probably the only place where we would properly use the term “safeguarding”, and likewise for a youth service. For someone in the police, it is likely that the police would take far more precautionary action than we do, and far more than is even being suggested here. The bit that is different for us is that the scrutiny on us is acute. However, if we spoke to a teacher excluded from school at the point of arrest for a sexual or violent crime, they would say, “It may not have been on the front page of the Daily Mail, but everybody in my local community knows about it,” so there is enormous reputational risk.
One really important point that we must stress time and again is that, in any of these instances, this cannot involve a judgment as to whether somebody is innocent or guilty—that is absolutely the case—and our processes must guarantee the presumption of innocence all the way through to the end of a criminal justice process.
Kevin Brennan
My hon. Friend knows that I take a lot of stock from what he says on this subject, so I would be interested to know this. Is he completely content with the proposal before the House, particularly the aspect I found surprising, which is that it allows for the possibility of a Member to be excluded even prior to their arrest, basically on the word of a report from, for example, the Metropolitan police?
Sir Chris Bryant
Indeed, trust in the Metropolitan police is not high, and that is a problem for the House at the moment. I am aware of friends and colleagues who would like to make complaints to the police but feel that they would not be listened to properly. Vice versa, there are obviously Members of the House who do not feel that the Metropolitan police would deal with them fairly. I think it is a fair point about whether this should be before arrest, but my assumption has been that the moment of arrest, and certainly if somebody is interviewed under caution while under arrest as a suspect, is the point when, again on a proportionate basis—proportionate to the alleged offence, proportionate to the risk there might be perceived to be and proportionate to the stage at which we are—we may want to take action.
I worry that, if we do not do any of this, we will leave ourselves very exposed to further reputational risk for the House. That is my anxiety. The hon. Member for Bracknell raised the question of whether somebody could be excluded without the House voting on it. My anxiety about the House voting on the exclusion of a Member is that that will almost certainly look to the public as though the House has judged that that person, for want of a better term, is a wrong ’un. That is why if my best friend were in this process—if, for instance, they had been charged, and the House authorities thought there was a significant concern and wanted to take action, suggesting they should not come in—I would say to my best friend, “You should just not come in.” Then it would be entirely voluntary, and that would protect the reputation of the House. I think that would be in the best interests of the individual, and we would end up with a fair outcome for the complainant as well.
However, I think the House has to reserve the opportunity that we may be in a situation where somebody is absolutely adamant—saying, “There’s no way you’re preventing me from coming in”—and people may come to the conclusion of replying, “Sorry, but we think you are a genuine risk to other people on the parliamentary estate, and that now trumps anything else. Consequently, if you’re not prepared to accept this, then we will have to vote on it.” However, I think the likelihood of that happening more than once in decade is minimal. I slightly worry about doing a review, because I am not sure how long we would have to allow before we had enough cases to decide whether the review was actually valuable.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
This is a very interesting debate. Has the hon. Gentleman considered that there are several parts to a Member of Parliament’s job? One is representing constituents in this place and voting in this place, but another is listening to their constituents, visiting them, and visiting schools and other places, but there has not been much focus on that part of the job.
Sir Chris Bryant
No, indeed. One of the things referred to in the Commission paper, and we refer to it in the Standards Committee report, is that it is all very well dealing with here, but there is also the constituency office. I think we should be able to include that in this issue. For instance, let us say that somebody has been charged with a violent or sexual crime. I think the House authorities should be able to say to that Member, “I’m sorry, but you should make it possible for all your staff in your constituency to work from home”—that, for instance, may be an appropriate measure—or, “You’re only ever going to able to be in your constituency office with your staff with another person,” or some such measure. It is all about minimising risk. Of course, we cannot have a system in which the House says, “Oh, and by the way, you’re not allowed to go to Tesco” and so on. However, that may be a legitimate process that the police have to go down if they felt there were further risks to other people or to the community.
Sir Chris Bryant
I am seeking to bring my thoughts to a close, but of course I give way.
Sammy Wilson
In his last remark, does the hon. Gentleman not see how we can get these measures creeping? Where is the consistency in saying, “This panel has decided you’re not safe, Mr MP or Mrs MP, to be in the House of Commons because you are a danger to staff” or whatever, but also saying, “At this point in time, you’re not a danger to your constituency staff and you can still go to your constituency office”? This is where the creeping comes in, because is not the logic of this that, if someone is excluded from here, they get excluded from everywhere else where their parliamentary duties take place?
Sir Chris Bryant
I have to apologise because my hearing is going a bit, so I did not catch all of that. There is always an argument about the slippery slope, the thin end of the wedge and all of that—floodgates were mentioned earlier—but my anxiety is that if we do nothing we will be in danger of doing permanent damage to the reputation of the House and creating further anxiety for members of staff who work in the building.
I have just a few small points to make. I think we do need to address what happens in the Lords. I know we have exclusive cognisance, and it is up to those in the Lords what they do, but the ICGS is bicameral—it applies to both Houses—and we ought to have something similar for the House of Lords. I do find it quite extraordinary that somebody who has committed a significant criminal offence and gone to prison can come out and go back to the House of Lords—and, yes, the hon. Member for Christchurch (Sir Christopher Chope) is right that I would like to change that law as well.
I think there is a significant issue here for the political parties. Members have talked about vexatious complaints, and the most dangerous space for this is potentially within political parties. The Whips often have to do a very complicated and difficult job, and I think the pressure we sometimes put them under in this field is inappropriate. I do not like the fact that, for many years, we always used to push these things under the carpet. I think it is right that we have proper processes, rather than saying, “Oh, it will all just be sorted out somewhere in the party.” However, I do worry about whether there is fairness for people, because the best way to prevent somebody being able to stand in the next general election is to make a complaint against them to their political party. They will then lose the Whip, the party will probably take even longer than any other authority would to deal with something, the person will not be able to stand and they will have lost their job.
Dr Caroline Johnson
The hon. Gentleman makes a fair point about vexatious claims. If we are normally here for a term of about five years and it takes two or three years to investigate whether someone should be charged, does he accept that, if he wishes to exclude people on the basis of complaint rather than charge, wholly innocent people could end up not being able to represent their constituents for two or three years before that decision is made?
Sir Chris Bryant
Of course I do, but I have tried to explain that I think we will mostly be dealing not with exclusion but with other risk-based actions that are about protecting the workplace. I understand the point the hon. Lady makes, but I hope I have tried to deal with it.
Turning to the adjudication panel, I think that is an inappropriate name because it contains a word that sounds like judges and that sounds like deciding whether somebody is innocent or guilty. The Commission has suggested that it should have two members of the Commission—in fact it has suggested that in this Parliament it should be two Deputy Speakers and a member of the Commission. That is the wrong set of people. First, there should not be a named set of people for a whole Parliament because, as sure as eggs is eggs, we will end up with somebody being conflicted because they are too close to the person concerned. Secondly, Deputy Speakers or Speakers are inappropriate as they are in a position of authority over Members and deal with all of them all the time. The lay members on the Commission were not appointed because they understand matters such as these; they are normally appointed because they understand the running of businesses and organisations and finances.
Our preference on the Standards Committee was therefore to have it simply stated that when a case arises a panel be brought together that includes two members of the Standards Committee and one member of the independent expert panel—so, one Member of Parliament, one lay member from the Standards Committee and one member of the independent expert panel—and that if a case ever came to either of those two bodies subsequently, they would then recuse themselves. That would end up with a better and fairer system.
For most of my time in this House we have brushed all these things under the carpet; it is a very beautiful carpet, but that does not mean we have done right. MPs often want to talk about vexatious complaints, but there is another side: lots of people feel unable to bring complaints because this is a place of patronage, power and authority. It does not feel as if we have much power a lot of the time, but many members of staff, especially young people coming to work here—I particularly feel this in relation to young gay men who come to work here—are very vulnerable and it is easy for Members to forget the power and authority they have over other people and abuse it. Although I recognise the need for fairness in relation to vexatious complaints, we must also have a system that enables people to make complaints.
My final point is that I hope we can start this process as soon as possible and have a debate on a substantive motion before the summer recess. I think that was what the Leader of the House was promising, in so far as she is ever able to promise something because other things always come along. My only request of her is that it would be nice to see the motion several days before we debate it, as that leads to better debates because people then know what they are talking about.
Wendy Chamberlain (North East Fife) (LD)
I am very conscious that at this stage of the debate lots of things have already been said.
In my three and a half years in this House it has been brought home to me that in decision making in politics there is no right or wrong. It is usually about the least worst option, but doing nothing is also a decision in itself.
The shadow Leader of the House talked in her opening remarks about the three standards, and I think we all agree that they are the principles of this debate: safeguarding, fairness and democracy. The hon. Member for Christchurch (Sir Christopher Chope) talked about bias, but for me it is more about balance; all of us will come to individual conclusions about what we give more weight to in finding that balance.
We need to think about reputational risks to Parliament. If we were to ask a member of the public whether somebody under investigation for sexual assault or violent crime should be allowed to come on to the estate—I would like to talk later about the different bits of that investigation—they would think it reasonable that they were not allowed. Frankly, people are uninterested in the complexity and processes that surround our jobs—that we are not employees, that as a Whip I am nobody’s line manager and neither is my party leader, and the different details around allowing us on to the estate. They want to see us being held to account for our behaviours.
When debating matters relating to the House we automatically default to the impact on MPs and thinking about ourselves. That is human nature, but we need to think about safeguarding and how our actions and decisions here are perceived. This is not a normal workplace, but the public’s expectation is that when we can better align with employment practices, we should do so. Our behaviour code references everybody on the estate and I am not convinced we should expect those other people on the estate to be subject to widely different treatment.
One thing that I can bring to the debate is my police experience. I ask the Commission to think about this. I was a police officer for 12 years, and I was sexual offences-trained, so when there was a report of a sexual offence, my job was to speak to the complainer and take the initial statement. Indeed, if the complaint was of a sexual offence nature and it had just happened, my job was to take that person to their medical and to obtain productions. I would also liaise with the criminal investigation department, which would be carrying out the inquiry, to ensure that when it came to take action in relation to the suspect, it did so with as much evidence as possible. That made me think about when a potential suspect becomes aware of the police’s interest in them.
Right from the start, a police officer is making that assessment of the evidence. At an early stage, they might conclude that the evidence is not credible and therefore the investigation will not continue. We also need to be conscious of and remember that while there are 650 of us in this place, 59 of us represent Scottish constituencies, and Scottish law is different. However, the reality is that a suspect may first become aware of the investigation and that the police want to speak to them about a matter at the point of their arrest on suspicion. There is an opportunity to seek clarity about the consistency of that at police level; not only for the Metropolitan police.
I see that the hon. Member for Cardiff West (Kevin Brennan) is no longer in his place. It pains me as a former police officer to think about the number of times I have talked in the House about trust and the lack of trust in the police, but we need to think about where complaints might come from and therefore consistency across forces in England, Wales, Scotland and Northern Ireland in relation to that. Realistically, if arrest on suspicion is the point at which a suspect first becomes aware of an interest in them, that is likely to be the point at which the police first approach the House authorities to make them aware of such a complaint. The suspect will therefore be aware. For me, that takes away some of the debate that we have had, because if somebody is arrested on suspicion of an offence—they may be released without charge following that initial arrest—the police must have had some degree of credible evidence that required them to arrest that person and take away their liberty for a period of time to carry out that investigation. I hope that that threshold would meet some of the concerns raised.
I am now thinking about this issue through my second role and as the only current Whip to have spoken so far. The current system of voluntary exclusion from the estate is just that—voluntary—and inconsistent, because it is taken on a party basis, and sometimes police advice can make parties come to different decisions. If we are interested in fairness for MPs, we need to consider how the current system is not very fair for MPs as well as for complainers. The voluntary process means that much of the decision making is done invisibly by Whips, who as individuals are required not only potentially to enact some discipline but to provide the pastoral support that is so important.
The hon. Member for Bracknell (James Sunderland), who is no longer in his place, talked about the real impact that a complaint—whether vexatious or otherwise—has on an individual. The Whips are the people who are required to provide support. On that basis, we need to consider that the described process in its very specific circumstances will not be taking place in isolation. If somebody is being arrested on suspicion, there is a real likelihood that the party will be aware, and the Whips and parties will be making decisions accordingly based on the same information.
Given that we are talking about safeguarding and the long-term reputation of the House, there should be scope—this is a plea—for parties to discuss ways of taking a more consistent approach to such complaints. We should not be using them as a political issue and saying that one party handles them better than others, because none of us and none of our parties are immune to that. I welcome the announcement by the Leader of the House about the forum, because that might provide an opportunity to bring things out from under the carpet, as the Chair of the Standards Committee, the hon. Member for Rhondda (Sir Chris Bryant), appreciated.
The final issue I want to mention is the discussion about the right people to sit on the panels. I absolutely concur with the hon. Member for Rhondda and others who have described what we are talking about: adjudication. I raised it myself in my intervention on the shadow Leader of the House about the staff panel. I think I am in a place where I accept there needs to be somebody who is not an MP looking at the situation from a risk assessment perspective. Again, I think about that in relation to the police. In terms of the internal aspects of the police complaints process, there is a lack of trust about police officers investigating themselves. There is also potentially a lack of trust, whether we like it or not, around MPs passing judgment on ourselves. If what we are trying to do is deal with the complaints that come in and aspire to having none of those complaints in the future because we have changed the culture in this place—culture change is so important—then we have to accept that sometimes we are frogs in increasingly hot water. We become acclimatised to our surroundings and think first and foremost about ourselves as MPs, as opposed to those outwith. We therefore need an ambition that this process is about changing the culture.
To conclude, as MPs we make the laws and we must show ourselves to be accountable. We are discussing this situation because of the actions of a minority. However, those actions mean that the reputation of this House, and attracting the right people into this House, is at risk and we face a continued decline. Not only must we take steps, but we must be seen to take steps. Only then will we start to change the culture and present to the public the face we want to present as Members of this place.
Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)
I wanted to contribute to today’s debate given my role on the House of Commons Commission, and having worked with the Commission across the past few months since taking on the role of Chair of the House of Commons Finance Committee in March this year.
I want to start by echoing all the points made by the shadow Leader of the House, my hon. Friend the Member for Bristol West (Thangam Debbonaire). Indeed, there have been a number of excellent speeches and lots of food for thought for the Commission. By the time I was appointed to the Commission, the report and the actions proposed had moved past their infancy and were being developed in detail. I am glad, however, that the measures are being brought forward. There is a clear desire—and an unfortunate necessity—for such measures among people across the parliamentary estate and community. Strengthening the safeguarding of all on the parliamentary estate is something which should be taken seriously, so it is reassuring that the House has made good progress.
Protecting and safeguarding our staff, House staff, all passholders and visitors to the estate must be a top priority. The majority of respondents to the consultation run by the House supported the principle of exclusion in relation to alleged violent or sexual offending, and some responses, notably from Members’ staff branches of the GMB and Unite, and the House of Commons trade union side, made their representations on behalf of their members which collectively amount to thousands of members of the parliamentary community. The weight behind their submissions should therefore not be discounted.
For too long, when things go wrong, Parliament has relied on informal or incredibly slow processes to deal with allegations of sexual misconduct against Members. I appreciate concerns raised regarding the constitutional rights of MPs to attend Parliament. That is why voters must have a right to be represented by a proxy vote and why a Member has the right to anonymity, as they are innocent until proved guilty. But to take a seat in this Chamber is a privilege and the role of an elected Member of Parliament is one which should be deeply and intrinsically respected. MPs must therefore meet the highest standards of behaviour.
Parliament must also be a model workplace for organisations across the country. When allegations are brought forward, processes must work in tandem, and our parliamentary community should be protected. But before that step, we need to embed a culture in which people feel safe and confident to come forward—something that recent events have shown is sadly not the case. The policies we adhere to in this House must therefore be updated and strengthened, so that all passholders and visitors are safeguarded.
I would like to thank all members of the Commission and the Commission’s fantastic Clerks, Gosia McBride, Ed Potton and especially Sarah Petit, who led on the project and put in months of work into bringing these proposals forward. I urge colleagues to vote in favour of these proposals when they are eventually laid before the House, and I sincerely hope that the Leader of the House will bring the vote to the House this side of recess.
Stella Creasy (Walthamstow) (Lab/Co-op)
I think there is some common ground among contributors to this debate. It is not innocence or guilt that should be in question—this is about our responsibilities. It is about the probability of harm or further harm when sufficient evidence has come to light to merit the involvement of the police. The Leader of the House said that she was here to listen, so let me offer what I believe is probably a counterbalance to some of what has been said today. It is critical to recognise that we are talking about a risk-based exclusion process; this is not about the person who has been accused. We have a responsibility to act because this is about the risk of harm to people in their jobs and in their lives as part of their connection to Parliament.
In parts of this debate, it has almost seemed as if we have forgotten the victims, the potential victims and the risk of harm. That is to our discredit as a House, because we face such a major challenge, and we must be honest about that. I can reassure you, Mr Deputy Speaker, that I will abide by what you said at the start of this debate, but, frankly, it is terrifying to me that you had to ask us not to talk about individual cases. We are all living in an environment where we know how pressing it is to resolve this matter, because we know of the number of cases involved.
I recognise the passion that the hon. Member for Christchurch (Sir Christopher Chope) brings to this debate, but I must be honest: I do not think that arguing that somebody who is on sex offenders register can also be an MP is quite the attack on these proposals that he thinks it is. If anything, it shows that, for so long, this place has lived by rules that no other workplace—frankly, no other planet—would think were reasonable. He says that he is biased towards the accused. Well, that should automatically rule him out of this process, in the same way it would if somebody were biased towards the victims. This is about risk. It is about how we interpret risk and our responsibility in this regard.
I am sorry that the hon. Member for Bracknell (James Sunderland) is no longer in his place. I listened patiently to what he said and I was very sympathetic to the thoughtful way that he approached this matter, but he kept saying that we need to look at this again, that we need to kick the can down the road one more time. We have been doing that in this place for years—that is what the cacophony of different organisations reflects. Every single time that we kick this issue into the long grass, say that it is too complicated and put it into a box because we cannot deal with it, our constituents think two things: “Hang on, in my workplace we had to deal with this” and “What planet are they on?”
It was 2017 when the #MeToo movement gave people the courage to come forward in this place with what was, frankly, the tip of the iceberg of the challenge we face. It is now seven years later, and we still have not made the progress that we would all like to see.
Sir Christopher Chope
I am grateful to the hon. Lady for giving way. Both my hon. Friend the Member for Bracknell (James Sunderland) and I were talking about the importance of the presumption of innocence before being proved guilty. That is why I say that I have a bias in favour of the accused. The accused is innocent until proven guilty, and the hon. Lady seems sometimes to forget that.
Stella Creasy
My concern is the concept of bias, because it means that the judgments that the hon. Member makes are not value-free. We need a process that people can have confidence in and that will act. In the last seven years we have seen time and again that what little reputation this place had has been shredded as a result of our failure to have those processes. It is not about the accused but about the hon. Gentleman’s concept of bias. He could not hear someone’s case without fear or favour if he were on a jury, but that is not what this is about.
The hon. Gentleman is concerned about vetting and barring; I used to work for the Scouts, where it was pretty standard to have vetting, barring and DBS checking for our volunteers. It was not seen as an unusual or difficult thing to do. I suspect that most people in daily life would be fairly shocked that Members of Parliament do not have that. They would expect a level of professionalism and safeguarding because of the kinds of cases that we might deal with and the kinds of people who might come and seek our help, and that would not be unreasonable.
The hon. Member needs to take seriously the point made by my hon. Friend the Member for Warrington North (Charlotte Nichols) about just how long it takes for cases to be heard and for the police to gather evidence when someone is arrested. We do not construct the system in a vacuum, so we must take account of the fact that, as the hon. Member for North East Fife (Wendy Chamberlain) pointed out, once someone is arrested, they will know that a complaint has been made. That is when the clock starts ticking. We know that this has been going on. In January, the Fawcett Society said that 69% of women MPs and 50% of all MPs—I presume men, too—had witnessed sexist behaviour and sexual harassment in Parliament. They had seen behaviour they thought was inappropriate in a workplace in the last five years.
The permanent swamp of complaints that we are living in means that the concerns are not without foundation. It is up to us all to recognise not just the individual examples but the collective challenge that we face to tackle that culture. It was not just in 2017 that people came forward; in 2018, Laura Cox had an independent review; in 2018, the Women and Equalities Committee made recommendations; in 2019, Gemma White produced a report and Naomi Ellenbogen produced a report for the Lords. I completely agree with my hon. Friend the Member for Rhondda (Sir Chris Bryant) that it cannot be just about MPs but must be about this place as a whole. The reality of daily life as a Member of Parliament is that they will interact with everyone on the estate, including their staff and the people who come and visit. It is not an unusual concept in any other workplace, but somehow we think we are different, and things are too complicated to make progress. Little wonder the cases still come; little wonder the Deputy Speaker has to issue such a warning.
My worry is that we will deter people from coming forward. We will be unable to address these issues if we do not get the process right, and we will deter people from coming forward if they have to wait until charge. They might continue to be in a workplace with someone they have made a complaint about. The police will have deemed it serious enough to arrest that person and to come to the House authorities about them, yet they still have to be in contact with that person every single day if they want to do their job. We must trust that the police would not come forward with information were they not concerned that we needed to address a risk.
As the people who make the safeguarding legislation, we cannot say, “Sorry guv, this is all too complicated for us, so in this place we won’t have the rules that we ask of other places.” It is right that we do not ask our Whips, who have to do an incredibly difficult job in managing us all at the best of times. As someone who spends too much time around toddlers, I do not envy the Whips, because it feels like a harder job sometimes.
We cannot have a system that is immune to the impact on political parties. Again, my hon. Friend the Member for Rhondda was right to talk about the interactions that exist and the need to have a process that people feel is fair and firm. Patronage and power are infused throughout this place, and that does not stop when someone is arrested. Indeed, the pressure on the person who has come forward becomes even greater. It is our responsibility to address that.
The Leader of the House said that she is looking to hear views, but let me make a simple plea: why do we not do what we ask of other workplaces in the legislation that we ourselves have put in place? Sexual harassment at work is specifically outlawed as a form of unlawful discrimination by the Equality Act 2010. This is not about narrow points of process—I pay tribute to the Clerks who have worked on the report—but about us doing what we expect of other workplaces. Rather than having multiple processes where people can get clogged in the system and no one has any confidence about who is doing what to tackle an issue, we should have one simple process in which we can interact. It is not so complicated to have interaction between the political parties, the ICGS and this House, if we will it.
Sir Christopher Chope
To what extent is the hon. Lady sympathetic to the plight of those who are on the receiving end of false accusations? My understanding is that she herself has been on the receiving end of vexatious allegations that related to social services and her children. From that, she must feel the enormity of the burden that such false accusations bring upon somebody’s shoulders. Does she not have any sympathy for other Members of Parliament in that regard?
Stella Creasy
I think the hon. Gentleman has missed the point I was trying to make earlier: it is not about sympathy or bias, but about trying to have a systematic process that allows us to act as a House. That matters because every Member of Parliament has responsibilities as an employer. Under the Equalities Act 2010, we have a duty of care to our staff and to the people who work with us here, to make sure we are creating a safe environment. Whatever our private experiences, the issue is how we collectively uphold that. Frankly, if the hon. Gentleman does not do that and uphold his role in safeguarding, then my staff are at risk, as well as other members of staff. We get this right together, or we do not get it right at all.
We can get it right if we choose to, and if we follow the requirements put on any other workplace. Employers have a duty of care and are legally liable for sexual harassment in the workplace if they have not taken reasonable steps to prevent it. We make that a requirement for any business or public agency in our constituencies, which is why our constituents will be watching the debate agog that we cannot get our heads around that idea.
There are no minimum requirements: all employers are expected to have an anti-harassment policy and monitoring of its implementation, and clear processes for reporting harassment, protecting the victims and taking action if harassment occurs. That is why the cacophony of different organisations is a challenge, because it makes it hard for people to see how we are implementing the requirements that we ask of other workplaces. It is also why the risk-based exclusion policy should form part of that process. It should show that we take sexual harassment and serious violence seriously enough to have a process in place, so that if the worst comes to the worst, we can act.
In order to uphold those legal requirements, I would argue that the policy should cover all those who have a pass and all areas in which their status as a passholder means they are in a position of power. Again, we cannot put constituencies into the “too difficult” box if somebody claiming to represent Parliament might present a risk of harm. In reality, people will ask, “What did you do when you knew there was a challenge?” That is what the process is about. We cannot be good employers, upholding our duty of care, if we do not hold each other to account.
We need a process where if a disclosure is made—not tittle-tattle or gossip, but a disclosure—there are formal responsibilities. In any other workplace, that would be standard. If someone reported something to a senior manager, there would be an expectation that they would act on it. Indeed, a senior manager might say, “Do not tell me something if you do not wish me to act.” Frankly, I do not blame people who have gone to the press because they have seen the failures in our process; I blame us for not acting more quickly to resolve the situation. I hope, appreciate and understand the need to have the debate today and I am pleased we will have a motion before the summer recess, but I recognise that it cannot be just about MPs. It has to be about everybody who has a pass and has that status within Parliament.
None of this will change the culture, which we all know needs to change, whereby power corrupts and people use it to abuse. Most do not, but we know some do and consistently will without a system that tackles that. This is not about MPs marking their own homework. It is right that we bring in a third-party challenge from lay members, who are people who have to deal with the issue in their day-to-day workplaces. It is also right that we use the proxy voting scheme to deal with some of the issues that arise. As somebody who has been part of a proxy voting scheme, I argue that it is not the reason why we get abuse from people.
Safeguarding does not have to mean no socialising. It is perfectly reasonable for people to be able to go for a drink together, through the long hours that we do in this place, without that being inappropriate, but the fact that some Members are inappropriate means that we need to act and that we need a speedy resolution process. However, that speedy resolution also means resolving the issues involving multiple bodies. There is a general election on the horizon, and I would wager that most female MPs will say that the first question they are asked by other people—especially women—who are thinking about standing is “Is it safe?” They will ask, “Is it safe for my family? Will I receive abuse? What sort of behaviour will I have to deal with? Will it be like being around a bunch of toddlers?” I suspect that most of us will give an answer that we would not really want to defend.
We can change this. The public only have the chance to elect Members every five years, and perhaps none of us will there by the time these proposals are implemented, but we all have a responsibility to those whose voices are not being heard in our political process, because they look at this place and think we are all complicit. I hope that the hon. Member for Christchurch (Sir Christopher Chope) and I can find common cause in wanting to make it possible, in our democracy, for every voice to be heard. If this is a barrier, we can address it, but let us address it soon, because for too long those voices have not been heard, and for too long the consequences for the House and for democracy have been seen.
Sammy Wilson (East Antrim) (DUP)
I am glad that this is just a general debate, because I suspect that were there to be a vote at the end, many Members, even those who have grave doubts about these proposals, would feel almost compelled to go through the Aye Lobby, for the very reasons that have been given by some of those who have spoken this evening. We have heard that we must restore the image of Parliament, that we must respond to the concerns of our constituents, and that we must consider the reports in the press about this place. I suspect that many people would have thought to themselves, “Although I am not satisfied with all the proposed safeguards, rather than put my head over the parapet and go through the No Lobby, I will go through the Aye Lobby”, and I think that in the context of what we have before us, that would have been wrong.
Of course this should be a safe working environment, and of course a blind eye should not be turned to Members of Parliament who disgrace themselves, disgrace this place and disgrace their constituents through their behaviour. We have a moral duty—apart from our political duty—to ensure that that does not happen. Let me explain my main concern, which we have already heard expressed by others this evening. This started off as an exercise: what do we do if people are charged? I have looked at the evidence, and some, although not a majority, asked, “What about before charge?” I suspect that there was a bit of running for cover. If some people are saying, “You are covering up until the person is charged”, the goalposts have been moved. I do not know what was in the minds of the people who eventually wrote the report, but I suspect that behind their concerns was the question, “Are we being seen to be too lenient, or having a desire to cover up the offences of people who do wrong in the workplace?”
We should look at the threshold that is being set here. When the police have credible evidence, it is reported to the panel. We know what happens, especially in high-profile cases. Let us put ourselves in the place of a senior police officer. An allegation is made, and is passed upwards. “Do you know what has happened in Westminster? An allegation has been made against such-and-such a well-known person.” It would be a very brave police officer who said, “Let us just leave this for a moment, see what further evidence there is, and investigate this case.” The danger is that if the allegation is correct, and if something even worse happens and that gets into the press, the first thing journalists will ask—and, I suspect, the first thing that some Members will ask—is “Why did the police not tell us?” There will be what is almost a default position at the very first line of defence. Should we take the precautionary attitude, even though we have not investigated the matter fully, rather than take the risk that this could be a bad individual who could repeat the offence and hurt someone else? Let us report it to the panel. I suspect that once the panel gets credible information, as it is described, from the police, there will not be too much willingness on the panel’s part to sit back and say, “Let’s look at these allegations a bit more closely”, especially if the individual concerned does not even have the opportunity to argue the case to the panel that the allegations are totally spurious.
Of course the allegations might be genuine, but we know that there are a number of people out there who do not like our politics, who do not like MPs full stop or who think we are all a bunch of wasters, and there are also some disturbed individuals, and they will make allegations. We have evidence of the police being given allegations—the Carl Beech case and Operation Midland are good examples—and of individuals being dragged through the dirt, with no charges ever being made but reputations being ruined. We cannot ignore the fact that if we take a cautionary approach because people are afraid of what might happen if we do not act immediately, individuals in this House could find their reputations damaged.
Let us look at what the impact will be. We have heard tonight that this is not about exclusion and that this process might never be used, but the very title of this debate, “risk-based exclusion”, indicates where this is going. An individual is going to find themselves unable to do their duties in this House, on the basis of credible information that has not even reached the point of the police thinking it serious enough to arrest them, question them and charge them. They cannot do their job. They can proxy vote, but that is not the main job of an MP. The main job of an MP is to listen to constituents here, to take part in debates, to express views, to go into Committees and to try and shape legislation, but they will be excluded from doing all that.
The report indicates that
“the Commission is not proposing any changes to what Members can and cannot do while absent from the estate”,
but the logic is that we cannot stop there. If we think that someone is a risk to individuals here, they will be a risk to individuals elsewhere as well.
Charlotte Nichols
I agree in principle that some safeguarding measures should be taken outside the House, but the right hon. Gentleman is failing to recognise that this is about our duties as a House. What would it mean, in a context where we had chosen not to act to put some sort of safeguarding policies and procedures in place, if someone who we chose not to exclude—were that proportionate and reasonable—went on to reoffend? This is about what our responsibilities and duties would be as employers and as a House, if we allowed that to happen.
Sammy Wilson
I agree with the hon. Lady on this one. If we go down the route of saying that an individual should not be in this House because they are a danger to staff, they are not going to be any less of a danger to the staff in their constituency office. That is why the very next paragraph in the report, paragraph 31, states:
“The Commission noted the strength of feeling in relation to the management of risk in constituency offices and agreed to write formally to the Speaker’s Conference”.
So we are going to find, on the basis of a credible allegation—which, by the way, has not led to the police arresting or charging anyone—that an individual could be excluded from this House and eventually excluded from their constituency duties in their own locality. All this will be done on the basis of allegations that have not been tested. It has been glibly dismissed, “Oh, it is not the panel’s role to take over the role of the judicial system. The panel’s job is not to find somebody guilty or not guilty.” All I have to say is that, if the panel makes a decision that someone is not safe to be in this place and should therefore be excluded, even though the panel might try to keep it secret, it will not be too long before that individual is known. That Member will have a proxy vote and will not be seen about the place, and we know how rumours go around.
People might say, “No, no, the panel is not there to find anybody guilty,” but by default that person will be regarded as guilty because very severe action has been taken against them—action so important and so severe that they have been excluded from doing their job—even though they have not been arrested or charged.
It is not just vexatious claims; it could also apply to cases where a person has made a complaint, genuinely believing, “That MP’s behaviour was inappropriate, so I’m making a complaint.” They might be convinced in their own mind—it is not that they are trying to do somebody down—even though the legal test has not been met to justify the allegation.
Wendy Chamberlain
I refer to my earlier comments about needing clarity on what that credible evidence aspect means, because I believe it is likely to come at a point where a suspect has been arrested on suspicion and put under interview. The credible evidence required for a person to lose their liberty in order to be interviewed would be there.
The challenge is simply that the Commission does not have any power over MPs in their constituency. The Commission only has control over Members on the estate. I agree there is a gap, but does the right hon. Gentleman accept that the Commission does not have that power? That is where the disconnect comes from.
Sammy Wilson
I accept that, but the report talks about referring this to the Speaker’s Conference to see what measures could be taken, because it is recognised that there is a logical step here. That is why it is so important to get this right, so that we know when it is safe to trigger some sanctions against an MP where allegations have been made. I think the threshold that has been set, of credible allegations being made to the police—who I believe will act in a precautionary way—is far too low a bar that will lead to situations in which Members could find themselves unjustly treated. The Chair of the Standards Committee, the hon. Member for Rhondda (Sir Chris Bryant), talked about the principle of fairness, which will not be met.
Charlotte Nichols
I want to pick up the right hon. Gentleman on his use of the term “sanctions.” Again, when we talk about a risk-based approach and about mitigating some of those risks, exclusion is not a sanction. Exclusion is a safeguarding proposal that is done without prejudice, in the same way that, in any other workplace, people can be suspended while an investigation is carried out, for safeguarding purposes. We have 650 individual employers, as well as the House itself, so does he not think that we have the same duties and responsibilities around safeguarding as any other workplace?
Sammy Wilson
Where an individual is excluded from coming here, from meeting constituents here, from talking to lobbyists here and from taking part in debates here—eventually, that exclusion could stretch beyond this House—there is hardly any way to describe it other than as a sanction, because that individual would be prevented from doing certain things that are an integral part of their job.
Wendy Chamberlain
Does the right hon. Gentleman accept that the current system also fails those where credible allegations are made, as such allegations come to a Whip and a voluntary arrangement to be excluded or to stay away from the estate is made? Does he accept that this proposal is a clarification of the process that currently exists in a more—“underhand” is not the word—low-level way?
Sammy Wilson
I do not see it as that, because what individual parties decide to do to safeguard their own reputation is up to those parties, and MPs sign up to that as members of their party. This also shows that parties do take these issues seriously; suggesting that we have an absence of any control or safeguards at the moment is just not correct.
The last point I wish to make is about the length of time that this process can go on. Members have talked about how long a police investigation takes and how long it takes to get to a point where someone is arrested or charged—that process can be much longer. Where allegations are credible and it is clear that there is evidence, the police will act and can act quickly, so that we get to the point of charge. I find it incredible that Members should think that because the police process is long—it might take three years before they decide that there is not a case and they are not going to charge an individual—an individual should be excluded from doing their job for that time, with their reputation being ruined over that period. We must have safeguards and we cannot ignore the fact that some Members misbehave, but we must recognise that we have to be fair to those Members.
Let me go back to something a Member said about how we must put in place processes that safeguard the reputation of this House. It does not matter what processes we put in place—we can have whatever processes we want. If people behave wrongly, the reputation of this place is going to be tarnished in any case. The message we should be taking tonight is that all individual Members have a duty to maintain the reputation of this place.
Every day I walk through the doors of this place, I am honoured to think that many people who do not know me and probably will never see me, because they will never have any problems to come to my constituency office with, put their trust in me to be their representative. If we all took that view of life, perhaps we would not behave in a way that tarnishes the image of the place and we would not need to put these processes in place. I believe that what we have before us tonight is flawed.
Justin Madders (Ellesmere Port and Neston) (Lab)
Let me take us back five years, to when Dame Laura Cox told us that this place has
“a culture of…deference, subservience, acquiescence and silence, in which bullying, harassment and sexual harassment have been able to thrive and have long been tolerated and concealed.”
The House of Commons staff who bravely came forward at the time, shared their stories and gave evidence to Dame Laura felt for the first time that they were being listened to and that they had not spoken out in vain. There was a sense that we were beginning a process that would oversee real change in the culture of this place. Five years on, we must ask ourselves: can we be confident that the change in culture that the Cox report said was absolutely necessary has happened?
I came to this place to fight for better working conditions for everyone in this country, including people who work here. It is only right that we should aim to be one of the best places to work. As the shadow Leader of the House said, we should be an exemplar of good employment practice. Frankly, it took too long to introduce the independent complaints and grievance process, and the experience of it to date suggests it has not reached the stage of development where it carries everyone’s confidence. There are definitely lessons to be learned from the experience so far, but we are heading in the right direction. The issue being discussed tonight is part of that journey towards this becoming, as far as is possible, a safe and secure place of work, just as we would want for all our constituents and just as every other employer should be.
A number of hon. Members have talked about how we should be following the lead of every other workplace: if there is a risk in the workplace, the employer has a duty to take steps to minimise that risk. As far as I can see, the only reason there is even a debate about this is not that Members are some special category of people who deserve to be treated differently, but that there is a clear question being ventilated tonight about striking the right balance between ensuring that people are able to work in a safe environment free from fear, and ensuring that people who are here to represent their constituents are not disenfranchised by being forced to leave the estate.
The fact that we are not voting on the proposals tonight shows that there are issues still and that we do not yet have our own house in order on this question, but it is vital that we address it. As the report states, the great majority of Members who responded do not oppose the principle of excluding Members for allegations of violent or sexual acts. Just two Members who responded to the consultation disagreed, citing the principle of innocent until proven guilty. We have heard that mentioned a number of times in the debate, but I think people are conflating a non-prejudicial suspension with a finding of guilt.
In every workplace it is quite possible to suspend someone without having a finding of guilt attached to them. We are not going to be replacing the role of the court. I believe that the risk assessment process and the adjudication panel are as good a way as possible to deal with that question of risk. The panel will have ample opportunity to weed out vexatious complaints—another concern that has been raised. That is another reason why we should accept that the threshold for involvement can be lower than a formal charge.
It is not clear from the report what opportunity there will be for the Member affected to make representations. The Leader of the House suggested that there would be such an opportunity, but I did not see that set out in the formal process in the report. It would be a good thing for the Member affected to have that opportunity to make representation and the adjudication panel would probably be the right stage for that. Of course, if the person who is being complained against can make representations, I would say the victim should be able to do so as well.
I certainly do not think a vote or a debate in this Chamber on the question would be appropriate. We cannot possibly have an informed debate on something of that level of detail without risking a breach of confidentiality, as has been mentioned, and indeed possible inadvertent breaches of sub judice rules. This is not the right forum for matters of that nature to be debated or discussed; they should be left to a private panel away from the glare of the Chamber.
I would presume that, if a Member did have an opportunity to make a representation to the panel, they would deny any wrongdoing. I would hope that, unlike with the ICGS, that denial would not be seen as a reason to double down on punishment. It should be accepted that a denial in the context of a “without prejudice” suspension, coupled with engagement, which we would expect from the Member, could actually lead to a pragmatic solution being found, which would not always necessarily mean a complete exclusion from the estate. It is clear from the report that that is possible.
I know that some will consider that the threshold for intervention is too low if charges have not been brought, but that is the threshold for the process to begin. I think we have probably all agreed that currently police investigations take far too long, but it is simply too long for something that serious to be left hanging in the air. We cannot possibly determine in this Chamber tonight every set of circumstances in which expulsion would be appropriate, so it is right that we set out a process to deal with that and for that process to be robust and thorough enough that we can have confidence it will be fair on all.
However, the key is what the report says about flexibility. The panel will have flexibility to deal with the circumstances of the cases that come before it, and that seems to me the right way to do it. As I have already mentioned, that could include mitigations falling short of total exclusion. The process would be sensitive to the facts of each individual case—that is what would happen in every workplace, and it is what we should do here.
As we have said, an exclusion from the estate does not mean that the Member is completely excluded from the process. They could vote by proxy, and they would be able to submit written questions or write directly to Ministers on particular issues. It is hard to envisage any circumstances in which those measures would not be available. We need to think about the processes that the independent complaints scheme has dealt with so far. The speed and the quality of those investigations needs to be dramatically improved. That is something that we can deal with here; we can set performance targets for it. It is not in anyone’s interest—not the victim, not the accused, not the reputation of this House—for complaints to take 12 to 18 months to reach their conclusions. The police will take as long as they need to, but we should have a far greater grip on how long it takes for internal complaints to be dealt with.
I remind Members of what Dame Laura Cox envisaged for internal investigations. She said that they should
“be conducted by someone whose status, independence, experience and expertise are beyond question,”
and that
“it has to be a rigorous process, a transparent process and one that is seen to be fair to both sides.”
I do not think that we are quite there on that. I will not go into detail on the flaws that I have seen in investigations, but we should be in no doubt that this serious matter must be looked at again, and I welcome the commitment to doing so.
On the proposals before us, I echo what other Members have said: we need a vote on them shortly. We need to iron out the differences of opinion, ideally before the summer recess. As employers here, we have a duty of care towards everyone in this place, and we do not want to be seen as falling short because we are still arguing about the niceties of process. We would not accept that in any other workplace. We have to set the standard on these things, not drag our heels.
Thangam Debbonaire
It is a pleasure to follow my good and hon. Friend the Member for Ellesmere Port and Neston (Justin Madders). I have been touched by the thoughtfulness with which he has addressed this question privately and publicly. He has given me wise counsel on many occasions, and I am grateful to him for reminding us that the ICGS process came from a good place and that there is still a lot of work to do. I agree and hope that he will take part in the review that is due to take place later this year—his contribution will be extremely valuable. I am also glad of his reminder that many of us came here to fight for safe and secure workplaces. In the Labour and trade union movements, that is really part of our DNA, and I think that was a good tone to end on.
The right hon. Member for East Antrim (Sammy Wilson) clearly has many concerns. I hope that, if he takes time to listen to the responses and the opening speeches from the Leader of the House, me, and other members of the Commission, we can talk about how his concerns might be dealt with.
I am glad that my hon. Friend the Member for Walthamstow (Stella Creasy), along with my hon. Friend the Member for Rhondda (Sir Chris Bryant), brought up the fact that this is not about judging innocence or guilt; it is a risk-mitigation process. I know that others will still not be convinced, but I hope that they will take the time to listen to all sorts of views, as we have done this evening. I am particularly pleased that we have had an incredibly respectful and thoughtful debate. I think it far better that we do that and listen to each other despite our differences, even if we disagree robustly.
I am grateful to my friends from the Commission—my hon. Friend the Member for Washington and Sunderland West (Mrs Hodgson) and the hon. Member for Edinburgh North and Leith (Deidre Brock)—for adding their support to the work that has gone on and for rightly paying tribute to the House staff, who have helped us, particularly Sarah Petit, who has put in a really long shift.
The hon. Member for Bracknell (James Sunderland) started out by saying that he thought he agreed with us on about 95% of the proposals, and went on to say the many ways in which he did not. Again, he made some very thoughtful points and it was interesting to see the difference between him and the hon. Member for Christchurch (Sir Christopher Chope). The Procedure Committee said that as a body it did not like the use of proxies, but the hon. Member for Bracknell said that he disagreed and I think it is a good sign that we are all willing to listen to one another’s point of view.
Several Members made the point that if a Member is excluded without a proxy vote, there is a democratic deficit and that it is not the fault of the voters if a Member has voluntarily or non-voluntarily had to exempt themselves. We have dealt with non-voluntary absence due to illness. This is different, but in neither case is it the fault of the voters. Putting that proxy vote in place is critical.
I am particularly grateful to my colleague the hon. Member for North East Fife (Wendy Chamberlain) for bringing her experience of the police to this place. It has been invaluable and is a really important part of the debate. She identified for us the need for political parties not to compete on how well or not they deal with complaints but to try to help each other raise our game collectively. She also mentioned the role of Whips, and I am grateful to her for doing so. I was a Whip for many years, and the role is often misunderstood. Whips put in so much work to support people in complex situations, and they do it behind the scenes. I have witnessed Whips putting in a solid shift for months and months while at the same time being criticised for not doing so; I knew that that was not the case. I certainly saw that happen more than once in previous Parliaments. I pay tribute to the hon. Lady for what she does as a Whip in her party and to Whips on both sides of the House for what I know they do.
I want to finish with the contribution made by my hon. Friend the Member for Rhondda (Sir Chris Bryant). It was helpful that he familiarised himself with the subject to a great extent—it is also great when he brings in a quote from Tom Lehrer, and that was a pleasure. He is right that we need to consider the language, and I am going to glance at the Leader of the House at this point. He highlighted the term “adjudication”, but also the term “exclusion”, which has been mentioned by many Members. Having “exclusion” in the title has perhaps led Members to think that that was the entire point—the A to Z—and it is not. That was a good challenge, thoughtfully made.
My hon. Friend also challenged us on the various processes. He and the Leader of the House mentioned the need for a review of the many, many, many processes we now have, which he said are not necessarily understood by Members, let alone the public. That is right, and I am therefore glad that we might see some progress on that. I also salute him for bringing up the impact of incorrect media stories, however they may occur. He and his friend from the Standards Committee, the hon. Member for Warrington South (Andy Carter), who is no longer in his place, mentioned the impact of stories such as the one that claimed that 56 MPs were under ICGS investigation. I hate to repeat it, because I know that it was not the case, but it is important that we explore—perhaps as a Commission but perhaps with other bodies in Parliament—how we rebut such stories without coming across as defensive, which I also would not want to do. That has to be done thoughtfully, but I like the fact that my hon. Friend reflected on the principles that underpin what we are trying to do, which are very important to me.
Finally, when the Leader of the House introduced the debate, she introduced a couple of new initiatives she is bringing about and it is excellent to see a Leader of the House taking this responsibility seriously. We all do that as Commissioners, but she is doing it in her role as Leader of the House. I look forward to discussing the issue with her further. She has been extremely collaborative and consultative with other Members from different parties on this process so far and I look forward to hearing more from her in due course.
I want to close by saying that I did not expect the debate be so measured and thoughtful, and I was wrong. I am glad I was wrong, because we still have strong feelings. I know that there are people in this Chamber who disagree strongly and I am grateful to everybody for showing that although we may not necessarily agree, we can disagree in a respectful way.
I end with the challenge from the right hon. Member for East Antrim to remember that to walk through these doors is an honour and privilege and that every day we should live up to that. Would that it were so and that we did not have to discuss this issue, but that is a good place for us to end. Much as I have disagreed with him on many of the points he has made, I respect the way he has made them and I value the fact that he has reminded us that every single day we walk through this place is a privilege, not a right, and that we do it on behalf of our constituents.
Penny Mordaunt
I start by thanking all Members who have contributed to this important debate. I am sure that as we have done so, we have all been very conscious that people will have been listening in—members of staff and colleagues—who are very anxious and concerned about these issues. I hope we have demonstrated to them that we take these matters incredibly seriously and want to do the right thing. I absolutely agree with the shadow Leader of the House, the hon. Member for Bristol West (Thangam Debbonaire): we have had a good and thoughtful debate, which I think has been very helpful to the Commission, and we have done so with great care. In his remarks, the hon. Member for Ellesmere Port and Neston (Justin Madders) summed up the care that I think we all take in these matters.
I will attempt to sum up, and particularly focus on some of the tough issues that still need to be dealt with, so with a caveat that I may not be providing answers that satisfy all Members, I hope they will take comfort from the fact that we have at least identified what the questions are. First, many areas of concern that colleagues have raised are not covered by the scheme and would not be affected by it. The right hon. Member for East Antrim (Sammy Wilson), for example, spoke about many issues that are live concerns at the moment with the processes that we have. This scheme will not in any way affect what the police do—when a serious allegation is given to them, they already notify the House authorities. Neither does it cover matters that my hon. Friend the Member for Sleaford and North Hykeham (Dr Johnson) raised about what goes on off the estate. We recognise that we are talking about a limited aspect of the House’s authority.
The scheme does not cover Members’ obligations to their own staff if there are allegations against those members of staff. It also does not cover a situation that might arise where there are concerns about an hon. Member’s behaviour, but those concerns have not risen to the level of information being given to the police and, therefore, the police passing that information back to the House authorities. It is a very narrow proposal that does not deal with those issues, and the Commission is very aware that it does not.
In answer to the hon. Member for Walthamstow (Stella Creasy), who raised the very important question of why this is so complicated, I would say that it is because it relates not just to one workplace; there are hundreds of workplaces. It is about our own constituency set-up, whether that is on the estate or off it. It is about the House as well, and—as has been referenced in the debate—we are not employees. We are also the employer of our staff, and reference has been made in the debate to the fact that that issue is being looked at by the Speaker’s Conference.
Turning to some specifics, I thank the Chair of the Standards Committee, the hon. Member for Rhondda (Sir Chris Bryant), for his contributions. He has made some helpful suggestions about the composition of panels, and I entirely agree with him that we sometimes need to zoom out and look at the entire standards landscape, and that how we work with other agencies is important. In his remarks, he gave very helpful examples of mitigations that could be taken aside from exclusion—barring someone from using the bar, drinking on the Terrace and so forth. As a point of fact, we already do that, and it is staff who do that, although the Serjeant at Arms enforces it. We already take some actions.
Sir Chris Bryant
I think normally the final decision is taken by the Administration Committee, so there is yet another Committee in the House that is taking decisions in this field. That is why all of this needs tidying up.
Penny Mordaunt
I quite agree with that point, and the hon. Gentleman is right to say that gumption needs to be applied to these cases.
We are all grateful to my hon. Friend the Member for Warrington South (Andy Carter) for putting this issue in perspective: it is not the case that all Members of Parliament are rotters. Indeed, in many cases where people’s behaviour has fallen short, there are often reasons behind it to do with an individual’s mental health or some other issues that they are facing. He is right to remember those points.
I want now to turn to the tough stuff. The speeches of the shadow Leader of the House and some of the interventions made on her, and the intervention of my hon. Friend the Member for The Cotswolds (Sir Geoffrey Clifton-Brown) got to the heart of the issue about an individual’s human rights. Is it right that a decision should be taken by an adjudication panel on the basis of a risk assessment without that Member having a say, stating their case or being able to appeal against that decision?
I want to explain why the Commission has put forward that proposal. It was based on a strong principle that no action taken during the safeguarding process should compromise the investigation and the criminal proceedings. That is why it was not deemed appropriate that someone should have the right of reply to that adjudication panel. The Commission should take that issue away and look at it. It was very much envisaged that people would be acting on such things as bail conditions and other things that would help inform that risk assessment.
The other point I would make is that although we are looking at a narrow process in isolation today, that process does not take place in isolation. One would imagine that there will be conversations with the individual’s Whip, advising them what they think they should do in a particular situation. Clearly someone can have representation during the investigation and the criminal process. This is an area that the Commission should focus on, and it has been helpful hearing Members’ comments today.
The second area in which the Commission needs to consider comments made today is with regard to the bar for when the process is triggered. Several Members, including my hon. Friend the Member for Christchurch (Sir Christopher Chope), have spoken about charge versus any other part of the criminal process. I say to all Members who have those concerns that I was of that school of thought. I was an advocate for charge precisely because I felt that the threshold for this process needed to be high. However, it became apparent during our discussions—again, I am not seeking to persuade my hon. Friend, but just to explain why the proposal developed—that the question we were being asked to address was about risk. It is perfectly possible for an individual to be a serious risk earlier than the point of charge, so the debate as it was originally framed around arrest versus charge was not deemed appropriate. Again, given what we have heard this evening, we should focus more on this area.
I have nearly finished my remarks. To comment on the comparison that my hon. Friend the Member for Bracknell (James Sunderland) made with the armed forces, my shift as Minister for the Armed Forces saw the aftermath of the Brecon three. One thing that I learned from that was that it is difficult to get people to focus on a joint service publication and health and safety rules, but it is easy to get people to focus on taking care of their mates and their duty of care to people who they work with. That is why it is so important that we focus on culture change, as well as the minutiae of particular issues.
The third area where there is a consensus of concern is around the proxy voting situation. I very much feel that Members, whether they are off the estate as the result of the process we are discussing today or through voluntary exclusion because they deem it in everyone’s interest to do that, should not be denied the opportunity to vote in this place. That is important, not only because of the impact on them, but because of the impact on their constituents. I recently visited the constituency of a Member in that situation, and the impact it has, partly because of the length of time investigations take, is devastating to a community when it loses that voice and is disempowered. I understand the concerns raised today, and particularly the concerns of the Procedure Committee, which I thank for the work it has been doing on that.
I want to thank my Commission colleagues who have spoken today—the hon. Members for Washington and Sunderland West (Mrs Hodgson) and for Edinburgh North and Leith (Deidre Brock) and my hon. Friend the Member for Cities of London and Westminster (Nickie Aiken), as well as the shadow Leader of the House, with whom I will continue to work closely on all these matters. The speech by the hon. Member for North East Fife (Wendy Chamberlain), with her police experience, was extremely helpful. She is right to encourage us to pursue these matters, not leave them in the “too tough” in-tray.
To sum up as best I can for colleagues, I think that the main areas of concern are proxy voting, the human rights aspects, the issue of a right of reply, particularly to the adjudication panel, and whether we should consider the threshold of a charge. I know that the Commission will look at all the points raised by hon. Members and take them seriously, and we will of course come back to the House in good time with good information. In the meantime, I know I speak for all members of the Commission when I say that our doors are always open if people want to raise issues that they may not have felt able to raise on the Floor of the House today.
I think this was a good debate. I hope it has reassured people, if not given them all of the answers, and I look forward to working with all colleagues on these important matters in the weeks to come.
Mr Deputy Speaker (Sir Roger Gale)
I began this evening’s debate with a caution, so may I now thank all hon. Members for the dignity and the courtesy with which they have conducted this debate—a fact that I am sure will be widely reported in the press? I also thank both the Leader of the House and the shadow Leader of the House for remaining in the Chamber for the entire debate, which I know is hugely appreciated by colleagues.
Question put and agreed to.
Resolved,
That this House has considered the House of Commons Commission Report, Risk-based exclusion of MPs: consultation response and proposals, HC 1396.
Business without Debate
Coventry University Nursery
Zarah Sultana (Coventry South) (Lab)
I rise to present a petition on behalf of residents of Coventry South regarding Coventry University’s proposal to close its nursery. The petition declares that
“the Coventry University nursery provides an irreplaceable service”
and notes that
“the proposed closure of the Coventry University Nursery will result in the loss of much needed childcare provision”,
which will have a severely detrimental impact on staff, students and the wider community, particularly impacting on women and those on low incomes. The petitioners therefore request that the House of Commons urges Coventry University to reconsider its proposed closure of the nursery, and to instead expand its early years provision to fulfil its responsibilities to Coventry and its commitment to the wellbeing of its employees and its students.
Following is the full text of the petition:
[The petition of residents of the constituency of Coventry South
Declares that the Coventry University Nursery provides an irreplaceable service for the community; further declares that its location in the centre of Coventry is particularly important to maintaining adequate early years provision in this city; notes that the proposed closure of the Coventry University Nursery will result in the loss of much needed childcare provision; further notes that Coventry University has the facilities, financial and human resources to maintain the current level of provision; and further declares that the proposed closure of the nursery will have a detrimental impact on equal and widening participation in higher education and the ability of the petitioners to access work and education.
The petitioners therefore request that the House of Commons urge Coventry University to consider withdrawing the proposed closure of its nursery and to instead expand its early years provision to fulfil its social responsibility to Coventry and its commitment to the wellbeing of its employees and students.
And the petitioners remain, etc.]
[P002836]
Stem Cell Transplant Patients
(11 months, 3 weeks ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mark Tami (Alyn and Deeside) (Lab)
I am very grateful to have been granted today’s debate on the impact of the cost of living crisis on stem cell transplant patients and their families. I thank all the Members who have stayed for this evening’s debate, and I should put on record that I am chair of the all-party group on stem cell transplantation and advanced cellular therapies.
Many Members will be aware that a stem cell transplant is an extremely intensive treatment for blood cancer and blood disorders. Receiving a stem cell transplant is a long and difficult journey, and not without considerable risk to the patient. Despite this, stem cell transplantation is an absolutely vital treatment option. For many patients, it may be the last chance to cure their disease.
Overall, an average of fewer than 5,000 people receive a stem cell transplant every year. As many in the House will know, in 2008 my son Max was one of the children to receive a transplant, and I am pleased to be able to tell the House that, following the completion of his MA at the University of Manchester, he will be starting the first day of his job tomorrow. Max responded well to treatment, after a very bumpy road, but I cannot overstate the sheer terror and mental anguish of that experience for me and my family.
Colleen Fletcher (Coventry North East) (Lab)
I congratulate my right hon. Friend on securing this debate on a subject which, as he knows, is very close to my heart as my husband also had a stem cell transplant in 2014. It is often a last chance, and I know from personal experience with my late husband that it is essential for stem cell transplant patients to attend every single one of the many hospital appointments they have each week. Missing just one appointment can have serious, even life-threatening, consequences, which we experienced ourselves. So it is extremely concerning that due to the impact of the cost of living crisis, many patients are struggling to pay for travel to and from their hospital. Often these specialist centres are many miles away and they cannot use public transport because of the threat to their compromised immune system. So does my right hon. Friend agree that a dedicated travel fund is vital to ensure that stem cell transplant patients can attend every single appointment?
Mark Tami
My hon. Friend must have read my speech, because I will develop precisely that theme, as it is very important. When we went through that very difficult time, we were fortunate financially in that I had a well-paid job, being a Member of this House. I also had a very flexible and understanding employer; I was allowed the time off to be at the hospital. We had a car. We could afford to stay in a hotel if necessary and to eat out. Saying that, we still managed to build up debts, but we were in the hospital off and on for about two years and we saw many people who were not in that fortunate position—single mothers, people without a car who had to rely on public transport, people without a family network to support them, and people without that financial back-up to get through what is not only a traumatic process but a costly process for the family of the person being treated.
Mr Clive Betts (Sheffield South East) (Lab)
First, let me declare my interest: I am vice chair of the all-party group, and also a recipient of a transplant six years ago. My right hon. Friend is absolutely right on this point. When I was having my chemo, the hospital kindly arranged it so that for several weeks I could go in on a Monday morning, then come down here by train, and go back on a Thursday and have my second dose. Also, throughout the whole process I was able to do my job on email. The nurses used to laugh at me when I had my stem cells harvested—my right hon. Friend will know about that; it took me three goes, four hours at a time—because during that process I would carry on doing my emails. They used to laugh at me, but they understood the process. That is very different from the situation facing someone who has to go to work, perhaps in a manual job on a low income, who loses out right through the process. We must reflect on how we can better help people in those circumstances.
Jim Shannon
I congratulate the hon. Gentleman on bringing forward the debate. I spoke to him before, because I realised that he was bringing forward an issue close to my heart, not personally but for my constituents. The Anthony Nolan charity does spectacular work throughout all of the United Kingdom of Great Britain and Northern Ireland, including my constituency of Strangford.
The most recent statistics show that 70% of patients—some of them are from Strangford—have considered returning to work earlier than advised due to financial concerns, jeopardising their recovery. Does the hon. Member agree that there is an incredible delay in assessments and decisions for social security at the moment, and that if more effort were made by the Government and the Minister to ensure that they were done on a timely basis, some undue stress would be taken off people awaiting transplants? Ultimately, they would not feel that they had no choice but to go back to work when clearly they should not do so.
Mark Tami
I thank my hon. Friend for that point. He is entirely right. As part of the transplant process, the immune system is effectively wiped out. That is a necessary part of the treatment, but clearly it leaves the patient fairly defenceless to infections. Once the donor stem cells are given, they will slowly build up a new immune system inside their body, but that takes time—it does not happen overnight—so those patients are often very vulnerable to infections. He made the point that if they put themselves into a dangerous situation because of financial pressure, the worst could happen to them—or at the very least, they could fall back into the medical setting that they were hoping to remove themselves from.
As part of the process, patients strictly isolate themselves in a hospital room for weeks—sometimes months—on end. Even after they leave, they are often weak and, as a result of their inability to work, their household income will obviously suffer. When patients are well enough to be sent home from hospital, there is still a long, gruelling and costly recovery ahead, whether they are the main wage earner or another member of the household, because obviously everyone else has to support them, whether in a caring role or otherwise.
Liz Twist (Blaydon) (Lab)
I thank my hon. Friend for giving an excellent explanation of the position and for succeeding in getting an Adjournment debate on the issue. Does he agree that people are hit three times over? They are hit while having the treatment, often hit by reduced income when they have finished their treatment and hit by extra costs from needing heating and food as well as other things, especially now we face such a cost of living crisis.
Mark Tami
Absolutely. My hon. Friend makes an important point. Patients must continue to take those extra measures for fear of getting an infection that could be life-threatening. As she said, they are advised to keep warm at all times, to sterilise drinking water and to wash their clothes more often. With the surge in electricity and gas bills, those extra costs are really hitting patients hard.
Another part of the transplant process is having what is known as a clean diet, which basically means that the patient needs to know exactly where their food comes from and how it was cooked, so they tend to cook it themselves, which in the main makes for a more expensive process. Ready meals are not really an option. If someone very kindly prepares something, they cannot take the risk because they cannot be 100% sure where it has come from. Clearly, the record food prices we are now seeing make the situation far worse. We hear on the news that people are going for cheaper options.
Mark Tami
Many people feel that they have to go for cheaper options, but patients cannot do that. That is not an option for them. Patients are going to food banks, but they still have to be very, very careful.
My hon. Friends touched on travel costs, which are a major concern for stem cell transplant patients and their families. In the weeks after leaving hospital, most patients need to attend follow-up appointments. I remember from our own experience that that was twice a week to begin with, but it is sometimes more often. It went down to once a week and then so many times a month. Hopefully, the process begins to wind down over a number of years. So there are costs, but it is very important that the appointments are kept. Alongside that—again, this is from personal experience—there are issues such as graft versus host disease, where the donor’s stem cells attack the patient’s body cells after transplant. That is a condition that can carry on and flare up for many years. If it gets out of hand, it can get to a life-challenging position for the patient.
Patients therefore face especially high fuel and hospital parking costs. Those without access to a car must rely on family or friends, or pay for a taxi. Others have no option but to use public transport, with all the associated risks of picking up an infection. Adding to travel costs is the fact that specialist transplant centres are often located miles away from patients’ homes, as my hon. Friend the Member for Coventry North East (Colleen Fletcher) made clear. That creates a problem in itself. I think we all applaud the use of specialist centres, because the evidence shows that that is where the specialists are and where we get the best care, but we have to help and support people to get to those specialist centres. When we were in Alder Hey Hospital, there were patients from the Isle of Man. Clearly, we are not going to have a specialist centre on the Isle of Man, even if we had the money to do that. It just would not be practical. So we have to support people to get to the specialist centre and then support them with accommodation. The Ronald McDonald houses, which are available at a number of places, really do help families with a sick child.
Given the intensity of the treatment and the long recovery period, it is not surprising that countless patients find that they either have to give up work for many months and sometimes longer, or that their carers have to take reduced working hours or even unpaid leave to shield at home and help the patient through their recovery period. Going back to work after a transplant is not always possible or safe for everyone. A lot of patients will experience long-term ill health, and the cost of being out of work is significant for everyone. Older patients may well end up taking earlier retirement, with knock-on implications even if they have a good pension. Some patients may be lucky and have a company sick pay scheme. Others may have to rely on statutory sick pay, but that can only be claimed for up to 26 weeks, and recovery often takes longer. Not all companies have the greatest sick pay scheme, and even then it is only a safety net for a period of time. Some patients feel that they will be forced back to work much sooner than they should be. Even when an employer is understanding to begin with, the pressure starts to build after six or 12 months. It is not only the employer who is affected. Perhaps that employer has to get somebody else in, or the issue starts to cause problems with the rest of the workforce. Even if the employer is very understanding, there is only a period of time that they can bear the cost. We need to support people in that position.
Clearly, undergoing a stem cell transplant can cause a dramatic reduction in household income, and, compounding that, the cost of living crisis is having a disproportionate effect on patients and their families. The massive rise in inflation has driven up the cost of heating homes, buying food, travelling to and from hospital and paying for hospital parking—that is if people can even find a parking space in the first place.
A recent survey by the charity, Anthony Nolan, gives us an indication of the extent of the financial impact of stem cell transplantation on patients and families. Seventy per cent of transplant patients or carers feel that they must either reduce their working hours or, in some cases, give up work altogether. Almost 40% of households earn less than £20,000 a year after a transplant. That is significantly lower than the national average of more than £32,000.
To try to manage the astronomical rise in costs, more than 40% of patients have borrowed money, taken on debts, had to move, or refinance their homes. We know what the mortgage market is doing at the moment, and that is an extra worry—an extra burden—for people who are effectively being forced into this situation. We even hear reports of people turning to loan sharks to try to fill the gap in their income. Anthony Nolan found that 70% of patients had considered returning to work earlier than advised due to financial concerns.
A carer whose child is undergoing a transplant said:
“We now rely on food banks and friends. We cannot use the car other than for hospital visits. Our costs have massively increased, while our income has drastically fallen.”
This is not a one-off case. This is a common theme that comes up time and again.
Anthony Nolan is regularly hearing from patients who are struggling to afford even the basics, and the situation is getting extremely desperate. Sixty per cent of respondents told the charity that they have struggled in the past year to afford to heat their homes to stay warm, with some patients experiencing such severe damp in their homes that they have had to resort to sleeping in their cars. Almost half have struggled to purchase good food and, consequently, patients are increasingly turning to food banks, and clinicians are seeing higher rates of infection and even malnourishment.
One carer whose daughter had two stem cell transplants described how she had cut back on costs, so much so that she now walks 12 miles a day to take her children to school. In her own words:
“The rising cost of living has crucified me”.
Almost half of patients struggle to afford travel to and from hospital appointments. As my hon. Friend the Member for Coventry North East (Colleen Fletcher) said, shockingly, some patients have reported going without food and avoiding putting the heating on to pay for that journey. One patient paid for 280 miles of fuel for a round trip, and another reported a £140 cost of a taxi ride. It is particularly striking that half did not struggle to afford such things before the current cost of living crisis.
Social workers up and down the country are supporting transplant patients in increasingly acute situations. The charity, Anthony Nolan, states that the crisis is the worst it has seen in 30 years. At last month’s meeting of the APPG we heard from Cheryl Bell, who is an incredible social worker based in Newcastle who specialises in supporting stem cell transplant patients. Cheryl told us that suicides among stem cell transplant patients are “going through the roof”.
The consequences of the cost of living crisis for stem cell transplant patients are marked and severe. Some 94% of patients report that their physical health is negatively impacted by the crisis. As has been said, some patients even consider postponing a lifesaving stem cell transplant because they are worried that they cannot afford to be out of work. To reiterate, patients who might otherwise die without a stem cell transplant are seriously considering whether they can simply afford to receive that treatment. No one should have to choose between heating, eating and treatment. It is not just about the cost of living; it is as serious as the cost of survival.
Anthony Nolan has been overwhelmed by the rise in demand for financial assistance. Calls from patients to its helpline about money worries have surged more than 350% in just one year. It launched an emergency appeal to provide a dedicated cost of living fund to help ease worry about household bills going through the roof but, unfortunately, it could help fewer than 200 patients. Ultimately, it should not be for charities—or, often, the generosity of the British public—to plug the gap.
What should Government do to help patients and their families who are especially impacted by the cost of living crisis? The Chancellor introduced some measures in response to the cost of living crisis, but more than half of patients said that the financial support they received has not covered the extra costs they faced “at all”. I am sure that the Minister will refer to the energy price guarantee as a key source of support. I certainly welcome that intervention from the Government but, unfortunately, it has not gone far enough to meet the rapidly increasing need among stem cell transplant patients for financial support with their energy bills. Likewise, many stem cell transplant patients are not eligible for the time-limited disability cost of living payments. That means that too many patients are falling through the gaps, without the support they need for their recovery.
I appeal to the Government to offer targeted support to this group as a matter of urgency. First, I ask that the warm home discount scheme be extended to all stem cell transplant and CAR-T therapy recipients. Given that 60% of patients struggle to afford to heat their homes to stay warm, £150 off energy bills across the winter would undoubtedly be a potential lifeline for many households. In the long term, it is important that the Government look at how to secure our energy security. That needs to stay a priority and not drop down the list in years to come, so we do not face such a situation again.
Secondly, I back Anthony Nolan’s proposal for a patient travel fund for stem cell transplant and CAR-T therapy recipients in the UK. Such a fund would—and should—cover all costs associated with safe travel to and from hospital for treatment. A Government healthcare travel costs scheme exists in England, but it has a high eligibility threshold, greatly limiting the number of patients who can receive it. Typically, payments are not made in advance, meaning patients can be significantly out of pocket while they wait for a refund. For a lot of people, that is not feasible.
What is more, the scheme can be burdensome to access. I know that when someone receives the shock news about a loved one and is dealing with that, the last thing they want is to be burdened with forms and the complexity of going through a time-consuming process. As I have said, fewer than 5,000 people receive a transplant in the UK each year, so such a fund would not represent a significant cost to the Treasury, but it would make a massive difference to patients’ lives.
Take it from Claire, who underwent a stem cell transplant and CAR-T therapy in London after relapsing in 2019. Speaking of her experience with travel costs, she said:
“During my CAR-T treatment I had to travel hundreds of miles for vital hospital appointments at the huge cost of £160 per trip. Living so far away meant I had to pay for overnight stays in hotels, which was really hard to budget for. On top of that, hospital parking costs for family and friends visiting when I was an inpatient were sky high. There was no financial help for me to pay for transport costs when I most needed it.”
I hope the Minister can see that patients are raising consistent concerns.
Finally, I call on the Government to guarantee that all stem cell transplant and CAR-T therapy recipients receive the benefits that they are due and for which they are eligible in a timely manner. I know this is an issue for all benefit recipients, but people in this condition need to receive those benefits when they need them: straightaway. Macmillan has done an incredible job shining a light on the waiting time for personal independence payments, with the average still standing at a shocking 14 weeks. I echo its calls for the Government to cut that distressingly long waiting time without delay. It has never been more important to ensure that everyone has access to the financial support they are entitled to, and not leave vulnerable people stranded. That must be addressed as a matter of urgency. The Government need to ensure that the people who need the benefits the most get them the soonest.
To conclude, it is clear that the current benefits system is not sufficient to tackle the unprecedented cost of living crisis and the rapidly rising need for financial support among the most vulnerable in society. Many years ago, when I was going through the process with my son, the system for supporting patients was not right, and it is not right now—it has to change. While charities such as Anthony Nolan do an incredible job supporting patients, they should not be left to fill the gaps that Government policy leaves. Urgent action needs to be taken. Ultimately, stem cell transplant and CAR-T therapy patients have only one chance of recovery. They need extra support from the Government now, to see them through the cost of living crisis and enable them to realise that chance that they deserve.
The Parliamentary Under-Secretary of State for Health and Social Care (Neil O’Brien)
I congratulate the right hon. Member for Alyn and Deeside (Mark Tami) on securing this important debate, and I congratulate the other hon. Members on speaking interestingly about their personal experiences in this field. As chair of the all-party parliamentary group on stem cell transplantation and advanced cellular therapies, the right hon. Member for Alyn and Deeside speaks from particular personal experience and I think everyone will have been delighted to hear the wonderful update about Max.
For people living with blood cancers and blood disorders, stem cell transplants are a potentially life-saving treatment. That is why we continue to invest in improving clinical outcomes and access to transplants. Since 2011, Government funding of more than £28 million has made possible the establishment of a unified stem cell registry, a cord stem cell bank, and a strategy to recruit donors to meet the needs of our increasingly diverse population. Over the next three years, we are investing £2.4 million more to increase the resilience of the UK stem cell supply and to address health inequalities with targeted campaigns to recruit donors from ethnic minorities. The right hon. Gentleman mentioned Anthony Nolan, which gives me the opportunity to thank that charity for its tremendous work with the NHS to build up the stem cell register.
As we know, the very nature of these transplants means that patients are among the most vulnerable in society. They are left with seriously weakened immune systems, for all the reasons the right hon. Gentleman has given. To help households and individuals to cope with the rising costs of living, we are providing some of the most generous cost of living support in Europe, worth an average of £3,300 per household this year and last. As well as the action on energy prices, that includes payments to more than 8 million UK households receiving eligible means-tested benefits, and to 6 million people across the UK in receipt of eligible “extra-costs” disability benefits.
For those needing extra support, the Government are providing an additional £1 billion to allow the extension of the household support fund in England this financial year. Our energy price guarantee is helping millions of people to deal with rising energy costs, and, as the Chancellor announced in the spring Budget, it will be extended, at £2,500, for an additional three months from April until the end of June. That means that by the end of June we will have covered nearly half a typical household’s energy bill, with a typical household saving about £1,500.
The right hon. Gentleman rightly raised the importance to patients of keeping warm, and the warm home discount is a key policy in our programme to tackle fuel poverty and help low-income households with the cost of energy, whatever the reason for their low incomes. It gives low-income and vulnerable households throughout Great Britain an annual £150 energy bill rebate every winter, and since it began in 2011 we have provided more than £3.5 billion in direct assistance for households. The scheme obliges participating suppliers to provide rebates for eligible low-income and vulnerable households.
In order to target fuel poverty better and provide the vast majority of rebates automatically, we have expanded and reformed that scheme for England and Wales from 2022-23 onwards. That includes those receiving universal credit, for which stem cell transplant patients may well be eligible. Depending on their specific needs, stem cell transplant patients may be entitled to financial support to contribute towards their extra costs, which may include the personal independence payment. PIP can be paid in addition to the other financial and practical support that may be available through universal credit.
The Government are committed to ensuring that people can access this financial support in a timely manner. While waits are still too long, they are coming down dramatically and we are constantly improving the service. Claimants are kept informed and are updated at each stage of the process—for instance, through a text message service—and in most instances any awards can be backdated to the date of the claim.
I know—not least because of the right hon. Gentleman’s comments this evening—that rising travel costs represent a significant burden for stem cell transplant patients and their families. Recipients of certain benefits, including the personal independence payment, can apply for extra help with travel costs, such as a disabled person’s railcard, a blue badge or a vehicle tax reduction. NHS trusts can also exercise discretion to provide accommodation and other support, including transport, depending on local and individual patient circumstances. Depending on their financial circumstances, patients may be able to access extra help with travel costs, such as the NHS low-income scheme and healthcare travel costs scheme.
Mark Tami
Does the Minister accept that if we require patients to attend specialist centres—which I fully support; indeed, perhaps we need to go further in that regard within the NHS—we should think about how we can help those who have to travel long distances to cover their costs, given that they cannot receive that treatment at the hospital down the road?
Neil O’Brien
I would agree with the hon. Gentleman. I was talking about one scheme, the healthcare travel costs scheme, but patients might also be eligible for non-emergency patient transport, on which we spend about £500 million a year across England. We will continue to look closely at the future of that, not least because of the hon. Gentleman’s comments this evening.
Jim Shannon
Patients in my constituency who come to me feel almost compelled to go back to work because they do not have the finances, but they cannot do so because they are not fit enough. Could the Minister’s Department ensure that those people who find themselves in difficult financial circumstances have someone to speak to who could perhaps direct them through the process so that they can get help?
Neil O’Brien
The hon. Member makes a good point, and I am happy to continue this conversation with him after the debate. He always provides thoughtful ideas and I am keen to continue talking about that one with him.
For those people who are going through all this at the moment, I have mentioned some of the schemes that are available for transport, such as the healthcare travel costs scheme and non-emergency patient transport, but we will continue to look at those to make sure that they are adequate to get patients to the specialist treatment they need.
In closing, let me again thank the right hon. Member for Alyn and Deeside for securing today’s really important debate and for his thoughtful contribution. Stem cell patients and their families and carers show tremendous courage in the face of incredible challenge, and we will continue to do whatever we can to support this vulnerable community.
Question put and agreed to.
Draft Judicial Appointments (Amendment) Order 2023
(11 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I beg to move,
That the Committee has consider the draft Judicial Appointments (Amendment) Order 2023.
It is an honour to work under your chairmanship, Mr McCabe. This draft statutory instrument amends the Judicial Appointments Order 2008, which made chartered legal executives eligible for some judicial offices using powers granted by the Tribunals, Courts and Enforcement Act 2007. The draft order, which amends the Judicial Appointments Order 2008, will be made under section 51 of the Act and will make chartered legal executives—fellows of the Chartered Institute of Legal Executives, known as CILEX—eligible for three additional offices: recorder, judge of the upper tribunal and deputy judge of the upper tribunal. The purpose of the draft order is twofold: to widen the pool of people who are eligible to apply for those important judicial roles; and to increase the range of roles for which CILEX fellows are eligible.
CILEX offers a non-graduate pathway to law, enabling professionals from various backgrounds to access a legal career. Chartered legal executives are authorised persons under the Legal Services Act 2007, meaning that they carry out some of the reserved legal activities prescribed in the Act. The legal services market has evolved over many years to allow chartered legal executives to exercise many of the same functions as solicitors, although there are still some differences in the legal functions that they may undertake.
The Government are clear that expanding the eligibility of CILEX fellows to a wider range of judicial offices is the right thing to do, as the judicial appointment eligibility condition can be a barrier to being able to draw on the widest pool of lawyers who are eligible to be a judge. That forms part of a wider Government ambition to ensure that no unnecessary barriers prevent CILEX members from progressing their careers.
I will talk briefly about judicial diversity. The draft order is consistent with the Lord Chancellor’s statutory duty to encourage judicial diversity. The Government have been working as part of the Judicial Diversity Forum since 2015 to improve judicial diversity. Last year, 50% of newly appointed judges were women, and 14% were from ethnic minorities. We know that we have a long way to go, as only 41% of serving judges are women and only 10% are from ethnic minorities. There is less diversity in the senior judiciary. However, 77% of CILEX fellows are women, and as CILEX provides a non-graduate route to becoming a lawyer, it attracts candidates from diverse socioeconomic backgrounds, with benefits to social mobility. The change in the draft order would be one step towards a lawyer’s ability, rather than their method of qualification, determining suitability for judicial appointment.
My right hon. Friend the Lord Chancellor met the Chair of the Select Committee on Justice, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who asked if we had consulted other legal professions about the draft order. I confirm that we sought a range of views on the proposal. We consulted members of the Judicial Diversity Forum, which includes the judiciary, the Judicial Appointments Commission and the legal professions, on the broad proposals to extend CILEX eligibility for judicial office.
The responses having been considered, the Government’s decision has been to move incrementally, with three additional offices included in the draft order. The Government are required to consult formally the Judicial Appointments Commission and the Lord Chief Justice on amendments to the 2008 order. I am happy to report that, having reviewed the draft order, both have confirmed that they support it.
Finally, I emphasise that the draft order does not change the requirement for CILEX fellows—as for all candidates—to demonstrate through the Judicial Appointments Commission’s selection process that they meet the bar to be appointed on merit. Ultimately, the independent, rigorous and merit-based selection undertaken by the Judicial Appointments Commission provides an objective test of whether a lawyer, irrespective of their legal qualification, meets the high threshold to be a judge.
In summary, I am confident that the draft order, supported by the diversity programmes delivered by the members of the Judicial Diversity Forum, will result in a wider range of judicial offices being accessible and open to CILEX fellows. The draft order can only be to the benefit of the courts and tribunals and the people whom they serve. I therefore commend the draft order to the Committee.
Afzal Khan (Manchester, Gorton) (Lab)
It is a pleasure to serve under your chairmanship, Mr McCabe. I thank the Minister for outlining the provisions of the draft order. As he explained, today’s SI amends the Judicial Appointment Order 2008 to extend eligibility for fellows of the Chartered Institute of Legal Executives to be appointed deputy judges and judges of the upper tribunal and recorders, provided that they have gained at least seven years’ experience. We are pleased to support the SI, particularly on account of its welcome potential to increase judicial diversity.
As the Minister noted, CILEX lawyers are notably more diverse than other groups of legal professionals. We agree with the Government that increasing opportunities for excellent and experienced lawyers to join the bench will strengthen our judiciary. A huge amount of work needs to be done to improve judicial diversity. For example, black judges make up just over 1% of the judiciary of England and Wales, and that figure has not improved over the last 10 years. In the words of my right hon. Friend the Member for Tottenham (Mr Lammy), in his previous role as the shadow Justice Secretary, it is an “absolute scandal”.
Analysis by the Law Society demonstrates that at the rate of current progress it could take until the year 2149 for the proportion of the judiciary who are black to match the current estimate for the general population. I agree with the Law Society’s president Lubna Shuja that those figures are simply unacceptable. While today’s measures are welcome, we must recognise that their impact in driving improvements in judicial diversity will be limited. I would be grateful if the Minister would share with us the other plans that his Department is working on to improve progress in this area, and any modelling it has undertaken on the potential impact of today’s changes on diversity in the judiciary.
Today’s draft order may also have a very small impact in assisting with the ongoing issues with judicial availability that the Government have overseen. The problem continues to contribute substantially to the record court backlogs. That is especially the case in the Crown court, which has a backlog of more than 60,000. I would be interested to hear any figures that the Minister’s Department has produced on the anticipated number of judicial vacancies that may be filled by the widening of eligibility that we are discussing.
We welcome the Government’s measures to address the deeply entrenched problems surrounding judicial diversity and availability. However, today’s draft order will have a minimal impact on the issue. We believe that the opportunity to serve as recorders or judges of the upper tribunal should not be denied to outstanding lawyers simply because of how they qualified. I am therefore glad to offer our support for the SI.
Angela Crawley (Lanark and Hamilton East) (SNP)
The Scottish National party supports today’s statutory instrument to extend the eligibility of CILEX lawyers and applauds its aim of creating a more diverse judiciary. The statutory instrument will affect Scotland only in so far as the position of upper tribunal judges, but the impact on the wider judiciary is also welcome. The legislation will allow 4,500 experienced lawyers to apply for judicial roles and take on new challenges in their career. I hope that that will allow greater diversity, more women and more minority ethnic lawyers to enter the judiciary, with all the benefits that that will bring for applying the rule of law and widening access.
Mike Freer
I reassure the shadow Minister, the hon. Member for Manchester, Gorton, that we do not have enough time today to inform him of all the good work that we are doing to recruit judges and widen diversity, but I am happy to meet him privately. It will take some time to explain to him all the successes of the Government. Widening the pool, and widening diversity, but ensuring that our new judges are both skilled and experienced is a good thing, and I commend the draft order to the Committee.
Question put and agreed to.
Electronic Trade Documents Bill [ Lords ]
(11 months, 3 weeks ago)
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The Chair
I will start by outlining the procedure in Second Reading Committees, given that they are an uncommon type of Committee, as colleagues will know. The debate in this Committee replaces a Second Reading debate in the House. After the Committee has made its recommendation, the Question on Second Reading in the House will be decided without further debate. The rules governing a Second Reading debate in the House apply in Second Reading Committees. In particular, Members may speak more than once only with the leave of the Committee, or through interventions. The Minister, however, has the right to reply at the end of the debate.
The Parliamentary Under-Secretary of State for Science, Innovation and Technology (Paul Scully)
I beg to move,
That the Committee recommends that the Electronic Trade Documents Bill ought to be read a Second time.
It is a pleasure to serve under your chairmanship, Mr Pritchard. The Bill allows for the use in electronic form of certain trade documents, such as bills of lading and bills of exchange, which currently have to be on paper and physically possessed. It implements recommendations made by the Law Commission of England and Wales in its report on electronic trade documents published last year. It is a permissive and facilitative piece of legislation, allowing businesses to choose the form of document or technology that best suits them. It is only seven clauses long, but its impact will be huge. It will help boost the UK’s international trade—already worth more than £1.4 trillion—by providing benefits worth £1.1 billion to UK businesses over the next 10 years. It will allow businesses to use electronic trade documents when buying and selling internationally, making it easier, cheaper, faster and more secure for them to trade. It is fully supported by businesses and industry. We are just trying to remove a legal obstacle.
Business-to-business documents, such as bills of lading, which are a contract between parties involved in shipping goods, and bills of exchange, which are used to help importers and exporters complete transactions, currently have to be paper-based, but the Bill will allow digital trade documents to be put on the same legal footing. The Law Commission’s recommendations were for the law of England and Wales, but we have worked with the territorial offices and devolved Administrations, including the Scottish Government, on extending the Bill to Scotland and Northern Ireland, so that all businesses across the United Kingdom can benefit from this important development. I am pleased to confirm that in Committee, the Government will table amendments to the delegated powers section of the Bill to fulfil our ambition for the Bill to be UK-wide. It has the wholehearted support of the Scottish Government, and we will continue to work with them to make this happen.
The impact of the Bill cannot be overstated. The benefits include: lower transaction costs associated with trade, through reduced resourcing and operational costs; increased productivity; increased efficiency; encouragement for business growth through the development of digital products and services; and environmental benefits through a reduction in paper documents, and less emissions from couriering paper documents. Critically, it will increase transactional data, as well as the security, transparency and traceability of the flows of goods and finance. It will reduce trade contract processing times from between seven to 10 days to as little as 20 seconds, according to the industry publication, Trade Finance Global. The Digital Container Shipping Association estimates that if 50% of the container shipping industry adopted electronic bills of lading, the collective global savings would be around £3.6 billion a year. Small and medium-sized businesses could see a 13% increase in international business if trade is digitised, and the World Economic Forum found that digitisation could reduce global carbon dioxide emissions from logistics by as much as 12%.
In conclusion, the Bill will lay the foundations for future digitalisation of our global trade approach and ambitions. We will be the first G7 country to provide for electronic trade documents and to support the aims of the model law on electronic transferable records. We will continue to promote the use of digital trade documents through our trade negotiations, and our participation in the Commonwealth and other international institutions. The Bill has gone through the other place. It has received a lot of scrutiny there and has been well supported there, as it has been by business. I hope that it will receive strong support from this House, and I look forward to hearing the contributions in this debate.
Alex Davies-Jones (Pontypridd) (Lab)
I will keep my comments brief. As colleagues in the other place noted, this is a modest but incredibly important Bill. Its simple objective is to afford electronic trade and trade finance documents the same legal status as paper ones. This Bill, which has been drafted and crafted by the Law Commission, provides for the possessability of electronic documents that fall within its scope; they will have the same legal recognition and functionality as their paper counterparts. It also sets out provisions relating to the use of electronic trade documents, including provisions on indorsement and change of medium between electronic and paper documents.
The Bill’s terminology—“bill of lading”, “bill of exchange” and “mate’s receipt”—shows that we are talking about very out-of-date practices. Practices governing the exchange of goods date back centuries, and the language involved would not be alien to a merchant from the middle ages, so the Bill is very welcome indeed. Indeed, we all know the barriers to trade across borders; the Minister mentioned them. Research shows that a single trade finance transaction can involve 20 entities and between 10 and 20 paper documents. That all adds up.
In 2019 there were roughly 160,000 exporting businesses in the UK, exporting £367 billion-worth of goods and employing 10.2 million people. By the mid-2030s, that number could hopefully rise to 190,000 businesses. Paper trading involves not only volumes of paper, but time-consuming processes. A study in Singapore found that it took between four hours and seven days to process one paper trade document. Digitisation can reduce that to as little as 10 minutes.
In total, it is estimated that 25 billion paper documents are generated and couriered around the world annually just to facilitate container shipping. The Minister does not need me to remind him of the significant environmental costs, but they are colossal. That is why we support the Bill in its entirety. We see it as a long overdue reform that allows for the legal recognition of certain types of documents used in trade and trade finance in electronic form. It means that parties can finally use laws that apply to paper trade documents when transacting with electronic trade documents.
The Law Commission does important work in advising on the reform of long-outdated legislation, and I am grateful for its work on the Bill. Colleagues in the other place have raised concerns about how the law will be implemented, so I hope to hear from the Minister which Department will be responsible for overseeing and enabling the provisions, once they are on the statute book. The Bill is a valuable tool for ensuring that the world of trade and commerce operates smoothly and efficiently, and that UK businesses are not disadvantaged in any way.
Paul Scully
I thank the hon. Lady for her speech, which was brief and to the point. The fact that this has been a brief debate does not diminish from its importance; it just shows that we all agree on the need for the Bill. We will have detailed discussions in Committee, and I look forward to that. The Bill is much anticipated by businesses and industry. I hope that this Second Reading Committee will support the Bill.
Question put and agreed to.
Ministerial Corrections
(11 months, 3 weeks ago)
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Energy Security and Net Zero
(11 months, 3 weeks ago)
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Tom Hunt (Ipswich) (Con)
The Secretary of State for Energy Security and Net Zero (Grant Shapps)
I mentioned before that we are paying around half of the household energy bill. We are also paying around one third of business energy bills right now through the energy bill relief scheme.
[Official Report, 28 February 2023, Vol. 728, c. 629.]
Letter of correction from the Secretary of State for Energy Security and Net Zero (Grant Shapps):
An error has been identified in my response to my hon. Friend the Member for Ipswich (Tom Hunt).
The correct response should have been:
The Secretary of State for Energy Security and Net Zero (Grant Shapps)
I mentioned before that we are paying around half of the household energy bill. We are paying around half of wholesale energy costs for some businesses.
Energy Price Guarantee Extension
The following is an extract from Department for Energy Security and Net Zero questions on 18 April 2023.
Chris Clarkson (Heywood and Middleton) (Con)
The Secretary of State for Energy Security and Net Zero (Grant Shapps)
The energy price guarantee has been extended at the same level for a further three months until the end of June. By then, the Government will have covered nearly half of a typical household’s energy bills during this winter, and a third to a half of business bills as well.
[Official Report, 18 April 2023, Vol. 731, c. 111.]
Letter of correction from the Secretary of State for Energy Security and Net Zero (Grant Shapps):
An error has been identified in my response to my hon. Friend the Member for Heywood and Middleton (Chris Clarkson).
The correct response should have been:
The Secretary of State for Energy Security and Net Zero (Grant Shapps)
The energy price guarantee has been extended at the same level for a further three months until the end of June. By then, the Government will have covered nearly half of a typical household’s energy bills during this winter, and around half of wholesale energy costs for some businesses as well.
Westminster Hall
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Legislative Definition of Sex
(11 months, 3 weeks ago)
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Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Judith Cummins (in the Chair)
Before I call the hon. Member for Gower (Tonia Antoniazzi) to open the debate, I wish to make a short statement about the sub judice resolution. I have been advised that petitions being debated indirectly relate to two ongoing legal cases in the Scottish courts. Those cases are ongoing and are therefore open to sub judice. Mr Speaker, however, has agreed to exercise the discretion given to the Chair in respect of the sub judice resolution to allow reference to the cases, given the issues of national importance that are raised. I also remind Members that this debate will be conducted with courtesy and respect.
Tonia Antoniazzi (Gower) (Lab)
I beg to move,
That this House has considered e-petitions 623243 and 627984, relating to the definition of sex in the Equality Act 2010.
It is an honour to serve under your chairship, Mrs Cummins. I am pleased to open the debate on the petitions on behalf of the Petitions Committee. One petition calls on the Government to update the Equality Act 2010 to make the characteristic of sex refer to biological sex, and the other petition calls on the Government to commit to not amending the Act’s definition of sex.
Opinions about the relationship between biological sex, gender identity and the law divide organisations, political parties, and even family and friends. Many people have told me that this is something that they are afraid to speak of, and some say it should not be discussed at all. Others have told me of how they are relieved and happy that we are finally discussing it in Parliament.
Layla Moran (Oxford West and Abingdon) (LD)
I am grateful to the hon. Member for giving way so early on. On her point about people being scared to talk about the subject, is she also aware of people like my constituents, who have written to me to say that they are scared that it is going to be talked about? Whenever such things are spoken about in Parliament, there is then a rise in hatred and violence. I thank you, Mrs Cummins, for your words about being courteous, but does the hon. Member understand the worry there is in some communities that the debate is happening, and would she urge other Members to stay compassionate and open minded?
Tonia Antoniazzi
When the hon. Member listens to my speech, I think she will understand the compassion with which I speak. She will also understand that we are in a difficult position: we are legislators, and where there is something that needs to be addressed, as there is in these two petitions, it is down to us to stand up and make that change and have the conversation. It goes with the job, I am afraid.
Members from all parts of the House can model the respectful, adult conversations that are needed across society. We can demonstrate, here at Westminster, that we can freely express and listen to different opinions. This is a set of issues on which views are held profoundly and with good intentions. The nature of this debate means that those views differ across the House, and even within our own respective parties.
I was in education for 20 years before coming to this place. My priority has always been the wellbeing of those in my care, be they adults or children. I am afraid that asking probing and difficult questions to get through issues and problems is in my nature. I will not be cowed when looking out for my constituents, be they lesbian, gay, bisexual or trans. The conversations that I get the most out of are the ones where I explore, learn and am able to disagree agreeably.
It is a mark of adult politics not to pretend that we are in perfect agreement on every issue, and Westminster Hall debates like this offer the opportunity for us to explore issues, free from the usual pressures of votes and the instructions of the Whips. This is a debate that will explore the difficult interrelationships that exist between rights, and it will mark the difficult lines between which individuals’ and collective rights are drawn. However, it is for the House to decide the way those rights are formed and how they are interpreted. We are holding this debate on behalf of individual people facing discrimination, and in support of service providers and public servants who have a deep commitment to reducing discrimination and to providing safe and welcoming environments. Our task is to make decisions on the boundary of rights and to take responsibility, rather than passing it on. We may draw different conclusions from historic debates on the legislation, but our responsibility is to make our decisions on what would be the right law to have now.
In order to prepare for the debate, the Committee Clerks arranged for me to meet the petitioners and organisations supporting these two petitions. I thank them all for their time and input. The House of Commons Library has also produced a debate pack that covers the complexity of the legal issues behind the two petitions. I am most grateful to everyone who has spoken to me, because there are two broad positions. Those who support the petition to update the Equality Act say that the law should be clear about the two sexes, and that it was never the intention of the Act to make it difficult or impossible to have sports that are for biological females only; to protect services that are for women, such as domestic violence refuges; to assure an elderly woman or a woman getting a smear test that, when she asks for a female carer or nurse, she has the right to be treated by a biological woman; to provide single-sex spaces where women are undressing and washing; for same-sex-attracted people to have opportunities to associate with each other; and for the public sector equality duty to consider the needs of women separately from those of trans women.
Kate Barker from the LGB Alliance and Julie Bindel and Tamara Burrows from the Lesbian Project, who support the clarification of the Equality Act, explained to me that the protected characteristic of sexual orientation is contingent on the definition of sex as biological, and that the Act did not intend to remove the rights of association for same-sex-attracted lesbians. I heard how, for the lesbians I met, biological sex is fundamental to understanding their rights as same-sex-attracted people, so the grey area that we have is creating ongoing problems for lesbians. If we do not say that “sex” in the Equality Act means biological sex, we may as well scrap the protection of sexual orientation. They said that the protected characteristic of gender reassignment exists. Trans people are able to hold their own separate groups under the protected characteristic and can also associate with lesbian groups already open to them; so the question posed was: why cannot lesbians organise lesbian-only spaces?
The Lesbian Project is an organisation that wants to research and study lesbian lives and survey lesbians. If trans women are included, it renders the research meaningless and pointless. This is not, I was told, about being anti-trans; it was about the bedrock of being a lesbian, and a lesbian is a female attracted to females. It was highlighted that there must be protections for trans people, but not at the expense of women’s rights. It is becoming a barrier to lesbians in coming out, which is a huge problem for them. The question for many is: should women be allowed female-only associations? Should it be easy and straightforward for women to be able to undress, shower and use a toilet in female-only spaces?
Those who want the Equality Act to stay as it is say that trans people are already using services for the opposite sex without concerns, regardless of whether they have a gender recognition certificate or not, and that not allowing them to do so would be harmful and detrimental to their human rights. It is therefore the responsibility of society and lawmakers to ensure that people are able to access opposite-sex facilities, services and sports. I would like to take this opportunity to thank Dr Finn McKay, Robin Moira White, Dr Paul Martin and Nancy Kelley for taking the time to speak to me and to explain the situation for that petition. Where this causes a problem is likely to be very rare, and a transgender person may be excluded on an individualised, case-by-case basis. Some of those arguing for no change to the Equality Act believe that trans women are women and trans men are men, and that therefore—
Tonia Antoniazzi
Some of those arguing that there should be no change to the Equality Act 2010 believe that trans women are women and trans men are men, and therefore that the protected characteristic of sex includes those who identify as the opposite sex. Some also feel that it is an attack on trans people to think or express disagreement with this belief.
In support of this petition, Nancy Kelley from Stonewall said that she is proud of the Equality Act 2010, that it works really well as “legal sex”, and that it works well to operate trans-inclusive or not spaces, and emphasised how inclusion should be the norm. Defining legal sex as observed at birth would see exclusion rather than inclusion.
I have also had the opportunity to talk to barrister Robin Moira White, who explained to me how this amendment was a blunt instrument; in fact, it was called a sledgehammer that was being presented as a simple solution. Robin told me that, to move forward, there was no need to change the law, but that there was a need for less toxicity and also that this amendment did not consider the anomalous position of a pregnant trans man.
I also spoke to Dr Finn Mackay, who told me about the impact that this change in the law would have on gender non-conforming people. Finn said that she would like to see more case studies from the Equality and Human Rights Commission on single-sex spaces, and she agreed with the Government position and said that the current rhetoric is dangerous. We also need to have better public amenities that work for all people, with inclusion as the default.
Both petitions received over 100,000 signatures, and we will all have constituents who are passionately engaged on either side, as well as service providers that say they badly need clarity about the law, and others who say the current situation is okay for them. It is important that we are having this debate today.
As well as supporters of both petitions, I spoke to the EHRC, whose job it is to protect everyone’s rights and to explain the Equality Act. The EHRC said that the law can be hard to implement—and don’t we know it? Its letter to the Minister for Women and Equalities states:
“A change to the Equality Act 2010 so that the protected characteristic of ‘sex’ means biological sex could bring clarity in a number of areas but potential ambiguity in others.”
Both the Government and the Opposition welcomed the EHRC statement that the current situation merits further consideration and exploration of possible solutions. The EHRC said that
“there is a clear need to move the public debate on issues of sex and gender to a more informed and constructive basis.”
I was told—and I know—that this issue had been bubbling away for many years and was not anything new. In 2018, the Women and Equalities Committee asked the EHRC to create statutory guidance on single-sex spaces, which it published much later, in 2022. However, the guidance placed a large onus on service providers to exclude people who are legal women. It was when this escalated in 2018 that the UK Government and the Scottish Government started talking about proposals to reform the Gender Recognition Act 2004, which started the debate about self ID. They said that the landscape since the Equality Act had changed significantly. There are more gender identities—
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
My hon. Friend is making a good and balanced speech so far. Does she recognise that when the Equality Act was being passed, the Liberal Democrat spokeswoman at that time asked our Minister from the Labour party if it was the first step to understanding self-ID and moving towards that? That was in Hansard. This issue was thought about when the Equality Act was being created, and the affirmative response was given to that question at that time.
Tonia Antoniazzi
I thank my hon. Friend for his contribution.
At the moment, there are more gender identities and more trans people who have no intention of getting gender recognition certificates. The Government also said that the situation for people who identify as non-binary is very unclear, and that a change to the legislation would provide clarity and a framework for moving forward. They said, however, that the Government would need to scrutinise how trans people would feel about the change. They also identified the following key areas of concern for the public: NHS and medical treatment, toilets, sport, sport in schools, children’s rights and women’s domestic abuse shelters.
I am talking about a way forward. It has been said that the debate needs to be more informed and constructive. Akua Reindorf said that we need some shared facts in the debate. Baroness Kishwer said that the Government should publish their proposals, and then set up a Joint Committee to look at them first and ask all the questions. She said that would be a sensible approach. She also said that she hoped people would not shoot the messenger. The EHRC provided analysis for the Government, and it is up to parliamentarians to make decisions.
I will move on to the petitioners. One of them, who wished to remain nameless, said to me:
“We want legal protections. We want the conversative government to stop using us a distraction to pull hate away from their failures. But our hopes are not confined to the Equality Act. The main struggle most trans people face is not what legal protections we are afforded post-transition, but access to the means to transition in the first place.”
Maya Forstater, who was also a petition creator, said that the reason she is now trying to clarify the law is so that the law is made clear that sex discrimination and discrimination against transgender people are two different strands of equality protection. That way, employers and service providers will be able to protect individuals against both kinds of discrimination and treat everyone with respect.
In that spirit, I am proud to open this debate. I urge my colleagues to speak openly, fearlessly, and with respect for each other and for the different experiences of people in this country who are looking to us as legislators to take responsibility. I hope that we will have a constructive debate about how the needs and interests of everyone impacted by the Equality Act should be reconciled in legislation.
Several hon. Members rose—
Judith Cummins (in the Chair)
Order. I remind hon. Members that they should bob if they wish to be called. Also, those who wish to speak should have been present when the debate was opened.
Mr Ranil Jayawardena (North East Hampshire) (Con)
It is a pleasure to serve under your chairmanship, Mrs Cummins. I thank the hon. Member for Gower (Tonia Antoniazzi) for opening the debate.
As I see it, the debate on women’s rights is much too important to be left to social media alone. I am a father with two young daughters, so this issue is very close to my heart. I think it is the job of Parliament to ensure that laws are clear and fair; it is our duty. We have an opportunity to protect children, uphold women’s rights, and bring about the beginning of the end, I hope, of the shouting matches and hyperbole, replacing them with some calm and common sense on the issues raised by the petitions.
I know that not everyone will agree with what I am about to say, but that is the point of Parliament. We should all be able to air our views freely and fairly, and the Government should act accordingly. One petition is about a very specific point of law, but the point is widely felt. The legal definition of sex matters in so many areas of life: schools, sports, health, crime and prisons. I want the rules of our society to be safe, clear and fair, for my daughters as much as for women and girls across Britain.
A Policy Exchange report, “Asleep at the Wheel”, found that 60% of schools are not maintaining single-sex sport, 19% of schools are not maintaining single-sex changing rooms, and 28% are not maintaining single-sex lavatories. Such provision at school is essential for the privacy, dignity and safety of pupils. A further Policy Exchange report, “Gender Identity Ideology in the NHS”, found that North Bristol NHS Trust was not willing to guarantee same-sex intimate care or same-sex accommodation to patients, stating:
“These arrangements meet all national standards relating to single sex accommodation.”
That is despite the trust’s biggest hospital recording up to 30 alleged instances of sexual assault against females having taken place on hospital property.
The way I see it is that we need to ask ourselves three questions. Do we want women and girls to be forced or shamed into sharing loos, changing rooms and dormitories with biological men and boys? Do we want women and girls to lose female-only sports, even though we know that the physical advantages of being male relate to sex and not gender identity? Do we want some of the most vulnerable people in our society—children in care homes, patients in hospitals, and women in homeless shelters, rape crisis centres or even prisons—to have the dignity, safety and privacy of single-sex spaces stolen from them?
I say no. But that is what happens if the law is ambiguous about the meaning of sex. I do not want schools, doctors, hospitals to have to lie to me or to other parents because they have been bullied or shamed into thinking that it is bigoted to use clear words. I just want to make a plea for a return to everyday, common-sense language. To be clear, that does not take away from the rights of anyone to live as they choose. The words for people who were born male are men and boys. The words for people who were born female are women and girls. Biologically, males cannot become females and vice versa. That is true whatever pronouns people want to use for themselves, whether they wish to take hormones or have surgery. These are plain, biological facts, but they have become controversial.
Many people tell me that you have to be brave to say those facts. That is wrong; everyone should be able to. But if it is anyone’s job, I believe that it is our job to harness this place to speak out and speak the truth and to stand up for everyone’s rights. That means using clear, accurate, unambiguous words both in our speeches and in the law. Surely no one here wants to take away from anyone’s ability to express themselves as they wish, identify as they feel is right or to live their own life. I do not, but rights come with responsibilities. That is why we must be clear about what it is we are legislating for.
That brings me to the specifics of the proposed amendment in the petition. It concerns the Equality Act, which is the law about discrimination—sex discrimination, age discrimination, religious discrimination and so on. The amendment is primarily about one strand: sex discrimination. The petition asks the Government to clarify in law, for the avoidance of doubt, that the term “sex discrimination” in the Equality Act means what it always has: discrimination because of the sex someone is, male or female. Having a gender recognition certificate does not make biological males female or biological females male, so it does not make a difference when it comes to sex discrimination. That is it. We are just making sure that the Equality Act aligns with reality.
This is not a new principle. It is not about what is said on social media or in the so-called culture wars. In 1597, Edward Coke, the Attorney General, told Parliament that the law cannot do the impossible. The example he used was the law cannot make a man into a woman. I believe that he was right then and that he is right now. Let me be crystal clear: to agree to this amendment does not take away any rights from anyone else. There is already a separate protected characteristic of gender reassignment. Someone covered by that already, rightly, has protection against losing their job or being refused a tenancy or service because of being transgender.
I remember that when my first daughter was born we did not find out the sex before, so there was a 50:50 chance. That is basic biology. We all know what the two sexes are. We all know what sex we are and what sex our children are.
Layla Moran
Does the right hon. Gentleman accept that intersex people exist?
Mr Jayawardena
I am sure that the hon. Lady will deal with that in her comments and that she will be staying for the whole debate. I will conclude my remarks so that other Members can have their say. I want to talk about the fact that we all know which sex we are and what sex our children are. We know that the two sexes—male and female—are fundamental to our very existence.
So much has changed for women and girls from the time of Edward Coke 400 years ago, and from even 50 years ago, when sex discrimination was first made unlawful in the United Kingdom. I ask the Minister to ensure that the law does not try and do the impossible. It is up to us. Let us not go backwards. I urge the Government to act now to protect the lives of women and girls.
Several hon. Members rose—
Judith Cummins (in the Chair)
Order. I ask Members to limit their speeches to around five minutes so that everybody can get in.
Joanna Cherry (Edinburgh South West) (SNP)
It is pleasure to serve under your chairpersonship, Mrs Cummins. I am supporting the prayer of the first petition, which is about restoring clarity to the law by specifying that the terms “sex”, “male”, “female”, “man” and “woman” in the Equality Act refer to biological sex and not sex as modified by a gender recognition certificate. My constituency of Edinburgh South West was one of the five constituencies with the highest number of signatories on that petition. The other four were the remaining four Edinburgh constituencies, which indicates the level of concern in Scotland’s capital city about the lack of clarity in the law as it stands, particularly in the light of the debate about self-identification in Scotland.
Given that I have only five minutes, I am going to concentrate on one topic. The petition that I support is not about changing the Equality Act, but about clarifying the Act. The second petition wants to leave the law muddled, and that is in nobody’s interests. The Equality Act attempted to strike reasonable balances between the rights of people with nine different protected characteristics, including sex, sexual orientation and gender reassignment. The protected characteristic of gender reassignment is widely drawn—and rightly so. It is rightly not confined to those who have undergone medical treatment or those who have a GRC. All transgender people are protected against discrimination on the grounds of gender reassignment. That is right, and there is no intention to remove that protection. I would not support any petition that did that.
There is a need for the law to be clarified. That is shown by two recent court cases in Scotland that have gone in opposite directions. The first, which was a decision of the Scottish appeal court, found that the provisions in favour of women by definition exclude those who are biologically male. Another decision of a lower court found that sex is not limited to biological or birth sex, but includes those in possession of a gender recognition certificate. The second decision is not binding on any of the law courts, and is under appeal at the moment. I do not see, however, why women should have to crowdfund to clarify the law that protects them when the Government can use the power built into the Gender Recognition Act by section 23 to resolve the issue and protect everyone’s rights.
Before I go any further, I refer Members to my entry in the Register of Members’ Interests. I am on the advisory group of Sex Matters. I do believe that sex matters, and many people agree with me. The Equality and Human Rights Commission agrees with me. The consultation for its strategic plan revealed that out of all protected characteristics, sex was important to the highest proportion of respondents.
Interestingly, last week when the Scottish Government’s independent “Violence Against Women and Girls: Strategic Review of Funding and Commissioning of Services” was published, it recommended that single-sex provision should remain as part of a range of services. One of its interlocutors said
“it is possible to be pro-woman and not anti-anyone else”.
In the short time I have, I want to focus on the right of lesbians and gay men to be same-sex and not same-gender identity attracted, and on our right to freedom of association. The protected characteristic of sexual orientation is contingent on the definition of sex as meaning biological sex. Lesbians, gay men and bisexual people all experience same-sex attraction—that is, attraction based on biological sex, not gender identity. As a lesbian, I think I can speak with some authority on this issue. Gender identity is not relevant to sexual attraction.
In recent years, Stonewall has quietly modified its definition of homosexuality to centre around gender identity and not sex. That was done without the permission of many gay people across the UK. Now that it explicitly includes cross-dressers within the definition of transgender, this means that many males now self-define as lesbians. Under this climate, it is impossible for lesbians to meet and gather openly without men wishing to join us or disrupt our events. In the words of Anne Lister, lesbians
“love and only love the fairer sex”.
It is unacceptable that we should be forced to include men in our groups and our dating pool. Indeed, it is outright homophobia, as lesbians’ sexual orientation is exclusive of males, as it is based on biological sex. I spoke about this during the debate in LGBT History Month and said what a problem this is for lesbians. I quoted my constituent Sally Wainwright, who wrote at length about this in The Times.
I want to say something to hon. Members who will perhaps be influenced by the Equality Network’s briefing in support of the second petition. In Scotland, the Equality Network has lobbied Scottish parliamentarians for self-identification of sex, saying that it has nothing to do with the Equality Act. However, today it is lobbying Members of this Parliament for a position that would annihilate the ability of women to have any clubs or associations that cannot exclude all male people. The Equality Network has in the past lobbied this Parliament to remove the very exemptions in the Equality Act upon which it is relying today.
Members should be aware that while the Equality Network may have a grand, inclusive-sounding name, on this issue it advocates a position based on an extreme interpretation of gender identity theory and not in the interest of same-sex-attracted women like me and my constituent Sally, or indeed women full stop. As my friend Allison Bailey has said, the rights of lesbians are not contingent on us accepting gender identity theory.
It is time that lesbians and the protected characteristic of sexual orientation regained the voice they once had in this Parliament. I am proud to be that voice. I would like to thank the organisations LGB Alliance, Lesbian Labour, the Lesbian Project, and the Women’s Rights Network for supporting me to be that voice. I support the first petition.
Several hon. Members rose—
Judith Cummins (in the Chair)
Order. Before I call Miriam Cates, I have to tell Members that will we have a time limit of five minutes.
Miriam Cates (Penistone and Stocksbridge) (Con)
When the Equality Act was passed in 2010, few doubted that Parliament’s intention was that sex should mean biological sex: either male or female, recorded at birth—an immutable characteristic. However, uncertainty has since arisen, specifically as to whether or not a person with a gender recognition certificate has legally changed their sex for the purposes of the Equality Act. Whatever the law actually says, the extent of the confusion is such that many people now believe that when someone expresses a desire to live as the opposite sex, that person then has a legal right to be treated as if they have changed sex.
This is not an academic argument. It has significant practical and safeguarding implications, as the outstanding work of Policy Exchange’s Biology Matters unit continues to reveal. Take the example of a tribunal brought against Sheffield Teaching Hospitals NHS Foundation Trust last year. A male catering employee known as V, who identified as a trans woman, was given permission to use female changing rooms. When female staff complained about being forced to undress with V—in particular, seeing him naked from the waist down—the issue was raised with V by a female manager. In response, V brought a harassment case against the trust and, unbelievably, won.
Instead of considering whether the manager acted reasonably in being concerned about the exposure of male genitals in the ladies’ changing room, the judge decided that V had been treated differently from another woman. The judge treated V as though his sex was female when the issue was the fact that his body was male. Of course, the women who complained about V were not discriminating against him because of his trans identity, but because he was male, and such discrimination is of course—
Judith Cummins (in the Chair)
Order. Can I check that this is a concluded case, please?
Miriam Cates
It is a concluded case.
The women were discriminating against him because he was male, and such discrimination is perfectly within the Equality Act if it is
“a proportionate means of achieving a legitimate aim”,
which in this case was to protect the integrity of single-sex spaces.
I have nothing but compassion for people whose biological sex is a source of distress; they should of course receive the best evidence-based treatments for gender dysphoria. But while a small number of people rightly have the protected characteristic of gender reassignment, everyone, including trans people, has the protected characteristic of sex—male or female. Where those protected characteristics collide, we must ensure that everyone is protected according to their sex and that proportionate accommodations are made to assist those who do not wish to use the facilities of their sex.
We must clarify the Equality Act to make it clear that sex means biological sex and to ensure that the providers of single-sex services and facilities understand and protect the single-sex nature of the provisions. It is extraordinary that in 2023—a time of unprecedented knowledge—we are arguing about the definition of something that has been known since the dawn of time. The most contentious question of our day has famously become “What is a woman?”—a question that no previous society has felt the need to answer.
Despite the semantic acrobatics employed by some to dodge the question, we all know, instinctively and intrinsically, what a woman is. The sex binary—the biological state of being either male or female—evolved hundreds of millions years ago, before we humans walked the earth. Being able to tell the difference between a man and a woman is not a matter of acquired knowledge. It is as instinctive as being able to tell up from down. Indeed, our survival as a species depends on it; if we want to reproduce, and to protect ourselves and our children, we had better know the difference between a man and a woman.
Men and women are different physically, psychologically, sexually and socially. All civilisations are built on an understanding of these differences, creating structures, rules and boundaries to protect women and children from male violence and to preserve the dignity of both sexes. There is nothing more destabilising to society than to dismantle the legal, social and cultural guardrails that protect women and children by pretending that males become females and vice versa, and allowing that to creep into our law.
While academic elites cave in to aggressive and misogynistic trans activism, ordinary women are frightened to go to hospital, ordinary men fear for the safety of their daughters in public toilets, ordinary children are subjected to a psychological experiment in which they are told they can choose their gender, and ordinary toddlers are used to satisfy the sexual fetish of adult men dressed as eroticised women. Understanding the difference between male and female underpins society, safety and security. We must clarify the Equality Act, and give ordinary people the certainty that our laws can be trusted to protect women and children and that sex means sex.
Hannah Bardell (Livingston) (SNP)
On a point of order, Mrs Cummins. I feel it is incumbent on me to make a point of order on the fact that trans people are being characterised as predators, and that is deeply undemocratic and deeply worrying. That is not what this debate is about. For the Member to be using such language is unparliamentary. I seek your guidance, Mrs Cummins.
Judith Cummins (in the Chair)
That is not a point of order because it is not a matter for the Chair.
Miriam Cates
Further to that point of order, Mrs Cummins. In response to the hon. Member for Livingston (Hannah Bardell), I was making the point that the vast majority of sexual predation is by men on women and children. That is what society has evolved to protect against.
Judith Cummins (in the Chair)
I thank the hon. Lady, but that is not a matter for the Chair. I call Dame Angela Eagle.
Dame Angela Eagle (Wallasey) (Lab)
It is important that we try to detoxify this debate. I do not think the last contribution did so at all. In fact, it was deliberately provocative. I do not recognise anywhere in the Equality Act that there is a mandate on anyone’s dating pool and who should be in it. If people are worried about the law saying who they can date, they are not across the UK legislative system, which has no laws on who they can fancy and who should be in their dating pool. They can trawl wide or narrow across all—
Dame Angela Eagle
No, I will not give way. I have only four minutes. Some Members are putting together things that are deliberately provocative.
I rise to speak in favour of e-petition 627984, which asks the Government to confirm that the Equality Act’s current definition of sex should remain unchanged. I believe that the move to redefine sex as purely biological rather than legal would reduce rather than enhance current protections and create incoherence in the legislation. Paradoxically—perhaps even deliberately—the change would mandate exclusion and discrimination against all trans people, while worsening protections for women and girls. It would practically disapply important parts of the Gender Recognition Act and be in breach of our international human rights obligations. It would take away rights that have been enjoyed for almost 20 years by the small minority of our population who are trans.
Some 7,000 people have a gender recognition certificate. That is who we are afraid of in all this. A change to the Equality Act’s definition of sex to biological sex would have a huge effect on all trans people by effectively mandating their exclusion from public spaces unless they use facilities in their so-called birth gender, which would be humiliating and damaging to them. It would lead to the policing of women’s spaces, which would problematise non-gender-conforming women and girls who are not trans. That is happening now with all the hostility.
The hysterical media coverage that has accompanied this deliberately provoked war on woke has already led to increased policing in public toilets and harassment of non-gender-conforming women by those questioning their right to be there. I have spent my whole political life and my entire time in Parliament working to create greater equality for all and to reduce bigotry and prejudice, and I have always been a committed feminist. The safety of women and the opening up of economic opportunities to them on an equal basis to that for men has always been one of my priorities in politics.
I am also a lesbian. I was only the second out lesbian ever to sit in this place, and the first ever out lesbian Government Minister, so I have had some experience of bigotry, prejudice, misogyny and homophobia—and I recognise a politically induced moral panic when I see one. I also recognise a discredited Government unleashing a culture war for their own divisive ends when I see it. Those seeking to weaponise anti-trans fear for their own purposes have other issues in their sights: principally, inclusive sex education and women’s abortion rights, as we have seen in the USA, where over 400 anti-LGBTQ+ pieces of legislation have been introduced in state legislatures already this year.
The attack on trans people’s rights to exist and to live with respect and dignity in an accepting society is designed as a wedge issue that will open up the others. It is a gateway to wider homophobia, as the steady rise in hostility to LGBTQ+ people in the street attests to. I was around when it happened before in the 1980s with the enactment of section 28, which sought successfully to scapegoat LGBT+ young people and drive them into hiding. It caused untold misery for narrow political ends, wrecking the lives of LGBT+ people for generations. We should not be contemplating doing it again.
The Equality Act is an all-encompassing piece of legislation. It was enacted to advance, consolidate and update the protections of equality law, and it is working very well, but it works by making a blanket presumption against discrimination and exclusion. It specifies some circumstances in which discrimination is lawful so long as the action taken is a proportionate means of achieving a legitimate aim. That is a very pragmatic way of deciding on a complex range of issues in each case. If we change the definition, it would upend the Act and mandate exclusion for trans people, which I think is inhumane and unacceptable.
Angela Richardson (Guildford) (Con)
It is a pleasure to serve under your chairmanship, Mrs Cummins. I rise to speak in support of the petition to make the Equality Act clear, and I will start by saying why. It is because I believe that trans people’s rights are human rights and women’s rights are human rights. It is possible to protect both groups in law, and I believe that that is what the Equality Act sets out to do, but one unintended consequence of pulling together a lot of equality and anti-discrimination law into one place is that it is unclear in places, and that lack of clarity is harming people’s rights. We are discussing how to restore clarity in order to uphold the rights of everyone. I have huge respect and sympathy for people who suffer from gender dysphoria or feel they have been born in the wrong body. It is right that the law protects such people from discrimination in employment and in the provision of services under the heading of gender reassignment. It is also right that the law protects everyone, whether or not they have a trans identity, from discrimination in employment and in the provision of services on the basis of their sex.
Gender reassignment and sex are two different characteristics—both important in their own ways, and separately protected. The census suggests there may be more than 100,000 people in the country who identify as transgender, compared with around 5,000 who hold a gender recognition certificate. All those transgender people are protected in the same way on the basis of gender reassignment, which is widely drawn. They have the same protected characteristics, which includes people who are at the start of their personal transition and people who have identified as trans for decades; people who have taken cross-sex hormones and had surgery, and people who have not or do not intend to; and people who pass as the other sex in some situations and people who do not. All of these people are protected equally. None has more or less rights than any of the others.
In today’s debate, it is important that we remember what the Equality Act is and what it is not. It is the law that gives recourse to anyone who is treated unfairly by employers and service providers of all sorts because of their protected characteristics, and it is the law when it is reasonable and right for employers and service providers to treat people differently on the basis of their protected characteristics. Those employers and service providers—from pubs and gyms to hospitals and shops—cannot operate without clear rules and policies that accommodate all sorts of different people fairly and to the greatest extent they can. They need to be able to explain their rules on their signs and websites, on the phone and to staff. That means being clear about where there are sex-based rules and where a service is provided for both sexes together.
The protected characteristic of gender reassignment does not give someone the right to use opposite-sex facilities or services. It requires service providers to consider how they can properly accommodate trans people—not just trans people with a gender recognition certificate, but all trans people: all those who are covered by gender reassignment. They cannot do this fairly by treating trans people with and without a gender recognition certificate differently. Anyway, it is not practical and, in some cases, it is not even lawful to ask if someone has a GRC. In simple terms, the law needs to facilitate: that employers and service providers offer separate facilities for male and female people in situations where sex matters, like toilets, changing rooms, dormitories and so on; and that they do their level best to accommodate people who do not feel comfortable in communal facilities for their own sex, without undermining the privacy and dignity of people of the opposite sex. That usually means a third unisex option. At this point, I must say that it does not mean converting the ladies’ loos, for instance, into unisex and leaving the number of men’s loos intact, as I have seen happen.
Being a trans woman is a very specific experience and it brings some challenges. Likewise, being born a woman is a very specific experience that also brings challenges. Both groups need and deserve fair and appropriate support and provisions, and protections against discrimination on the basis of their protected characteristics. That means being clear—being clear about what sex means and being clear that it is not the same as gender reassignment or having a transgender identity. That is the right and compassionate way to ensure fairness and dignity for everyone.
Jess Phillips (Birmingham, Yardley) (Lab)
The status quo is not working. People who are speaking in the debate probably feel anxious about doing so, and that is not a status quo that I recognise—for those of us on either side, if we have to have sides.
Sex and gender are different. I have never met a trans person who denied that over the years of having robust debate with them. In my life, the discrimination I have suffered at the hands of establishments, rather than just everyday sexism, has always been exclusively because of my biology. The obvious examples I could give are related to pregnancy. I was told not to bother to turn up for interviews because of pregnancy scan appointments, and that I was too young to decide whether I wanted to be sterilised at the age of 28, whereas my husband, just three years older than me, was allowed to make that decision without anyone batting an eyelid. I had to get two doctors to sign a thing to say that I could have an abortion. My biology really matters to me, and I have been treated poorly because of it. However, after making that point, I stress that my remarks will be about the issue of single-sex spaces and the safety of women. I am probably alone in this room as being somebody who has run single-sex spaces and used the part of the Equality Act that we are here to debate.
We all know that men’s violence against women and girls happens to women. Of course violence happens to men and, frankly, if someone needs services because they are a victim of domestic or sexual violence, I do not care which category they fall into—they are 100% entitled to expect access to those services. But the Equality Act has to allow for the fact that we need different kinds of services for different people’s needs, understandably. The Equality Act is a carefully balanced piece of legislation that recognises that women and men—let us be honest, it is less men—need protection from sex discrimination. As part of that, women need to be able to have separate services, associations, charities and sports.
The majority of victims of domestic violence are women, and they are much more likely to be seriously hurt or killed. We must be really careful to protect our intricate and finely balanced services for women. I am already seeing again and again that specialist women’s services are being decommissioned in favour of generic support services that have an all-or-nothing approach. This has almost nothing to do with trans people initially; it is entirely to do with the fact that they are expected to support men’s services as well. Services are being decommissioned, and there are situations where perpetrator and victim are in the same service. That is happening across the country. It is utterly devastating, and the Government should be looking at commissioning women-only spaces in the Procurement Bill, which we are debating tomorrow. I look forward to hearing everybody who stands up and fights for women-only services today saying the same thing and that they do not want the free hand of the market to decide. They should say that they want specialist women-only services, because the Government refused to put the word “woman” in the Domestic Abuse Bill and the Online Safety Bill—it is funny how they are keen on it now. I shall be pushing everybody who speaks in this debate to vote on that basis tomorrow.
Organisations are afraid of not getting funding and of authorities thinking that they have to have an all-or-nothing approach. It is a reality that we are already seeing. Part of the problem is the confusion and fear about the law. Believe me, it is our role as parliamentarians to sort that out, no matter how hard it might be. It cannot be left to the courts, and it cannot be left to individual women’s services to muddle through and fight legal battles. Believe me when I say this happens, because it happened to my organisation when we refused to interview a man for a job. These are small organisations with very little in the way of support.
The public service equality duty is one of the most important parts of the Equality Act, and it requires public service providers to consider the needs of different groups. When I was a commissioner of services on Birmingham City Council, I insisted on the commissioning of domestic abuse services for LGBT victims, and on having specialist services for south Asian women where I live. I think we should have specialist services for disabled people, because they have specific needs. At the moment, I feel that we are leaving some smaller organisations in a difficult situation. Along with Women’s Aid nationally, I believe that we should be able to provide sex-only services and that other services must be available.
Sir Peter Bottomley (Worthing West) (Con)
I have learned a lot from most of the speeches, especially the last one. Anyone who has missed the annual reading of the list of women killed by men should attend it.
I am indebted to two authors. One is Helen Joyce, who wrote the book “Trans: When Ideology Meets Reality”. People are mistaken if they think that those of us speaking in favour of clarity in the law are in any sense transphobic, or that any word or sentence in this book is that.
The second book is by Kathleen Stock, who was a professor at the University of Sussex, the county that my constituency is in. She wrote “Material Girls: Why Reality Matters for Feminism”. I first became conscious of her dilemmas when I read a remark by a man called Liam Hackett, who accused her publicly of being a “dangerous extremist”. There is not a sentence in the book that can be regarded as transphobic.
Liam Hackett was given an honorary degree by the University of Sussex in his 20s. He created and ran—and, as far as I know, still does—an anti-bullying charity called Ditch the Label, yet he is publicly a bully of a fine academic who should be supported, not condemned. I could, of course, have brought along one of J. K. Rowling’s books too, but in five minutes I cannot give a full literary review.
Chapter 8 at the end of Kathleen Stock’s book is called “A Better Activism in Future”. She recommends being more non-binary; that people stop changing the subject when these discussions come up; being more intersectional; and having less theory, and more data—or, to expand on that, she says:
“Use less academic (high) theory, more academic data”.
She gives a whole list of issues on which we ought to have information.
Kathleen Stock was writing her book when the questions were being created for the 2021 census, which brought in something on trans identity. The question was written in such a way that the place where there seemed to be most trans people was east London, but the question was misunderstood. It is ludicrous that although we search for data, we cannot have proper data.
First, we ought to recognise that no one I know is transphobic. Secondly, having gender questions matters. Discussing trans issues matters. When sex and gender clash, sex should be dominant.
I end with two examples that are well known to everybody. Why should a cyclist who is the 500th fastest in his age group or category be allowed to declare themselves a woman, and win a women’s cycling race? There is no justification for that. There never was, and there never will be.
The second issue, as the hon. Member for Birmingham, Yardley (Jess Phillips) pointed out, is that in prisons, hospitals and refuges, and when it comes to personal care, people should have the opportunity for, and an expectation of, same-sex services.
For most things, of course, sex does not matter; it does not come into it. My pronouns—the ones I normally use—are you, we, I. We do not have to go around saying, “I am he and him” the whole time. I answer to “Hi!” or any loud cry.
I hope that this debate will help to illuminate the fact that Parliament is taking the issue seriously. One or two people who have intervened have given the impression that those who speak as I do are in some way against trans people. That is not so.
Rosie Duffield (Canterbury) (Lab)
It is a pleasure to speak in this debate under your chairship, Mrs Cummins. I rise to speak in favour of clarifying the Equality Act 2010; that will not exactly be a shock to anyone here. The debate over trans rights and women’s rights has become toxic in recent years, partly because the law as it stands is not clear. In fact, without doubt, this is one of the most toxic issues that politicians and campaigners will ever have been involved in. I experienced some pretty terrible online abuse at the height of the antisemitism crisis in the Labour party, but I almost look back on those days fondly, given the spite, vitriol, constant attacks, name calling, trolling and defamation that I face personally every single day, along with women’s groups and my friends whose names are in the media.
If you talk to ordinary people—elected politicians do so most days—they will tell you that women as a group need protection in law, and trans women also need protection, but these are not the same groups. That was recognised in the Equality Act when it was passed. The Act was one of the last measures of the last Labour Government, of course. It was the outcome of 14 years of campaigning by equality and human rights organisations. It is carefully balanced, and it had cross-party support for nearly all its provisions. It is something that we can be rightly proud of as a country, and it is a law that protects against sex discrimination and transgender discrimination—separately, because they are not the same thing.
We know that one in four women will experience domestic abuse in her lifetime. Two women a week are killed by a current or former partner. Forty-one per cent of women provide care for their children, grandchildren or older and disabled people, compared with 25% of men. Around 90% of single parents are women. Men are almost twice as likely to be a manager, director or senior official than women, and only one third of MPs are women despite us making up over 51% of the UK’s population.
Because of those and other differences in men’s and women’s lives, we need to be able to monitor sex discrimination and provide for the needs of women and girls, particularly when they are most vulnerable. The Equality Act is the law that allows for that, but confusion within and about the Act has led to a toxic debate where people have become terrified even to talk about women’s rights—but not all people.
Since I started speaking up, I have had so many women and men write to me to say thank you. Many have written to say that they are frightened to speak up for women’s rights. They include women and men who work in jobs where it is extremely important that they are able to be clear about the difference between male and female, and about who women are and who men are. They include people whose jobs involve safeguarding children—headteachers, teachers and social workers. They include people who work in healthcare—nurses, told that they should ensure that hospital accommodation is in single-sex bays for men and women, but also that they should allow people to choose which sex they want to be housed as. They include women who work in domestic violence shelters, who are terrified of being sued or losing their job if they make it clear that those are female-only spaces. They include female athletes who want their sport to be fair but are afraid to speak up because of the response that they will get.
This was not the world that the Equality Act was meant to create. It was meant to continue from the Sex Discrimination Act 1975, to ensure that men and women were treated equally while single-sex services, sports, associations and charities could be safeguarded. Instead, it is being used to stop people talking about sex—not gender—and sex discrimination.
The Equality Act was also meant to ensure that organisations should treat trans people fairly and with sensitivity as employees and customers. But that did not mean requiring other people to pretend that they believe that being trans—for example, being born male and perhaps changing name and clothes, and maybe taking hormones or even having some physical surgery—is the same as being a woman.
The Gender Recognition Act was passed to allow trans people to obtain legal status to marry in their acquired gender and to be treated as male or female for the purpose of pensions. It was not, however, intended to provide an access-all-areas pass to single-sex services, associations, schools, colleges, sports or charities.
We really need to offer clarity on the law. It is the only way. Clarity would mean that we could treat all people with respect. The UK has led the way on equality law, and it can do so again by finding a grown-up way through this debate on trans rights and women’s rights. Until we do so, I will continue to speak up, death threats or not.
Nick Fletcher (Don Valley) (Con)
It is a pleasure to serve under your chairship, Mrs Cummins. As we have heard, the petitioners want to make a simple amendment to clarify the Equality Act with regard to the interpretation of the word “sex”. That clarification would prevent serious problems from continuing. We are in a position where some biological males believe that they have a right to enter single-sex spaces—female changing rooms. I suspect that when many think of that they think of a grown man—a trans woman—entering a grown woman’s space. That to me is obviously wrong, but my real concern is what happens when a six-year-old girl is in that changing room—somebody’s daughter, somebody’s granddaughter, somebody’s niece. It just is not right.
[Sir George Howarth in the Chair]
I want to make an aside—hon. Members will see where I am going with it. I worked in construction most of my life. Health and safety has taken a real turn for the better over the last 30 years. We now report near misses—where an accident could have happened, but luckily did not. A tripping hazard may have been seen, or an oil spill. We do that to learn, and to prevent accidents from taking place. We put items only in designated areas, and prevent the spill or have spill kits on hand. That does not mean that everyone was going to trip or slip, but some might have. We learn from near misses and prevent accidents. I think we would all agree that that is wise.
While our construction sites are getting safer—well done to those in the Opposition for bringing in health and safety legislation—our single-sex spaces are not. Let us do what we need to do to clarify the Equality Act and ensure that no biological male can enter that six-year-old girl’s changing room. To me, that would be excellent legislation, and a must—a near miss reported to stop tragedy happening. That does not mean every biological male going into a female changing room is a danger, like not everyone was going to trip or slip, but some might be, so we should say no and prevent the possibility of something bad happening. That is why I support the petition and hope the Government will, too.
We can also use the analogy of a near miss when it comes to women’s sport. If we do not make this change right now, we could quite easily end up with no women’s sport. Many young girls will see what is happening—biological males winning in female sports, or perhaps a woman or girl being injured—and think, “What’s the point in trying?” Let us sort out the Equality Act right now and protect our women’s sport for good.
If we can stop the use of new gender pronouns in schools, we will stop many issues for our young people later in life, too. I am glad that we have been able to discuss this near miss today. I hope we can learn from it and prevent the tragedies that could follow if we do not.
Let me assure all those who think it is unfair that I believe we need to help and support those with gender dysphoria and treat them with respect, too. But we need to do so while respecting other rights, and I feel that I have to stand up for the six-year-old girl in the changing room confronted with a 50-year-old male who is going through a tough time. I am standing up for the nine-year-old who wants to stand in first place at the Olympics but thinks, “What’s the point?” when a biological man will be there in her place.
I am standing up for the 12-year-old allowed to use pronouns at school who is being sold a story that she can be something that she never can. I am thinking of her after her transition, when she wakes up one morning when she is 25 and realises that she can no longer have children. She is growing facial hair, her health is generally poor, her bone density is down, her voice has broken, she has no real friends, and she has probably fallen out with mum, who is now broken for letting her take those puberty blockers and hormone replacement tablets. I am thinking of that girl sold a lie by the influencers who have now moved on to another ideology to make them money. No—in this place, we have to make the hard decisions to protect the vulnerable. I know the Government will make the right decision and clarify the Equality Act.
Dame Nia Griffith (Llanelli) (Lab)
The Equality Act 2010 protects against direct and indirect discrimination, but there has always been provision in the Act for different treatment where it is a proportionate means to a legitimate aim—that is, different provision for those whose sex is assigned at birth and those whose legal sex has been acquired through a gender recognition certificate.
For example, although I know of one rape crisis service that has been providing women-only services for 30-years, and uses trans-inclusive language and has been trans-inclusive for 30 years, many other organisations providing services for those who have suffered domestic violence use the current provision in the Equality Act to provide exclusive services for those whose sex at birth was female.
Decisions about who can compete in sports can be made by sporting bodies as appropriate for the sport, and I do not understand why so many Members do not seem to have understood that. Obviously, rugby is totally different from chess. Those decisions are made by the appropriate bodies.
The Gender Recognition Act 2004, in combination with the Equality Act, currently defines someone’s legal sex as either the sex they were assigned at birth or the sex they have acquired through having a gender recognition certificate under the GRA. As I have illustrated, the Equality Act allows for different treatment of people whose legal sex has been acquired through a gender recognition certificate and people whose sex is assigned at birth, as long as the action is a proportionate means of achieving a legitimate aim.
If there is a change, as has been suggested, from the current definition in the 2010 Act to a definition based on biological sex, that would create a blanket ban on trans people from services that they had previously enjoyed without concern or complaint, even when it cannot be said to be a proportionate means of achieving a legitimate aim. The change would remove the current protection from discrimination for people in possession of a gender recognition certificate and undermine the Gender Recognition Act, leading to people being treated as if they had not changed their sex.
Unfortunately, this debate has often been portrayed as a matter of whether trans women should be allowed to use women’s toilets. First, we have had the GRA since 2004, and trans women have been using women’s toilets without complaint. Most of us have probably never even noticed. As we know, we have individual cubicles, so everyone has their privacy.
Even more unfortunately, there has been a conflation, even by Members in this debate, of a trans woman and somebody who is a criminal. We know perfectly well that there are police who are criminals and carry out heinous acts, but that does not mean that all police officers are criminals. It is exactly the same. Someone could impersonate a meter reader or a council worker, say, and go to a house to try to gain entry by false means. Why the idea that someone can dress up as a woman and therefore carry out whatever criminal act they intend to should determine how we decide to treat trans women is absolutely indecipherable to me.
To those people who genuinely feel that they do not want to discriminate against trans people, I want to make it clear just how hurtful that suggestion is to many trans people. They feel that they will be completely obliterated—that they will no longer exist, that they will no longer have the right to recognition. They have so many challenges in life—challenges with their family, challenges at work, challenges with their social life—
Hannah Bardell
I commend the hon. Lady for making a passionate and common-sense contribution to the debate. I am sure she agrees that some of what we have heard today is just feeding into the moral panic; some of the arguments are just cut and pasted from what gay and lesbian people faced decades ago. Does she agree, as a lesbian, that trans people do not threaten us? In fact, they enhance our existence.
Dame Nia Griffith
Absolutely. As a fellow lesbian, I absolutely agree with the hon. Lady; they are absolutely not a threat. More importantly than that, they need our support now more than ever.
Andrew Lewer (Northampton South) (Con)
It is a pleasure to serve with you in the Chair, Sir George.
I want to talk about a specific situation in which clarity about the meaning of “sex” is utterly essential—a situation in which it is vital that everybody knows what the words “male” and “female” mean, and in which it is vital that those words have their natural meanings: the immutable binary characteristic that all humans, and indeed all mammals, possess from the beginning of their life to the end of it.
Andrew Lewer
I will follow the example of the hon. Lady’s colleague, the hon. Member for Wallasey (Dame Angela Eagle), and not give way.
I also want to talk about the consequences when there is a lack of clarity and about what happens when our laws mix up material, concrete, physical realities with words and claims about identity. The reason I want to do that is because the consequences can be horrific. When legislators make a mistake, it is ordinary people who suffer. Our laws have to be clear. In situations where sex matters, it is sex that matters.
People can identify however they like, so long as claims about their identity do not injure other people. But injuring other people is what is happening now, because our laws have drifted away from reality and in the process have got muddled. It is well past time to return to clarity and reality, and doing that means clarifying that when the Equality Act says “sex”, it really means sex. We are at a juncture where we have to draw a line in the sand of competing claims.
I ask my honourable colleagues to think of a stark but perfectly commonplace example of a situation where sex matters—that of a woman who is having a gynaecological procedure. Perhaps she is having a cervical smear test, or she needs an hysteroscopy, in which a camera is passed through her vagina and cervix into her uterus. For such procedures, she must take her clothes off from the waist down and be touched intimately. Many, many women are unwilling to go through such procedures except with female health workers. Some women have specific reasons; they are survivors of sexual assaults, or their religion requires them to avoid intimate contact with any man except their husband. Others are simply setting their own boundaries on the basis of what is comfortable for them, and their feelings about privacy and dignity are perfectly normal and a sound basis for them to grant or withhold consent. Here is the stark question in clear language: is a man who identifies as a woman a satisfactory person to provide care to a female patient who has stated that she is willing to undergo such a procedure only at the hands of another woman?
Here is what the NHS Confederation said in guidance sent around the country last week: despite the express wishes of the patient, that man is a suitable person to provide care to that woman. His feelings about his identity override the material reality of intimate contact with her body. They override her privacy, her dignity, her boundaries and her consent, and if she complains, she is transphobic and may be asked to leave the hospital or surgery. If her relatives speak up for her, they may be removed. All of that is dressed up in the language of gender identity. The patient has no rights to know the health worker’s gender identity. It is not the identity of this man, however, that the woman is concerned about; it is his sex.
The NHS Confederation is not an outlier. The British Medical Association, which regulates doctors, says that patients have no rights to be told a healthcare worker’s assigned sex at birth. However, sex is not assigned at birth: sex is observed at birth, as determined by conception. Moreover, if a patient has asked for a carer of the same sex as them, according to the BMA it is the comfort of the staff member that should be prioritised.
Joanna Cherry
Does the hon. Member agree that the guidance he is reading out is simply wrong in law, and that to force a woman to accept a male-bodied person to carry out her intimate care is a breach not just of the Equality Act but of that woman’s rights under articles 8 and 3 of the Human Rights Act 1998?
Andrew Lewer
That is exactly right, and it is why this clarity is needed. Here is another quote from BMA guidance:
“A patient does not have a right to know if a healthcare worker has a gender different to the sex they were assigned at birth.”
In other words, the patient has no right to know whether the person treating them is the same sex as them. That is heartless beyond words. We are talking about a woman who may be worrying about serious illness and is feeling exposed and vulnerable. Professional bodies are instructing healthcare providers to gaslight her. They are saying that it is perfectly fine for a man to touch her unclothed private parts when she has refused that, because of how he identifies. As the hon. and learned Member for Edinburgh South West (Joanna Cherry) said, it is more than heartless, it is illegal. If a man provides such care to a woman who says that she is only willing to receive it from another woman, it is a sexual assault.
Have we reached the point where medical associations are instructing care providers to sexually assault women in the name of inclusion? That is why it is essential that the meaning of sex in the Equality Act is made much clearer, in order to end this and save lives.
Sir George Howarth (in the Chair)
Order. The hon. Gentleman has exceeded the time limit. Can he give one line by way of a conclusion before I move to the next speaker?
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
In the spirit of calm and cool debate, I will say clearly my view on this matter, just as those opposite have: trans men are men, trans women are women, and being non-binary is valid. I am proud to be Plymouth’s first out Member of Parliament; I am probably not Plymouth’s first gay Member of Parliament, but I am certainly the first one to proudly say so before they put themselves forward for election. That gives me a special responsibility to speak up for those people whose voices are not always heard in this place.
Changing the Equality Act is unnecessary, unworkable and unfair. When we talk about biological sex, we are talking about the sex assigned at birth. That means that there is a real complication and a potential assault on people with intrusive medical tests to look at their biological sex at birth rather than where they are today. As mentioned earlier, it also ignores intersex people, who make up a substantial portion of our population.
Luke Pollard
I will carry on if I may. Single-sex services can and do exclude trans women at the moment, using the law as it stands. Changing the definition of sex is unnecessary to achieve that policy aim. Indeed, the majority of the examples used around the room in this debate so far are already covered by the Equality Act. I am worried that the debate and the direction of travel in which this can take us could lead to a roll-back of hard-won rights for the LGBT+ community and will potentially exclude more trans people from public spaces and allow discrimination to go unchallenged.
I want to hear more trans voices in the debate and I would like us to spend as much time talking about trans people’s access to healthcare as we spend talking about trans people’s rights to use a toilet. In the south-west at the moment, the waiting list to access trans healthcare is seven years—it is seven years. That is a disgraceful amount of time. I challenge all those people who spend so much time focusing on toilets to spend as much time focusing on healthcare and the delays in the system in order to achieve a fair place for us all. Let me say this clearly: the carefully crafted words that suggest that trans people accessing the toilets or changing rooms that they are legally allowed to access makes them a sexual predator are disgusting and wrong. What that does is contribute to a rise in hate against people. One of my friends, who describes herself as a butch lesbian, has been asked to leave toilets countless times. All she wants to do is go for a wee. But she has been asked to leave toilets countless times because of a rise in hate. She was born a girl; she is now a proud woman—a proud lesbian. But the rise in hate in the debate and around our country means that she worries about going to the toilet because of what other people may think of her. That is not right.
Luke Pollard
I will carry on if I may, because I am running out of time. It is important that we defend the Equality Act, because there are so many examples that are already covered by the Equality Act; it is important that we all look carefully at it. I appreciate that some MPs have wanted to have this debate for quite some time—wanted to have a debate about biological sex. But what I hope we can all agree on is that the right of trans people to exist, to be authentically themselves and to thrive should not be up for debate. This is why we have to be careful. We need to ensure that the debate in this country does not go down the path of how we are seeing the debate develop in America. What happened in America—we can see this—is that first they came for trans people; then they came for the rest of the LGBT+ community. As we see from the 400 pieces of legislation—
Luke Pollard
I will carry on if I may. We need to be very cautious: that is not to say that everyone in the debate here has made that case, but that is the direction of travel, especially when hate is bubbling in our environment.
The final thing I want to say is that for the trans and non-binary people watching this debate, it is important that one of us says, “I see them. I hear them. They should be loved and supported. They should be protected in law. And there is a way through to make sure that that can happen sensibly”—
Luke Pollard
Well, there are trans and non-binary women and trans and non-binary men and trans and non-binary folks as well, and shockingly there are women and men in the LGBT wider community, so let us ensure that we are embracing inclusion in this, because the truth is that rising hate and discrimination makes all our lives worse, but in particular it makes the lived experience of trans and non-binary people much worse through attacks, discrimination and hate.
Tim Loughton (East Worthing and Shoreham) (Con)
I think many people find it extraordinary that we are having a debate on having to redefine sex in the Equality Act, but people will find it even more extraordinary that some speakers have warned us against having this debate in this place—supposedly, people are frightened about having this debate. There is a problem. That problem has been due to the conflation of sex and gender, and it is this place that rightfully needs to put it right. It is up to us as parliamentarians to speak out—as the opening speaker said, openly, fearlessly and respectfully, and, I hope, also without fear of being cancelled, of appearing in an Oxfam cartoon or of being described as weaponising this important subject.
There is currently confusion about how the Equality Act operates in relation to sex. That is jeopardising the provision of single-sex and separate-sex services allowed for by the Act, including in hospital wards, care provision, sports and schools, as we have heard. Amending the Act to ensure that references to “sex” mean biological sex would resolve that confusion for everyone concerned. It is about clarification, not change. It does not remove the rights of transgender people. They are protected from discrimination on the basis of gender reassignment, which comes under a protected characteristic in the same Act.
The clarification would make it simpler to provide single-sex services and accommodation. It would provide clarity for single-sex associations, including charities, women’s refuges and sports associations. It would also provide clarity to schools, which is increasingly becoming an issue. All of that can be done using section 23 of the GRA without the need for new primary legislation.
I support the first petition to make the Equality Act clearer for several reasons. I echo what other hon. Members have said, but I will talk about one particular application of the Act, which is to allow clear and fair women’s sport, and to ensure it gets the support that it needs. It is just over a decade since London hosted the world’s greatest sporting spectacle, the Olympics, when Team GB did us proud. Since then, one sport after another has allowed male-born athletes who later identify as women to compete as women. Around 60 governing bodies have opened up the female category to male athletes, who benefit from all the physical advantages of testosterone during puberty. Incredibly, that includes some combat sports such as wrestling and judo, which are very physical.
The entire purpose of competitive women’s sport is to allow girls and women to compete fairly, like against like, and to recognise and reward female excellence. That is why we have separate Paralympic games, and separate categories within them to reflect the abilities of certain people. We also do not hear much about transgender men competing in male sport. We know that males are bigger, stronger, faster. During puberty, testosterone broadens their shoulders, and makes their bones and muscles larger and far stronger. There is no way to undo those changes. They are so advantageous in sport that in every single track and field event, the women’s world record has been surpassed many times not just by elite male athletes but by teenage boys.
UK law allows women’s sport to be restricted to females. Even transgender males who have a gender recognition certificate stating that their sex is female can lawfully be excluded from women’s sport, as recently confirmed by the EHRC. However, sporting regulators have said they worry that even with the law behind them, they risk vexatious, costly legal actions and being dragged on social media for being transphobic and exclusionary. A legal opinion commissioned by UK Athletics alerted the body to those risks; it wants to exclude all males from female sports but worries that it will get sued. Sports organisations also worry that they might not be covered by the exclusion that relates to competition when it comes to other parts of sport: training, handing out funding, running recreational sports and providing facilities such as changing rooms.
Last year, the UK sports councils looked at the science, and concluded that it is categorically unfair to allow males into female sport. However, the campaign group Fair Play for Women still knows of men competing in women’s events. In English football, there are around 50 such males. A 30-something male was selected as goalkeeper for the British universities team. In individual sports such as cycling and running, women have lost medals and prizes to males identifying as female.
This is an issue not just for elite sports, but at the junior level. Parents worry that their daughters will get injured on the field playing with bigger, stronger, heavier boys who identify as girls. Faced with such unfairness and risk, women and girls vote with their feet. A measure that is described as “inclusive” actually means that girls and women are excluded from their own competition. This week we have heard about the English women’s angling team. In swimming, many women, including those who have had breast cancer and Muslim women, want female-only sessions, but now they can find a male “woman” in the changing room and in the pool with them. I pay tribute to Sharron Davies for all her work in this area.
It is not fair on women and girls who spend years training in their sport, only to have it snatched away by competing against somebody who is biologically different. We owe it to the amazing women of Team GB to sort out this issue, and we owe it to every girl who dreams of being on the podium one day, like the women who are their sporting heroes. I support the first petition.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
It is always difficult to talk about these sensitive issues. By and large, apart from some exceptions, we have managed to do it in a calm manner today. I have not always been the calmest on this issue, because it is difficult when we are talking about people’s lives from all sides. Last time I spoke in this Chamber about some of these issues, people who were in the room then spread lies about me wanting to teach BDSM to children and so on. They were horrible, pernicious lies that were put on Twitter and caused a lot of hate. I think it is important to note that there has been a lot of hate and angst outside of this room directed at politicians on all sides of the debate. It is totally unhelpful. It is also probably unhelpful to say, “It’s just me, your honour”, because all of us have had really horrible times. I think it is important to start by saying that. We need to defuse that, and I will try to take the lead and do that myself.
What we have heard today is a set of cherry-picked case studies of examples and exceptions. Each one of them will have been very complex cases that need complex answers. People are not simple. People are not just binary. Biology is not as simple as that, as I know that my hon. Friend the Member for Sheffield, Hallam (Olivia Blake) will attest to.
Olivia Blake (Sheffield, Hallam) (Lab)
Absolutely. There is a risk in this House of us talking about GCSE biology rather than actually biology. The aneuploidies XXX occurs in one in 1,000 women, and XXY occurs in one in 500 men. These are very common biological differences that do complicate the matter—and those are not intersex individuals, to be clear.
Lloyd Russell-Moyle
I appreciate that, and coming from a biologist that is important to note. People are complex. That is why flexibility in the current law is important. By defining things too much, what we suddenly do is assume that everyone lives in these easy, binary boxes. The current principle of the law, as my hon. Friends have mentioned previously, is that general and specific discrimination should not happen, but there are a number of exceptions for people with protected characteristics where discrimination can happen to provide specific spaces. We know that this can be on sex, race, disability and on gender reassignment.
However, the ability to have flexibility on one’s determination, such as in an organisation or on a specific place-by-place basis, is important. Survivors’ Network in my constituency, the predominant organisation supporting survivors of abuse, has for over 30 years decided to take a trans-inclusive approach to how it treats women’s spaces. That has been done through working out what the local need is for the service provision. The majority of providers in Britain choose to draw the line on biological sex. Both are legal. Because of the flexibility in the law, both can be determined.
What would happen if we then made a strict rule that the discrimination could only happen according to biological sex? Survivors’ Network would be barred from the flexibility that was dreadfully important in providing its inclusive service in our city. Moreover, we would have a legal provision that would prevent a trans man going to use male changing room facilities. I believe that in many respects we should try to find accommodation. A lovely new swimming pool has opened up in my constituency. It has fantastic changing facilities, with all individualised cubicles and individualised facilities. Gender is not an issue.
Jess Phillips
I have seen it come about that we now have non-gendered areas, and I have to say that I think there is a bit of a red herring. Lots and lots of women would still like to have a women’s changing area, but I have seen the solution to the issue being non-gendered areas.
Sir George Howarth (in the Chair)
Order. Before the hon. Gentleman resumes, there is a Division. We will suspend the sitting for 15 minutes.
Sir George Howarth (in the Chair)
Before Lloyd Russell-Moyle resumes, I should say that, because of the Divisions, the debate will now conclude by nine minutes past 8 and the wind-ups will begin no later than 7.39 pm. Could hon. Members bear that in mind?
Lloyd Russell-Moyle
I want the flexibility for these things to be locally determined—proportional means for legitimate ends. The current law works. Of course there will be examples that are wrong and need correcting, but that is why we need the Government to give greater guidelines. The problem is that the trans community do not have trust that those guidelines will be fair and balanced.
For me, the real issue—the injustice—is about the woman who will turn up tonight at Brighton, be told that there are no spaces in the refuge and be put into hostel accommodation with rapists down the corridor who have only just come out of prison. The real tragedy will be the young trans person tonight who cannot get access to mental health services. The real tragedy is 12 years of austerity and cuts from the Conservative Government, not some dog whistle about whether there should be clarity or not. There is. The law is clear. What we need are services.
Jonathan Gullis (Stoke-on-Trent North) (Con)
I congratulate the hon. Member for Gower (Tonia Antoniazzi) on her balanced approach at the start and on listening to all sides of the debate.
I start by making it very clear that no one here is looking for some sort of culture war, despite what some may think. No one here is trying to pit different people against each other; in fact, I firmly believe that both women and the trans community have the right to be protected. They are already well protected under many existing laws, including the Equality Act, the Gender Recognition Act and the Human Rights Act. There are plenty of laws in place. If we are being asked to clarify the law—not change, but clarify it—this Parliament has the right to do so as long as the majority vote for that.
I speak passionately about this issue. I have someone in my life—a woman—who fled domestic violence and found a refuge with her young daughter. She would have been terrified to have been near anyone, whether male or a trans woman, in that system, because of the abuse, rape and torture that they had both suffered. This is about them having the safety of a women’s refuge, to be around other female survivors. I regularly commend the hon. Member for Birmingham, Yardley (Jess Phillips) for being such a passionate champion of the cause.
Having lived with the woman I have described and heard about all the tragedy that she has had to go through, I understand why it is so important that women should have the protection of single-sex spaces and why it is wholly appropriate that we should clarify that law if we need to—to say that sex is defined by biology. Someone is not assigned their gender at birth; they are born male or female. A man is an adult human male and a woman is an adult human female. We should not be disputing those facts in the 21st century—these are the basics of biology that we talk about in our classrooms. I used to be a teacher. As head of year, I had responsibility for the safeguarding and welfare of children; I taught in an only-girls school as well as mixed-sex schools. I understand the challenges that come with some households and young individuals.
The issue is about making sure that women and girls feel protected and that the trans community have their rights and protections as well. It is befuddling to people in Stoke-on-Trent North, Kidsgrove and Talke that this debate should even have to happen—to them it is obvious that in the Equality Act “sex” was talking about the biological definitions of men and women. Of course, they also accept that if there needs to be clarity, we should get on with giving it.
I want my daughter to grow up looking to heroines such as the hon. Member for Canterbury (Rosie Duffield), the hon. and learned Member for Edinburgh South West (Joanna Cherry) and J. K. Rowling, who have been brave and bold enough to stand up for what they believe is important. Their rights should not be eroded because of an extremist minority shouting very loudly on social media and pursuing a very hard-line agenda that is not in keeping with the majority opinion, as we have seen during the national debate.
Sadly, women are being persecuted and facing abuse simply for speaking out, just as much as those in the trans community. The people who made money off J.K. Rowling’s hard work refused to stand beside her—they sit there in their multi-million-pound mansions, taking their private flights and trading on their position as actors and actresses because of her work. They had the gall to cancel her from being present at the show about the books that she herself wrote. It is extraordinary that we live in such times and that those individuals can be so cold and callous. That is why it is so important that we have this debate, which is about making sure that women feel and are safe and have their protections.
Dame Nia Griffith
Would the hon. Member like to clarify his understanding of the definition in the Equality Act? As I understand it, the Equality Act defines someone’s legal sex as being either the sex they were assigned at birth or the sex that they have acquired through having a gender recognition certificate. I do not think that that is what he has said in his speech.
Jonathan Gullis
I want to make it perfectly clear: sex is not assigned at birth. You are born a man or you are born a woman. Those are indisputable facts. You have XY chromosomes or XX chromosomes. Again, that is not up for debate or discussion. The hon. Member for Sheffield, Hallam (Olivia Blake) talked about XXY chromosomes, but as the NHS website points out, Klinefelter syndrome is caused by an abnormal amount of chromosomes. It does not relate to the separate debate about self-identification. Those two things are separate.
To finish, it is biologically clear that a male has XY chromosomes and a female has XX chromosomes. This is a scientific truth that should not be conflated with any constructed truth. William of Occam had it right that the simplistic approach is the best. Let us keep the Equality Act simple in order to protect the rights of everyone in a civil society. The problem with the debate we are having is that it is set in the context of a postmodern society that thinks that it can get away with dictating to those with universal convictions of truth that they must abandon them in favour of the nonsensical versions of their truth. Although the Algerian philosopher Jacques Derrida once pointed out that society is in a state of flux, he did not say that science is in a state of flux.
Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)
I have an observation to make before I turn to my remarks. I have worked in clinical practice for 25 years and it is absolutely anathema to me that any clinical member of staff would seek to allow their feelings to trump the privacy, dignity and rights of any patient in their care.
The one thing that I hope all sides can agree on in this debate is that the principle of equality is one that we should all embrace, cherish and protect. Our understanding of what that means and how it is achieved is the nub of this debate, as is our willingness or otherwise to accommodate each other.
I want to consider that foundation first. The notion of equality and its role in law is not new. Going back millennia, Aristotle argued:
“Equals should be treated equally, and unequals treated unequally.”
That enduring principle of equality requires that individuals should be treated the same, unless, of course, they differ in ways that are relevant for consideration to maximise their equality before the law. Understanding how we differ requires a shared and clear language to delineate and apply those considerations effectively. As in the days of Aristotle, sex, who is male and who is female has been the bedrock on which we have accommodated fundamental differences.
As a same-sex-attracted male, my sex and the sex of my partner is a primary defining characteristic of my identity and my protection in law. If sex were to mean anything other than the biological category of natal male, it would no longer be possible for me to delineate or describe who I am within the law, or for other gay men like me to be protected. That is true of other protected characteristics in the Equality Act, including the protection of the trans population, under the characteristic of gender reassignment.
I remember when I was first asked whether I believed that trans women were women. I was puzzled by the question, as it implied the need to subvert and subsume the meaning of “woman” as it is commonly understood. But it was not just that, because I see absolutely nothing controversial in calling a trans woman a trans woman, and a trans man a trans man. These are necessary biological categories for society and the Equality Act to accommodate, value and protect.
To deny that a trans woman is a trans woman suggests that there is something less, something other, about a trans identity—something to be hidden away in someone else’s identity. I reject that suggestion entirely. Now, as then, I value trans people and respect those who have chosen to make such a profound change to their lives in search of inner peace. But the act of subsuming rights or clouding language around equality goes far beyond those considerations. Without a stable, codified language, the whole meaning of protected characteristics, hitherto based on sex, comes tumbling down, which risks ushering in a chaotic and anarchic approach where equality legislation based on Aristotle’s fundamental principle becomes utterly impossible. Everyone suffers.
Children should be free to be their own individual, carefree, special selves, without adults imposing their gendered stereotypes on them. Telling children there is something intrinsically wrong with them is absolutely unforgivable. But if equalities legislation is to protect anyone, it must be able to effectively describe everyone.
Peter Gibson (Darlington) (Con)
It is a pleasure to serve under your chairmanship, Sir George. I congratulate the hon. Member for Gower (Tonia Antoniazzi) on ably leading the debate. Some 263 of my Darlington constituents have signed the petitions we are debating, but these issues are important to us all.
At the outset, I want to say this: trans people matter to me—trans people matter to me as a member of the LGBT community myself, trans people matter to me as members of my family and, most importantly, trans people matter to me as members of the community I represent.
This whole debate prompts strong feelings on all sides, and it is important that we in this place are careful to avoid fanning the flames of an already inflammatory backdrop. By and large, the Equality Act 2010 is clearly drafted and effective legislation, and I speak in favour of the status quo petition. In her recent response to the Government, Baroness Falkner said of changing the definition of sex that it
“could bring clarity in a number of areas”
but also “ambiguity in others.” This place should always be willing to consider clarifications to our legislation where ambiguity exists, but doing that as a knee-jerk reaction does not strike me as good law making.
My overriding fear is that the change suggested in respect of further definitions of sex would run the risk of excluding trans people from effective protection by the Equality Act. By restricting the definition of sex to sex assigned at birth, we could have a situation whereby protection from discrimination created a two-tier system. Trans people who are perceived to be cisgender would have more protection under the law than trans people who are not perceived to be cisgender. Changing the definition of sex in the Equality Act runs the risk of creating an environment of unintended consequences for people who do not conform to gender stereotypes, but nevertheless are cisgender. We must not make it easier to exclude, and safer to discriminate against, people who are part of one of the most vulnerable communities in society.
When looking at what these petitions call for, it is important that we note that changing the statutory definition of a protected characteristic is not “modifying” or “clarifying” the Equality Act; it is in fact changing it, and changing it in a way that alters its original intention and that could throw into question over 10 years of case law. The Gender Recognition Act 2004 establishes that a trans person with a gender recognition certificate is recognised in their legal sex for all purposes. It is already possible to exclude trans people from single-sex settings and services, where that exclusion is proportionate and has a legitimate aim. Many services already operate on that basis. What purpose would changing the definition of sex in the Equality Act serve, aside from allowing it to become even easier for people to discriminate against trans people?
As we have already heard, the population of trans people in the UK is small, with only a few hundred gender recognition certificates issued each year. Reducing trans people’s protections in law, and increasing the level of risk and uncertainty that they have in managing their day-today lives, should not be the goal of any Government or Parliament committed to LGBT equality.
I am determined that everyone in the UK should be free to live their life and fulfil their potential, regardless of their sex, gender identity, race or disability. I am clear that transgender people should be free to prosper in Britain. Our country has come a long, long way on LGBT issues—further than I could have ever imagined as a young man. We must not turn that progress back.
Kirsty Blackman (Aberdeen North) (SNP)
I thank the petitioners who brought the petitions forward and the hon. Member for Gower (Tonia Antoniazzi), who introduced them. I agree with the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard), who started off by saying that being non-binary or trans is valid. I will start off with that. I am going to offer a tiny bit of rebuttal in terms of the debate that has been had, but mostly I want to give voice to my trans constituents and the trans people who have contacted me about their concerns. I reject wholeheartedly any rhetoric that there has been in this room that has painted trans people as potential predators. There are potential predators, but to lump all trans people together as potential predators is to completely demonise a protected group.
I want to pick up on the fact that a number of Members have used the phrase “ordinary people”, when they mean “non-trans people”. There are an awful lot of people in my constituency who would consider themselves to be entirely ordinary, and who also happen to be trans. They are also extraordinary in their own ways, I am sure, but “ordinary people” is an exclusionary phrase when it is used as it has been by some Members in this debate.
Before I move on to discuss what my constituents have said, I want to say that I will be incredibly annoyed if I get a whole load of abuse on social media after this debate suggesting that I do not know what I am talking about because I am a straight woman, because it is entirely up to me what my sexual orientation is. For people to continually call me “straight” on social media is immensely frustrating, and I wish that it would stop.
We have talked about biological sex a number of times, but not one person has been able to explain what it is. The hon. Member for Stoke-on-Trent North (Jonathan Gullis) gave a good stab at it, talking about XX and XY chromosomes. I have no idea what my chromosomes are. I assume that they are probably XY, but I do not know—I have not got a clue what they are. I have a fair idea of what my genitals look like and how they compare with how other people’s look, but if we are talking about biological sex there needs to be a definition that everybody in this room can agree with. Nobody has been able to provide such a definition.
We continue to fail trans people, and we continue to fail women. Legislators continue to fail both groups, who are considered and treated as somewhat lesser in society. That is the case. We are a room of cis people debating trans people once again, and hatred and bile causes further risk for trans people. What will the impact be on trans people?
Kirsty Blackman
No.
We already have a situation where people are gatekept for going to the toilet. We already have a situation where people are attacked for the way they choose to present themselves.
I have constituents who came to me separately in relation to this issue. One of them said, “I’m not a danger. I just want to get on with my life and be able to go to the loo when I’m shopping.” Surely that is something we should want for everybody. Everybody should feel comfortable and able to access services. People should not have their two teenage daughters told that they cannot go into a loo because they have short hair and wear trousers rather than skirts, as happened to one of my friends. If we have a situation where people can tell what someone’s biological sex is, clearly they are gatekeeping the wrong people. Why are they continuing to do that if biological sex is so completely obvious to everyone?
Another trans person came to me. They were not the first to come to me with concerns of this nature. I will paraphrase what they said. When they heard about biological sex being included in the Equality Act and this change being made, they said, “What hope is left? Should I just kill myself now and be done with it?”
They will not rest until trans people are excluded from public life. This is what is happening as a result of this dog-whistle politics to try to demonise my constituents, who just want to get on with their lives, live in peace and go shopping in peace.
Caroline Ansell (Eastbourne) (Con)
It is a pleasure to serve under your chairmanship, Sir George. It is rather ironic speaking so late in the debate because the point I wanted to make and the argument I wanted to win were made and won before the debate started, when your predecessor in the Chair counselled Members that there were two live court cases associated with this subject. My point is that we are allowing individuals to operate in this seeming legal grey space, rather than us direct in Parliament. Those individuals and organisations are forced to run the legal gauntlet case by case, isolated and alone, and sometimes at very great cost to their reputation, to their career and to their health.
In common with many colleagues here, I rise to support the petition to clarify—not change—the Equality Act. The hon. Member for Aberdeen North (Kirsty Blackman) seemingly endorsed that change when she said we are currently failing trans people and failing women. Change is an imperative, because we must be very clear with trans people what the law can and cannot do. Equally, we must safeguard the rights of women to those same-sex spaces.
It would be indefensible if Parliament, seeing the outworkings of this conflation and confusion, did not act. It is a highly relevant point that the lead petitioner, Maya Forstater, spent nearly two years and £100,000 just to determine that she was indeed covered in the Equality Act by the protected characteristic of belief, and her case was won. The judgment of the employment tribunal in 2021 made it clear that the law could only mean that a GRC changes a person’s sex for certain legal purposes; it could not force other people to change their belief, and therefore their perception, of that person’s sex. Yet individuals continue to face complaints and investigations in every corner of the land and in every sector for asserting the protections they have under the Act.
Just last week, a young woman with the pseudonym of Maria told her story to the press of being investigated and driven out of her employment at Oxfam simply for defending J. K. Rowling against being called transphobic. Closer to home, as a Sussex MP, I saw with horror how Professor Kathleen Stock was hounded from her post and chased off the university campus simply for saying the truth: that male people and female people are two different groups. A woman who remains anonymous under the name “Sarah Surviving” is suing Brighton’s rape crisis centre for discrimination because it refused to provide a women-only peer support group. I would hope that my near neighbour, the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle), would speak with equal passion in her defence too.
When we look at each of these legal cases, a commonality we see is not only that the women concerned have to put themselves on the line to try to clarify the law, but that the judges invariably say how poorly suited the subject matter is for determination by the courts, as compared with Parliament. They caveat their judgments by saying that they are not pronouncing on broad debates on trans rights and women’s rights. The confusion in terms and in rights and responsibilities is souring the cultures of businesses and charities alike as they wrestle with what is required of them. The EHRC has fallen out with itself over this challenge. The debate in society is increasingly toxic.
I started my own consideration of this complex and sensitive issue some months back, when I knocked on a door in Eastbourne. After a chat, a grandad shared with me his dismay and heartache. His grandson aged five had come home from school and said, “We were learning if we were in the wrong body.” That is of course a serious question to be answered, but what was really chilling was that he said he was too scared to speak up, so I promised him that I would. It is our duty to speak up, so I commend clarity in the Act.
Sir George Howarth (in the Chair)
Order. It is worth reminding Members that there is some concern about sub judice. When my co-Chair opened the debate, she stated that Mr Speaker has agreed to exercise the discretion given to the Chair in respect of the resolution on matters sub judice to allow reference to the cases, given the issues of national importance that are raised. I call Anna Firth.
Anna Firth (Southend West) (Con)
It is a pleasure to serve under your chairmanship, Sir George. I rise to support the first petition to make the Equality Act clear, but I want to use my short time this afternoon to focus on the importance of protecting single-sex spaces and services.
I might be going back to the beginning, but, after such a long debate, that is not a bad thing. I want to begin by saying that people who are transgender must be supported to play a full part in society and public life. They should not be harassed or discriminated against. We in this place must be very careful not to stoke hatred of any kind towards them or any other section of society.
However, this debate is not about trans people or, more formally, people with the protected characteristic of gender reassignment. Their rights remain, quite properly, protected and unchanged. The issue is whether the 6,000 or so trans people who have a gender recognition certificate count for the purposes of equality and sex discrimination law as members of their own sex or of the opposite sex. Clarifying the Equality Act as suggested would make it clear that having a gender recognition certificate does not give male people the right to compete in women’s sports, undress or shower with women and girls, or be employed in a job that involves intimate contact with women, such as the example so very well described by my hon. Friend the Member for Northampton South (Andrew Lewer), in hospitals or women’s prisons.
Families, women and children in Southend West want to know that when the sign on the door says or indicates female, that is not up for negotiation. The only people who should be in that space are biological women. Biological males or trans women or non-binary people should simply not be in those spaces.
Like the common law, legislation regarding equalities and sex discrimination has evolved over time and it can be very complicated, but what we are talking about this afternoon is a very simple clarification. When we talk about sex discrimination in the Equality Act, we are talking about biological sex—nothing more and nothing less. We know that it is important that the law is clarified because we know there are exceptions throughout the Equality Act that allow for single-sex services, including, as we have talked about, specialist services such as women’s refuges, women’s prisons, women’s health services, and also everyday services such as public toilets and showers at gyms.
As well as making it clear that where the Equality Act refers to sex, that means biological sex, we must also be clear that the definition of a woman is someone who was born female and the definition of a man is someone who was born male. Of course people should be able to express themselves, but the simple fact is that someone who was born male, if they gain a gender recognition certificate, is not the same as someone who was born female, and they should not be accessing as of right female-only spaces and services.
Quite simply, as has already been said, if the Equality Act is not clarified, it will be impossible for service providers to exclude a biological male with a gender recognition certificate from any female space or specialist service. “Case by case” simply does not work. Operating without clear rules simply shifts the responsibility to service providers to make very difficult decisions about who should have access to female-only spaces and services, and who should not. A simple search on the internet reveals the extent of the confusion that reigns. To give just one example, the NHS promises single-sex accommodation in hospitals, yet NHS England’s annex B policy tells hospitals to allow trans and non-binary people to choose whether they are housed with men or women.
The situation is simply not clear. It is said that sporting bodies set sex-based rules, so clarification is not needed. I would say the exact opposite: the law must be clear about sex if sporting bodies are to feel confident setting sex-based rules.
I see that I am about to run out of time. I end by saying that recently I was horrified by the story of the fight between the boxer Fallon Fox, who identifies as a trans woman, and Tamikka Brents. Fox hit Brents so hard that she suffered from a concussion and a fractured skull, and received seven staples to her head. Purely and simply, that was a man fighting a woman. I do not believe that that is right or fair, and I do not want to see that happening in this country.
Kirsten Oswald (East Renfrewshire) (SNP)
It is a pleasure to serve under your chairship, Sir George. I thank the petitioners, the Petitions Committee and the hon. Member for Gower (Tonia Antoniazzi), who opened the debate on the Committee’s behalf. I am grateful to constituents and organisations who have been in touch with me.
I would like to make a couple of points to begin with. First, the tone of the debate has been mixed—that is the best way that I can describe it. Some of the language was not what I would consider measured. The hon. Member for Wallasey (Dame Angela Eagle) characterised some of it as “unedifying”, and that is true. Unfortunately, all too often, the tone of conversation about these issues is unedifying. In my experience, that is a problem. The people who lose out most because of that are not us, although I think it was the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) who pointed out that we will all have braced ourselves before standing up to speak today. The people most affected will be those directly impacted by the issue, but the change that is being sought is not likely to improve their life. As we have probably demonstrated quite effectively today, confusion would be likely to increase, to the detriment of trans people—and, potentially, women.
Members have repeatedly said that they are in favour not of changing the law, but of simply clarifying it, but it is a change that they are looking for. They are entitled to look for that change; I do not have to agree with it, but they are absolutely entitled to look for it. I do not know why that is the narrative. If they want to change the law, they should absolutely say that.
I am a middle-aged feminist woman, and increasingly a crabbit one, because I am fed up with the fact that women all too often still do not have fair treatment, or the rights that we absolutely should have. So let us hear much more about women’s rights. Let us hear about our rights in relation to buffer zones, and our reproductive rights—that is very topical today. Let us hear about our rights at work. Where is that employment Bill, which could have helped women so much? I could go on. Obviously this debate is not in that category, but the thing is that my rights are not diminished by someone else having their rights upheld. What endangers women is predatory and violent men. To be clear, the SNP’s support for trans rights does not conflict with our continued strong commitment to upholding rights and protections for women and girls under the Equality Act.
Kirsten Oswald
I am not going to give way to my hon. and learned Friend or anyone else. I have not intervened on anyone and for that reason, though I am grateful to her, I will continue.
I grew up and went to school in the 1980s. As I have said before in this Chamber, I thought that there were no LGBT pupils in my large secondary school. Obviously, I now know that that is absolute nonsense. It turned out that a number of my very close friends were LGBT, but I did not know that. Nobody did, because they did not feel safe to make their identity known because of the horrifically hostile environment at the time, with the section 28 debate and all. My real fear is that the current conversation about trans rights, including this debate—although maybe we should not call it a debate; nobody’s identity should be up for debate—is very similar in tone, and that is really damaging.
We have to be clear that trans people continue to suffer poorer outcomes. That needs to change, and the suggested amendment to the Equality Act would not change it in a positive way. I also point out that the Scottish Government need to be fully and formally consulted on any proposed material changes, including changes to the current definition of sex. Scotland’s Cabinet Secretary for Justice has written to the EHRC to seek clarification on that.
The reality is that recent communication on amending the definition of sex to biological sex represents a shift in direction by the EHRC, and that shift does not appear to have been made on the basis of meaningful evidence or meaningful consultation.
Kirsten Oswald
I am not going to give way.
The heat in this debate has appeared only quite recently. The polarisation I see taking hold here resonates with some of the culture war we see in the USA, where a very damaging narrative is taking hold that is imperilling the rights of women and of trans people in a very frightening way.
We have heard that there are a range of practical issues if this is the direction of travel, including confusion and a lack of clarity on basic things such as where you go to the loo. Obviously, people have been going to the loo without any issue for many years. Your appearance might suggest that you should go to the ladies, but what I am hearing today is that maybe you shouldn’t—how do you deal with that? That is actually rather a thorny issue and practically quite challenging for people. Unless you are going to accept huge breaches of people’s privacy, there is a significant unanswered question here.
The hon. Member for Oxford West and Abingdon (Layla Moran) correctly raised the issue of intersex people. It is important to point out that biological sex consists of a wide range of characteristics. In many cases, people do not possess the sex characteristics that are typically associated with their sex. For instance, a large proportion of adult women do not ovulate. I am one of those women. I hear these debates and I do wonder. Of course, we have heard about intersex characteristics that do not neatly align with binary categories.
There is a significant amount of work that we need to do here. We need to consider the work of organisations such as Engender, which is Scotland’s feminist policy and advocacy organisation. It points to evidence indicating that attempts to amend the Equality Act to limit the definition of sex as a protected characteristic to biological sex risk regression in protections for all women, as well as disproportionate and harmful exclusion of trans people. It makes reference to a paper called “On the Basis of Sex”, which was written by Nicole Busby, professor of human rights, equality and justice at the University of Glasgow. It commissioned that work, which clearly concludes that the Equality Act’s use of non-restrictive definitions is a strength and, as we have heard already, a deliberate approach. It recognises that
“discrimination on the grounds of sex often arises in relation to…socially constructed gender roles rather than biological difference”.
Their concern, which I share, is that there is no legal precedent for the definition of biological sex, as my hon. Friend the Member for Aberdeen North (Kirsty Blackman) noted. That means that there is not a way of looking at how we support women’s rights to privacy, for instance. That kind of change could have regressive consequences: it could actually entrench gender stereotypes and biological determinism for women. These are things that the feminist movement has fought long and hard against. Those are the kinds of concerns, along with the utterly shameful disdain of the UK Government for Scottish democracy that was aired recently when they rode roughshod over the cross-party will of the Scottish Parliament on gender recognition. Transgender people should not be expected to be treated as some kind of convenient political football for constitutional wrangling. They should not expect to have their identities weaponised in the culture wars, which are causing so much harm in the USA. Please, let us not have that here.
Kirsten Oswald
I am trying to continue speaking despite interruptions from behind me.
We should accept that all of us present may disagree—we probably all have various different views—but let us imagine that we are all here with good will and not trying to do others down. We are here because we are saying what we believe to be the case. We started the debate with Mrs Cummins, who was previously in the Chair, telling us to be moderate, sensitive and respectful in our language, and that is how we should aim to continue.
To conclude, I point out that we are talking about a small group of the most vulnerable people. The hon. Member for Darlington (Peter Gibson) pointed that out very eloquently. They are the very people who should be able to expect their Governments to find ways to make life easier and support their rights. Our new First Minister, Humza Yousaf, set that out very well:
“I am firmly committed to equality for everybody, because your rights are my rights regardless of who you are. My starting point is that I’ve been a minority in this country for my whole life. I have understood that you have to fight for your rights but my rights don’t exist in a vacuum or in isolation. They only exist because other people’s rights exist too.”
All other rights matter. The suggestion that this change would improve our rights is simply not the case.
Anneliese Dodds (Oxford East) (Lab/Co-op)
It is a pleasure to speak in the debate with you in the Chair, Sir George. I am grateful to everyone who signed both petitions and to my hon. Friend the Member for Gower (Tonia Antoniazzi) for the respectful way in which she began the debate.
The two petitions that form the subject of the debate and the large numbers of people who signed them make it clear that views on the issue are strongly held. It is vital that the Members of this House set an example on such matters, engaging in constructive, respectful and polite discussion of them. This discussion is important, because as well as the engagement on the petitions, many people relatedly seek clarity on the Conservative Government’s plans for the Equality Act. That includes my party, the Labour party, the party of the Equality Act. As many have remarked, it is now 13 years since my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) piloted that landmark legislation through this place, introducing a legal framework against discrimination by employers, businesses, schools, public bodies and many other institutions that many countries lack and still seek to learn from.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
My hon. Friend is making a powerful point about the Equality Act. I agree that it has been protecting people for 13 years in a whole range of areas, including in relation to not just gender identity, but race, age, breastfeeding and disability. Does she share my concern that the Conservative Government have a wider agenda here? The Prime Minister said that the Equality Act was
“a Trojan horse that has allowed every kind of woke nonsense to permeate public life.”
Does my hon. Friend agree that the wider agenda is to remove all the protections that we all enjoy?
Anneliese Dodds
My hon. Friend is absolutely right to point out that there is huge confusion about the Government’s position. We heard those comments from the Prime Minister last summer. In 2020, we heard the then Minister for Women and Equalities, the right hon. Member for South West Norfolk (Elizabeth Truss), criticising what she claimed to be a “focus on protected characteristics” and saying that that had led to
“a narrowing of the equality debate”.
A similar position has been maintained by her successor, the right hon. Member for Saffron Walden (Kemi Badenoch), and yet, confusingly, we have also had the Prime Minister claiming to back the protections that the Equality Act contains for women. To listen to him, one would not think that those protections had already been enshrined in law for 13 years—a law that, of course, his party opposed repeatedly as it was being passed.
That is important context, because we cannot understand the Government’s intentions when we have a Prime Minister who will attack the Equality Act one day, only to cast himself as its defender the next. Today, I can be very clear that Labour remains committed to protecting and upholding the Equality Act, including the public sector equality duty, its protected characteristics and its provision for single-sex exemptions.
I ask the Minister to be clear in her remarks. Does she support the Equality Act? Does she agree that statements attacking it from her colleagues risk eroding public confidence in its protections? And will she commit to explaining to her colleagues, including the Prime Minister, that the overwhelming consensus view of the British public is in favour of those protections and of greater equality and fairness?
On the specificities of future changes that many have talked about during the debate, as the party of equality Labour wants trans people to be treated fairly and with dignity and respect. Labour also supports the protection of certain spaces that are for biological women, such as refuges for vulnerable women, which are provided for by the single-sex exemptions contained in the Equality Act. Indeed, it is thanks to Labour’s Equality Act that it is possible today for service providers to create and maintain single-sex services where that is a proportionate means of achieving a legitimate aim. That system has been in place for well over a decade, and many of the service providers I speak to tell me that it provides an effective and robust framework for dealing with what are often difficult decisions around service operation. We can see that in codified form in, for example, the guidance of Women’s Aid Federation of England on these matters.
The Equality Act protects everyone, which is why any changes to it need to be carefully thought through and why clarity on these issues is important. Labour believes that we need to have a common-sense approach that provides clarity for service providers for different circumstances—both those in which trans people should be included and those in which excluding trans people is a proportionate means to a legitimate end. The problem is that the Government have provided no indication of how they would provide that clarity, aside from leaning into the idea of amending the Equality Act—something that contradicts their written response to today’s petitions. I hope that the Minister can set the record straight on that. It is especially important given that we have heard contradictory statements on the subject from different parts of her Government.
Some colleagues have already referred, I think helpfully, to the recent exchange of letters between the Government Equalities Office and the Equality and Human Rights Commission. The chair of the EHRC made it clear that any potential future changes to the Equality Act could bring clarity to some areas but potential ambiguity to others. That is why the Government need to urgently explain what future changes, if any, they are in the process of identifying and set out whether they agree with the EHRC that such changes could bring greater ambiguity to other areas, and if so what the impact of that would be on anyone with a protected characteristic.
Detailed policy and legal analysis is clearly required before the UK Government can effectively respond to the EHRC’s letter, so can the Minister confirm whether that detailed policy and legal analysis is being carried out? If so, will she commit to publishing it so that the House can scrutinise the Government’s position, and will she confirm whether the Government plan to reply to the EHRC? When the Government come forward with any proposals out of all the rumours that we have heard in the press, Labour will respond accordingly. The last Labour Government did more to advance the cause of equality than any other in history. The next will put equality at the heart of their policies, and break new ground for women and for LGBT+ people.
I associate myself with the remarks made by my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) in relation to recent votes on legislation, and I have to broaden her point. We have seen extensive engagement from those on the Government Benches on the issues that we are discussing today. We need to discuss them—politely and in detail—but I wish that we had seen over the last 13 years the same level of engagement from those on the Government Benches while so many women got poorer and poorer, while so many women saw their health deteriorate, with maternal mortality now increasing, while so many women and girls have become increasingly unsafe, and while impunity for violent men has in many cases increased.
The Minister for Women (Maria Caulfield)
It is a pleasure to serve under your chairmanship, Sir George.
I am especially grateful to the hon. Member for Gower (Tonia Antoniazzi) for introducing this debate in such a sensitive way, and I am also grateful to all right hon. and hon. Members for their contributions. I feel that we should be able to debate these issues openly and honestly, without being labelled or attacked for having particular opinions or views, and that we should be able to disagree respectfully. I also feel that on all sides of the debate, despite the reservations of some, we have been able to do that this afternoon in a civilised way and I pay tribute to everyone involved.
Peter Gibson
Members will have noticed that my hon. Friend the Member for Bridgend (Dr Wallis) has not returned to the Chamber. As he is this House’s only openly trans Member, I think it is really important that we send a message to him that this important debate is not about him and that it should be conducted with love, respect and care for every single person who is in the trans community, whether they be in this House, in the Public Gallery or watching from outside.
Maria Caulfield
I thank my hon. Friend for making that point. I spoke to my hon. Friend the Member for Bridgend (Dr Wallis) before this debate, because he had some genuine concerns that he wanted to raise, and I am very happy to follow up after the debate to make sure that we can talk through any concerns that he did not get a chance to raise.
The Equality Act 2010 is at the heart of today’s debate. As with any other piece of legislation, over time we need to reflect on its effectiveness and purpose. It is only right—indeed, it is our duty as parliamentarians—to ensure that we constantly review legislation, to keep assessing whether the statute book is still able to provide a framework that is relevant and responsive to the issues that we face today. Put bluntly, our law has to be functional and able to take into account everyday experiences and respond to modern challenges. Failing to guarantee that would be to do a disservice to our constituents and those who rely on the law to carry out their functions and safeguard their basic rights. With legislation, it is important to note that work on the ground and in practice means recognising that there are instances where protections interact with—and are at times in tension with—the rights of others, giving rise to discussion and debate about how to ensure that the rights of all involved are best protected.
Currently, references to sex in the Equality Act relate to a person being either a man or a woman. A woman is defined as
“a female of any age”,
and a man is defined as
“a male of any age”.
Reference to sex has generally been considered under the Equality Act to refer to whether a person is a man or woman in law, rather than to their biological sex or sex at birth.
Joanna Cherry
Can I just be very clear that those of us who support the first petition are not seeking to define sex in law for the first time? Sex has long been recognised in the common law. I refer to the Minister to the House of Lords definition in Bellinger v. Bellinger. I am sure that the Minister will agree that we are not seeking to define it for the first time. Everyone knows what a man is and what a woman is.
Maria Caulfield
Absolutely. For most people, their sex in law is the same as their biological sex. It is different where a transgender person has legally changed their sex to their acquired gender on their birth certificate by obtaining a gender recognition certificate. If “sex” meant someone’s sex in law, references to a woman in the Equality Act would include a trans woman with a gender recognition certificate but not a trans woman without a gender recognition certificate. That said, the Equality Act protection applies on the basis of perceived characteristic as well as actual characteristics, so a trans woman who passes as a woman can claim protection from discrimination on that basis. The debate today is about whether that basis of sex, based on law rather than on biology, needs changing to ensure that the rights of biological women are also protected. That is the crux of the matter that we have been debating today.
It is in that spirit that the Minister for Women and Equalities, my right hon. Friend the Member for Saffron Walden (Kemi Badenoch), sought advice from the EHRC as the independent equality regulator for Great Britain. When seeking that advice, she set out that she is concerned that the Equality Act may not be sufficiently clear in the balance that it strikes between the interests of people with different protected characteristics. It is everyone’s best interests that we establish whether the law in its existing format is sufficiently clear, because not doing so, as we have heard today, could have very practical consequences. The continued debate on this matter inevitably creates additional considerations for organisations and service providers to navigate, potentially preventing them from carrying out their functions or indeed from complying with the responsibility for equality.
The Prime Minister has also publicly given his views on this issue. In April he said:
“We should always have compassion and understanding…for those who are thinking about…their gender. But when comes to these issues of protecting women's rights, women's spaces, I think the issue of biological sex is fundamentally important when we think about those questions”.
That is why, when it comes to women’s health, sports or spaces, we need to make sure that we are protecting those rights.
Jess Phillips
It is interesting to hear the words from the very top of Government. I wonder if the Minister will be joining us in the Lobbies during the Victims and Prisoners Bill to ensure that specialist women’s services are defined in law and are protected in commissioning at a local level, where currently they are being let go.
Maria Caulfield
I know that the hon. Lady campaigns passionately on those issues from her experience of working in the sector. As a Government, we have done a huge amount for women in the space of domestic violence and abuse.
The Equality and Human Rights Commission has published its considered response to my right hon. Friend the Member for Saffron Walden, stating that on balance it believes that redefining sex in the Equality Act to mean biological sex would
“create rationalisations, simplifications, clarity and/or reduction in risk for maternity services, providers and users of other services, gay and lesbian associations, sports organisers and employers. It therefore merits further consideration.”
It has, as the shadow Minister, the hon. Member for Oxford East (Anneliese Dodds) said, said that it could cause some ambiguity as well. That is why it is important that we consider, both in policy terms and in legal terms, the potential implications of this change before we take any further decisions.
The Government have taken that advice and are considering the next steps at the moment.
Stephen Doughty
I wonder if the Minister has had a chance to consider the interim advice given by the United Nations independent expert on sexual orientation and gender identity, who has been very critical of suggestions of opening up the Equality Act and reviewing these positions, seeing them as taking rights away from people who should be protected and are protected at present.
Maria Caulfield
As we have heard, there are many views on this issue. That is why it is important that we take the time to properly consider the policy around it and take in the legal considerations, too. There are clearly cases where people are struggling to make practical decisions on a day-by-day basis with the Act as it stands. However, we do not want to create additional unforeseen problems by changing or clarifying the Equality Act.
Joanna Cherry
The Minister is being very generous with interventions. Is she aware that the United Nations special rapporteur on sexual orientation and gender identity does not speak for all people who have same-sex orientation? He certainly does not speak for me. Is she equally aware that the United Nations special rapporteur on violence against women and girls, Reem Alsalem, takes the opposite view and is very much focused on the protection of women?
Maria Caulfield
The hon. and learned Lady highlights the diversity of views in this space. That is why it is so important to take proper consideration and time before deciding our next steps. I know that Members will be eager to hear updates and reassurances, as well as the timeline for our next steps. However, the issues under discussion today are complex, and we need to proceed carefully and respectfully. As we have heard, a wide number of people will be affected by any change. I hope that Members will agree that it is only right and proper that we take timely consideration of the advice that we have been given before coming to any conclusions.
I will touch on some of the issues that were raised in the debate, particularly around single-sex spaces. I would like to reassure Members that the Government are committed to maintaining the safeguards that allow organisations to provide single-sex services. We recognise that being able to operate spaces reserved for women and girls is an important principle, and—to answer the question from the hon. Member for Oxford East—should be maintained.
As many here will already know, under the Equality Act, providers are already able to restrict the use of spaces on the basis of sex and/or gender reassignment where justified. The Act provides protection against discrimination, harassment and victimisation across a number of grounds, including sex. We are committed to upholding Britain’s long-standing record of protecting the rights of individuals against unlawful discrimination.
The EHRC has published guidance on the existing legislation, which provides much-needed clarity to those offering single-sex spaces. It does not change the legal position or the law. As that guidance makes clear, it is currently entirely acceptable for providers of single-sex services to take account of the biological sex of their service users. Where it is a proportionate means of achieving a legitimate aim, the Equality Act is also clear that service providers can exclude, modify or limit access for transgender people even when they have a gender recognition certificate.
When women are asked, privacy and dignity are high on the list of reasons they give for wanting such spaces. That is because they will be in a state of undress or in very vulnerable situations. Those spaces are also frequently relied upon during some of the most harrowing and distressing times that women and girls can experience. Their ability to feel safe and secure should always be of paramount importance, and we understand that creating environments where they are protected from further trauma is a crucial part of enabling them to heal.
My hon. Friend the Member for Bridgend is not now in the Chamber, but I hope he will not mind me saying that single-sex spaces are one of his concerns. We heard a bit about it in today’s debate. We have to be careful when making the assumption that one of the reasons that women want single-sex spaces is because they feel that trans people are of a predatory nature. That is not the case. The vast majority of women just want to be with other women. We need to be mindful of our language and tone, so that the trans community do not feel that they are being given labels or are being targeted in an inappropriate way. My hon. Friend made that point to me ahead of the debate.
The EHRC’s guidance is helpful for those wishing to navigate such scenarios with the care and delicacy needed. I encourage all Members to review it, and if there are queries from constituents, or organisations within constituencies, to refer people to the guidance, because it is helpful in practical terms.
There were a number of Members who touched on the issue of gender recognition and the long waiting list that many people face when going through the process of changing their legal sex. There are processes in place with the right checks and balances to allow those who wish to legally change their gender to do so. We have taken action to simplify the process following the consultation on the Gender Recognition Act. We have modernised the way that individuals can apply for a gender recognition certificate by moving the process online and making it cost significantly less.
In addition, we are opening up more gender identity services for adults. A new pilot gender clinic was opened in Chelsea and Westminster in 2021. We have since established four new community-based clinics in Greater Manchester, Cheshire, Merseyside, London and the east of England, with a fifth opening in Sussex later this year. All those clinics offer a range of clinical interventions that are offered by conventional gender clinics. We are trying to make the process as easy and supportive as possibly by tackling some of the practical barriers that those in the trans community face when they want to transition in a clinical way.
I thank Members again for their contributions. There are strong feelings on all sides, as shown by the numbers of people who signed both petitions, and by the Members of Parliament who fairly represented both sides of the argument today. The Government recognise the importance of biological sex, and we have taken it seriously enough to ask for advice from the Equality and Human Rights Commission. We will come back to this place once we have considered in detail the policy and the legal implications of changing or updating the Equality Act. I thank everyone for taking part in the debate, contributing to the discussion and affording the issue the respect it warrants.
Tonia Antoniazzi
It is our privilege and responsibility to weigh up different groups’ rights, needs, interests and demands as we debate and amend the laws of this land. That is the bread and butter of the work of this House. I applaud all hon. Members—whatever their position on the substance of the two petitions—who have turned up to discuss them, and who have ignored the calls for no debate. We are doing our work, and this is a democracy.
The two petitions concern only the question of whether a GRC changes a person’s sex for the purposes of the Equality Act; they are not about gender self-ID. Also, the purpose of the GRC is nothing to do with what some speakers referred to as “intersex”. The question of whether GRCs change a person’s sex for the purposes of the Equality Act has nothing to do with those medical conditions, and people with those conditions have said many times that they do not want to be drawn into these discussions. They, and organisations that represent them, have said that these are complex medical conditions. There is no third sex or intermediary sex, and people with those variations on the sex development pathway are either male or female.
What has come across very strongly in arguments today is that one of the purposes of single-sex spaces is risk management. Speakers have made it clear that it is not about suggesting that all male people or all trans people are predators; it is just that single-sex spaces are an important risk management tool, given the overwhelming statistics in the patterns of male violence.
It has been an important debate for me to lead for the Petitions Committee, and to hear various views from across the House—some respectful, some less so. We are responsible for legislating, and we have to discuss issues. I wish no ill on anybody, whether they be trans, lesbian, gay or bisexual. This is important to me and to my trans community in my constituency, and it is important to all of us.
Sir George Howarth (in the Chair)
Before I put the Question, let me say that my co-Chair appealed to people at the start of the debate to deal with this sensitive issue in a respectful manner. Before she left, she pointed out to me that, during her time in the Chair, it had been dealt with in that way. I thank everybody, as others have, for the respectful and thoughtful way in which they have put their arguments during my time in the Chair. People feel strongly about this issue, but it is no reason to be abusive, and I do not think that people have been. Thank you for that.
Question put and agreed to.
Resolved,
That this House has considered e-petitions 623243 and 627984, relating to the definition of sex in the Equality Act 2010.
Written Statements
(11 months, 3 weeks ago)
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UK Biological Security Strategy 2023
(11 months, 3 weeks ago)
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The Deputy Prime Minister (Oliver Dowden)
The Government are today publishing the 2023 Biological Security Strategy. The strategy sets out the Government’s ambition to ensure that by 2030 the UK is resilient to a spectrum of biological threats and a world leader in responsible innovation, making a positive impact on global health, economic and security outcomes.
The new strategy will equip us to respond to a spectrum of biological risks—improving our preparedness to future pandemics, but also hardening our defences to biological weapons and mitigating the risks of biological accidents and incidents. To overcome these threats, we must be proactive, collaborative and holistic in our approach.
We will adopt a globally-facing, UK-wide posture that strengthens resilience and deterrence, projects global leadership, and exploits opportunities for UK prosperity and science and technology advantage. We will continue to work closely with industry, academia, the devolved administrations and our closest international partners to encourage responsible innovation while ensuring the UK is able to turbo-charge our thriving life sciences and biotechnology sectors, stimulating growth, creating high-tech jobs, and attracting inward investment.
The strategy will prioritise national capabilities to shore up our current defences, learning and applying lessons from our experiences through covid-19.
Key commitments include:
Developing a biothreats radar and national biosurveillance network to detect and monitor emerging biological threats to the UK;
Establishing a new UK Biosecurity Leadership Council, bringing together academic and industry leaders to help establish the UK as a world leader in responsible innovation;
Developing new UK-based microbial forensics tools and capabilities to support efforts to attribute biological incidents and deter the proliferation and use of biological weapons;
Engaging with industry to further UK efforts to achieve the 100 days mission—reducing the impact of future pandemics by making vaccines, therapeutics and diagnostics available within 100 days of a future outbreak;
Formalising the leadership structures that oversee our biological security—including a lead Minister who will report annually to Parliament;
Establishing a biological security task force in the Cabinet Office to co-ordinate UK-wide efforts on biological security, including exercising our response to future threats.
Copies of the strategy are today being laid in Parliament.
[HCWS841]
Energy Tax
(11 months, 3 weeks ago)
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The Exchequer Secretary to the Treasury (Gareth Davies)
The Government introduced the Energy (Oil and Gas) Profits Levy (EPL) in May 2022 to tax the temporary extraordinary profits of oil and gas companies, and to help fund vital support for millions of people facing rising bills, including the energy price guarantee and additional support for those most in need. With this levy in place, the UK has a tax rate of 75% on profits from oil and gas production, which is expected to raise around £50 billion between 2022-23 and 2027-28. This is one of the highest tax rates for oil and gas production globally.
While ensuring that oil and gas companies pay their fair share, it is also important that the Government support jobs, supply chains and the country’s energy security. A faster decline in domestic production would mean importing more oil and gas—at greater expense and potentially resulting in additional emissions. This is why today the Government will give operators and lenders the confidence they need to keep investing in the UK’s domestic energy reserves, while being clear that while prices remain high, the Government will continue to tax extraordinary profits.
Through the introduction of an energy security investment mechanism, the Government will ensure that the EPL is disapplied if oil and gas prices fall to historically normal levels for a sustained period. The energy security investment mechanism will only be activated when prices consistently meet or fall below a level typically associated with pre-crisis household energy bills. The mechanism will use a 20-year historical average to the end of 2022, so that it is set at $71.40 per barrel of oil and £0.54 per therm of gas. The Government will require average prices to meet or fall below the level of both price thresholds for two successive quarters before disapplying the EPL and will set out further details on how this will work in due course. This mechanism is not expected to impact receipts from the energy profits levy, based on current market forecasts.
In the 2022 autumn statement, the Chancellor announced a review into the long-term fiscal regime for North sea oil and gas, to ensure that the regime delivers predictability and certainty, supporting investment, jobs and the country’s energy security. The Government have published terms of reference for this review, setting out its scope and objectives. The review will focus on how the fiscal regime can support the country’s energy security while also realising our net-zero commitments in the medium and long term.
In addition, the review will explore how the fiscal regime should respond to any future price shocks, ensuring that the country retains a fair return in exchange for the use of its resources in a high-price environment.
The full terms of reference can be found on the gov.uk website at:
https://www.gov.uk/government/publications/review-of-the-oil-and-gas-fiscal-regime-terms-of-reference.
[HCWS845]
National Insurance Record Gaps
(11 months, 3 weeks ago)
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The Financial Secretary to the Treasury (Victoria Atkins)
The Government intend to extend the deadline for eligible individuals to retrospectively fill gaps in their national insurance record for the period covering April 2006 to April 2016. The current 31 July 2023 deadline will be extended to 5 April 2025.
This extension will also apply to contributions relating to all years which would reach their payment deadline before 5 April 2025, including tax years 2016 to 2017 and 2017 to 2018. All relevant voluntary national insurance contributions (NICs) payments will be accepted at the rates applicable in 2022 to 2023 until 5 April 2025.
This extension means that people will have more time to fill gaps in their national insurance record that may increase the amount they receive in state pension.
Furthermore, HMRC and DWP are taking the opportunity through the extension period to make improvements to the digital service, with the intention that ultimately the majority of customers should be able to complete the process online. Further announcements will follow in due course.
[HCWS843]
School Inspection
(11 months, 3 weeks ago)
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The Minister for Schools (Nick Gibb)
The Office for Standards in Education, Children’s Services and Skills (Ofsted) has today announced a number of changes to its inspection process in England.
Ofsted will be clear that, following the completion of a school inspection, it is for the head teacher to decide which colleagues, or others, they share their provisional inspection outcome with, prior to the publication of the inspection report. As provisional outcomes can sometimes change these should not be published or shared with parents until finalised.
From September, when discussing a school’s areas of weakness, inspection reports will normally refer to “the school”, rather than to individuals. Contextual information at the end of reports will list all those with responsibility for the school.
Ofsted has today set out more information for schools on the broad timing of their next inspection. Schools will continue to receive one day’s notice of an inspection, but will now have more clarity about the year in which they are likely to be inspected. This will be of particular benefit to outstanding schools that were previously exempt from routine inspection.
Inspectors will now return more quickly—within three months—to schools graded inadequate overall due to ineffective safeguarding, but where all other judgements were good or better. If a school has been able to resolve the safeguarding concerns it is likely to see its overall grade improve. The Secretary of State will then be able to decide whether to revoke any academy order applying to the school, or withdraw any warning notice issued to an academy Where inspectors are due to return to a school in these circumstances, the timeframe for the implementation of an academy order will allow for reinspection and for the Secretary of State to revoke the order where the grade improves.
From September, Ofsted will provide schools with greater clarity about the threshold for what constitutes ineffective safeguarding through its inspection handbook and a range of other mechanisms. Inspectors will also describe ineffective safeguarding more clearly in inspection reports.
Ofsted has today launched a formal consultation on changes to its complaints system.
The Government are today confirming a significant expansion of their wellbeing support programme for school leaders. This will see a doubling of places available for this year, and will enable an additional 500 school leaders to access expert supervision and counselling.
[HCWS839]
Publication of the Safe Care at Home Review
(11 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for the Home Department (Miss Sarah Dines)
My hon Friend the Minister for Social Care (Helen Whately) and I are pleased to announce that the Government have today published the “Safe Care at Home Review”, which has been jointly led by the Home Office and the Department of Health and Social Care.
Millions of adults receive excellent support in their own homes from paid, unpaid and voluntary carers. We know this is greatly valued, helping people with practical day-to-day tasks to live more independent and fulfilling lives.
However, we were concerned by the evidence presented by peers and the disability sector during the passage of the Domestic Abuse Act 2021 about existing measures to protect and support people who are abused by people who are providing their care. We undertook this review as a direct response to this evidence.
In this review we spoke to a wide range of stakeholders including representatives from the Deaf community, older people’s and disability organisations, people providing care, health and housing professionals, local authorities, social work professionals, the police, the Crown Prosecution Service (CPS) and other Government Departments. We would like to take this opportunity to thank those who provided evidence for this review and especially people who shared their personal and often harrowing stories.
This report includes a clear set of actions for this Government to take forward. We will continue to build on existing efforts to support and protect people in need and deliver quality services to victims and survivors of abuse. We will also redouble efforts to improve our understanding of this horrific form of hidden abuse. The review found this type of abuse can be far-reaching, and in certain cases has grave consequences. We remain committed to making sure people with care and support needs receive high quality and safe care in their own homes, and do not suffer from abuse or neglect by people providing that care.
These commitments go hand in hand with the Government’s wider work to improve adult social care, which includes a historic funding uplift over the next two years and the suite of reforms set out in the next steps to put people at the heart of care plan. In particular, the plan acknowledges the importance of investing in and supporting unpaid carers; improving recruitment and retention of paid carers; and ensuring the new Care Quality Commission local authority assessment framework includes monitoring the implementation of safeguarding duties from the Care Act 2014.
The evidence and action plan proposed from this review also reinforces this Government’s ongoing work to tackle domestic abuse and violence against women and girls (VAWG) more broadly. We have already taken steps to tackle these crimes including funding £230 million for increased support for victims and survivors; introducing coercive and controlling behaviour as an offence in 2015; passing our landmark Domestic Abuse Act 2021; strengthening guidance on domestic abuse and publishing the ambitious tackling violence against women and girls strategy and domestic abuse plan.
Having listened to stakeholders’ concerns and what they want to see in response, this report sets out a series of cross-Government actions to address the following three themes:
Leadership and accountability: we heard concerns about fragmented oversight and accountability of safeguarding in England which can result in an over-reliance on sector led improvement and missed learning opportunities.
Effectiveness of the local response to abuse in the home: local responses to this form of abuse can be inconsistent and ineffective where frontline staff are not equipped with the right tools to understand its nature or navigate the complex legislative framework.
Research, evidence and learning: relevant data is often held in disparate places across Government Departments and agencies. The limited research on this type of abuse poses a significant problem when it comes to understanding and tackling it effectively.
We will continue to work with partners to ensure improvements are made and to progress the 26 actions from the review.
Together, this set of actions will help us continue to protect and support people with care and support needs who are at risk of, or are being, abused in their own home by the person providing their care.
A copy of the review report has been placed in the Libraries of both Houses and published on www.gov.uk.
[HCWS842]
Homes for Ukraine Scheme
(11 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)
Over 120,000 Ukrainians have now arrived in the UK through the Homes for Ukraine scheme. The generosity of British families willing to open their homes to those seeking shelter has been extraordinary.
Today, I am pleased to confirm the allocation of the £150 million UK-wide funding that will be made available to local authorities and devolved administrations in 2023-24. This will ensure that Ukrainian guests can be supported to move into their own homes and reduce the risk of homelessness.
The funding will be allocated across the UK in relation to the proportion of Ukrainian guests in each part of the UK. Devolved Administrations will receive their share of the funding at supplementary estimates via budget cover transfer.
Funding will be allocated to all local authorities in England reflecting both Homes for Ukraine arrival numbers reported for each local authority and wider homelessness pressures. As a top-up to the existing homelessness prevention grant, this grant is ringfenced to ensure local authorities are resourced to prevent homelessness. We expect funding will be prioritised for supporting our Ukrainian guests into sustainable accommodation, for example through access to the private rental sector, supporting employment access, and facilitating ongoing sponsorship into guests’ second year.
Local authorities are best placed to understand the support needed for local communities and, within England, this funding may also be used to support other people at risk of homelessness in line with local pressures. The details of allocations to devolved administrations and local authorities have now been published on www.gov.uk.
[HCWS840]
Omagh Bombing Inquiry
(11 months, 3 weeks ago)
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The Secretary of State for Northern Ireland (Chris Heaton-Harris)
On 2 February, I announced that I would establish an independent statutory inquiry into the preventability of the Omagh bombing, the Real IRA-perpetrated atrocity in August 1998 which killed 29 people and two unborn children, and injured 220 others. The responsibility for this appalling crime lies with the murderers and those that assisted them. It is important that all lessons are learned and that confidence in this is given to the families of those affected.
The inquiry will be established under the Inquiries Act 2005, with full powers, including the power to compel the production of documents and to summon witnesses to give evidence on oath.
Since that announcement in February, my Department has been steadily progressing the establishment of the inquiry, with a key priority being to identify a suitable chair.
After careful consideration, I am today announcing the appointment of Lord Alan Turnbull as chair of the Omagh Bombing Inquiry. Lord Turnbull has had a distinguished judicial career in Scotland. He was the lead prosecutor in the Lockerbie bombing case in 1998, and in 2006 was appointed a senator of the College of Justice, and a judge of the Court of Session and High Court of Justiciary—the Supreme Courts of Scotland.
Lord Turnbull’s appointment to the role of chair of the Omagh Bombing Inquiry follows a recommendation made by the Lord Chief Justice of England and Wales, in conjunction with his counterparts across the rest of the UK. Lord Turnbull’s long-standing judicial career and his previous experience of working on terrorism cases will provide the highest levels of knowledge and professionalism. I have no doubt that Lord Turnbull will bring to the inquiry the required rigour, independence and impartiality, and I am grateful to him for accepting this important job.
I will now work with Lord Turnbull to agree the terms of reference for the inquiry. I will update the House further once the terms of reference have been agreed.
[HCWS844]
Office for Nuclear Regulation: Corporate Plan 2023-2024
(11 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Work and Pensions (Laura Trott)
Later today, I will lay before this House the Office for Nuclear Regulation’s corporate plan 2023-2024. This document will also be published on the ONR website.
I can confirm, in accordance with paragraph 25(3) of schedule 7 to the Energy Act 2013, that there have been no exclusions to the published documents on the grounds of national security.
[HCWS846]
House of Lords
Free Music Education
(11 months, 3 weeks ago)
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Baroness Fleet
To ask His Majesty’s Government what steps they are taking to provide free music education for all children aged five to 14.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, this Government recognise the importance of all pupils receiving a broad and ambitious music curriculum. As set out in the national plan for music education, we expect schools to teach at least one hour of music a week. We have committed £70 million per annum for music hubs until 2025, alongside £25 million for musical instruments. We will consider future funding for the next spending review in due course.
Baroness Fleet (Con)
My Lords, I thank my noble friend the Minister for that Answer and declare my interests as registered, including as former chair of the national plan for music education. The national plan for music education is ambitious, but does it not need to be well funded to succeed? The Department for Education currently provides £76 million a year for music education, but there are nearly 7 million children aged between five and 14 in our schools, all of whom should be learning to play an instrument, sing and many other things besides. We can all do the maths: children from disadvantaged families are missing out. They simply cannot afford to learn to play a musical instrument.
What is the logic of going for growth in the creative sector, which includes music, if there is so little support for the pipeline of talent? When do the Government plan to provide sufficient funds to ensure that children from low-income families can fulfil their potential as musicians and become part of the pipeline of talent for our brilliant conservatoires and orchestras?
Baroness Barran (Con)
I thank my noble friend for her part in chairing the national plan for music education. She will understand much better than I that money is important but not the only thing that allows children from less advantaged backgrounds to participate in music. Every child is offered the opportunity for a range of musical experiences at schools. We have funding for the Music and Dance Scheme, for particularly talented young people who have been identified, of more than £30 million this year. We will also publish more about our funding of the music progression fund shortly.
Baroness Whitaker (Lab)
Did the Minister take note of the report some years ago by Darren Henley, which gave evidence that music education opens a door to all other kinds of learning? Should not all children have this benefit?
Baroness Barran (Con)
I completely agree, which is why all children do have this benefit and why music education is part of the national curriculum from key stages 1 to 3.
Lord Wallace of Saltaire (LD)
My Lords, I declare an interest as the former chair of the VOCES8 Foundation, which is a music education charity. We have found from going into primary schools that a large number of them have no teachers with any musical expertise. If that is the situation, it is difficult to do things such as getting the whole school to sing together, which clearly improves the entire atmosphere, let alone encouraging the more talented people. Are the Government willing to commit to ensure that every primary school has at least one teacher with basic musical training?
Baroness Barran (Con)
I understand the point that the noble Lord makes, but the data for 2021-22 shows that more than 86,000 hours were spent teaching music in secondary schools—I know the noble Lord referred to primary schools—which is more than at any time since 2014-15. The number of teachers has also increased since that date and now stands at more than 7,000, of whom 83% have a relevant post-A-level qualification.
Lord Berkeley of Knighton (CB)
My Lords, the aspirations of the plan are admirable, but surely we need to see less reliance on hubs and more reliance on actual music in schools. The best way to do that is to get music back on the EBacc, of course. I realise that is perhaps a forlorn hope at the moment, but will the Minister tell me how the Government are going to find the right number of teachers, especially those trained to deliver music in schools?
Baroness Barran (Con)
The noble Lord is right that teacher recruitment, along with recruitment in many sectors, is a real challenge at the moment. But we are supporting schools, and I suggest to the noble Lord that maybe it is a both/and: music hubs have an important part to play, as does direct delivery in schools, which the hubs support. The model music curriculum introduced in March 2021 helps support schools in that delivery.
Lord Vaizey of Didcot (Con)
My Lords, I congratulate my noble friend Lady Fleet on her excellent work on the national plan for music education. When we first worked on the first national plan back in 2012, one of the things we did was to incorporate the In Harmony programme conceived by Julian Lloyd Webber, started by the last Labour Government with great foresight and carried on by the Conservative Government. I simply bring to my noble friend’s attention how absolutely outstanding this programme is, particularly in giving children not just a music education but extraordinary life chances in some of the most deprived areas of the country. I urge her to continue to support it as the music education plan develops.
Baroness Barran (Con)
My noble friend is absolutely right and I thank him very much for drawing this to the attention of the House.
Baroness Wilcox of Newport (Lab)
My Lords, in Wales the National Music Service is carrying out a review of the terms and conditions for local authority-hosted music service teachers, commencing this autumn. It will look at whether the lack of teacher retention and pay is a factor in delivering good music education throughout all key stages. Have the UK Government thought of doing something similar in England?
Baroness Barran (Con)
We have just published a national plan for music education, Arts Council England has just carried out a consultation review of our music hub approach and we have published a new model music curriculum, so it is fair to say that this area has received a lot of attention.
Lord Shipley (LD)
My Lords, in an earlier reply, the Minister said that every child has access to a range of musical experiences. Can she confirm that that extends to a right of every child to learn a musical instrument for free?
Baroness Barran (Con)
I think the noble Lord knows the answer to his question. Music lessons are an area in which schools are allowed, with certain restrictions—for example, children who are in care have an absolute right to free musical instrument lessons—to charge if the lesson is at the request of the pupil’s parents.
The Earl of Clancarty (CB)
My Lords, the Minister repeatedly tells us that the EBacc has had no effect on the arts, including music, in schools. How, then, will she account for the fall in GCSE music entries of 27% between 2010 and 2022, and the further expected fall of 12% in the last year?
Baroness Barran (Con)
I encourage the noble Earl to look at both the GCSE and the technical award figures, which have stayed relatively stable at about 8% of the pupil population over the last four years. I also point to our absolutely extraordinary and thriving creative industries which, despite the House’s concerns, appear to be able to recruit just the people they need.
Baroness Fraser of Craigmaddie (Con)
My Lords, dance should be as valued as music in education yet, according to recent research by One Dance UK, over the last decade dance has been marginalised as an educational subject. World-class organisations such as Rambert have produced fantastic resources, such as Rambert CREATE. Will the Minister commit to ensuring the place of dance within the creative arts and the curriculum, perhaps through working with organisations such as Rambert?
Baroness Barran (Con)
I thank my noble friend for her suggestion. The department is very open to working with organisations such as Rambert and is very grateful to them for the work they do. Dance is included within the physical education curriculum and it includes specific requirements at key stages 1 through 3. Schools have flexibility about how they deliver this curriculum, but I would be happy to meet my noble friend and follow up her suggestion.
Baroness McIntosh of Hudnall (Lab)
My Lords, in her last but one answer, the Minister observed that the creative industries do not have any trouble in recruiting. I point out to her that they do. There is a significant skills shortage across the creative industries, which causes considerable concern. She might not necessarily agree, but many people believe that a lot of that is to do with the fact that the arts, and in particular music, are not given the privileged status within our schools that she imagines they should have and tells the House they have.
Baroness Barran (Con)
I apologise if I gave the impression that there are no skills pressures in the creative industries. I just pointed out that our creative industries are world beating and are able to recruit talent in a way that allows them to be so.
General Practitioners: Recruitment and Retention
(11 months, 3 weeks ago)
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Baroness McIntosh of Pickering
To ask His Majesty’s Government what assessment they have made of the current state of recruitment and retention of general practitioners.
Baroness McIntosh of Pickering (Con)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interest with Dispensing Doctors.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
We acknowledge that there are challenges in growing GP numbers. We are working with NHS England and the profession to explore measures to boost recruitment, address the reasons why doctors leave the profession and encourage them to return to practice. As of March 2023, there were 1,903 more full-time equivalent doctors working in general practice compared with March 2019, and we have a record 4,000 doctors in GP training.
Baroness McIntosh of Pickering (Con)
I have slightly different figures, although I thank my noble friend for his Answer. Since 2015, there has been an 18% increase in the number of patients per GP but a 7% reduction in GPs, with potentially 39% of the GP workforce considering leaving the profession in the next five years. Does my noble friend share my concern about the recruitment and retention of GPs? What urgent action is he going to take to address the workforce strategy for GPs to double the number of medical training places and to ensure that general practice once again becomes an attractive place for doctors to work?
Lord Markham (Con)
I agree with my noble friend that recruitment and retention are key. To clear up the figures, the numbers I gave referred to all doctors working in GP surgeries, including people who have been qualified for five years and are just finishing off the GP element. Within that we absolutely need to increase training numbers. We already have 4,000 doctors in training, which is a record number, but we are looking to grow that. We are introducing specific actions on retention, such as the new changes to pensions.
Lord Hunt of Kings Heath (Lab)
My Lords, plugging the gap in relation to GPs will take many years. The noble Lord will know that in hospitals, specialist and associate specialist doctors have increased in number. Many would like to work in primary care but are prevented by bureaucratic barriers. Do the Government not think that one way to get an immediate injection of doctors into primary care is to get SAS doctors there and to lift the current barriers?
Lord Markham (Con)
I completely agree that we need to look creatively and flexibly. We are on target to deliver 50 million more appointments, which is 10% more each day. That is through recruiting more staff. We have about 29,000 more staff in the GP work space, and that is using them flexibly and creatively.
Lord Stirrup (CB)
My Lords, part of the pressure being experienced by secondary care specialists is as a consequence of inadequate time for appropriate diagnosis by primary care specialists—the GPs. Numbers are, of course, a part of this, but what are the Government going to do about setting targets for consultations with GPs that reduce the pressure on hospitals and see more patients dealt with in primary care?
Lord Markham (Con)
I totally agree; it is all about getting upstream of the problem. I visited an excellent surgery—Greystone House in Redhill—where they are doing exactly that. They are taking their most critical 1% of patients in respect of need and trying to get appointments in ahead of time so that they can move into preventive measures; I absolutely agree.
Baroness Hodgson of Abinger (Con)
My Lords, I understand that often locums are paid more than GPs in practice. How can we reverse this so that we can encourage young doctors to go into GP surgeries, become general practitioners and actually get to know their patients?
Lord Markham (Con)
First, I would agree—I think we all agree—that continuity of care is very important. We absolutely want a career structure that attracts and retains exactly those types of people, so that they feel it is more rewarding, both financially and as a job, to work in such a practice environment.
Lord Allan of Hallam (LD)
My Lords, I expected this Question to be the cue for our weekly reassurance from the Minister about the workforce plan, which will be coming “shortly”, “imminently”, “in the blink of an eye”, or whatever the latest formulation will be. In spite of all the reassurances that he has given about numbers, the stark reality remains that many people up and down the country find it extremely hard to see a GP when they need to, and that has knock-on effects for everyone else, including accident and emergency services. Does the Minister have anything new to offer that might give us some confidence that we will turn the corner in the near future?
Lord Markham (Con)
The primary care plan was a very good example of something new, substantial and backed by £1.2 billion of investment to beat the 8 am morning rush and use technology—which I know the noble Lord is very interested in—to allow people to self-help in a lot of these situations.
Baroness Wheeler (Lab)
The Minister will know that the Health Foundation independent think tank summed up the Government’s recent primary care recovery plan as falling
“well short of addressing the fundamental issues affecting general practice”.
Staff shortages and the sheer number on NHS waiting lists are a key reason for such high demand on GP services. Do the Government accept that, unless they urgently get a grip on waiting lists, the crisis in general practice will only deepen?
Lord Markham (Con)
What we totally accept and believe is that primary care is where a stitch in time saves nine, to take that saying. That is why I believe that the primary care plan is a big step forward. As I said, the fact that we are doing 10% more appointments per day is significant, as is the Pharmacy First initiative that we have announced, which will bring on stream another 10 million appointments a year, allowing people to navigate whether a pharmacy is the best place for them to get treatment, in which case they can go there first. These are all practical plans that are in place and are making a difference.
Lord Singh of Wimbledon (CB)
My Lords, I declare an interest as someone who has children and grandchildren in the medical profession. Would the Minister agree that there is something terribly wrong in the recruitment and retention of doctors when newly qualified doctors from Nigeria are paid more than those in this country when doctors find it easier and more profitable to do locums than stay in a fixed career path; and, finally, when doctors are being inundated with attractive requests from Australia and New Zealand to emigrate to those countries, leaving a dearth in this country?
Lord Markham (Con)
All the things that the noble Lord points towards are covered in our plan for recruitment and retention. The things that we have announced, particularly on pensions—a key reason why people were leaving—were welcomed by the sector and the fact that we have record numbers in training is also a step in the right direction. But, as we freely admit—this is what the primary care plan is all about—a lot more work needs to be done and is being done.
Lord Naseby (Con)
As my noble friend knows, we have an Armed Forces scheme for young doctors to train and they have to commit to five years in the Armed Forces. Is he also aware, as I am sure he is, that Singapore’s health service has a scheme whereby young medics who qualify have to work in the Singapore national health service? At a time when we see an increasing number of our qualifying young doctors going abroad, is it not time that we looked at both these schemes and modified them to the UK situation?
Lord Markham (Con)
My noble friend makes a good point: if we are investing eight years in training, in the case of a GP, to ensure that they are at the top of their profession, so to speak, it is reasonable to expect them to work for a number of years in the UK so as to make good on that investment.
Lord Turnberg (Lab)
My Lords, one way of encouraging retention would be to relieve GPs of the burden of having to manage their service by making them salaried employees. How far have we got with that proposal?
Lord Markham (Con)
I actually think the partner model works very well for a lot of people and has been the bedrock of our GP service, as we know, since the beginning of the NHS. However, what is critically important is reducing the admin so that GPs can get more face-to-face time. Again, at Greystone House surgery in Redhill on Friday, I saw excellent examples of where those admin duties are being taken away so that doctors can do what they want—and are best trained—to do, which is face-to-face treatment of patients.
Baroness Hussein-Ece (LD)
My Lords, is the Minister aware of how many GP practices are still insisting on online applications to get an appointment? Many people, such as those with learning disabilities or dementia, or older people, are not well versed in using online applications. Is anything being done to encourage GP practices to make sure that those people who are disadvantaged can access GP services, without being constantly referred back to doing everything online?
Lord Markham (Con)
Absolutely; I am a firm believer that you need to have lots of channels of distribution, for want of a better word. Online is a very important one, but being able to phone up is important. The primary care plan was all about making sure that we had enough capacity to beat the 8 am rush, and to let anyone who rings know that we are going to contact them if they cannot get through at that moment, at a time of their convenience, so that they can be certain that they will get the right treatment.
Mental Health Services: Huntington’s Disease
(11 months, 3 weeks ago)
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Lord Hunt of Kings Heath
To ask His Majesty’s Government what assessment they have made of the number of people with Huntington’s disease displaying mental health symptoms who are being denied access to mental health services on the grounds that it is an organic brain disorder.
Lord Hunt of Kings Heath (Lab)
In begging leave to ask the Question standing in my name on the Order Paper, I apologise to the House as I should have declared my GMC board interest in the previous oral intervention.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
NHS England has not made an assessment, as this is not data that is routinely collected or would be captured. Minister Whately has asked NHS England to look into reports that people with Huntington’s disease are being denied access to mental health services. NHS England is also in the process of developing a neuropsychiatry service specification, which will outline the approach to caring for patients with neurological conditions who require mental health support.
Lord Hunt of Kings Heath (Lab)
I am grateful to the Minister for that positive Answer. He may be aware that the Huntington’s Disease Association has research which shows, first, that many people with that disease suffer from severe mental health issues and, secondly, that in many parts of the country NHS mental health services refuse to give mental health treatment to those people. In addition to the work that his fellow Minister is requiring from NHS England, will the department look at the training of mental health staff so that they have the capability to support people with Huntingdon’s disease who have mental health issues?
Lord Markham (Con)
Yes. The noble Lord has heard me say many times that I have really come to appreciate the Questions format for looking into areas that might otherwise not be seen. I thank the noble Lord and the Huntington’s Disease Association for bringing this to our attention. We have the steps in place but that is a good point about the training.
Lord Kirkhope of Harrogate (Con)
I declare an interest as a former Mental Health Act commissioner. Mental health seems to be very much the poor relative when it comes to resources and definitions in our health service. Does my noble friend not feel that we perhaps need to readdress matters such as guidelines for determining mental health? Many issues which arise are about pressures on people in their lives but do not necessarily come within the category of mental health. Would we not be better off having some clearer approach to this in future?
Lord Markham (Con)
Our commitment is very much that mental health should be treated just as seriously as physical health conditions. I was delighted to announce today that on the NHS app we are launching mental health digital therapeutics, which are available for everyone to use. I recommend everyone tries them. The idea behind it all is that it is accessible to everyone at any time in their life.
Lord Patel (CB)
My Lords, part of the problem of patients with Huntington’s chorea not being given proper treatment is that it is regarded as a neurodegenerative organic disease rather than what it is: it presents first with mental health symptoms. Guidelines are required, maybe from NICE, that clearly outline the patient journey of care for people with Huntington’s disease.
Lord Markham (Con)
I have learned in the process of researching this that it is absolutely vital that commissioners understand what the patient pathway needs to be in each area. That is why we have tasked the NHS with a neuroscience transformation programme to set out those care pathways.
Baroness Wheeler (Lab)
My Lords, we know that people living with Huntington’s disease, and their families, are faced with significant challenges throughout their lives. Many young people grow up in the shadow of the disease, are caring for their relative while worrying that they will get the disease themselves, and often face daunting choices around starting a family and genetic testing. All this underlines the need for mental health care and support for all the family. What steps are the Government taking to ensure that NHS mental health trusts take a whole-family approach to this vital issue?
Lord Markham (Con)
The noble Baroness makes a very good point; it is a whole-family problem. The investment we are talking about, in allowing us to access 2 million extra mental health patients, is about making sure we have got the numbers. The digital therapeutics are another way we are making sure there is access. The specific point the noble Baroness makes about looking at the families of people with Huntington’s disease is a good point that I will take back.
Lord Weir of Ballyholme (DUP)
My Lords, there is also a great deal of evidence that Huntington’s disease can be one of the conditions which can lead to dementia. It is a concern both in Huntington’s disease and dementia that there is a level of underreferral for mental health services. What specific action is being taken to tackle this issue, given that figures suggest the number of referrals for those suffering from Huntington’s disease and dementia to mental health services is minuscule compared with the level of demand?
Lord Markham (Con)
The research from the Huntington’s Disease Association, albeit with a small sample size of only 100, suggests there is an issue here. That is why I spoke to Minister Whately about this just this morning. She is being very firm in terms of tasking the NHS to come back with a plan to make sure we get that diagnosis. We will not know until we see the situation across a larger sample size, but clearly it is something we need to work more on.
Lord Allan of Hallam (LD)
My Lords, the Huntington’s Disease Association is pressing the Government for a number of actions in its campaign “Mindful of Huntington’s”. Could I press the Minister on one of these: that there should be a care co-ordinator in each area to help manage the various professionals? Do the Government agree in principle with this approach? What specifically are they doing to work with integrated care boards for situations such as this, in which you need primary, secondary, mental health and social care to all work together?
Lord Markham (Con)
The plan with the neuroscience transformation programme is to give that pathway to every ICS, which it should follow and commission to, to make sure that specific treatment is in place. It is a complex area, as we all know. Again, as I understand it, there are more than 7,000 rare conditions. I want to be open about the ability to put in place a specific individual care co-ordinator for every one of those, but we need to make sure that ICSs have enough skills in their locker—for want of a better word—so that they can recognise the situations and make sure they are commissioning to the plan.
Baroness Fraser of Craigmaddie (Con)
My Lords, I declare my interests as chair of the Scottish Government’s neurological advisory committee and a trustee of the Neurological Alliance of Scotland. This is an issue not just for people with Huntington’s disease but for people with other neurodegenerative conditions, such as Parkinson’s. NICE standards for people with Parkinson’s recommend the prescription of Clozapine for hallucinations or delusions, but only psychiatrists are enabled to prescribe it; therefore, people with Parkinson’s do not have access to this treatment because neurologists cannot prescribe it. Will the Minister look at this? Maybe this is one way to ensure that people get the treatment they need.
Lord Markham (Con)
Yes, I think is probably the best answer I can give in the circumstances. I will absolutely do that and will write to my noble friend.
Baroness Finlay of Llandaff (CB)
My Lords, the draft major conditions strategy refers to mental health conditions and dementias so that should include diseases such as Huntington’s. The problem is—and I declare my interest in palliative care—that as these patients become terminally ill, they have complex physical and mental health needs, yet we know there are serious inequities in provision. Despite the Government’s own amendment to the Health and Care Act 2022, the draft strategy does not have a distinct section on palliative and end-of-life care. Why have the Government not made this a core, integrated part of the strategy for these major conditions when patients, such as the ones with Huntington’s, have really complex needs—and their families have complex needs too—particularly around the time of their death?
Lord Markham (Con)
The noble Baroness is correct that they have complex needs and I know from personal experience, with both my mother and my father, the importance of end-of-life palliative care. I thank the noble Baroness for the warning of the question and have been assured that the integrated whole person care approach that the major conditions strategy sets out will include palliative care measures.
Lord Laming (CB)
My Lords, the Minister will know that many of the people who suffer from this disease depend very heavily on the support of unpaid carers. I note that his fellow Minister is going to hold a cross-government round table on the needs of carers. Might that lead to the development of a national carers’ strategy?
Lord Markham (Con)
I think and hope we have done quite a bit in this space already. Obviously, we have put in place measures to get carers’ some leave and some pay for what they do. I accept that they are a huge army of helpers and there is probably more that we need to be doing. I know that Minister Whately is right on the case.
School Uniform Policies
(11 months, 3 weeks ago)
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Baroness Wilcox of Newport
To ask His Majesty’s Government, following the recommendation of the Welsh Minister for Education that school governing bodies should review uniform policies, what assessment they have made of the case for doing this in England.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, following the publication of statutory guidance in November 2021, all schools in England should already have reviewed their uniform policy and made changes to ensure their uniforms are affordable for parents. The Cost of School Uniforms guidance came into force in September 2022. It requires schools to ensure their uniform costs are affordable and that parents get the best value for money. Schools should be fully compliant with the guidance by September 2023.
Baroness Wilcox of Newport (Lab)
I thank the Minister for her Answer and the statutory guidance being put in place. But the Government have never been clear about how they are going to assess the success of the guidance. Has it reduced costs for parents? Are schools complying with it? Are stronger policies such as the ones we have in place in Wales needed? Can the Minister please tell us whether there are any plans to review its implementation?
Baroness Barran (Con)
In terms of complying with the guidance, which is obviously statutory, any concerns that a parent might have about a school’s uniform policy need to be raised with the school in the first instance through its complaints process. If the parent is then unhappy with the outcome of their complaint, they can, of course, raise it with the department.
Baroness Ritchie of Downpatrick (Lab)
My Lords, can the Minister indicate what monitoring the Government undertake with schools in relation to the affordability of school uniforms? Many families face a difficult cost of living crisis.
Baroness Barran (Con)
I absolutely understand that families face a cost of living crisis, which is why the Government provided £94 billion of support for households with those higher costs across 2022-23 and 2023-24. On how we ensure compliance, I can only repeat what I said to the noble Baroness.
Baroness Thornhill (LD)
My Lords, in my long experience in education, schools are very much alive to the needs of their youngsters, particularly with regard to school uniforms. Does the Minister agree with me that the real problem here is that the noble Baroness is asking for a national government edict on school uniform? Surely this should be a matter for local education authorities, whose roles and responsibilities have been weakened and reduced over many years.
Baroness Barran (Con)
The Government believe that it should be even more local than that. I agree with the first part of the noble Baroness’s question: schools absolutely know their communities. We very much encourage schools to work with their parent bodies to establish their school uniform policies and to work out what suits them.
Lord Cormack (Con)
Does my noble friend agree that it is important to allow children to have a sense of identity and belonging, with which uniforms help very much? What is being done to encourage schools that have a recycling policy? That is terribly important and can significantly reduce the cost.
Baroness Barran (Con)
I agree with my noble friend’s first point, but we are encouraging schools to identify elements of their branded uniform that are low cost, finding their identity through a tie, perhaps, rather than a blazer. Our guidance is clear about promoting second-hand uniforms, which many students prefer because of the environmental impact.
Baroness Bennett of Manor Castle (GP)
My Lords, given that many forecast an extremely hot summer, with heatwaves, and given that our uniforms were designed for another age in many cases, will the Minister encourage others to follow the lead of Hampshire County Council—which suggested that schools should adapt uniform rules and consider adapting start and finish times, and outside activities—to acknowledge the threat presented by our rising temperature levels?
Baroness Barran (Con)
As I said, schools know their communities, and we trust them to make the right judgments for their pupils and staff.
Baroness McIntosh of Hudnall (Lab)
My Lords, in her response to the noble Lord, Lord Cormack, the noble Baroness mentioned environmental sustainability. Will she accept that the cheapest clothes available, not just for school uniforms but in many other situations, are on the whole made from the least environmentally sustainable fabrics? Will she accept that, if there is to be an increase in recycling and reusing school uniforms—which I think we all agree would be very good—it would be very much in everyone’s interests if they were made from the highest-quality fabrics? They would then last longer in the recycling process.
Baroness Barran (Con)
We have to strike a balance for parents who need to send their children to school in a uniform that fits and is suitable, encouraging them to use second-hand uniforms wherever possible, while of course considering the environment.
Deputy Chairmen of Committees
The Senior Deputy Speaker
That, as proposed by the Committee of Selection, the following members be appointed to the panel of members to act as Deputy Chairmen of Committees for this session, in place of Lord Brougham and Vaux, Lord Palmer of Childs Hill and Lord Rogan:
Ashton of Hyde, L, Colville of Culross, V, Scott of Needham Market, B.
The Deputy Speaker (Lord Haskel) (Lab)
The Senior Deputy Speaker will now move the Deputy Chairmen of Committees membership Motion and three other Motions as on the Order Paper.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, before continuing, I would like to place on record, as the Senior Deputy Speaker, the House’s very considerable thanks to the noble Lord, Lord Brougham and Vaux, who served on the panel for 30 notable years.
The Deputy Speaker (Lord Haskel) (Lab)
Is it your Lordships’ pleasure that the four membership Motions be agreed?
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I object that the four appointments should be taken together.
The Deputy Speaker (Lord Haskel) (Lab)
Is it your Lordships’ pleasure that the first membership Motion be agreed?
European Affairs Committee
The Senior Deputy Speaker
That Lord Ricketts be appointed a member of the Select Committee, in place of the Earl of Kinnoull; and that Lord Ricketts be appointed chair of the Select Committee.
Lord Hamilton of Epsom (Con)
I will comment on the appointment of the noble Lord, Lord Ricketts, as the chairman of the European Affairs Committee. I think that we now accept that we have left the EU, and there is no political party suggesting that we should rejoin it. Therefore, can it be right that the noble Lord, Lord Ricketts, has been made chairman of the European Affairs Committee, when he is adamant that it was a great mistake that we ever left and that the people of this country were wrong to have voted that way in the referendum?
Lord Cormack (Con)
My Lords, I strongly disagree with my noble friend. We are out, and many of us regret the fact that we are out. However, what we need for our committees are people with knowledge and distinction, and no one has wider knowledge and distinction in the field of foreign affairs than the noble Lord, Lord Ricketts. What is more, he sits on the Cross Benches, so it seems to me that, having had an extremely fine chairman in the noble Earl, Lord Kinnoull, it is a very good idea to follow him with another Cross-Bencher, who will bring dispassionate advice and deep knowledge.
Industry and Regulators Committee
The Senior Deputy Speaker
That Baroness O’Grady of Upper Holloway be appointed a member of the Select Committee, in place of Lord Leong.
National Security Strategy Committee
The Senior Deputy Speaker
That Lord Sarfraz be appointed a member of the Select Committee, in place of Lord Ashton of Hyde.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I did not know what I was letting the House in for. It is right that we should have the opportunity to discuss each appointment. There are too many appointments and other decisions that go through this House on the nod, and we find out afterwards what we have agreed to without realising the full implications. I do not even mind that the point raised on the previous Motion was something I totally disagree with.
I suggest that we delay the appointment of the member of the National Security Strategy Committee, with absolutely no disrespect whatever to the noble Lord, Lord Sarfraz. We will have an influx of new talent into this House—all of whom, sadly, appallingly and disgracefully, will be Conservative Members, with no new opposition Peers at all. This list, put forward by Mr Boris Johnson, who bullied the Prime Minister into accepting it, is very interesting in many ways. Before we continue with this particular appointment, we should give the whole multitude of talent coming in the opportunity of advising this House on national security strategy.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
That is an interesting analysis, on which it would be inappropriate for me to comment as the Senior Deputy Speaker. However, the spirit of what I am putting forward is that the noble Lord, Lord Sarfraz, would be a very suitable Member to take over the position of the noble Lord, Lord Ashton of Hyde.
This is an interesting opportunity for the noble Lord to raise the points that he did. We have always said that appointments en bloc are with the leave of the House although, interestingly, under the Companion’s rules the Senior Deputy Speaker can bring forward Motions en bloc, and therefore I do so conscious that it is permitted by the Companion. Of course, we must enable the House, if it wishes, to object to something being undertaken en bloc, but the four Motions that I have brought before your Lordships today are benign and thoughtful. We will have very good additions to help us do our important work.
Lord Grocott (Lab)
My Lords, my noble friend Lord Foulkes raised another issue on this Motion, which is the growing and alarming disproportion between the number of Peers on the Government Benches and those who are members of the Official Opposition. This has been raised on many occasions in the past, but now—I am sure my maths is correct—the number of Conservative Peers outweighs the number of Liberal Democrat and Labour Peers combined. It was never envisaged that the Government should have a political majority in the House of Lords, and it had never happened until very recently, under this Government. That is something. The Senior Deputy Speaker is well known for being fair and impartial and, in a fair and impartial role, I hope that he will feel it appropriate at some stage to mention to the people who are in a position to do something about it that this disproportion is now absurd.
It raises an even more significant point—this is not a threat but an observation—that, should my beloved party reach the objective to which it is devoted at the moment and in 18 months we swap sides, for the Labour Party to get anything like the numerical advantage that the Conservative Party has as the party of government at the moment would involve the appointment of around 100 new Labour Peers. Some might say that is not enough, but I am a moderate man. If the Government ignore this and the governing party lose the election, which I fervently hope it will, it will have to face that and raise no objections whatever if the situation arises in which a large number of Labour Peers are appointed.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, all I shall say, in good fellowship, is that this goes beyond the Motion before the House today, but the House will have heard what the noble Lord said. I beg to move.
Illegal Migration Bill
Monday 12th June 2023
(11 months, 3 weeks ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-V Fifth marshalled list for Committee - (12 Jun 2023)
Lord Coaker
Member's explanatory statement
This amendment is part of a package which seeks to probe how victims of modern slavery can enter the national referral mechanism and receive appropriate support.
Lord Coaker (Lab)
My Lords, I declare my interest as a trustee of the Human Trafficking Foundation and the work that I do with the University of Nottingham’s Rights Lab, as declared in the register of interests. If it is okay with your Lordships, I will not repeat that declaration during this session.
We are starting with a debate on modern slavery, which of course is of real interest to us all. But first, can the Minister update us on the progress that he is making on the publication of an impact assessment? I said that I would ask him at each sitting, as I think that it is incumbent on him to tell us; he has said “in due course”, and we are wondering whether “in due course” has got any closer—or certainly whether it will be between Committee and Report. It is an issue of immense importance to this Committee. We saw yesterday, with the publication at speed of the JCHR report, what can be done if there is a will. Parts of the impact assessment will be available in the Home Office, because the Home Office will be basing the Bill on evidence and on various assumptions that it is making, and it should share those with the rest of us, for us to consider in our deliberations.
It is even more important that we understand what the Government seek to do since they are already abandoning what they put in their Bill last year. We said that it simply would not work, and the Government refused to accept the amendments that we tabled—but we see in a Written Ministerial Statement, sneaked out by the Government on Thursday evening, that they have now abandoned group 1 and group 2 refugee status in the Nationality and Borders Act. We are all pleased with that, but we told the Government that it would not work, would create a bureaucratic backlog and be unfair. The Government have found that out for themselves, and now they are telling everyone that the two groups are to be joined together. I hope that the Minister learns from that and understands that often, with the various amendments that we table, we disagree not only on the principles contained in the Bill but with the practicalities.
With those opening remarks, I shall speak to Amendment 85 in my name and in the names of the noble and learned Baroness, Lady Butler-Sloss, who cannot be with us today, as well as the right reverend Prelate the Bishop of Bristol, along with many other amendments in this group, particularly Amendments 87 and 89. They are part of a package that seek to probe and understand how victims of modern slavery under the Bill can enter the national referral mechanism and receive the appropriate support.
It is of deep regret to me that one of the flagship policies of the last Conservative Government has been smashed. I find it unbelievable that noble Lords would support driving through something that is doing that. It was something that we all regretted—to see the former Prime Minister at Second Reading sitting on the steps in this House and looking with absolute dismay and horror at what this Government are proposing. Of course, the current version of the Conservative Government dismiss that as irrelevant and as something that is not important. However, as somebody who is as tribal as they come with respect to being Labour, I would say that sometimes Governments get it right—and, certainly, the Modern Slavery Act 2015 was a landmark piece of world-leading legislation, and it is unbelievable that a Conservative Government would seek to unpick that and drive it through.
These amendments look at how victims of modern slavery do—or, more particularly, do not—enter the national referral mechanism, including victims of sexual exploitation. There is a non-conformity to the ECHR and Article 4 of the Council of Europe’s directives against trafficking, as the JCHR report just published makes clear. As the noble Lord, Lord McColl, will say under his amendment, we have not had an Independent Anti-Slavery Commissioner for well over a year, which is astonishing—because whoever that was, he or she would have been able to inform our debates.
Lord Carlile of Berriew (CB)
My Lords, my noble friend Lord Alton unfortunately cannot be with us today and has asked me to speak to a number of amendments in his name which I have signed—and one which I have not because there was no room left. I will be very happy to do so. I pay tribute to the enormous work he has put into this Bill on the issues that have arisen, including those mentioned so eloquently by the noble Lord, Lord Coaker.
At the beginning of his contribution, the noble Lord, Lord Coaker, mentioned the absence of an impact assessment and our ongoing interest in whether it will arrive in due course and, if so, whether it will be too late to have any impact. If ever there was a series of amendments for which the impact assessment’s absence has importance, it is this. I hope to demonstrate why in a few moments.
I will highlight the potentially devastating impact that the Bill will have on not only survivors of modern slavery but our ability as a country proudly to bring to justice those who are guilty of modern slavery offences. There is a paramount public interest here and internationally in those cases being prosecuted. If you ask a prosecutor how best to prepare a case, the answers are very simple. First, you need co-operative witnesses; for that, you need witnesses to feel safe to provide the evidence. That is when they will come to court, where they will be protected by judges behind screens or by other special arrangements and produce an overwhelming prosecution case. Anything that any Government do to inhibit the prosecution of modern slavery cases is not just regrettable but a manifestly dishonourable disgrace.
The amendments seek to put in the Bill obligations on the Secretary of State to carry out and present before Parliament and an appointed Independent Anti-Slavery Commissioner reports and assessments on the potential impacts of this Bill in relation to equality, human rights and compliance. Furthermore, they require detailed information pertaining to each country or territory listed in Schedule 1 to be laid before Parliament in relation to the practical implications, including but not limited to the effect on modern slavery prosecutions.
One is entitled to assume—I ask the Minister to confirm that this assumption is accurate in this case—that, in the preparation of the list in Schedule 1, the Government have carried out due diligence on the 57 countries listed as safe territories to which a person may be removed. Was the placing of a country on the list in Schedule 1 preceded by consultation? Who should that consultation have been with? Let us start with the ambassadors and high commissioners representing the United Kingdom in those countries.
We all know that the Foreign, Commonwealth and Development Office is well staffed with people here in London who are experts in and who man desks on those countries. Were they consulted before the names of those countries were added to the list in Schedule 1? I ask this question because, having been through the list with a fine-toothed comb looking at every single country on it, I cannot accept that whatever inquiries were made could really be described as diligent. Due diligence in the world in which many of us who work in the professions operate is an absolute given in every instance. I will give your Lordships some examples before I turn to my reductio ad absurdum—if I can be allowed that phrase—of this point.
Baroness Hamwee (LD)
My Lords, I have Amendment 85D in this group and have added my name to Amendment 85C from the noble Lord, Lord Alton, and the amendments from the noble Baroness, Lady Ritchie, and the noble Lord, Lord McColl. I have also tabled opposition to two clauses standing part, because we on these Benches oppose the whole approach to modern slavery and trafficking in the Bill. We oppose every clause in the Bill and have tabled that opposition because it is not a matter of tweaking, although the amendments draw attention to some particularly egregious provisions.
Clause 25 is about suspension and renewal, but its very existence, sunsetting after two years, indicates, as the JCHR noted, that the Home Office recognises the severity of the provisions. They may be short term, but they will not feel that way to victims and survivors. Can I just say how much I admire the work that the JCHR has done on the Bill? It has produced a splendid report, which I am afraid I flicked through to find the bits relevant to today—but then I am human, and the whole of it will get read.
What evidence is there of abuse of the system? Assertion is not evidence. What evidence is there that victims of modern slavery are likely to be a danger to the public or a threat to public order? Is it really appropriate for a Minister, having sunsetted a provision, to revive it by regulations? A lot of constitutional points arise in the Bill. Mind you, I would rather see it sunsetted before the sun even rises.
When the Bill was starting its passage through Parliament, I was in a taxi and the driver inevitably wanted to tell me what Parliament should be doing. On the subject of small boats, he said he was concerned that his children should be safe from all the terrorists arriving in small boats. He was hearing the message that the Government wanted him to hear. Actually, we had quite a reasonable conversation about asylum seekers and he was very receptive to a number of the things I said, but it brought home to me just how dangerous the Government’s messaging is: it is dangerous to individuals, dangerous for cohesion and integration, dangerous in the attitudes it fosters and much else.
As the JCHR said, how can the modern slavery clauses be applied compatibly with Article 4 of the convention, which places on the state positive obligations that are absolute and cannot be derogated from? A similar point arises with ECAT. The JCHR recommends that Clause 21 be removed, and although I took a little comfort from the fact that our instincts were backed up, that does not achieve it, of course. As the committee said, there should at least be no removal of asylum seekers until a “conclusive grounds” decision has been made. As Amendment 85D indicates, one of our concerns is the recovery period, as it always has been. For many victims, 30 days is nowhere near enough for them to recover. There being no period for recovery at all is far worse.
Amendment 90 refers to co-operation with investigations and proceedings. The point that occurred me a day or two ago follows on from what the noble Lord, Lord Carlile, has been saying. I do not think the point has been made that the absence of the victim may jeopardise proceedings in a number of ways, including because the victim is not available for cross examination, either in person—that is always best—or by video link if that is what the Home Office envisages. I want to take this opportunity to ask the Minister: what is envisaged? Are the Government confident that it will always be possible to give evidence by video link, given the countries to which asylum seekers may be removed? Is this to be a provision in removals agreements? It seems to me that not a lot more than lip service is being paid to the importance of tackling smuggling and trafficking gangs, improving the conviction rate and securing remedy for victims. Nothing in the Bill will increase the efficiency of all those things.
Finally, I want to say a word on Amendment 146 in the name of the noble Lord, Lord McColl, which addresses the absence of an Independent Anti-Slavery Commissioner. I hope we will not hear from the government Front Bench that a new commissioner will be appointed “in due course”. The lack of an appointment for over a year now makes the Government’s lack of real concern about modern slavery very evident.
The Lord Bishop of Southwark
My Lords, Amendment 88 in the name of the noble Lord, Lord Coaker, is supported by my right reverend friend the Bishop of Gloucester, who regrets that she is unable to be here today. There is much similar ground in this amendment to others, but this amendment focuses specifically on victims of sexual exploitation.
The Bill directs that victims of modern slavery, including victims of sexual exploitation, shall be subject to detention and removal to their own country or to a third country. As we have heard, the principal exception to this is if the Secretary of State is satisfied that the individual is co-operating with criminal proceedings and that their presence in the United Kingdom is necessary for this to continue. We know that the Government have committed to victims of sexual violence and exploitation in this country. The UK ratified the 2011 Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence only last summer and there has been much work done over the past few years to increase awareness and tackle perpetrators. To deny those who have arrived here safety and protection is a regressive move.
Baroness Whitaker (Lab)
My Lords, all the amendments in this group are very serious contributions to improving the Bill, but I want briefly to add my support for Amendment 85C in particular. I cannot match the noble Lord, Lord Carlile, in his acquaintance with ChatGPT, but his amendment, supported by the noble Lord, Lord Alton, the noble Baroness, Lady Hamwee, and my noble friend Lady Kennedy, who is not in her place, goes some way towards dealing with the difficulties of the astonishing assumption behind Schedule 1—that asylum seekers can safely be deposited in all these 57 countries. Quite apart from the observation by the noble Lord, Lord Kerr, during our previous Committee sitting that they do not have asylum regimes in any case, to make Schedule 1 acceptable the Minister must accept this amendment.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I have tabled Amendments 97 and 98 in respect of Clauses 27 and 28. I commend the report, published yesterday, from Parliament’s Joint Committee on Human Rights—a very fine document which says that this Bill will have “a disproportionate impact” on the victims of modern slavery. My noble friend Lord Coaker referred to the coalition Government of 2010-15, which took the initiative to introduce in Parliament and implement the Modern Slavery Act. This Bill drives a sword through it and completely lacerates it.
There is no doubt that the number of amendments that refer to modern slavery or human trafficking are testament to the Committee’s concern about the Government’s proposal. Again, I refer simply to my own Amendments 97 and 98. The Government frequently refer to victims of the “heinous crime” of modern slavery and, in March 2021, they commended themselves on how many victims had been referred to the national referral mechanism, stating that
“the UK has a strong reputation internationally in addressing modern slavery referrals; year on year there has been a rise in referrals from all frontline responders into the NRM”.
It is extremely concerning that, some two years later, we are talking about the same increase as a matter of abuse and the same victims as threats to public order. That is exactly the language that has been used by this Government. Lest there be any confusion, this language is being applied to individuals who have been the subject of exploitation through being either coerced or deceived. The language is being applied not to those who traffic and exploit people as commodities but to the victims of crime.
The UK has signed up to international obligations to identify and care for victims of modern slavery. One of those is the European convention against human trafficking—frequently referred to as ECAT. The noble Lord, Lord Carlile, referred to this. ECAT requires the identification of victims so that they might benefit from the convention entitlements, including the provision of a recovery period when the person cannot be deported and can receive support and assistance. The Bill does not prevent the identification part of our obligations, but it makes identification meaningless for the most part.
Last year, under the Nationality and Borders Act 2022, the Government determined that some victims should be excluded from a recovery period if they are a threat to public order. There is a case for excluding those convicted of serious criminality; indeed, ECAT recognises that under Article 13. But here is the key point: it has been applied on a person-by-person basis. This Bill, in the words of the Independent Anti-Slavery Commissioner, Dame Sara Thornton, introduces
“a massive extension of that public order disqualification to everybody”.
Yes, all victims of modern slavery within the scope of the Bill are being considered a threat to public order. I hope your Lordships will indulge me as I quote the Government’s justification for this extension. In the human rights memorandum, the Government say that they consider that a person who falls under the duty to remove is
“a threat to public order, arising from the exceptional circumstances relating to illegal entry into the UK, including the pressure placed on public services by the large number of illegal entrants and the loss of life caused by illegal and dangerous journeys”.
ECAT makes no differentiation between victims of modern slavery who are in the country illegally or legally. The convention knows that these individuals need safeguarding and protection, regardless of their immigration status.
Parliament’s Joint Committee on Human Rights, which published its report yesterday, states that
“the Government’s position that the modern slavery clauses are ‘capable of being applied compatibly’ is untenable”.
My noble friend Lord Coaker already referred to this point. The report continues:
“The UK has clear positive duties under Article 4 ECHR (prohibition of slavery and forced labour) to protect victims or potential victims of slavery or human trafficking, as well as duties under ECAT—these provisions of the Bill are in direct conflict”
with the above-mentioned article and ECAT. The committee recommends that the clauses in the Bill dealing with modern slavery should be removed, a point I concur with. The Commissioner for Human Rights of the Council of Europe has said about the extension of the public order disqualification:
“Such a justification appears to me to be so broad and general that it increases the likelihood of an arbitrary application of the modern slavery protections”.
The Parliamentary Assembly of the Council of Europe is due to debate a report on a number of human rights measures currently being debated in the UK, including the Bill. The provisional report was published on 25 May. In reviewing the Bill’s compatibility with ECAT, the report says:
“The fact that an individual was trafficked into the UK does not make that individual thereafter a threat to public order”,
a point that this House and the Government should take on board.
I was disappointed that, on day two in Committee, the Minister said that the Bill was compliant with ECAT because
“ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order”.—[Official Report, 5/6/23; cols. 1200-01.]
This is exactly the opposite of the position taken by GRETA, the body overseeing ECAT. In its submission to the Joint Select Committee on Human Rights inquiry into the Bill, it said that such an approach
“would be contrary to the purpose of Article 13”,
since Article 13(1) is
“intended to apply in very exceptional circumstances and cannot be used by States Parties to circumvent their obligation to provide access to the recovery and reflection period”.
My Amendments 97 and 98 urged the Government to rethink their interpretation of Article 13(3), which is, in my view and that of GRETA, contrary to the convention. I also urge the Government to be mindful of the recommendations in the Joint Committee on Human Rights report, just published; to heed its advice; and to indicate, in a realistic and humanitarian way, when they will respond to that report. The website states that the Government will respond in August, long after the Bill has been implemented into law. That is too late. We need a response at a very early opportunity—in fact, before we return for Report on the Bill.
I ask the same question as did my noble friend Lord Coaker: when will the impact assessments be made available to this House? Will it be done at a very early opportunity and before the completion of Committee on the Bill?
Lord Morrow (DUP)
My Lords, many Peers spoke at Second Reading about their concerns over the modern slavery amendments. They did so again on day two in Committee, in response to Amendment 19A and others tabled by the noble Lord, Lord Hunt, and on day three, after the forensic speech made by the noble Lord, Lord Purvis, on whether Clause 5 should stand part of the Bill.
The amendments in this group again raise those concerns, and I hope the Minister will recognise the concerns across the Committee. Before I speak to my Amendment 145, I put on the record my support for Amendment 86, of the noble Lord, Lord Randall. As I have already said in Committee, I am deeply concerned about the impact that the Bill will have on victims of modern slavery; this amendment would mitigate some concerns by ensuring that victims of modern slavery exploited in the UK will still be able to access the support that they need to recover. I hope the Minister will update the Committee on the ongoing discussions on this proposal that were promised on Report in the other place.
Baroness Meacher (CB)
My Lords, I shall speak briefly, but I hope strongly, to support the intention of the noble Baroness, Lady Hamwee, to oppose the question that Clause 21 stand part of this Bill. We have had a very long debate and incredibly powerful speeches, particularly, if I may say so, from the noble Lords, Lord Coaker and Lord Carlile, spelling out the immense importance of all the amendments in this group. I do not need to repeat any of those arguments.
I want to mention Frank Field—my noble friend Lord Field. I saw him today; we know he is dying. He was incredibly important in the passage of the modern slavery legislation, along with the noble and learned Baroness, Lady Butler-Sloss, who unfortunately cannot be here today, and the former Prime Minister Theresa May. He said to me today, “Please explain and set out that if all the amendments in this group are passed, yes, they would indeed provide important protections for the victims of modern slavery and trafficking; but please spell out that this would not be sufficient. There will be the most appalling abuses of these most vulnerable of victims unless Clause 21 does not stand part of this Bill”.
Lord Randall of Uxbridge (Con)
My Lords, I start by declaring an interest as the deputy chair of the Human Trafficking Foundation. Following on from the noble Baroness, Lady Meacher, I will say that the first time I investigated this matter was when I served on a committee with the noble Lord, Lord Field, when he was in the other place, as was I, as well as with the noble and learned Baroness, Lady Butler-Sloss; so my interest in this goes back 10 years. I apologise to noble Lords for my absence during Second Reading because of ill health. If there was ever an incentive to get back to health, it was so that I could speak on this part of the Bill.
I will speak in particular to Amendment 86 in my name and those of my noble friends Lord McColl of Dulwich, Lady Helic and Lady Stroud, to whom I am grateful. The purpose of this amendment is simple: to allow modem slavery victims exploited in the UK to continue to receive temporary support and protection from removal under current laws, enabling more of them to engage in prosecutions. It does this by exempting victims exploited in the UK from the Clause 21 disapplication of the statutory recovery period and access to temporary leave to remain for confirmed victims.
If we do not amend Clause 21 we will be restricting access to modem slavery support, but it will not stop the boats. It will remove support and protection from many genuine slavery victims who have been exploited on our shores, and will make prosecuting criminal gangs harder, as we have already heard. Human trafficking is distinct from people smuggling and its victims are first and foremost victims of crime.
Few modern slavery victims arrive by small boat. As I think we have already heard, only 6% of small boat migrants were referred to the modern slavery national referral mechanism; that is, 2,691 individuals in 2022 compared to a total of 12,753 NRM referrals for non-UK nationals. A majority of potential victims referred to the NRM are exploited in the UK in full or in part, and most of those are non-UK nationals—58% in 2022. Modern slavery is happening in communities up and down the UK. Thousands of men, women and children are victims of labour exploitation—whether, for example, in agriculture, manufacturing or nail bars—as well as sexual exploitation and criminal activity such as county lines drug dealing.
Many of these people are likely to have arrived in the UK illegally within the terms of this Bill, whether by small boat, by lorry or with leave obtained through deception such as false documents—including deception by their exploiter. Instead of being given temporary protection in the UK, these victims will now be subject to removal and detention under this Bill and will be denied access to the statutory 30-day recovery period of support for modern slavery victims. Victims will simply be driven even further underground by the fear of deportation and trapped in the arms of their abusers. Criminal gangs will be free to continue exploiting these people and the job of the police and prosecutors will be made far more difficult, as victims’ vital evidence will be lost.
Why is this amendment needed? Victims of modern slavery experience inhumane torture and abuse. They are deprived of their liberty and dignity. Those exploited and abused on British soil, whether UK citizens—an increasing number of UK citizens are victims of modern slavery—or foreign nationals, deserve care and a chance to recover. We cannot leave them to suffer exploitation and abuse in the hands of their traffickers just because they were brought into the UK illegally. I ask my noble friend the Minister: has he ever met a victim to hear their harrowing tales? I say to my noble friend that, when I have had the opportunity to meet some of these people—it is not easy, for obvious safeguarding reasons—you realise what a terrible crime it is and what a terrible thing we are potentially doing with this clause.
Victims hold the key against their perpetrators. Failure to support victims not only increases retrafficking rates, but also hinders our ability to dismantle the criminal networks managing the abuse because their vital evidence and intelligence is lost. We cannot allow unscrupulous criminals to get away with impunity, poisoning our own communities.
Prosecution and conviction rates are stubbornly low. In 2022, there were just 194 convictions for Modern Slavery Act offences in England and Wales on an all-offence basis. Yet since 2017 there have been thousands of NRM referrals every year for modern slavery occurring in the UK. In 2021, the National Crime Agency’s threat assessment said:
“It is likely that at least 6,000 – 8,000 offenders are involved in the exploitation of people in the UK”.
Evidence from the Centre for Social Justice and Justice and Care shows that, with appropriate, consistent support, more victims engage with investigations and prosecutions, providing vital information that brings criminals to justice. But support needs to come first to create stability and confidence. We need to ensure that victims of slavery exploited in the UK can continue to receive support and protection from removal during the temporary, statutory recovery period. This will ensure that victims can still have the confidence to come forward.
In response to a similar amendment tabled in the other place by my right honourable friend Sir Iain Duncan Smith, and supported by my right honourable friend Theresa May, the Immigration Minister said:
“we will look at what more we can do to provide additional protections to individuals who have suffered exploitation in the UK”.—[Official Report, Commons, 26/4/23, col. 781.]
Can my noble friend the Minister give us some more information about the intended additional protections? I could perhaps suggest he just accepts my amendment. Have the Government consulted the Crown Prosecution Service and the police about the likely impact of Clause 21 on investigations and prosecutions and the burden it will place on their staff?
My noble friend the Minister may come up with some points. He will possibly say that people will make false claims of being exploited in the UK to bypass deportation. However, as we have already heard, a victim cannot self-refer with a claim of modern slavery. Referrals can be made only by official first responders who suspect the person is a victim. In 2022, 49% of referrals were made by government agencies, most from UK Visas And Immigration and from Immigration Enforcement. Only 6% of referrals were made by NGOs. The rest were from other statutory services. Training and guidance for the staff making referrals, particularly those in Home Office agencies, should prevent inappropriate referrals being made.
Lord McColl of Dulwich (Con)
My Lords, I was present at Second Reading but was prevented from taking part for medical reasons. I am very grateful to your Lordships’ House for originally giving me such support in putting forward the first anti-slavery, anti-trafficking Bill. It was a real tribute to this House to have the tremendous support that was given all around it.
I am pleased to be a cosignatory of my noble friend Lord Randall’s Amendment 86. I firmly believe that, if victims of modern slavery have been exploited in the UK, we have an obligation to assist them in recovering, with accessing the NRM and with all the other modern slavery protections that have been established for that purpose.
I record my support for Amendment 90 from the noble and learned Baroness, Lady Butler-Sloss, which would reverse the presumption created in another place that individuals assisting the police do not need to be present in the UK to do so. We must not underestimate how much courage it takes for victims to provide evidence. A victim of forced labour described being in fear of her life if she exposed where her exploitation took place. Victims need support, and we should be a country that is willing to provide it if we are asking them to give evidence—many speakers have stressed this.
My Amendment 146 would prevent Clauses 21 to 28 being commenced until the Government have appointed an Independent Anti-Slavery Commissioner and until there is robust scrutiny of the Bill from an independent person with the expertise required to understand the complexities and nuance associated with modern slavery. I of course also support Amendment 92B, tabled by the noble Lord, Lord Alton.
The ground-breaking role of the Independent Anti-Slavery Commission was established under the Modern Slavery Act 2015, and it aims to encourage good practice in the prevention, investigation and prosecution of modern slavery offences, and in support for victims. Yet the role has been vacant for over 12 months. During that time, there have been significant changes to the modern slavery protections in the UK and to the debate about care for victims. The Bill should have been informed by the views of an Independent Anti-Slavery Commissioner but, so far, it has not. I and other parliamentarians have tabled PQs, asking the Government when they intend to fill this vacancy. If the Government are committed to beating modern slavery, I contend that, as a bare minimum, we should abide by our own modern slavery legislation.
I hope that the Minister will provide an update on the current stage of the recruitment process. The mere appointment of a commissioner is not enough, although it would of course be welcome. Any new commissioner needs to be afforded sufficient time to review and analyse the Bill and, where appropriate, make recommendations. If we are truly striving for best practice in tackling modern slavery, I agree with Dame Sara when she said:
“There is a real need for that fearless, independent, expert voice, and that is missing”.
I urge your Lordships to support Amendments 86 and 146.
Lord Cormack (Con)
My Lords, it would be entirely appropriate to support virtually all of these amendments, which have my total support. But the message from Frank Field—the noble Lord, Lord Field—was right: however many amendments we pass—and I envisage some long nights on Report—nothing will significantly improve this shoddy, shabby and unworthy piece of legislation. Frankly, I am as ashamed that a Conservative Government are bringing forward this legislation as I am proud that Theresa May brought in the Modern Slavery Act in the year when we commemorated the 800th anniversary of Magna Carta, symbolised by the Barons of Runnymede who look down on us today.
I am very conscious of the plea made on Thursday last week by the noble Baroness, Lady Smith of Basildon, when she urged the House not to go in for unnecessary repetition and so on. She was quite right to do that, but I do think we should have some proper answers from the Minister today. When is the impact assessment going to be ready? When is the anti-slavery commissioner going to be appointed? What plans are there to talk to that man or woman at the earliest possible date? If, in fact, in due course in response to that very fine report from the Joint Committee, just published, the answer is that that is going to be answered by the Government in August, when Parliament will have dealt with Report stage, that is nothing less than an absolute disgrace.
We want to have some definitive answers by the time this Bill goes to Report. It is a shoddy piece of legislation. It is not worthy of the British Parliament. It is not worthy of a Conservative Government and I will say little more about it other than I feel a shame that is in sharp contrast to the feelings I had in 2015 when Theresa May’s Bill became an Act of Parliament.
Lord Weir of Ballyholme (DUP)
My Lords, I also support the amendments in this group, but at the start I would perhaps add two caveats. I will make reference to, I think, five of the amendments, because I do not simply want to reiterate all the various points that have been made by others. I also share with the noble Lords, Lord Field and Lord Cormack, and others—and I suspect those who tabled the amendments—the belief that the purpose of these amendments is to help ameliorate and mitigate some of the worst excesses of the provisions but that they cannot, in themselves, rectify what is there.
I think that two of the proudest moments in our democracy in the last 15 years have been in this field. Mention has been made on numerous occasions of the Modern Slavery Act 2015, which was ground-breaking legislation, and the Committee will be familiar with that. I also refer from my own experience more locally to the Human Trafficking Act that was passed in the Northern Ireland Assembly and brought by my colleague and noble friend Lord Morrow as a Private Member’s Bill. It predated the Modern Slavery Act.
Both those Acts tackled the utter evil of human trafficking. Human trafficking, whether it is childhood exploitation, servitude, sexual exploitation and prostitution, or using people as drug mules or whatever is inherently evil because it dehumanises people. It treats those people as a commodity simply to be used for advantage. Therefore, it is right that we target our efforts against modern slavery.
Some critics of this Government would take a very, I suspect, unkind and cynical approach towards this piece of legislation. They would see the Government’s motivation as some form of cynical electoral virtue signalling, of trying to put through a piece of legislation which may not even really make it into any form of practice and may not survive any form of legal challenge but is instead designed to send out a signal to some within the electorate of their determination at least to be seen to be doing something.
I am sure that that is an entirely unkind interpretation of the motivations of this Government and indeed I challenge the Government as I am sure they would very keen to refute those unkind and cynical expectations. I think the best way they can do that, particularly on the grounds of modern-day slavery, is by enthusiastically embracing the amendments in this group.
I turn to the two main purposes of our focus against modern-day slavery—the two main motivations. First, as a nation—and this is very much at the heart of the Modern Slavery Act—we should show compassion and support for victims. I appreciate that there are some in this Committee who have greater expertise than I have, and some who have directly met victims, but for any of us to place ourselves in the shoes of those who have been exploited and trafficked is very difficult—but we need to support them. Secondly, we need to take every action that we can to bear down on the perpetrators, who would cynically exploit and use them in human trafficking. So we have support for victims and opposition to perpetrators.
Baroness Kennedy of The Shaws (Lab)
My Lords, I am a member of the Joint Committee on Human Rights. The report, as others have mentioned, came out early today, and many noble Lords will not yet have had the opportunity to read it. Evidence was taken from many people who had in-depth experience and who were experts in these different fields.
On modern-day slavery, we heard from the former anti-slavery commissioner, Professor Dame Sara Thornton, who, as noble Lords know, had been a very senior police officer and the lead police officer in the area of Oxfordshire. She made it very clear that she was horrified at the implications of the Bill, saying:
“It basically denies those who are trafficked to this country and arrive irregularly any modern slavery protections … It will be the victims who are punished, not those who are trafficking them”.
She says that as someone with huge experience. While we do not have a modern-day slavery commissioner at the moment, she is our last one, so her voice of experience should be heard and appreciated by this House.
We also heard from the Salvation Army, which the Committee will know is, again, the lead organisation dealing with modern-day slavery. Similarly, in its testimony to us, it said that
“removing people … will deliver vulnerable people back into the hands of the criminal gangs who have exploited them. This does nothing to break the cycle of exploitation”.
We really have to listen to that. I know that there are people who do not believe in expertise, but we have to listen to those with real expertise. I agree that this whole set of recommendations in the Bill is unacceptable, inhumane and unworkable.
The noble Lord, Lord Weir, suggested that we are being cynical if we think that this is performance politics. I am afraid that that is the view held by noble Lords all around this Committee, not just on the Opposition Benches. There are many Members on the Conservative Benches who know that the Bill is really the last shout of a failing Government. One said to me that it was the last card in the pack. Just think about what that means: that, when you are foundering, you turn to immigration and make a dog-whistle piece of legislation in the ugliest of ways.
Baroness Helic (Con)
My Lords, I will speak in support of Amendment 86 in particular, but I fully endorse other efforts to preserve protections for victims of modern slavery.
As I said at Second Reading, and as many noble Lords have warned, the provision in the Bill to remove modern slavery protections from migrants targets the very people most at risk of being trafficked. It would reduce the number of people coming forward with evidence and make prosecutions harder. My noble friend the Minister reaffirmed then the Government’s commitment to tackling the horrendous crime of modem slavery and to supporting victims, but I am afraid that the Bill still falls short.
There are strong similarities to cases of sexual and gender-based violence. We know that survivors’ testimony is crucial for accountability, but, without proper support and good systems in place, survivors are not, and do not feel, able to give evidence. The Government say that, where absolutely necessary and where they are co-operating with the police, victims will be able to stay in the United Kingdom while their case proceeds, but I fear that this sets the bar way too high. By the time it becomes apparent that a survivor’s evidence is necessary, it will often be too late. Survivors need the time and space to process what they have been through and to prepare themselves for coming forward with evidence, speaking about what they have experienced and going through the justice system. It can be an intense and daunting process which requires determination from the survivor and engagement and support from prosecutors. That is much harder to deliver remotely and why a recovery period is so crucial. It allows the time to reflect, to receive support and to rebuild trust, which may have been shattered by the experience of being trafficked, but without which they cannot work with the police or prosecutors.
There are parallels with the situation of migrant victims of domestic abuse. We have ample evidence that the fear or threat of deportation is used by abusers to control their victims and that it prevents victims from seeking help or escaping an abusive situation. Similarly, if survivors of modern slavery and human trafficking believe that reporting the crime that they have experienced will mean immediate deportation, trafficked persons are far less likely to come forward in the first place. The net result of that might end up being more people suffering and less control over migration.
The support that survivors of trafficking are able to receive during a recovery period can also reduce their risk of being trafficked in future. Trafficked persons are often highly vulnerable. Returning them to their home country without support may not solve the problem and risks putting them back into the cycle and seeing them trafficked again. A recovery period can be crucial to ending dependency, allowing survivors to rebuild their lives—that, in itself, is a blow to the human traffickers’ model.
I really hope that my noble friends in government will feel able to look again at this. I do not think that removing the protection against modern slavery will have the impact for which they hope; I fear that it will make the situation worse rather than better. If we want to prevent dangerous illegal migration, we need to tackle the traffickers who facilitate it. Targeting their victims will only make that harder. By ensuring the recovery period, Amendment 86 would allow survivors the space and cover to receive the support they need and, in doing so, would make successful prosecutions more likely and escape from modern slavery easier. I hope my noble friend the Minister will be able to support it.
Baroness Stroud (Con)
My Lords, I support my noble friend Lord Randall’s Amendment 86, to which I am delighted to have added my name. I also support other amendments in this group. I draw attention to my entry in the Register of Members’ Interests as a member of RAMP. I debated whether to add my comments to this already extended debate, but it is important that the record clearly demonstrate that voices on all sides of the House have raised their concerns about this clause.
This nation has a proud history of ending the evils of the slave trade, and on multiple occasions the Government have recognised the importance of building on this history. My noble friend the Minister used the standard Home Office line to take when he said:
“The UK has led the world in protecting victims of modern slavery and we will continue to identify and support those who have suffered intolerable abuse at the hands of criminals and traffickers”.
I agree that the UK has led the world in bringing forward legislation that protects victims of modern slavery, and some of us were deeply involved in bringing it about, but I simply cannot see how the Bill enables us to continue to identify and support those who have suffered intolerable abuse at the hands of criminals and traffickers.
As it stands, the Bill will prevent the care of victims of slavery and in so doing will damage our reputation. When I was a Conservative special adviser, we talked about the modern slavery legislation as one of our proudest achievements, but clauses in this Bill, coming fresh on the heels of the Nationality and Borders Act, are systematically dismantling that achievement, as we have already heard.
Through the Illegal Migration Bill two things are happening regarding slavery. First, support is removed for those who have been exploited and enslaved if they arrive in the UK via irregular routes. Secondly, the Bill makes it much harder to catch and stop the traffickers and slave-drivers, who are the real villains. Amendment 86 would rectify those two serious moral and practical issues in the Bill.
First, if someone is trafficked to the UK via irregular routes and is enslaved in the UK, the provisions in the Bill will prevent them being referred to the national referral mechanism or having the protection of the Modern Slavery Act. This covers most of the men, women and children who are trafficked into slavery in the UK. Amendment 86 would ensure that those who have been exploited and abused while in the UK, whether they are a UK citizen or not, receive the care and support they need. It would level the playing field by saying that, regardless of your mode of entry, if you are a victim of slavery you cannot simply be detained and removed.
Secondly, the amendment would address the misguided nature of the legislation. As we have heard, victims of slavery hold the key to the prosecution of perpetrators. This is vital to remember. As drafted, the Bill will prevent victims coming forward to give evidence because of the fear of being detained and removed.
Evidence is already starting to emerge from UK police forces that the erosion of victim protection from the Nationality and Borders Act is severely hampering the prosecution of perpetrators. If we leave this Bill as it stands, it will hamper prosecutions even further. Surely, its whole purpose is to stop these illegal acts. Amendment 86 creates space for victims of slavery to come forward.
Lord Macdonald of River Glaven (CB)
My Lords, allow me to add a few words about law enforcement. It seems to me that the problems the Bill intends to confront would best be solved by international co-operation, including international rules of law, but also by firm domestic law enforcement against the traffickers. That is a critical component.
It is very difficult for me to conceive of successful cases against traffickers without the co-operation of their victims. Persuading victims of crime in some categories of crime, including human trafficking, to give evidence against their tormentors is difficult, complex, sensitive, time-consuming work for the most obvious of reasons—the victims themselves feel under threat. This Bill gives those co-operating witnesses, who are showing enormous courage, no encouragement, no succour, no assistance, no help whatever. It will undoubtedly, in my judgment, make successful cases against traffickers less likely. This Bill is not simply anti-asylum but anti-prosecution.
Lord Kerr of Kinlochard (CB)
The strongest argument, apart from the legal and moral arguments, is the practical one that has just been made. How do you persuade victims of slavery to come forward and assist in a case if, when they do so, they are declared inadmissible and dispatched abroad? It is simply counterproductive and destructive of the whole basis of the Modern Slavery Act.
I would like to start as the noble Lord, Lord Coaker, did, by pointing to the Government’s announcement last week—there seemed to be some other things going on at the end of last week. It would have been better to make the announcement in this House, but it slipped out that the two-tier system for handling asylum introduced by the Nationality and Borders Act was being abandoned. We spent weeks pointing out that it would not work. However, better the sinner that repenteth, and I warmly welcome the Government’s decision to drop it. I think they were absolutely right.
The asylum queue now, at about 178,000, is 20,000 longer than when, with objections, we passed the Nationality and Borders Bill. A principal reason for it getting longer is the two-tier system that was introduced, which is administratively unworkable. I warmly welcome the Government changing their mind, but it is a shame that it remains a stain on our statute book—a clear breach of the UN refugee convention, as the UNHCR confirmed at the time. Of course, it was a smaller breach of the refugee convention than this Bill, as the UNHCR has confirmed.
If I could have the Minister’s attention, I ask him to at some stage correct the record on the UNHCR’s role in these matters. In the first day in Committee, asked about its views on the Bill, he acknowledged:
“Some parts of the UNHCR have views on the Government’s position”
but said that the UN
“is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]
He might want to reconsider that. Under Article 35 of the convention, the duty is laid on the UNHCR of supervising the application of the convention and all parties to it have an obligation to co-operate with the UNHCR. As for “some parts” of the UNHCR commenting on the Government’s position, it has published and formally conveyed to the Government its formal position and legal observations on the Bill in the exercise of its responsibilities under Article 35. That is what it is required to do and what it has done. To suggest that criticisms of the Bill come from “some parts” of the UNHCR but are not its institutional view is wrong.
I come back to the modern slavery amendments. Mine was taken in the middle of the night, unbeknown to me as I rashly went home shortly before midnight. One of the charms of being a Cross-Bencher is that you never have the faintest idea of what is going on. The usual channels rarely have a tributary around these parts. My amendment was crucial, but it would be out of order for me to speak to it now. However, I can praise the Joint Committee on Human Rights for its magisterial report that came out over the weekend. Its conclusion on the clauses we are looking at is exactly the same as that which the noble Baroness, Lady Meacher, came to:
“It is, in our view, wholly inappropriate to categorise victims as a threat to public order by the mere fact that they arrived … through an irregular route”.
It says—correctly—that Clause 21 breaches Article 10 of the convention against trafficking and formally recommends that it should be removed from the Bill. I agree. It seems to me that that is what we should do, so I shall support the noble Baroness, Lady Hamwee, when we consider whether it should stand part.
My general view is in line with that of the noble Lord, Lord Cormack: I do not like this debate, for a number of reasons, partly because the best debates have two sides to them. This is tennis with nobody on the other side of the net and I am fed up with it.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Kerr. I agree with him about that form of tennis and, seriously, about both the timing of the Government’s announcement of their plans for the Nationality and Borders Act and the fact that this is a U-turn that needs to be applauded. If the Government point themselves in the right direction, people should not jump up and down and point a finger and go “U-turn, U turn”. It is better than not U-turning. We have heard many powerful speeches in this debate, but I think the Committee will join me in commending all Members on the Government Benches who have shown both courage and compassion in getting up and opposing the Government’s plans for victims of modern slavery.
I agree with both the noble Lord, Lord Cormack, that the whole Bill should go, and the noble Baroness, Lady Hamwee, that all these clauses should go, but I actually signed a number of the amendments in the name of the noble Lord, Lord Coaker—a package which has helped us interrogate what the Government are now doing and the impact that it will have. In that light, I shall ask the Minister three specific questions that in some ways draw on what has been said before, but also go in slightly different directions.
My first question concerns the situation if the provisions under the Bill, as the Government plan, essentially end the protection for victims of modern slavery. Imagine a police officer now, crouching down beside, say, a frightened young man who has been forced to work in an illegal marijuana farm, behind locked doors where the whole thing could have caught fire and killed him at any moment; a young woman forced by threats to stay in a nail bar; a young man who has been trapped for months in horrendous conditions at a hand car wash; or indeed a young woman who has been forced into sexual exploitation. Currently that police officer can crouch down beside them and say, “It’s all right, you’re safe now”. What does the Minister think a police officer would be able to say if the Bill goes through as drafted? What could that police officer say to the victim of modern slavery? I ask the Committee to think how the police officer might feel about being in that situation.
My second question concerns one of the things that that police officer would probably do, perhaps not immediately but soon after that. They would start to say, “Can you tell me what is happening here? Please, tell me what is happening. A bit down the track, would you think about testifying against the person who put you into this situation?” If we think about even the intelligence gathering, let alone the prosecution, what would the passing of this law do?
My third and final question is: have the Government really considered this? Let us think about the kinds of illegal operations I referred to—illegal enterprises that are a stain on our communities, that compete with and thrust out honest, decent businesses, that are a rotten core in the community and have all sorts of nasty effects. What will allowing those operations to continue, which is what the Government’s plans would do, do to our communities?
The Lord Bishop of Durham
My Lords, I declare my interests with RAMP and Reset and, like the noble Lord, Lord Coaker, did at the outset of the debate, I hope that will stand for the other times I speak later on different groups.
I support all the amendments, but I am speaking in support of the proposal of the noble Baroness, Lady Hamwee, that Clauses 21, 25, 26 and 28 be completely removed. This is supported by my noble friend the right reverend Prelate the Bishop of Bristol, who we heard earlier is unfortunately unable to be here today. Bishops across England have had the privilege of working very closely with the large sector of faith-based charities and projects that work with victims of slavery. We have heard a lot about the Salvation Army, but I want to highlight the Clewer Initiative, which is our own project raising awareness and helping support victims. The feedback that has been coming from the Salvation Army, from Clewer and from other groups in relation to the modern slavery provisions of the Bill ranges from trepidation to outright horror.
Rather euphemistically, the Explanatory Notes refer to what is proposed in this and the following clauses as “a significant step”. I suggest that the complete disapplication of all support, replaced with detention and removal, is drastic in the extreme. I cannot see how such a step could be justifiable, but for it even to be defensible would require the most robust and extensive level of proof of its necessity. I do not think that has been shown.
Baroness Sugg (Con)
My Lords, I support Amendments 86 and 90. No one wants to see abuse of modern slavery legislation or false claims from those arriving on small boats, but I regret that in the Bill currently, all protection for genuine victims of modern slavery has been removed. These amendments are focused just on those who have been unlawfully exploited here in the UK; they do not allow people arriving to claim it. Any abuse of the national referral mechanism should be addressed but, as we have heard, no data currently exists on this, so I would be grateful if my noble friend the Minister could share any information on the scale of this issue. These amendments provide the additional protection for victims of modern slavery that the Immigration Minister is looking at, and I hope my noble friend will carefully consider them.
Lord Paddick (LD)
My Lords, as was pointed out by the noble Lord, Lord Kerr of Kinlochard, not one speaker has supported the Government’s position on these clauses. The only person who is going to speak in favour of the Government is the Minister. Surely the Government must realise what the Committee’s view is of these provisions.
In the debate on the Nationality and Borders Bill, we discussed the importance of a period of recovery and reflection for victims of modern slavery. For example, those traumatised often do not have a clear recollection of what has happened to them until after they recover. They cannot co-operate with the police until they have had a period of recovery; it is counterproductive to remove that provision.
In the remarks made by my noble friend Lord Purvis of Tweed on a previous group, we heard a clinical dismantling of the government case that the protections afforded by the Modern Slavery Act are being abused. It does not stand up to scrutiny. In previous groups, we also discussed how unlikely it was that victims would support a prosecution if they were removed from the UK. As the noble Lord, Lord Morrow, said, what will the impact of these measures be on tackling modern slavery?
We all want to see the prosecution of criminals involved in the exploitation of vulnerable people, whether they are children or vulnerable people trafficked into this country, but what assessment have the Government made of the impact on the likelihood of such prosecutions? How can all victims of modern slavery who arrive in the UK through what the Bill calls irregular routes be considered a threat to public order? We know how children can be groomed and coerced into committing offences—as so many children with British citizenship have been in connection with county lines drug dealing, for example—yet the Government want to disqualify from protection non-British children who could be in a similar position.
As the noble Lord, Lord Coaker, said, Clauses 21 to 28 remove all protections from victims of modern slavery who arrive irregularly, making it more difficult to prosecute the criminals exploiting vulnerable migrants, including children. If the noble Lord, Lord Macdonald of River Glaven, with all of his experience as a former Director of Public Prosecutions, is telling us that this will have a devastating impact on the police’s ability to tackle these issues, the Government should surely be paying attention. The noble Lord, Lord Carlile of Berriew, outlining the amendments of the noble Lord, Lord Alton of Liverpool, talked about witnesses of modern slavery not feeling safe in giving evidence against offenders.
The other important question raised by these amendments is when a new Independent Anti-Slavery Commissioner will be appointed. Will it be at the same time as the Government respond to the Joint Committee on Human Rights’ report on the Bill? They say that will be in August, when the danger of the Bill being criticised by such an independent commissioner will have gone.
What assessment has been made of how safe the countries in Schedule 1 are for victims of modern slavery? As the right reverend Prelate the Bishop of Durham said, there is a bigger problem with modern slavery in Rwanda than in this country, yet this Government are proposing to send victims of modern slavery to that country.
My noble friend Lady Hamwee drew attention to the excellent report of the Joint Committee on Human Rights, published on the weekend. It entirely supports the position taken by these Benches in opposing all clauses in the Bill, including those in this group. Clauses 21, 25, 26 and 28 undermine the Modern Slavery Act without justification and should not stand part of the Bill for the reasons powerfully explained by noble Lords on all sides of this Committee, including in the very powerful contributions of the noble Lords, Lord Randall of Uxbridge and Lord Cormack. I pay tribute to the long and continued dedication of the noble Lord, Lord McColl of Dulwich, in this area.
The amendments in this group, while commendable, would not remove the dangers to the victims of modern slavery proposed by this Bill. That is why these clauses should not stand part.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, as I have repeatedly set out, we need bold and radical action to tackle the dangerous, illegal and unnecessary crossings in the channel. We will deter such crossings only if those who would seek to make them know that they will not be able to build a life in the UK. Instead, they would be liable to be detained and swiftly removed. To achieve this, it is necessary not only to make asylum and human rights claims inadmissible but to withhold modern slavery protections from those who meet the conditions in Clause 2.
As was set out earlier in response to amendments tabled by the noble Lord, Lord Hunt of Kings Heath, the national referral mechanism presents clear opportunities for abuse by those who would seek to frustrate removal. We have heard many statistics in this debate, and, of course, when the noble Lord, Lord Coaker, and others quote from official statistics I do not dispute the figures, but let me add some more which have not been mentioned. It is worth repeating the statistics which demonstrate the sharp rise in NRM claims, where someone is detained pending removal. The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions in 2019 to 73% in 2021. In contrast, where people were not detained for return, less than 3% of people who arrived in 2021 were referred to the NRM within three months of entering the UK. I suggest that these figures cannot be ignored.
Clause 21 is firmly based on the provisions of the Council of Europe Convention on Action against Trafficking in Human Beings, or ECAT. Article 13(3) expressly provides that states are not bound to observe the minimum 30-day reflection and recovery period if
“grounds of public order prevent it”.
The noble Lord, Lord Carlile, and the noble Baroness, Lady Ritchie, omitted to mention this provision when they stated the other provisions of ECAT.
The measures in the Bill are intended to deal with the immediate and pressing broader public order risk arising from the exceptional circumstances relating to illegal entry into the UK, including the pressure on public services and the threat to life arising from the dangerous channel crossings. We recognise the exceptional nature of these provisions. That is why Clause 25 includes a sunsetting provision such that these provisions will cease to operate if not extended two years after commencement.
Lord Carlile of Berriew (CB)
The Minister is making a very bold proposition when he says that Article 30 gives the Government an excuse to ignore ECAT. Can he give us examples of public order events which justify that bold, and in my view unjustifiable, statement?
Lord Murray of Blidworth (Con)
It was Article 13(3). The events which the Government say warrant the grounds of public order which prevent observance of the 30-day reflection and recovery period are the conditions which I identified earlier in relation to the pressure placed on public services and the threat to life arising from the dangerous channel crossings.
I do not propose to address all the amendments individually, suffice to say that where the Secretary of State is satisfied that an individual is participating in an investigation or criminal proceedings relating to their alleged exploitation, and considers it necessary for them to be present in the UK to provide that co-operation, and considers that their co-operation outweighs any significant risk of harm to the public they may pose, that individual will be exempt from the disqualification. This allows the Government to protect against the threat to public order arising from the current circumstances relating to illegal entry into the UK, while also ensuring that investigations can be progressed to bring perpetrators to justice. By one means or another, the amendments seek to negate, or at least roll back, the intended effect of the provisions in Clause 21 and subsequent clauses.
Lord Cormack (Con)
What does my noble friend say to the statement that what is being done here is in effect dismantling a world-renowned piece of legislation—the Modern Slavery Act—passed only eight years ago?
Lord Murray of Blidworth (Con)
I am afraid I do not agree with my noble friend. These provisions are strictly limited to deal with the present emergency that we face.
As with the amendments to the other parts of the Bill, if we add exceptions, exclusions and exemptions, we will significantly undermine the efficacy of the Bill overall and the scheme will be undermined, making it unworkable. The Bill will then not deliver on its stated purpose.
Having said that, I want to touch on some of the specific amendments. However, before I do so, I will respond to the request of the noble Lord, Lord Coaker, to give an update on the economic impact assessment. At the risk of repeating myself, it remains the Government’s intention to publish the document in due course. However, I undertake to provide an update to the House before the first day of Report.
In relation to Amendment 86, put forward by my noble friend Lord Randall, I point out that for the cohort caught by the Bill—particularly those apprehended in Kent, having crossed the channel in a small boat—few will be victims of exploitation in the UK. It is important to remember that victims of modern slavery who are British citizens, or those who are in the country illegally having overstayed their visa, will not be caught by the public order disqualification. Similarly, unaccompanied children who are not to be removed under the power conferred in Clause 3 will continue to benefit from NRM support—a point raised by the noble Lord, Lord Coaker. As for others who are to be removed pursuant to the duty in Clause 2, their relocation to a safe third country will remove them from their exploiters.
I remind the Committee that our partnership agreement with Rwanda includes express provision for the Rwandan Government to take all necessary steps to ensure that any special needs that may arise as a result of a relocated person being a victim of modern slavery are accommodated. This should not be downplayed, as the right reverend Prelate the Bishop of Durham suggested. I can also assure my noble friend that we will continue to engage with the police and the CPS as we prepare the statutory guidance provided for in Clause 21(6). I reiterate what my right honourable friend the Immigration Minister said at the Commons Report stage:
“we will look at what more we can do to provide additional protections to individuals who have suffered exploitation in the UK”.—[Official Report, Commons, 26/4/23; col. 781.]
That remains the Government’s position.
I turn to Amendment 88. It is the unfortunate reality that criminal gangs are good at adapting to changes in the law to continue their nefarious activities. It is therefore not unreasonable to assume that such an amendment may result in a change of methodology by the people traffickers, either by targeting vulnerable women to a greater extent or by encouraging illegal migrants to make false claims to seek removal under the Bill.
Amendment 90, spoken to by my noble friends Lord Randall and Lord McColl, relates to the presumption that it is not necessary for a person to remain in the UK to co-operate with an investigation. It is one of the enduring legacies of the Covid pandemic that much more can now be done remotely. We all see this in the changes to the way we work. Even now, some Members of your Lordships’ House take part in debates by videolink. It is simply no longer the case that a victim of crime needs to be in face-to-face contact with police or others to assist with an investigation. There is no reason why, in the majority of cases, such co-operation cannot continue by email, messaging and videoconferencing. The presumption in Clause 21(5) is therefore perfectly proper.
We have provided statutory guidance to support decision-making by caseworkers when determining if there are compelling circumstances why the presumption should be set aside in any particular case. We are considering carefully the recommendation of the Delegated Powers Committee that such guidance should be subject to parliamentary scrutiny. Given this, I am not persuaded that the substitution of a regulation-making power would make a material difference.
The Lord Bishop of Durham
Sorry—it has taken me a little while to contemplate but is the Minister effectively saying that the use of video and email and so on is as good as in-person interviewing and in-person interventions? I really think that needs to be rethought.
Lord Murray of Blidworth (Con)
As the right reverend Prelate will appreciate, it is the experience of litigators that the use of remote facilities has become very commonplace.
The Lord Bishop of Durham
With respect to the Minister, that is not quite what I was asking. Absolutely, it is happening, but is it as effective?
Lord Murray of Blidworth (Con)
That all depends on the facts of each particular case, As I say, that is what will be considered in accordance with the guidance that I have just described.
Where the Home Secretary concludes it is necessary for someone to remain in the UK for the purpose of co-operating with a law enforcement agency, the continued need will be kept under review. Section 65 of the Nationality and Borders Act already provides for the grant of limited leave to remain in such cases. The length of such leave should be considered on a case-by-case basis. As such, it would not be appropriate to provide for an arbitrary minimum period of 30 months, as Amendment 89 seeks to do.
Lord Macdonald of River Glaven (CB)
Would the Minister accept that, given the extreme sensitivity of persuading victims in these categories of offences to co-operate in the first place, and the almost full-time pastoral care that they have to be given in the approach to a trial, doing all of this from the countries to which these people are likely to be sent is going to be inordinately difficult?
Lord Murray of Blidworth (Con)
I am afraid I do not accept that, because of the advances in technology that I have already described. That is the position in respect of Amendment 89.
Lord Paddick (LD)
Does the Minister not understand that for a victim of crime who is in effect persecuted by the Government by being sent to another country, that is going to have an impact on their likelihood of co-operating with the Government in order to prosecute traffickers?
Lord Murray of Blidworth (Con)
One would hope that a victim of trafficking would want to facilitate the prosecution of their traffickers. It is clear, for the reasons I have already set out, that we cannot afford to create any loopholes or exclusions from the scheme.
Amendment 92 seeks to limit the countries to which a person can be safely removed. There is no one international standard to assess a country’s ability to provide support for victims, so we should not be tied to removing potential victims of modern slavery only to signatory countries of the ECHR or ECAT. In addition, this amendment would have the perverse effect of preventing the return of potential victims to their home country where it was safe to do so; I am sure the noble Lord would not want such a block to apply. As I have indicated, our partnership with Rwanda has in place provisions for supporting survivor recovery needs.
Lord Carlile of Berriew (CB)
Before the Minister sits down, will he do the usual thing, which is to answer reasonable questions that were asked of him, particularly the question I asked about the due diligence carried out in preparation of Schedule 1 and how advice was obtained as to whether it was right to put almost entirely unqualified entries into that schedule?
Lord Murray of Blidworth (Con)
I had in mind the sage words of the noble Baroness, Lady Smith, in the House last week. As the noble Lord will recall, the origins of Schedule 1 were canvassed at length by the Committee in the previous group. The countries listed in the schedule are an amalgam of previous pieces of legislation where the safety of those countries has been established in that legislation.
Baroness Ritchie of Downpatrick (Lab)
My Lords, earlier when referring to ECAT provisions in relation to the amendments I brought forward and the comments made by the noble Lord, Lord Carlile, the Minister seemed to say, and I would argue, that applying Article 13(3) of ECAT to a large group of people would go against the spirit and character of ECAT. I think it was never intended to apply to a group but to individuals and that the breadth of application coming from the Minister is a bit of stretch, so I ask him to consider that matter again and maybe come back on Report with an amendment similar to the ones that I proposed.
Lord Murray of Blidworth (Con)
Obviously I hear what the noble Baroness says. Clearly the public order disqualification is capable of being applied in the way that the Government suggest it is here, and of course it is also a matter of individual application—but no doubt those in the department will read what the noble Baroness said. For all those reasons I invite the noble Lord to withdraw the amendment.
Lord Randall of Uxbridge (Con)
I wonder whether my noble friend would consider my invitation. If I can arrange it, will he come with me to meet a victim of modern slavery, so he can actually see the people we are talking about who would be potentially affected by this?
Lord Murray of Blidworth (Con)
Well, I would be very happy to meet the noble Lord, with or without such a victim, to discuss his amendment. I would be happy to do that.
Lord Randall of Uxbridge (Con)
I asked the Minister whether he would meet a victim of modern slavery.
Baroness Bennett of Manor Castle (GP)
My Lords, I asked the Minister three questions and, not to my great surprise, I did not get answers to any of them. To focus on one of them: will the famous impact assessment include consideration of the damage to UK communities—or “potential damage”, if the Minister will not acknowledge the damage—done by the failure to be able to prosecute illegal enterprises engaging in modern slavery in the UK?
Lord Murray of Blidworth (Con)
I am afraid I cannot comment on what might or might not be in the impact assessment.
Lord Coaker (Lab)
My Lords, rather than make a lot of different remarks, let me just say this: in my honest opinion, this is no way to do a Bill, particularly one as contentious as this. Numerous questions have been put by Members of your Lordships’ Committee, which the Minister has failed to address. How can we do our job if the Minister fails to engage with what is being said?
For the Government to turn around and say, in light of what the noble Lord, Lord Carlile, and many other noble Lords have said, that it may be that the impact assessment is available on the first day of Report, is totally and utterly unacceptable. It is simply not good enough for all of us who are considering amendments. Rather than dealing with many of the points put forward, I will say that it is clear that there will be a considerable number—to say the least—of amendments on Report. How can we judge those amendments—how they should be phrased and determined, and which ones are more important—if we have no impact assessment? It is frankly unbelievable to be left in that situation and it is no way to do a Bill.
I read—I did read much of it; my noble friend Lady Kennedy will be pleased—an excellent report by the JCHR. I am going to quote from the summary on the “Role of the JCHR”, because I could not believe it:
“We would have liked the opportunity to have questioned the Home Secretary about this. We invited the Home Secretary to give evidence on the Bill and she was unable to do so”.
This is a flagship Government Bill dealing with something which, as we have just been told, allows derogation from Article 13 of the European convention because the continued small boat migration is a threat to public order. Yet the Home Secretary cannot be bothered to go to the JCHR.
The report goes on to say:
“We also wrote to the Home Secretary with detailed legal questions on the Bill in order to inform our report and requested a response by 24 April 2023. The Home Secretary belatedly responded to us by letter dated 2 June 2023. We therefore did not receive her response before the Bill commenced Committee Stage in the House of Lords. The Home Secretary did not give any explanation for her undue delay in responding to our letter and many of the questions remain unanswered”.
To pick up the point made by the noble Lord, Lord Cormack, the report then says:
“We consider both the delay and her lack of explanation for the delay to be discourteous not just to this Committee but to both Houses of Parliament”.
I could not agree more with that.
We are supposed to be the revising Chamber. The Government lecture us and will say that the elected Government of the day have a right to get their legislation through. Many of us, including me, try to protect that convention, but it is based on a two-way process. That two-way process involves the Government giving all of us the proper information to make our decisions. It depends on Ministers answering questions; it depends on impact assessments being made available so that we can make our judgments. It does not depend on Ministers saying that they think a noble Lord is wrong; that somebody does not get it; somebody is misreading the information; somebody does not understand the statistics. It depends on detailed, logical argument and debate.
I will tell you what that leads to: it leads to better policy. It means that you do not have the ridiculous situation of the Government abandoning a key part of a Bill they only passed a few months ago by Written Statement a couple of days ago. That is where we will get to with this Bill if it is not properly considered. Even under the Government’s own terms it will not work. I say to the Minister that it is not good enough and he needs to reflect on what he is going to do about it.
Baroness Ludford
“Early access to legal aid(1) After paragraph 32A (victims of slavery, servitude or forced or compulsory labour) of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 insert— “32B “(1) Civil legal services provided to an individual who is subject to removal to a third country under the Illegal Migration Act 2023, or who might reasonably suspect they are subject to removal under that Act, in relation to referral into the national referral mechanism and connected immigration advice and representation, where there is no other provision for this within the scope of legal aid.General exclusions(2) Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule.Specific exclusions(3) The civil legal services described in sub-paragraph (1) do not include—(a) advocacy, or(b) attendance at an interview conducted by the competent authority under the national referral mechanism for the purposes of a reasonable grounds decision or a conclusive grounds decision.”(2) In regulation 11(9) of the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) (qualifying for civil legal services: cases in which merits criteria do not apply), at end omit the full stop and insert—“(e) or, for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, in relation to any matter described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).”(3) In regulation 5(1) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (S.I. 2013/480) (exceptions from requirement to make a determination in respect of an individual’s financial resources), after paragraph (r), omit the full stop and insert “and,(s) for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, civil legal services described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).””Member’s explanatory statement
This new clause would give individuals subject to, or who might reasonably suspect they are subject to, removal to a third country under this Act access to early specialist legal advice, which is not means- or merits-tested, allowing for informed consent to a trafficking referral. The intention is that potential victims of modern slavery or human trafficking in that position will be able to understand what the NRM is and what it does, and provide informed consent to be referred into it. This expands the support available for advice on referral into the NRM, which is currently only available if you have a matter that falls within scope of certain types of legal aid.
Baroness Ludford (LD)
My Lords, as was mentioned, the noble Lord, Lord Alton, is not able to be here today, but I join in the tributes paid by the noble Lord, Lord Carlile of Berriew, about his excellent work on the Bill. He very much regrets that he is not able to be here.
The noble Lord, Lord Coaker, has slipped out, but I felt the challenge “follow that”. I fully subscribe to the fantastic riposte that he gave to the Minister. I am afraid I will speak quite a few times today; that is how the cookie has crumbled for the parts of the Bill that I have got involved in—all my prizes are coming at once. I am afraid I do not apologise for that. In response to my noble friend Lord Newby last week, the Chief Whip complained about alleged repetition, including from these Benches. I may not be alone in having heard Dr Hannah White of the Institute for Government on the “Westminster Hour” on the radio last night. She said that, in the other place, the Bill had two days in Committee of the whole House—that is not an ideal process. She said that, normally, you would have expected two weeks in Committee in the past, under the normal processes—
Baroness Ludford (LD)
I hear the noble Lord, Lord Deben, who knows those processes. They would take evidence and scrutinise line by line, rather like how we are doing now. The Bill did not get that scrutiny in the other place, so it falls to us. Indeed, Dr White said—I hope I do not paraphrase her wrongly—that the Commons are getting used to kicking the scrutiny down to our Chamber. It seems that the Government are trying to squeeze scrutiny out of us and to bully us into not raising issues here. It comes to something when we poor, aged people—perhaps I had better not go on—are the ones who have to stay until 4.15 in the morning because the Government are trying to bully us out of raising essential issues. These included arbitrary detention powers last week—nothing could be more historic in terms of the dangers of executive overreach. So we have to go on a bit, I am afraid.
Lord Bach (Lab)
My Lords, I am proud to have signed Amendment 120 in the name of the noble Baroness, Lady Ludford. I will address my own Amendment 120A, as well as the Clause 4 stand part notice, which is part of this group.
There are many who believe this Bill to be the worst introduced by His Majesty’s Government, formerly Her Majesty’s Government, since they came to power 13 years ago. I agree, although, in my view, the Legal Aid, Sentencing and Punishment of Offenders Act—LASPO, as mentioned by the noble Baroness—which achieved its 10th anniversary on 1 April, comes a close second. That Act, as the Committee knows, took away ordinary people’s ability to access justice in the whole field of social welfare law and offended against fundamental rule of law principles. One of the few areas that retained legal aid in scope was asylum and, to an extent, immigration—even though that has been whittled down over the last 10 years, with dire consequences for the provision of advice and lawyers dealing with asylum cases.
Clause 54, introduced on Report in another place, allows for legal aid to be given to asylum seekers in respect of the Bill; in other words, it brings it within scope. No doubt His Majesty’s Government will claim that this is the act of a principled and caring Government, even though it should be noted, as the noble Baroness, Lady Ludford, just mentioned, that, as drafted, it ensures the provision of civil legal aid services to P only on receipt of a removal notice. It does not confirm or secure access to free legal aid in relation to an asylum or HR claim.
More important than that, however, is the dangerous lacuna in Clause 54. There is an overwhelming danger—almost a certainty, I argue—that the right to legal advice and legal aid will cover up the reality of its actual provision. This is the reason for my amendment. Thanks to the organisation BID, my amendment would impose a duty on the Lord Chancellor to secure civil legal aid services within 48 hours of detention. Without the amendment, there is very little chance that those detained will receive the advice that the law says they are entitled to.
Why do I say this? Here, I am grateful to Jo Wilding. Figures published following a freedom of information request by the Ministry of Justice suggest that in 2021, there was a gap of at least 6,000 people between the number of new asylum applications and the number of new immigration and asylum matters that were actually opened, and for which legal aid was given.
Baroness Lawlor (Con)
My Lords, Clause 54 provides that, under the Bill, recipients of removal notices will have access to certain civil legal services. As your Lordships have rightly pointed out, this would bring them within the scope of legal aid and allow access to legal services in relation to removal notices without the application of the merits criteria and within the timeframe of the Bill.
Despite my respect for the expertise and knowledge of the noble Lords who have brought forward these amendments, I cannot support them. I am concerned that, in extending further the provision of legal aid available under the Bill or the duties under it, Amendments 92A and 120—and Amendment 120A, in its own way—would add more cost and compliance burdens to a system that has already become far less overarching than was envisaged when it was set up.
In my view, legal aid needs to be looked at in its entire context. As matters stand, legal aid is not given in many sorts of cases. Schedule 2 to the Access to Justice Act 1999 excluded categories that had hitherto been included. The LASPO Act 2012 went far further, in that there was a significant removal of cases; indeed, all cases other than those mentioned in its Schedule 1 were removed. This means that cases historically funded by legal aid in this country have been removed.
This affects many people who have lived and worked here—and, indeed, those who have fought wars for this country. Their cases are no longer eligible for consideration for legal aid, which might strike them as unfair and disproportionate. I agree with the noble Baroness, Lady Ludford, that the system must be seen to be proportionate and fair as well as efficient. However, many cases where a UK citizen may have a just claim or wishes to defend a right are now excluded. For example, in cases of medical negligence, claims are no longer permitted other than those relating to a child who suffers a severe brain injury during pregnancy, childbirth or shortly afterwards.
Legal aid has historically played an important part in poor persons—I am using the words used until 1950—being able to pursue their legal rights without being charged fees, albeit with charges and restrictions made from time to time until 1949, when the system as we know it today began. That change extended eligibility to people of small or modest means, with free aid up to a limit and a merits test for civil cases. As we have heard and as we know, that system has all but disappeared. Means testing is more severe. Some categories have been removed while others have been added. The upshot is that access to legal aid has been reduced significantly. I agree with much of what the noble Lord, Lord Bach, said about how the system has changed dramatically.
Clause 54 will add another category to the overstretched system. There are reasons for that but, for the reasons I have given, I am not in favour of extending this beyond what is proposed in the Bill.
Lord Paddick (LD)
My Lords, as my noble friend Lady Ludford said, proper scrutiny of the Bill rests with this House, as the Commons was not given sufficient time to scrutinise it, so that is what we are determined to do.
Bearing in mind the draconian measures in the Bill, proper legal aid must be provided, including for those referred to the national referral mechanism, particularly in light of the changes introduced by the Nationality and Borders Act that adjusted the reasonable grounds threshold and the standard of proof required—and not just to those served with a removal notice. We also support Amendment 120A to ensure that legal aid is provided, rather than just allowed.
In response to the noble Baroness, Lady Lawlor, it seems an extraordinary argument to say that, because British people are denied justice and cannot access legal aid, people seeking asylum should also be deprived of justice. Surely, the answer is to provide justice to everyone who needs it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group of amendments looks at legal aid in the context of the Bill. Prior to a removal notice, the Bill does not provide legal aid to a person in detention in England and Wales. There is no provision for a person awaiting a decision on removal in Northern Ireland and Scotland, so I wonder whether the Minister can say something about the position in Northern Ireland and Scotland.
The Bill provides an extremely short timeframe of eight days for an individual to seek legal advice and representation and provide sufficient instructions for a representative to lodge a suspensive claim with compelling evidence against removal to a third country. The non-government amendments in this group would expand legal aid provisions to persons potentially facing removal. The government figures suggest that around half of asylum seekers already do not have access to legal aid advice, with advice being much harder to obtain outside of London. My noble friend Lord Bach amplified that point very powerfully, when he gave the figure of the gap of 25,000 between the numbers of asylum applicants and legal aid provisions in 2022, showing that about 50% of asylum applicants have no legal advice.
My noble friend also gave a powerful exposition on the background of legal aid following the cuts we saw with the LASPO Act. The noble Baroness, Lady Lawlor, also acknowledged those cuts, which have been extended from when the LASPO Act originally came into force. As my noble friend Lord Bach summed up very effectively, the overwhelming danger of Clause 54 is that it becomes a sham and a fig-leaf; the rights may be there on paper, but they will never be provided in practice. The amendments in this group are seeking to ameliorate that fear.
The noble Baroness, Lady Ludford, also summed up this group of amendments very effectively, when she talked about the importance of legal aid for making fair decisions. I agree with her that this will reduce appeals, will let applicants properly understand the process of what is happening to them, and, perhaps above all, will uphold the UK’s reputation as a country which is ruled by law, as people need to understand the laws being applied to them.
This has been a relatively short group, but it goes to the heart of the Bill, because it concerns what is available in practice to people coming over and applying for asylum. They need to understand the situation they are in and that they will be treated fairly. Reflecting on my own time sitting in courts, I say that people may not like the decisions being made, but it is a much better position when they understand them. It will resonate beyond the courtroom itself, if people understanding the decisions being made about them.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, it is always a rewarding experience to find oneself largely in agreement with some of the sentiments that have been expressed. On the issue of legal aid, Clause 54 ensures that individuals who receive a removal notice under the Bill have access to free legal advice before removal and, in so providing, it is one of the keystones of the Act. It is absolutely essential that free legal advice is available to persons before removal. That is important for the reasons that have just been given. It is important that people understand the process and that it is a fair and efficient process. No one would disagree with any of those sentiments expressed in the Chamber today.
It is important to emphasise that, unlike most civil legal aid, legal aid in the context of the Bill is being made available without a merits test, nor a means test—as a matter of statutory instrument, that will be provided in due course.
To answer the first question from the noble Lord, Lord Ponsonby, we are in close discussions with the authorities in Northern Ireland and Scotland, where I anticipate the position will be exactly the same as it is in England but, obviously, that has to be covered. As has been rightly said, legal aid is, in the context, essential for speedy but fair decision-making. Those basic points are essentially common ground.
I will now deal briefly with the amendments. Government Amendment 119A in this group simply corrects the references to the clauses in the Bill under which advocacy in the Upper Tribunal can take place, and adds a reference to the tribunal procedure rules, since the clause as tabled in the other place at a late stage needs to be corrected in those technical aspects. That is all that Amendment 119A is.
I turn now to Amendment 92A, tabled by the noble Lord, Lord Alton, and moved by the noble Baroness, Lady Ludford, which seeks to make provision for legal aid for potential victims of modern slavery subject to removal for possible referral to the NRM. In the Government’s view, this amendment is not required, as Clause 54 already provides free legal advice for anyone issued with a removal notice under the Bill, and that legal aid is available irrespective of the merits or means.
The Committee has just accepted that Clause 21 stand part of the Bill, so I respectfully say that it does not seem correct for me to reopen or rediscuss the various arguments which have been debated at length this afternoon in relation to modern slavery. In practice, if Clause 21 stands part of the Bill, as the Committee has just agreed, the basis for this amendment, in the Government’s submission, largely falls away and it is not at all clear that there is any remaining practical purpose in pursuing the amendment. That is the Government’s position on Amendment 92A.
As far as Amendment 120 is concerned, spoken to by the noble Baroness, Lady Ludford, which seeks to ensure the availability of civil legal aid services for various claims, challenges and legal proceedings covered by the Bill, the Government’s position is that Clause 54 already effectively provides for that. The Lord Chancellor already has a statutory duty to ensure that legal aid is made available to individuals where it is required under LASPO. By virtue of Clause 54, legal aid will therefore have to be made available to individuals in receipt of a removal notice, in relation to that removal notice, to take advice in making a suspensive claim either on factual grounds or on grounds of serious irreversible harm. This is, as I said a moment ago, an essential feature of the Bill to ensure fairness to those facing potential removal under the powers in the Bill. There are other existing provisions in LASPO that make legal aid available in relation to protection claims, human rights claims, modern slavery, detention and habeas corpus. But the key need here in this Bill is for legal advice before removal takes place and legal advice in relation to making a suspensive harm claim or a suspensive factual claim.
Finally, Amendment 120A tabled by the noble Lord, Lord Bach, who I know follows these matters with great interest and great integrity and has over the years been very concerned indeed about the provision of legal aid, highlights the practical importance of making sure legal aid actually is available. The same point has been made by the noble Lord, Lord Ponsonby, and others. That is a very important aspect that the Government and the Ministry of Justice in particular are fully seized of at the moment. As noble Lords can imagine, it provides a considerable logistical challenge, because it depends on a number of factors: where the potential removees or detainees are; how they can be accessed; who is going to provide the advice; whether there are enough people to do it; whether they are trained up enough; whether it can all be done in the short time limits provided by the Bill. Those are all matters with which the ministry is currently seized. We are working extremely closely with the Ministry of Justice and the Home Office to ensure that legal aid is really made available to those who need it. I venture to hope, most sincerely, that we are not in a position where any significant proportion of the persons concerned fail to get legal aid. It would not be acceptable, in the Government’s view, for very large numbers of people to be removed without the benefit of legal advice. It is a problem that the Government have to solve and are working to solve.
Lord Hunt of Kings Heath (Lab)
My Lords, I do not want to take us back to the impact assessment issue, but it would certainly be helpful to know before Report where the Minister’s department is going in relation to the work he referred to. We should have a much clearer idea, by the start of Report, as to the extent to which his department is able to give guarantees that a proper legal aid system would be in place, effective and able to operate.
Lord Bellamy (Con)
My Lords, I hear what the noble Lord says. It is an entirely reasonable question. I will take it back to the department and do my best to see how far we can satisfy that completely understandable request. The Government accept that legal advice should be available in practice and quickly, and they are working on that with intense attention at the moment but, in relation specifically to Amendment 120A, do not feel it is appropriate or feasible to provide for a statutory obligation to deliver within 48 hours, which is what the amendment calls for.
However, there should be a system that enables people effectively to take advice within the strict periods of time set out in the Bill, which are subject to extension—we do not yet know how that will work, but they can be extended by the Secretary of State and the Upper Tribunal. I hope your Lordships will accept that the general position on legal aid in Clause 54 is a positive provision in the Bill and that removing the means test and merits tests is correct in the circumstances. Properly administered and operated, this will be a very important safeguard for those affected by the provisions in the Bill. I hope the noble Baroness will withdraw the relevant amendment.
Baroness Ludford (LD)
My Lords, I thank the Minister for his reply. I welcome Clause 54 being put into the Bill—it is better than it not being there—but several problems arise. First, Clause 54 says in terms of LASPO only that:
“Sub-paragraph (5) does not exclude services provided to an individual who is subject to removal”.
It does not do anything to make sure that that legal aid for advice and representation will appear, which is the reason for the importance of the amendment from the noble Lords, Lord Bach and Lord Hunt of Kings Hunt, about a duty to provide legal aid, as there is no guarantee. There is also no guarantee that Clause 54 will deliver any legal aid before this Bill comes into force as an Act. What will the Government do in practice to deliver that legal aid?
Secondly, Clause 54 benefits only people who are subject to removal and have, presumably, already had a removal notice. The concern that motivated Amendment 92A was that it should be available not only to individuals who are subject to removal under this Act but to those who might reasonably expect that they would be. They ought to be able to get advice so that they can give informed consent to a trafficking referral; they need to know what the implications and consequences could be. With respect, I do not think the Minister covered either of those points.
Finally, we do not appear to be getting the message across that the better informed and supported people are, the greater the benefit to the Government will be in being able to have faster processes. Clearly, those processes are not working at the moment—we would not have this incredible, appalling backlog if everything was going swimmingly with processing efficiency. I cannot speak for the noble Lord, Lord Bach, but I think we are inspired by the idea that you could streamline the system and try to avoid delays in highways and byways if people were properly legally informed of their rights. The Minister is a lawyer, so I am sure he gets that point, although unfortunately I have not heard him express it. All that said, I beg leave to withdraw Amendment 92A.
Lord Coaker
Member's explanatory statement
This amendment seeks to remove the Bill’s restrictions on the provision of modern slavery support to those subject to the provisions in Clause 2.
Lord Coaker (Lab)
My Lords, I will not take a great deal of time on this group because quite a number of the points were made in the first group that we discussed today. This group deals with provisions relating to support. Clause 22 deals with the provisions relating to support in England and Wales, Clause 23 with support for Scotland and Clause 24 with support for Northern Ireland. My Amendments 93, 94 and 95, supported by the noble and learned Baroness, Lady Butler-Sloss, who has given her apologies today, seek to remove the Bill’s restrictions on the provision of modern slavery support for those subject to the provisions in Clause 2—blanket detention and removal. They would take out subsection (2) of the relevant clause.
Clause 22(2), and the equivalent points in Clauses 23 and 24 as they relate to Scotland and Northern Ireland, is an astonishing provision. It says that:
“Any duty under section 50A of the Modern Slavery Act 2015 (assistance and support) to secure that any necessary assistance and support is available to the person does not apply in relation to the person”.
Essentially, we are denying assistance and support to potential victims of slavery and trafficking. I cannot believe that we would want to do that, but there it is in the Bill. The noble and learned Baroness, Lady Butler-Sloss, and I simply want to take that out and at least try to understand what the Government’s logic is with respect to it. This provision means that you cannot be considered a victim, and if you are then you are denied any follow-on support or assistance.
Preventing support for all trafficked victims is disproportionate. As I said earlier—I will not repeat that debate—why not focus on improving administrative efficiency in the asylum system as a whole and the NRM? Currently, as was mentioned in the earlier group, victims of modern slavery are legally entitled to 30 days of support and protection from removal. That is only two days longer than the 28 days for which they are protected, but they are protected and supported to help them recover. It was said at great length, emphatically and well, by many noble Lords that providing victims with support is the only way to build trust and ensure engagement with law enforcement to help with the real criminals—the traffickers. It is also important to the victims in helping them to recover from their trauma.
Clauses 22 to 24 of the Illegal Migration Bill mean that, if you are trafficked into the UK, you will not be treated as a victim. I cannot believe that that is what a British Parliament would want. Nobody who enters the UK irregularly will be able to access support at any point, even if they are exploited in the UK—a point which the noble Lord, Lord Randall, and others made when discussing his amendment in the earlier group. If you enter irregularly at some point, and then become a victim of sexual exportation, child labour or forced labour, you will not be able to access any support to deal with that—and that is any irregular arrival, not just by small boats. What assessment did the Government make of the impact of this before stripping away all the support through the provisions contained in the Bill? What is their rationale for this? What assessment have they made of the numbers that may be affected by these changes—including the numbers referred to in the amendment by the noble Lord, Lord Randall, in the earlier group?
Do the Government not understand or believe that the consequences of this are that trafficked victims of modern slavery, forced labour and sexual exploitation, including children, will be left unsupported in a twilight world, with no money, no housing, no care and no personal support? As I have said before, do the Government themselves not recognise that what they are doing is quite extraordinary—to put it politely? They have included a sunset clause because they realise the extremity of these provisions in the Bill.
As your Lordships have heard and seen, the JCHR condemned this Bill in its recent report and called on the Government to change it. I ask a very simple question of the Government: if the Bill in its current form becomes an Act, how will we identify victims of modern slavery and trafficking? If we do identify them, what support are the Government intending to give them?
This is a significant group of amendments about providing assistance and support to victims of modern slavery and trafficking. The Government intend to take that support away. How can that be right?
Lord Weir of Ballyholme (DUP)
My Lords, as the proposer of Amendment 96, I have no problems with any of the other amendments in this group. I do not want to repeat the remarks of the noble Lord, Lord Coaker, but will deal specifically, albeit briefly, with Amendment 96.
This amendment looks at the level of support that human trafficking victims receive. As we discussed earlier, it is important that we, as a nation, approach that in a humane and compassionate manner. This amendment deals specifically with the position in Northern Ireland and with setting it at a higher bar than the Government are proposing, for a number of reasons.
First, the amendment reflects the devolutionary settlement for Northern Ireland. While migration and immigration are national issues, modern slavery and human trafficking specifically have been dealt with as a devolved matter and on a devolved basis. It is not something on which a uniform approach has been taken across the United Kingdom, and levels of support for victims in Northern Ireland is not something that has been dealt with in the abstract.
There are many occasions when in Northern Ireland we will seek exactly the same provisions as elsewhere or simply replicate or pay lip service to what is provided elsewhere by repeating it. This has been drilled down on two very detailed occasions in Northern Ireland. As I indicated earlier, we were the first part of the United Kingdom to have specific legislation on human trafficking through the human trafficking Act, which predated the Modern Slavery Act. There was a considerable amount of attention given to it then. In the sometimes febrile, cauldron-like atmosphere of Northern Ireland, it can be difficult to get consensus, but that was something on which there was broad consensus across the Assembly Chamber.
More specifically, in 2022, a major piece of legislation was brought by the Department of Justice. The justice Act dealt with two specific areas—in essence, a range of sexual offences and human trafficking. It was something that the Assembly, both legislatively and in the committee, looked at in considerable detail. I was a member of the Justice Committee when that was going through, and we took availability of the opportunity to get in a wide range of experts to give direct advice on what was needed specifically for Northern Ireland.
What has been put in place and will be enacted in Northern Ireland without this legislation has been designed specifically for Northern Ireland and its particular circumstances. It is one of those areas into which has gone a forensic level of detail. Unfortunately, the Bill would take us in a different direction and leave us with less protection and fewer resources for victims of human trafficking.
Secondly, there is currently some dispute between the Government and the Northern Ireland Human Rights Commission about the levels of obligation on this topic. We are in no doubt that across the board with this legislation, if it goes through in whatever form, it is likely to be challenged in the courts and to be the subject of litigation. Consequently, if we are to be stuck with it, the position where we can have the greatest level of clarity, certainty and agreement is preferable. If we can resolve that issue by way of the adoption of an amendment such as Amendment 96, it would remove the potential level of dispute. Faced with a choice between the Government’s position and that of the human rights commission, the human rights commission’s position would give greater protection and support for victims of human trafficking. If left with a choice as to what direction we go in, to provide that greater protection is the best possible solution.
Thirdly and finally, the amendment deals with the specific circumstances of Northern Ireland. Clearly, the issue of small boats has featured in a lot of the discussions around the Bill. Northern Ireland, I suppose, geographically in the United Kingdom is as far away from the shores of Kent as one can possibly get. On that basis, where we have small boats coming in, they tend to bring in fish rather than migrants. While the reality is that, as I am sure others have indicated, in many ways there is a common belief across this Chamber and another place that we need to seriously tackle the issue of small boats and clamp down on those exploiting people with that form of migration, with regards to human trafficking, small boats, as has been indicated, are largely a red herring when it comes to the issue of modern slavery. That is not the way that, largely speaking, human traffickers are bringing people to the United Kingdom, and certainly that is the case for Northern Ireland.
However, there is a concern about Northern Ireland’s unique geographical position, which is why we need a greater level of protection. The Prime Minister and others have highlighted the unique advantage of Northern Ireland in many ways, in that we have a border with the European Union and access therefore, through the common travel area, to the European Union, particularly the Republic of Ireland. We are also part of the United Kingdom, which means we have full access to the rest of the United Kingdom. There is a danger that human traffickers will see Northern Ireland as a potential best of both worlds, which will be to the detriment of Northern Ireland and particularly of those who are going to be transported by human traffickers. That is a danger that we need to see off, and the fact that there has been a considerable increase in the number of victims of human trafficking referred to the NRM from Northern Ireland shows that this is something that human traffickers are alive to.
We all hope to reach a day in this society when the number of victims of human trafficking, in Northern Ireland or elsewhere, is set at zero, but we are living, unfortunately, in a world where this is an increasing crime rather than one that is reducing. The level of resources and support that need to be given to victims potentially coming to Northern Ireland has to act as a support for the victim but has also to act as a virtuous circle, because the greater the level of support and resilience that we can give to those victims, the better chance we have of catching the perpetrators and preventing this in the long run. Therefore, I urge the Committee to support the amendment in my name and that of my noble friend Lord Morrow.
Baroness Bryan of Partick (Lab)
My Lords, I support Amendment 94 and the intention of the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Bristol to oppose Clause 23 standing part. I shall concentrate on the Bill’s implications for the Scottish Parliament, as it will bring some of the most offensive parts of this legislation relating to victims into Scotland.
Devolution Guidance Note 10 states that a Bill requires the consent of the Scottish Parliament if it
“contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers”.
The Lord Bishop of Durham
My Lords, I rise to support the removal of Clauses 22 to 24 and 27, as proposed by the noble Baroness, Lady Hamwee, and my right reverend friend the Bishop of Bristol. As the noble Lord, Lord Coaker, noted, many of the arguments are similar to those related to Clause 21, so we will not repeat them.
Clauses 22 to 24 carry through the logic of Clause 21 and remove protections and support from those who, crucially, have already been identified and assessed as having reasonable grounds to be considered a victim of trafficking or modern slavery. These victims are not self-identified or -assessed. They have to be referred by a first responder agency, such as the police, and assessed by the competent authority.
The insidious nature of applying these provisions retrospectively is that there are people now in safe houses who are receiving specialist support to rebuild their lives or to build a legal case against their abuser that might be used by law enforcement. To have those protections and support removed from them before a conclusive grounds decision can be reached on their case seems cruel. Someone who has potentially just escaped an abusive situation and has been assessed by a first responder and the Home Office as having a reasonable case and who is for the first time receiving support from a specialist agency could be told out of the blue that support is withdrawn and they are subject to detention and removal. To deter one group of people, we will wash our hands of a much larger group who did not arrive by boat or even necessarily of their own volition.
The long and short of these clauses is that to weed out an unknown and unproven level of abuse, and without any evidence that it will deter Channel crossings, we will be simply abandoning victims. We will be doing so in a thoroughly dramatic and cruel way by withdrawing support that has been offered. I cannot see this is justifiable, still less desirable, and I ask the Minister to consider the clauses in their entirety.
Baroness Hamwee (LD)
My Lords, I am not going to repeat the points that I made on the first group because they apply in a very similar way to the amendments in this group, which in our case amounts to opposition to the clauses standing part of the Bill.
In the first group, I strayed into Clauses 25 and 26, which should really be here—the revolving door of a revolving sunset. A point I did not make was how much scope the Secretary of State has to keep on altering the direction of how things go with minimum scrutiny because, to me, scrutiny should include an opportunity to make changes. So much is dealt with by regulations. All the clauses on modern slavery are part of a whole, which, as a whole, we oppose. The Bill does nothing to tackle modern slavery and trafficking, does away with support for many victims and damages the UK’s reputation. Like the noble Lord, Lord Randall, who spoke earlier, I do not much like the term “world leading”, but that was what people were saying of us not so very long ago.
Baroness Kennedy of The Shaws (Lab)
My Lords, a number of years ago, I chaired an inquiry in Scotland for the Equality and Human Rights Commission of the United Kingdom to look into the position of trafficking in Scotland because it was a surprise that at that time there had not been any prosecutions. Was this because there was no problem in Scotland, or was something happening with regards to investigations?
I want the Committee to know that after many years of practice at the Bar, doing some of the most shocking and desperate cases, the experience of chairing that inquiry into modern slavery was revelatory to me in hearing evidence—particularly, of course, from women who had been sexually used, and used in the most horrifying ways, where their whole days were spent servicing men. Afterwards, they needed to be looked after, cared for and encouraged to believe that their families back in the countries from which they had come would not be punished if they were to testify in a court of law. The threats that they had experienced were of such a kind that they lived in terror of those who had victimised and trafficked them.
I really do feel—I heard earlier one of the Conservative Back-Benchers asking the Minister whether he had ever met anyone who had been trafficked—that meeting those who have been trafficked is a shocking business. It also goes on to those who, for example, are subjected to slavery within the domestic environment, who are worked almost to death. They are brought over from other countries, live in households in which they are expected to get up at the crack of dawn and work through until the wee small hours of the following day, and are not rewarded—their wages are supposed to go to their family back somewhere else. The accounts that one hears are just shocking.
The fear that people have, which has to be catered for in having them give testimony in a court of law against those who have been their traffickers, is such that to be removing all of that is just shocking. It is unbelievable to people in other parts of the world. My work has now changed; it is now in international law, and everywhere I go people are shocked by Britain, which led the way on this and was so inventive in creating this legislation. Other countries are now saying “What is Britain thinking about?”, and we are really uncertain as to what the Government are thinking about.
Lord Morrow (DUP)
My Lords, I will speak very briefly as a co-signatory to Amendment 96, tabled by the noble Lord, Lord Weir. I suspect it will not surprise anyone in your Lordships’ Committee that I have a real passion about modern slavery. I had the experience on one occasion of meeting a victim, and I listened to a story that I was never prepared for.
What that victim told me about how she was treated was quite horrendous. She was treated as a commodity, with no respect; indeed, she did not even get food, never mind anything else. I have seen some difficult cases in all my years in politics because I have been in it nearly as old as I am; it seems that way. But the day that lady came to Stormont, met me and told me her horrendous story, I said that as long as I live, I will always make an effort to do something, moderately little as it may be, to fight this awful cancer of human trafficking. So it is extremely disturbing, as I said at Second Reading, that the plans of the devolved Administrations and their modern slavery strategies are now undermined by the Bill.
When I first consulted on my Private Member’s Bill in the Northern Ireland Assembly in 2012—it became the trafficking Act in January 2015—it was shortly after the UK had signed the EU trafficking directive, and a significant part of my Bill was to ensure that the rights within the directive could be enacted in Northern Ireland. At Second Reading of my Bill, nearly 10 years ago now, I said that the directive
“makes a number of effective proposals, which, if we choose to put them into law, would have a positive effect for vulnerable victims. Many of the proposals in the Bill directly seek to implement the directive into our law.”
I went on to say that the Assembly
“should seek fulsome implementation of the directive and, indeed, the Council of Europe Convention on Action against Trafficking in Human Beings”.
I believe that the Assembly met that objective when the Act was passed in January 2015. It is therefore with deep regret that, 10 years on from my Second Reading speech, I am seeing that good work being undone, justified by a tenuous interpretation of the European trafficking convention, which the noble Baroness, Lady Ritchie, made reference to earlier—a view which was described as “untenable” by the Joint Committee on Human Rights in its report published at the weekend.
Lord Paddick (LD)
My Lords, as the noble Lord, Lord Coaker, said when he introduced this group of amendments, it is quite extraordinary to deny assistance and support to the victims of modern slavery, as provided by Section 50(1)(a) of the Modern Slavery Act 2015. As the right reverend Prelate the Bishop of Durham said, it is cruel to do this.
Modern slavery is a devolved matter in relation to the support provided to victims, yet the Bill appears to undermine devolution in overruling the provision of support provided in Northern Ireland and Scotland. It was very interesting to hear the noble Lord, Lord Weir of Ballyholme, quite rightly highlighting the issues facing Northern Ireland, with its border with the European Union and the common travel area. It was even more interesting to hear from the noble Lord, Lord Morrow, about how this Bill potentially conflicts with EU directives that Northern Ireland is still subject to. It will be very interesting to hear the Minister’s answers on the issues raised by the noble Lord, Lord Morrow, in particular.
In asking the Minister to justify these provisions, both in terms of denying support and in terms of devolution, I am very struck by what the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Morrow, said about the impact that meeting victims of modern slavery had on them. I wonder whether the Minister, who I think previously suggested that he had not met a victim of modern slavery, or anybody involved in the drafting of these provisions, has met a victim of modern slavery—bearing in mind the impact it has had on the noble Baroness and the noble Lord.
As my noble friend Lady Hamwee has said, we do not believe that Clauses 22, 23, 24 and 27 should stand part of this Bill.
Lord Murray of Blidworth (Con)
My Lords, as we have heard, this group of amendments relates to the provision of support to potential victims of modern slavery. We have, of course, recently had an extensive debate about the application of the public order disqualification to those who meet the conditions in Clause 2 of the Bill. I will not go over the same ground again, save to say that it is a necessary consequence of the provisions in Clause 4 that the duty on the Home Secretary to make arrangements for removal of persons who meet Clause 2 conditions should apply regardless of whether the person claims to be a victim of modern slavery.
It follows that, for the provisions of this Bill to work as intended, individuals who arrive illegally in the UK and receive a positive reasonable grounds decision must be disqualified from the protections of the national referral mechanism. Clause 22 gives effect to this principle for England and Wales by disapplying the duties on the Secretary of State, under Section 50A of the Modern Slavery Act 2015, to provide necessary assistance and support to potential victims during the recovery period. Clauses 23 and 24 have the same effect in relation to corresponding legislation in Scotland and Northern Ireland respectively. Clause 27 then makes the necessary consequential changes to the relevant legislation that applies in each part of the United Kingdom.
If an individual arrives in the UK illegally and a first responder suspects that they may be a victim of modern slavery, they will still refer that individual into the NRM and that person will receive a reasonable grounds decision. That process will not change under the Bill. However, as I set out before in relation to Clause 21, Article 13 of ECAT envisages that the obligation on signatory states to provide assistance and support to potential victims may be withheld on grounds of public order. This is precisely what Clauses 22 to 24 give effect to as a result of the public order threat arising from the current scale of illegal entry into the United Kingdom by people undertaking dangerous and unnecessary channel crossings in small boats. That means that they will not benefit from the protections otherwise afforded to potential victims of modern slavery, subject to the exception set out in Clause 21, which we have debated at some length.
It is right that the Government take meaningful steps to ensure that these illegal and dangerous channel crossings are stopped and that any incentives to enter the UK by such means are closed off. That is what these clauses seek to do. Clauses 22 to 24 operate subject to the same exception as Clause 21 in relation to those potential victims who are co-operating with a public authority in connection with an investigation or criminal proceedings in relation to their alleged exploitation, and it is necessary for them to remain in the UK to provide such co-operation.
The effect of Amendments 93, 94, 95 and 96 is no different in practice from proposition by the noble Baroness, Lady Hamwee, to strike out these clauses as a whole. The amendments effectively gut Clauses 22 to 24, such that the existing requirements relating to the provision of support would continue to apply. It will therefore come as no surprise to noble Lords that I cannot commend these amendments to the Committee.
In response to the devolution points raised by the noble Lords, Lord Weir and Lord Morrow, and the noble Baroness, Lady Bryan, I remind the Committee that immigration and nationality are reserved matters in Scotland, Wales and Northern Ireland, and therefore matters for the UK Government. It is also our view that the modern slavery clauses also deal specifically with the reserved matter of immigration, and they are for a reserved purpose. As for the Bill as a whole, they would not therefore engage the legislative consent process.
I assure the right reverend Prelate the Bishop of Durham that anyone who has arrived illegally in the UK on or after 7 March and before commencement would in this period receive support as now.
Baroness Bryan of Partick (Lab)
Will the Minister confirm that support for people who have been trafficked and involved in modern slavery is a devolved issue?
Lord Murray of Blidworth (Con)
No, I am afraid that is not the view of the Government. These provisions are in a measure that relates to a reserved issue.
Lord Murray of Blidworth (Con)
Forgive me, but I am just answering this point. So it is the Government’s view that the provisions in this Bill fall within the reserved matter that I described a moment ago.
Lord Weir of Ballyholme (DUP)
The specific issue that was raised was about support for victims of human trafficking, which clearly is a devolved matter—or alternatively the legislation, for example, that was passed through the Assembly last year would have been ruled out of order and incompetent on that basis. It dealt specifically with the levels of support that victims of human trafficking would receive.
Lord Murray of Blidworth (Con)
I agree with the noble Lord that, in that context, the Assembly had competence to consider those issues. However, in the context of the overall Bill, this measure deals with immigration. Therefore, for the reasons I gave, the measures fall within the competence of the United Kingdom Government.
The current rate of dangerous and unnecessary small boat channel crossings represents a clear and present threat to public order, justifying our invoking the relevant provisions of ECAT. They risk lives and place unprecedented and unsustainable pressure on our public services—housing, health, education, welfare and others. The Government are right to take the necessary measures in the Bill to remove the clear opportunities to misuse our modern slavery protections in order to frustrate the duty to remove in Clause 2. On that basis, I commend these clauses to the Committee and invite the noble Lord, Lord Coaker, to withdraw his amendment.
Baroness Ludford (LD)
Before the Minister sits down and the noble Lord, Lord Coaker, jumps up, could I ask the Minister something? Unless I was being inattentive, in which case I apologise, I am not sure that he answered the point raised by the noble Lords, Lord Weir and Lord Morrow, about the Windsor Framework—which is to be known as the Northern Ireland protocol—the duties in it and the application of EU law. He mentioned the trafficking directive and the victims directive. How is the Bill compatible with those obligations in Northern Ireland? If I have got it wrong, the noble Lord, Lord Morrow, will correct me.
Lord Murray of Blidworth (Con)
My understanding is that the measures are compatible with the Windsor Framework, but I will take that point back to the department and will write to both the noble Lord and the noble Baroness on it.
Lord Coaker (Lab)
My Lords, I thank those who contributed to the debate. I will come to the more general point about assistance and support as they relate to Clause 22, but I will first respond to the noble Lords, Lord Weir and Lord Morrow, and my noble friends Lady Bryan and Lady Kennedy. I am not sure about this, so can the Minister go back and check that it is right? From all my reading about devolution, I think that everyone accepts and understands that immigration is a reserved matter. I find it really difficult to understand why, in Scotland and Northern Ireland, the devolved Administrations’ ability to enhance support is not a devolved matter. I do not understand why, if they choose to do more to support a victim of trafficking, they cannot do so. I respectfully ask the Minister to check that that is the case, because I cannot believe it is.
Lord Coaker (Lab)
That would be helpful, looking at the incredulity on the faces of the noble Lords, Lord Morrow and Lord Weir.
Baroness Kennedy of The Shaws (Lab)
A year ago, I conducted an inquiry into a horrifying set of events that took place in Glasgow during Covid, involving refugees and asylum seekers. Support was given then by the local authority to the asylum seekers in Glasgow. In addition, there was a migrant helpline, which was pretty hopeless, emanating from the Home Office—it was outsourced—but most of the social work on the ground was done by the local authority.
Lord Coaker (Lab)
I thank my noble friend Lady Kennedy for that. Asking the Minister to check this is helpful. It will no doubt be in his notes that it is the case, but, given the experience of devolved matters of noble Lords, it would be helpful for the Committee if that were checked and confirmed one way or the other.
Agricultural Tenancies
(11 months, 3 weeks ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hayman of Ullock (Lab)
My Lords, I begin by welcoming this Statement and the fact that the Government are agreeing to implement many of the recommendations from the Rock review. I also thank the noble Baroness, Lady Rock, and everybody who has been involved in the Tenancy Working Group for their work in producing such an excellent report.
Why does this report matter? Tenant farmers remain an important part of British agriculture. Tenants farm 30% of farmed land in the UK, and this is a traditional means of entry for young farmers who do not happen to inherit a farm.
Tenant farmers are vital if the Government are to meet their ambitious commitments across food security, the environment and climate change, as well as levelling up rural communities. A clear government commitment to the agricultural tenanted sector is important to the future of farming in this country, so it is very good to see that, as the Statement says, three-year agreements are now being offered for tenants to participate in the sustainable farming initiative. Yet, according to the Tenant Farmers Association, a lack of security over the future and not knowing if they will still have their farms in five years’ time is the biggest worry for most tenant farmers, who are under a farm business tenancy. This therefore provides very little incentive for them to invest in the medium to long term in their farms.
In commenting on the Government’s response to the review, the noble Baroness, Lady Rock, said that she was disappointed that they had not recognised its findings regarding the increase in new clauses being inserted into farm business tenancies that reserve the right to enter public and private schemes solely for the landlord. Can the Minister tell us why the Government made that decision?
The Statement also says that the Government must
“remove any remaining barriers to accessing our farming schemes”.
This, of course, includes much more than just the sustainable farming initiative. Why did the Government not accept the proposals from the Rock review to make it easier for tenants to enter the tier 2 and tier 3 versions? This is where a lot of the schemes will sit. I am thinking particularly, for example, of Countryside Stewardship and landscape recovery. Can the Minister also tell the House how the Government intend to deliver the review’s recommendations on securing tenant access to the new environmental land management schemes on tenanted land when there is no landlord consent?
The noble Baroness, Lady Rock, also said that she was
“disheartened that the Government has avoided the recommendation to allow tenant farmers to have a fair basis on which to engage in diversified activities and that the proposal to involve the independent Law Commission has been downgraded”.
Again, can the Minister provide an explanation as to why these decisions were taken?
I move on to the next announcement in the Statement: the establishment of the farm tenancy forum. We very much welcome this, but is the Minister able to further clarify its role? It will be important that it does more than just monitor and ask for further evidence. It will need to fulfil its task of implementing the Government’s response to the Rock review—all the good things that are in that—and should not be just a rolled-over version of its predecessor.
We are pleased to see that the Government are going to progress the development of the new code of practice and very much welcome the leading role to be taken by the Royal Institution of Chartered Surveyors.
Regarding the further consideration of the recommendation of a tenant farming commissioner, the review clearly laid out exactly why this is needed. Can the Minister assure your Lordships’ House that the call for evidence will be carried out with a real sense of urgency?
Finally, we know that there is continued anxiety around the future of farming and a need for more training and business support, so we very much welcome the commitment in the Statement regarding the new entrant support scheme pilots. Can the Minister provide any information as to when we are likely to have more detail about that? It would be interesting to know how long the pilot scheme will last, when they are likely to implemented and so on. Encouraging more people to enter farming is vital if we are to have a thriving agricultural tenanted sector in the future.
I look forward to the Minister’s response, but we warmly welcome the fact that the Government are committed to implementing the bulk of what is in the Rock review.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I am grateful for this opportunity to comment on the tremendous work that the noble Baroness, Lady Rock, and her team have done on the tenant farming sector, which plays such an important part in the agricultural provision of the country.
The Statement, given in the other place on 24 May, draws on the government response to the Rock review, which was published in October last year. The review itself was extensive and covered every area of the way that agriculture is conducted by tenant farmers, from relationships with landlords to tax systems. Tenant farmers are now firmly at the centre of the agriculture industry. I am delighted that Defra has proposed setting up a tenant farmers’ forum; that is excellent news. Tenant farmer voices need to be not only heard but listened to.
I read the Rock review, the government response and the Statement, and thought that the Statement was very thin on the detail of the government response and the review itself. The review splits its recommendations into two parts: those requiring immediate action and those taking place over a longer timeframe.
There are aspects of the government response that were good. First, the Government are ensuring that the various ELMS are easily accessible and open to tenant farmers; that is essential. Recommendation 1 gives details of how this could be achieved, including by ensuring that landlords are not able to block tenant applications. However, in terms of the SFI, it is true that tenant farmers have not rushed to take part. Can the Minister say what the Government are doing to rectify that situation?
Secondly, the Government are ensuring that Defra communicates with the tenant sector and that funding schemes are easily accessible to tenant farmers; that is important. Doing this through the farm tenancy forum is also important. Thirdly, they are continuing to invest in farm infrastructure through the farming investment fund by means of grants to farmers, foresters and growers, which will include tenants. Science and technology are moving at a pace; it is vital that tenant farmers have access to resources to invest in innovation. Is the Minister able to say how much of the £168 million in the FIF has been allocated to the tenant farming sector, and is this likely to be sufficient to make a real difference to the tenant farmer?
Other aspects of the response were not so encouraging. Requiring a longer period for implementation is the proposal in recommendation 6 for the appointment of a tenant farmer commissioner. This role would ensure that government policy is tenant-proofed. The commissioner would be able to examine and strengthen any dispute resolution processes. That was met by Defra with a call for evidence over the summer months. This seems to have been in response to industry lobbying with differing views, possibly from the landlord sector. That was disappointing, so I would welcome the Minister’s view on the appointment of a tenant farmer commissioner.
There were also a large number of recommendations, where the government response was to
“work with the … Farm Tenancy Forum”.
While that is exactly what they and the forum should be doing, it seems to me that the Government were pushing a disproportionate amount down to the forum. It would be better if they made a much more positive response to the individual recommendations in the Rock review in the first place.
The chapter on tax contained a number of recommendations, including recommendation 62:
“Reform Stamp Duty Land Tax to end discrimination against”
farmers. The government response to this and to recommendations 56 to 58 was to explore the potential for relief on tenancies of eight years or more and to work with the forum on solutions. Again, that was not as encouraging as it might have been.
In the other place, the previous Secretary of State raised the issue of the Law of Property Act 1925 and the Agricultural Holdings Act 1948, whereby landowners had a right to rent out their land. However, following lobbying by the banking industry, that was taken away through Section 31 of the Agricultural Tenancies Act 1995, which requires that they now need permission from a bank. The question was asked whether the Government had considered repealing Section 31. The Minister’s response was to look into the matter and get back to the right honourable Member. Given the length of time that has elapsed since the Statement was first debated, can the Minister update the House on whether this is likely to be considered?
Tenants, and farmers in general, are bogged down in measuring and monitoring what they do. Recommendation 68 calls for Defra to
“systematise the measurement, monitoring and collection of data on tenants and their involvement in schemes”.
This is not rocket science and it will make a tremendous difference to tenants and other farmers. The Government’s response was quite long and ended with:
“We will keep this question under review as part of our monitoring, evaluation and learning work, to ensure we have all the necessary evidence to inform ongoing policy review and development”.
So that was a no. The Government are obsessed with monitoring and evaluation; as the saying goes, you do not fatten a pig by continually weighing it. The noble Baroness, Lady Rock, has taken an enormous amount of time on this review and produced some workable recommendations which would enhance the lives and viability of tenant farmers. I am disappointed by the government response.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
I thank both noble Baronesses for their welcome for the review, which I entirely share. I should refer noble Lords to my entry in the register: I am not just a farmer but a member of the Royal Institution of Chartered Surveyors.
I pay a real tribute to my noble friend Lady Rock for what she has done to ensure that tenant voices are heard at this key moment in our agricultural transition. It was entirely right of my right honourable friend George Eustice to commission her. The team she had around her did an enormous amount to help Ministers on policy, but also to give a voice to a very important part of our agricultural sector.
From day one of the agricultural transition, we have worked with tenant farmers as we have codesigned our farming schemes, utilising their input through our tests, trials and pilots to develop schemes so that they are accessible to all. But we are grateful to the review for highlighting some areas which we have taken action to ensure are accessible to tenants. We recognise how critical the tenanted sector is to a successful agricultural transition. When we commissioned the tenancy working group to carry out this comprehensive review, we were absolutely clear from the start that tenants must continue to be a very significant part of the occupation of land and the production of high-quality food in this country.
I will address the various points that the noble Baronesses raised, but not in any order—I hope they will forgive me. On the farming investment fund raised by the noble Baroness, Lady Bakewell, we have made productivity and capital grants, such as those available through the farming investment fund, available to both landlords and tenants.
There are over 70 recommendations in this review and many we have already delivered on, such as the very important point about sustainable farming incentive standards. We have three standards that were launched a year ago: they are the standards on arable and horticultural soils, improved grassland soils and moorland. We have announced six new standards for this year, which include hedgerows, integrated pest management, nutrient management, arable and horticultural land, improved grassland and low-input grassland. We want to make sure that tenants can access those, in many cases without landlords’ consent. That is an absolutely key point, but other measures are also available to them in such areas as countryside stewardship.
Some of the Rock review recommendations have widespread stakeholder support. There is less consensus on others and we want to make sure that we are getting it right, so asking for a call for evidence on whether having a tenant farming commissioner is right seems a good process to undergo before appointing one. However, we are open to the idea; I want to reassure noble Lords on that.
The noble Baroness, Lady Hayman, asked about the Farm Tenancy Forum. The current Tenancy Reform Industry Group is an ad hoc organisation that meets on an irregular basis to resolve particular issues. The Farm Tenancy Forum will meet quarterly; it will be co-chaired by my right honourable friend Mark Spencer, the Farming Minister; and it will have a remit to find solutions to various issues relating to the tenanted sector and feed back real-world experience and insight on progress. We are inviting industry organisations that represent tenant farmers, agricultural landlords and professional advisers who work in the sector to be members of this group. The forum will build on the valuable work the Tenancy Reform Industry Group delivered over many years. To explore the issue of a tenant farming commissioner in more detail, we will make an announcement this summer at the completion of the call for evidence.
We recognise that, in many cases, tenants and land agents—and I speak as somebody who qualified as a land agent—work collaboratively. The vast majority of the relationships between landlords and tenants is good. There are some bad cases, and the report highlighted the actions of some advisers that need to be addressed. I am pleased that the Royal Institution of Chartered Surveyors is looking at a new code of practice. That will build on work that has already been done by the CLA and the Central Association of Agricultural Valuers to make sure we are getting that right.
The government response recognises that the issue of restrictions in farm business tenancy agreements needs to be examined further to see whether those are a widespread barrier to tenants accessing new schemes. We have to remember that if we make dramatic changes to policy, we could stop the access to farming by this key group of people, because the incentives to landlords to let land will not be there. That has happened in other countries, and we want to make sure that the vibrant tenant farming sector exists because landlords are incentivised to let land and, once they have let it, farmers can get on and farm it, secure in the knowledge that they are going to be able to access the schemes and know they are not going to have what is known as unreasonable land resumption, which is basically the ending of tenancies.
I can speak from first-hand experience about the importance of the term of years of tenure. The report makes some really interesting comments about trying to incentivise landlords to give longer tenancies, and some of the tax reforms announced by the Chancellor—the Government are seeking evidence on them before making a change, and it comes under the Treasury and not Defra—are the sorts of things we will be promoting. What is clear is that as you get to the end of a farm business tenancy, the tenant has less and less incentive to invest—in buildings, in the natural capital that he or she is seeking to exploit—and nobody wins. To give them some sort of surety was one of the best points that was made in the review.
The noble Baroness, Lady Hayman, asked about new entrants, something vital to me and to us in Defra. On the one hand, we have given the exit scheme to allow farmers to exit their holdings with dignity and support from the Government. At the same time, we are putting in £1 million for access to special benefits by tenants as part of the development of the new entrant support schemes. We will involve tenancy industry bodies such as the Tenant Farmers Association to be part of the stakeholder advisory group. We will share data on the number of tenants that have signed up to the pilots, use the feedback we get from tenants to embed tenant farmer thinking back into policy design, and look to the extent to which new entrant support scheme pilots support people to gain new tenancies.
The biggest barrier to somebody succeeding in farming and getting through the door is a shortage of capital or skills. If you assist a new entrant in setting out a business case for a tenancy that comes available, how to talk to a bank and how to do a cashflow, their skills and enthusiasm will take on the rest. We have seen this happen, and I applaud so many good landlords for doing it. That is the experience of the Duchy of Cornwall, the Crown Estate and many others. Clinton Devon Estates is a great example of a really enlightened policy of trying to encourage new people into farming and bringing in new ideas, which is absolutely vital.
I am conscious that this is a long Answer; I was asked a lot of questions. On the tax recommendations, as I said, at the Spring Budget we launched a consultation to explore the extension of inheritance tax relief to include land in environmental land management schemes and ecosystem service markets. The consultation also explores the option to limit inheritance tax relief to let land out for a minimum of eight years. Since publication of the review, HMRC has updated its inheritance tax manual to help clarify the tax treatment of agri-environment schemes.
On the point about technology and the collection of data, this is not particular to tenant farmers: it is absolutely vital across the farming sector. Technology is our friend here. Someone with the scars on their back of IACS, going round with a measuring wheel and arguing on the phone with Defra—or MAFF, as it was then—about whether you had one-metre or two-metre margins, can now do it from satellite data or with their mobile phone. The collection of data has to be easy and sensible, and we need to incentivise people to do it. That will assist in so many areas of the governance of farming, not least the availability of land for tenant farmers. We want to make sure that that is happening.
The Earl of Caithness (Con)
My Lords, I welcome the Statement. I, too, thank my noble friend Lady Rock for her report. I do not agree with all of it—I expect that none of us does—but I agree with its general thrust.
I was interested in what my noble friend the Minister said about the farm tenancy forum. I am slightly worried that it will become a talking shop. How will it work with the proposal for a tenant farming commissioner? There will be a clash, and one will get a bit sidelined.
Woodland is an important but hugely tricky area. Woodland is generally excluded from an agricultural tenancy, but hedgerows are not, and the hedgerows are as good at absorbing carbon as the woodland. I hope the Government will be able to devise a way forward whereby tenancy agreements can be altered to allow tenants to have bushier, wider hedgerows and plant trees in them without breaking their tenancy agreement.
Can my noble friend explain a bit more about what the RICS exercise is all about? I declare an interest as a former agent. There are indeed some bad agents, but there are bad landlords and bad tenants, and some pretty awful politicians. It happens in every trade, and I was slightly disturbed by my noble friend Lady Rock’s generalisation about how bad agents are. Agents only do what the landlord or tenant tells them to do. This will be particularly concerning in future as more and more firms that have absolutely no interest in agriculture buy up land in order to get carbon credentials into their portfolio and instruct their agent to do exactly what they want. Some accountant in Croydon will be crunching the figures and, unless the agent performs, he will be sacked. Can my noble friend tell me a little more about that?
Underlying the whole of this landlord-tenant relationship is the worry about what a future Government would do. The Labour Party, and indeed the Government, with the levelling-up Bill, are committed to buying land from landowners at below market value. If that continues, landlords will be very wary of letting any land to tenants in future.
Lord Benyon (Con)
I am grateful to my noble friend. One of the greatest criticisms of the Tenancy Reform Industry Group—I pay tribute to the many hours many people sat on that organisation—was that it was a talking shop. People did not feel they were being listened to, and it was a way of getting off their chest concerns they knew existed. We want to make sure that the new forum is not that; that it is executive and has a snap to it. As I have said, it will meet every quarter and the Farming Minister will be one of the co-chairs. Its remit and the determination to keep it close to Ministers shows that it will be more than that.
My noble friend makes valid points about trees and hedgerows. We have published guidance on how tenants can approach tree planting and woodland schemes such as the England woodland creation offer, and we have made sure that both the tenant and landlord will need to agree to any EWCO proposal on tenanted land. I do not think that is wrong—it is absolutely right that if a major change in land use is being promoted, the landlord’s interests matter. If they do not, it will be another incentive for landlords not to let land, or indeed to bring to an end a letting arrangement when a farm becomes available and take it in hand. We want to make sure we are still providing the incentives.
My noble friend is entirely right about hedgerows. That is why we have published our new hedgerow standard as part of the new six standards for the sustainable farming initiative. But he is absolutely right that a hedge no higher than this table does not really achieve very much in terms of carbon and biodiversity. If it is much wider, much higher and preferably has an unploughed, unfarmed cultivated headland, it will be immensely more important.
My noble friend is absolutely right, of course, that a lot of agents are excellent people—I think I was when I was one—but we should not create legislation around trying to put everybody in the same boat as the bad ones. Agents are undoubtedly advising their clients as to what is best for them to secure their interests for the future and the future generations of their family. That is why we want to see the kind of changes we are making to inheritance tax, which give the incentive to landowners, on the advice of their agents, to do the right thing and encourage that. I have received inspiration from my colleague, the Minister. I might have misled the House. He is not the co-chair but, importantly, he will attend every meeting of the tenants’ forum.
Lord Cromwell (CB)
My Lords, I did not intend to speak this evening, but apart from sharing the noble Lord’s scars of IACS from the past—he has my profound sympathy—I declare my interest as a shareholder in the family farming company. I will make two points. One is that well-intentioned changes can produce unintended consequences. I am not going to get into the details of hedgerow widths or heights tonight, but simply say that history shows us you cannot force landlords and tenants to have a happy, long-term relationship. It is based on trust, performance and mortality—people die, people get ill and things move on. You cannot oblige people, any more than you could in any other relationship, to stay together if it is not working.
Secondly, on introducing taxation in this form, if you make it obligatory to have an eight-year tenancy or you do not get tax relief, the answer will not be eight-year tenancies; it will be no tenancies, because no landlord in their right mind will be tied down in that way. They will simply take the land in hand and contract-farm it. We have had tenants farming with us for whom we have run back-to-back short-term tenancies for years and years, because we have a relationship of co-operation and trust. However, if the law obliges us to enter a multiyear relationship in which they can change the land use entirely, those tenancies will simply come to an end. The tax system should not interfere in what are fundamentally human relationships between people trying to work together in their mutual interest.
Lord Benyon (Con)
The noble Lord speaks an awful lot of sense. To an extent, it is impossible for government to be perfect here because, as he says, we are dealing with human relationships. Government should create the right incentives. We are talking about a business relationship. There are so many different types of tenure in this country—owner-occupier, tenancies under the Agricultural Holdings Act 1986, farm business tenancies under the 1995 Act, graziers, contract farmers, share farmers and multiple graziers on commons. The complications of trying to create a farming support system that can be accessed by them, particularly in areas such as Countryside Stewardship, are really difficult, but it is vital that they are there.
The noble Lord is absolutely right that, if we get this wrong and government tries to impose things that the market does not want, we will end up getting the worst of all possible worlds—people we want to see on the land not on the land. We want to make sure that we keep this vibrant, diverse form of occupation and use of land, which requires landlords and tenants to work together for their mutual benefit and for the societal benefit of us all, through the use of our vital natural capital, which will deliver many more wider societal benefits.
The Earl of Leicester (Con)
My Lords, I declare my interests as a landowner with a number of tenants, as a farmer and as an agricultural contractor. I too welcome the excellent Rock review, but I quite understand the Government not accepting all 70 recommendations. Some of the proposals in the review have the potential to harm confidence in the tenancy industry. While they may enhance the interests of existing tenants, they would reduce the land available to new tenants. We must remember that tenancy is not the only entry into agriculture; there are share farming arrangements and a lot of young people start off as contractors and build up as they increase their capital. Can my noble friend elaborate on inheritance tax and on how longer tenancies, with regard to planting of trees et cetera, might affect inheritance tax for landowners?
Lord Benyon (Con)
I thank my noble friend; his experience is really important in this debate.
I do not know that any report that has so many recommendations has been accepted in full by any Government, but we think the vast majority of these recommendations are really good. Some of them, such as the inheritance tax point, is one where we think we need to do more work. Government does not exist in an ivory tower; that is why we commissioned this call for evidence, which closed on Friday. We want to explore more ways to encourage more landlords and tenants to consider a longer-term tenancy agreement while retaining the flexibility that farm business tenancies currently provide.
As we transition to new farming schemes, there will be more certainty and encouragement for both landlords and tenants to enter into longer-term tenancy agreements and we are designing our new schemes to be accessible to as many farmers and land managers as possible. As I said earlier, at the Spring Budget the Chancellor launched this consultation to explore the extension of inheritance tax relief to include land in environmental land management schemes and this consultation will also explore the benefits and impacts of the Rock review recommendation to limit inheritance tax relief to land let out for a minimum of eight years and analyse further what impacts that would have on the length of a tenancy agreement. A number of noble Lords made the very good point that if one goes about this in the wrong way, one achieves a perverse outcome, which is that fewer landlords are incentivised to let land and we suffer because our tenure becomes less diverse and less accessible to new entrants.
Illegal Migration Bill
Monday 12th June 2023
(11 months, 3 weeks ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-V Fifth marshalled list for Committee - (12 Jun 2023)
Baroness Ludford
Member’s explanatory statement
This amendment ensures that due regard is given to other international agreements when indefinite leave to remain is considered by the Secretary of State under Clause 8AA(5).
Baroness Ludford (LD)
My Lords, I am going to do two things that the Government Chief Whip does not like. First, I am going to take a little time over my remarks in moving this amendment. Secondly, I am going to read my speech, because these are very complicated matters in Clauses 29 to 36 and I want to be sure that I am covering what are quite dense political points. What we are doing at the moment is not just a question of opining on an issue of the day; we are actually analysing crucial legal provisions in a piece of legislation so I do not apologise.
I shall speak once in a single contribution covering my clause stand part on every clause in this section of the Bill and my Amendments 98ZA and 98EA to Clauses 29 and 35 respectively. The clauses are extremely important and, in my view, regrettable provisions. They are pernicious in depriving refugees who ever met the four conditions in Clause 2 of any chance, long term, of integrating into and contributing to our society by denying them any prospect of settlement or citizenship, with few exceptions. British citizenship enables a person to live and work in the UK permanently, vote, hold public office and participate fully in British life in a way that no other type of status allows.
The amendments in the names of the noble Lord, Lord Moylan, and the noble Baroness, Lady Lister, focus specifically on those entitled to various kinds of British citizenship who need to register to secure recognition of that, and I pay tribute to their work on this, which I know has a particular focus on children.
I am taking a global view of the operation of this section of the Bill, whether on entry, leave to remain or any kind of citizenship, whether by registration or naturalisation, because the issues are interrelated. The clauses impose lifelong prohibitions on lawful re-entry or gaining leave to remain in the UK and on grants of citizenship, as opposed to the maximum 10-year re-entry ban under the current Immigration Rules. They are an extension of the whole deterrence agenda and are in conflict with several international obligations. The clauses breach Article 8 of the ECHR and the right to private and family life because they are axiomatically disproportionate. A blanket ban allows for no individual consideration whatever, such as in no possible circumstances could you ever be granted status. The UK has, for instance, certain positive obligations under Article 8 to allow family reunification, such that failure to allow a relevant individual to reunite with their family members by entering or settling in the UK could breach those obligations. The breach of Article 8 ECHR could even escalate to a breach of Article 3, which bans torture or inhuman or degrading treatment. It is also unclear, as a practical matter, where the Home Secretary has determined that a human rights claim or asylum claim is inadmissible by virtue of Clause 4, how an individual could apply to the Secretary of State for an exception to be made in their case. Perhaps the Minister could put me right on that point.
The Bill is in a multitude of ways incompatible with the UN Convention on the Rights of the Child, which protects the right of children to a nationality, prohibits discrimination and requires that the child’s best interests are counted as a primary consideration in actions concerning them. The Bill is also incompatible with current UK law, such as the Children Act 1989.
The JCHR, which I thank for its excellent report published yesterday—in which, as I am no longer on the committee, I had no part—highlights the legal problems with the Home Secretary’s discretionary exception-making powers. Giving her discretion to act in accordance with the UK’s international obligations also means giving her power to act in breach of them, and a refusal to exercise discretion may not be capable of an effective challenge. The UNHCR says:
“In order to bring this section of the Bill into line with the UK’s obligations under international law, the exceptions to the ineligibility for all forms of leave and for citizenship should be based on compliance … with European Convention on Human Rights and other international agreements and those decisions should not be left to the discretion of the Secretary of State”.
Where a breach of the UK’s international obligations would otherwise occur, the Home Secretary should surely be under a duty to make an exception, rather than have a discretion to do so. If a person entered the UK by irregular means but could not, for whatever reason, be removed, Clause 29 in conjunction with Clause 4 would prevent them from regularising their stay in the UK, leaving them in perpetual immigration limbo and would of course be the prelude to their having no chance of access to citizenship. Depending on the length of the delay and the private and family ties they have generated during that delay, this could violate the UK’s positive obligations under Article 8 of the ECHR, the refugee convention, the convention against statelessness and the UN Convention on the Rights of the Child, to name but the most obvious ones.
UNHCR comments that, as at present the UK is effectively unable to remove asylum seekers to third countries:
“It is entirely foreseeable—and in Clause 29-36, expressly foreseen—that many refugees and stateless people who will be ineligible for any form of leave to remain will nonetheless remain in the UK for extended periods of time, if not indefinitely, trapped ‘on the margins’ of society”.
Throughout proceedings on the Bill, beginning with Second Reading, many of us have raised this worry about people being left in limbo. Because we lack the impact assessment from the Government, we all have to go on the one from the refugee commissioner, which estimates that there could be 200,000 people within three years, marginalised, in limbo, destitute—really healthy for our society.
Even if the Home Secretary exercised her discretion to grant some form of leave eventually, anyone who had ever been subject to the removal duty would be permanently ineligible from becoming a British citizen through several of the main routes available under the British Nationality Act 1981. However, Article 34 of the refugee convention requires contracting states as far as possible to
“facilitate the assimilation and naturalization of refugees”.
The impact on children of a lifelong prohibition on re-entry or gaining leave to remain could be particularly severe and is difficult to reconcile with the UK’s international and domestic obligations. Consideration of the best interests of an individual child is absent from Clause 29, but how can a blanket ban be in the best interests of a child for the purposes of either Article 3 of the UN Convention on the Rights of the Child or, domestically, the Children Act 1989 or Section 55 of the Borders, Citizenship and Immigration Act 2009?
The Government have acknowledged that children affected by this Bill
“will rarely qualify for citizenship”
if they or a relevant family member are subject to Clause 2. The JCHR considers that this seems to contravene Article 2 of the UN Convention on the Rights of the Child, which prohibits the discrimination or punishment of a child on the basis of the status of or activities of their parents or guardians. Where the child, as will of course be the case, will have had no control over their parents or the decisions which led to them arriving in the UK irregularly, the automatic imposition of a lifelong ban which they then have to convince the Home Secretary to reverse seems to fall within the definition of a punishment. Can the Minister tell me how Clause 29 is compliant with the Supreme Court case of Zoumbas and subsequent case law on the issues concerning children’s best interests in an immigration context? How can routine application to children of a blanket ban on entry and leave to remain without consideration of their particular circumstances possibly be lawful?
I am on my last page. The Home Secretary’s discretion under Clause 29 when deciding whether to lift a ban on limited leave to remain has to be exercised so as to avoid a breach of the ECHR or any other international agreement to which the UK is a party but, in a similar situation with regard to a grant of indefinite leave, only conformity with the ECHR is said to be relevant. Perhaps the Minister can explain the contrast between those two situations in Clause 29, because I have not managed to pin down the rationale. My Amendment 98ZA in any case adds in other international agreements so as to align the two legs of Clause 29 on leave to remain.
Many children, either because they arrived unaccompanied as a small child or because removal has not been possible in practice, may be born or spend their entire childhood here and have a solely British identity. The Bill would mean previously acceptable routes to citizenship, such as the discretionary route or the settled route, being either blocked or fundamentally altered. The 10-year route would be possible in theory but, for children whose parents were irregular entrants, those parents could be prohibited from obtaining leave to remain, citizenship and employment, thus creating instability and poverty in the child’s life.
The Bill would also put stateless children at significant risk. If a relevant family member was an irregular entrant subject to Clause 2, they and the stateless child would be subject to mandatory removal, jeopardising the child’s years of residency and potentially condemning the child to a lifetime without citizenship. Clause 35 as originally introduced would in fact have allowed the Home Secretary to make an exception and grant nationality if there were compelling circumstances or it was necessary to comply with the UK’s obligations under not just the ECHR but any other international agreement to which the UK is a party. However, unaccountably, that latter part has been removed, risking the UK being in breach of its legal obligations under those other international agreements.
Even if ECHR grounds are not established, the UK’s legal obligations under the UN Convention on the Rights of the Child may be breached under the prohibition of discrimination or punishment of a child on the basis of the activities of their parents; I have referred to this. This backwards redrafting appears to have eliminated an avenue for stateless people, refugees and others to obtain British nationality in reliance on the refugee convention, the statelessness conventions and the UN Convention on the Rights of the Child. Can the Minister explain, therefore, why the Government have narrowed the available exceptions between the original draft of the Bill, as considered in the other place, and the Bill as it came to this House? I hope that, unless a convincing answer can be given, this House will see fit at a later stage to seek to restore the grounds for making exceptions under Clause 35 to the version introduced in the other place; namely, on the grounds of both the ECHR and any other international agreement.
I hope that I have explained sufficiently why these Benches have tabled amendments and clause stand part notices, which would remove all the clauses in this part of the Bill and at least bring the Home Secretary’s exercise of discretion in line with international law. I beg to move.
Lord Moylan (Con)
My Lords, I rise to speak to a number of amendments in this group in my name; namely, Amendments 98A to 98H. I also oppose Clauses 33 and 34 standing part; those notices stand in the name of the noble Baroness, Lady Ludford, and I have added my name to them. I am grateful for the support of the noble Baroness, Lady Lister of Burtersett, for each of my amendments and the clause stand part notices. This is a coherent suite of amendments: they do one thing but are necessary to do that thing throughout a whole section of the Bill that, in essence, covers Clauses 30 to 36, which stand together as a form of deprivation. I am grateful to Amnesty for its assistance in drafting these amendments; I should also say right at the outset that I am grateful to the Minister, my noble friend Lord Murray, for the time he gave to a meeting in advance for us to discuss them.
The essence of what is happening is that the Bill has a two-step deterrence mechanism. It is frankly and openly deterrent, designed to deter people from setting off on a certain course. The first step in that deterrence, and to my mind a very powerful one, is the prospect of rapid removal from the United Kingdom to another country. Coming on top of the money that people have paid, as they have in many cases, to cross the channel or for whatever their mode of arrival, I would have thought that the prospect of immediate removal is a very significant deterrent indeed.
Baroness Brinton (LD)
My Lords, I have tabled Amendment 98I on the status of Hong Kongers with British national (overseas) status. I am grateful to the noble Lord, Lord Alton, who cannot be in his place this evening, the right reverend Prelate the Bishop of St Albans —I think the right reverend Prelate the Bishop of Durham may be deputising for him—and the noble Baroness, Lady Kennedy, for signing this amendment. I particularly thank the Hong Kongers who have talked to us, Amnesty International and the Project for the Registration of Children as British Citizens for their assistance. In the spirit of co-operation, I wrote to the Minister last week setting out the problem that many BNO passport holders face to give him advanced notice.
The noble Lord, Lord Moylan, talked about the amendments that he and the noble Baroness, Lady Lister, have tabled as focusing right down. I am going even further down to one highly specific group where a problem has emerged which seems to breach the British Nationality Act. I hope to be proved wrong and that the Minister can give us some assurances, but the experience of these BNO nationals who have had children born in the UK recently, most of whom are under five years old, is that they are being told by government officials and staff that their children must apply to Chinese diplomatic missions for Chinese travel documents as they are not entitled to any other form of travel document provided in the UK because their parents are not yet full British citizens, even though they are BNO nationals who are waiting to complete the necessary time before applying for settled status and thereafter, as is their right under the law, becoming full UK citizens. Even if that were not the case—if for any reason their parents did not go for that—these children, because they are born here, would be entitled to apply for UK citizenship after being here for 10 years. One official told a Hong Konger parent that their child would have to take the UK citizenship test.
That is clearly mad. Whatever Border Force and Home Office immigration officials are saying, it is utterly confusing. This is a small community who relied on the United Kingdom, which ran their country for many years and allowed the status of BNO to signify that we accepted that status, with everything else that follows from it, including the right to settled status and, in the slightly longer term, the right to UK citizenship.
To be clear, Section 1(3) of the British Nationality Act provides the child with the right to be registered as a British citizen if either parent becomes settled or a British citizen. To be generous, perhaps this is confusion among officials about the gap before the parents are recognised as being settled. However, that application must be made before the child turns 18. Section 1(4) provides the child with the right to be registered as a British citizen if the child remains resident in the UK until the age of 10. Some absences during those first 10 years are permitted. I am saying that because the officials are also telling these parents that if their children leave the UK, they will not be entitled to anything, which is contrary to the British Nationality Act.
Registration under either of these is by right. It is not for the Home Secretary’s discretion. If the requirement is to exercise that the rights are met, the Home Secretary is required to register the child as a British citizen. Can the Minister confirm the earliest point at which a child born in the UK to a BNO national en route to settlement can expect to be able to secure their own connection to the UK, and by what means? Surely the answer is in Section 1(3) of the British Nationality Act 1981.
There is another related matter. There are dependents of those with BNO passports who arrived with HKSAR passports before the current BNO scheme was fully devised. For some, their passports are likely to expire before they achieve their five-year route to settlement. At the moment, they are getting the same response from immigration officials as parents with newborn children regarding their status—that they should approach the Chinese authorities for travel documents. It seems that for dependents with HKSAR passports there is another gap in the system. Quite often these are vulnerable people, sometimes elderly dependents or parents who have come with their children. They are not expecting to return to Hong Kong now.
There is another important point. Many of the Hong Kongers who have arrived here under this status are here because they are perceived as dissidents in Hong Kong under the new regime. Yesterday, in Southampton, two Hong Kongers were attacked by three pro-Chinese Communist Party men, allegedly Chinese students at the University of Southampton, where this happened.
We know, because of the behaviour of the Chinese consulate in Manchester some months ago, that these people are at real risk of attack. For any UK official to tell them to go and get documents from the Chinese is the most extraordinary thing I have ever heard. So I am looking forward to hearing from the Minister and hope that officials need to be briefed. If that is not the case, perhaps he could set out exactly why not. But most importantly, I wonder whether the Minister will meet with me, other signatories to my amendment and some BNO passport holders to further discuss this issue, so that the Home Office understands what is going on.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to speak in support of the amendments in the name of the noble Lord, Lord Moylan, and also in the clause stand part debates, to which I was pleased to add my name. He has made the case so clearly and powerfully that I need say only a few words, but I do want to emphasise the significance of these amendments, from the perspective of both citizenship—the practical and symbolic importance of which we debated last year during the passage of the Nationality and Borders Bill—and of children, who are, as we have heard, the main victims of these clauses that deny citizenship rights in perpetuity.
As the noble and learned Baroness, Lady Hale of Richmond, said in the Supreme Court, the “intrinsic importance of citizenship” should never be played down. I thus agree with the Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty that the provisions are “profoundly misconceived and harmful”. A theme running through our proceedings has been the Bill’s failure to give primary consideration to the best interests of children, as required by the UN convention and Section 55 of the Borders, Citizenship and Immigration Act 2009. The Bill’s citizenship provisions, which really have no place in a Bill focused on irregular migration, target children in a way that is both discriminatory and punitive. Not surprisingly, this is of profound concern to the Refugee and Migrant Children’s Consortium, which advises that this is a
“fundamentally discriminatory approach to citizenship acquisition”
and potentially, as we have already heard, in breach of Articles 8 and 14 of the ECHR. Babies and children will be subject to a “harsh and life-determining penalty” for an immigration breach when they were minors.
Of course, it is deemed to be immaterial that the breach was due to their parents’ rather than their own actions. The Northern Ireland Human Rights Commission warns that the provisions risk discriminating against a child for the actions of a parent, contrary to Article 2 of the UNCRC—a warning echoed in the JCHR report. I also congratulate the JCHR on getting this out so quickly, especially as the Home Secretary apparently did not answer until the last second. In fact, we had already started in Committee before the committee received her reply to its questions, sent some time ago, I believe.
The UNHCR makes a similar point in arguing that punishing a child for the actions of a parent in this way runs counter to Article 34 of the refugee convention, Article 32 of the 1954 convention, and Articles 3 and 7 of the UN Convention on the Rights of the Child. It is an example of how the Bill puts at risk the safety and welfare of children.
I will just give an example—a hypothetical example of how it might work—from the Project and Amnesty. Thomas is brought to the UK as a child. He is so neglected or abused by his parents that the local authority is compelled to apply for, and is granted, a full care order. He is now growing up in the care of the UK state, and his future properly now lies here, meaning that he may be registered as a British citizen under Section 3(1). However, if his entry to the UK was without permission, he will be permanently excluded from his citizenship rights by Clause 31(2). You can hardly blame the child for what has happened.
Both the UNHCR and the JCHR argue that Clause 35 —which, as we heard, gives the Secretary of State the power not to treat a person as ineligible for British citizenship if this is necessary to comply with the ECHR—should be not discretionary but based on compliance or otherwise with the ECHR. The PRCBC and Amnesty argue that the link here is inappropriate —they may well be right—but, if it is going to be made, it should revert to the original wording, as proposed by the noble Baroness, Lady Ludford, in Amendment 98EA. The JCHR expresses puzzlement as to why the Government chose to narrow the available exceptions originally listed, thereby risking contravening international law obligations other than those arising from the ECHR. So, as the noble Baroness, Lady Ludford, asked, can the Minister now explain the justification for doing so?
In conclusion, once again this Government are showing disregard for the importance of citizenship and for the best interests of children. As they have made one welcome concession in this area, I hope that they will accept the strength of the case for removing entitlement to citizenship entirely from the Bill, or, at the very least—and it is the very least—reverting to the original wording of Clause 35.
The Lord Bishop of Durham
My Lords, I thank the noble Baroness, Lady Brinton, for tabling Amendment 98I, and I thank Amnesty International and the Project for the Registration of Children as British Citizens for their steadfast support for those who wish to register as British citizens. My friend the right reverend Prelate the Bishop of St Albans, who added his name, was here earlier in the day but was unable to stay through to the evening.
This amendment aims to tackle a matter of great significance that affects the lives of many individuals residing in the UK under British national overseas visas. They include many people from Hong Kong who are rightly entitled to British citizenship but face serious uncertainty about their legal status. Many Hong Kongers have reported appalling responses from immigration officials regarding their children born here, being told that they cannot have any travel documentation and even querying whether they are allowed to become British citizens in the future.
We all know the turmoil and uncertainty that has plagued the people of Hong Kong in recent years—many have been subjected to unimaginable hardships, fearing for their safety and the future of their families—so it is concerning that so many face anxiety about the citizenship status of their children. The people of Hong Kong have shown immense courage and resilience against Beijing’s totalitarian regime, and many of those who have come to the UK face profound challenges, including concern about the safety and security of their families living abroad. The nature of the treatment of protesters and dissidents by the Chinese Communist Party means that many of them are now permanently settling in the UK. This amendment is, simply, testament to our support for the people of Hong Kong, and it ensures that their status is not subject to further confusion.
All the way through Committee, it has appeared that the Minister and his team have set their face against accepting any amendments whatever. Here, I suggest, are two—the well and clearly argued one from the noble Lord, Lord Moylan, and this one from the noble Baroness, Lady Brinton—on which they could really give something tonight.
Baroness Kennedy of The Shaws (Lab)
My Lords, as noble Lords will see, my name is attached to the amendment from the noble Baroness, Lady Brinton, and I support it. I am a patron of both Hong Kong Watch and another human rights organisation, The 29 Principles, relating to what is happening in Hong Kong and China. I, too, have been lobbied by many young people and Hong Kong families here, who have fled because of the threats to their safety back in Hong Kong. They face great difficulties and uncertainties around the status of their children. I will not rehearse all of the arguments that noble Lords have heard.
Having heard the noble Lord, Lord Moylan, make an eloquent argument about the whole business of citizenship, and listening to my noble friend Lady Lister, I support this clause stand part proposition. Our special relationship with Hong Kong, and our special duties and responsibilities concerning those people, should be at the forefront of this Government’s mind.
Baroness Janke (LD)
My Lords, I will speak to Amendment 95EA in the name of my noble friend Lady Ludford. The amendment seeks to ensure that all UK obligations under EU law are considered when persons are considered for ineligibility in terms of the rights to entry or citizenship.
As my noble friend said, the consideration of rights under the ECHR raises a number of concerns, such as in relation to Articles 2, 3 and 8. This includes, for example, the right to family reunion, the right for individual circumstances to be considered, and even the rights of safety and not to be tortured. The need to consider the best interests of children is a priority under the ECHR as well as the United Nations Convention on the Rights of the Child. Indeed, the Government have acknowledged that children affected by the Bill will rarely qualify for citizenship, so it is difficult to see how provisions in the Bill are in the best interests of children, as required by the UN Convention on the Rights of the Child.
The right to citizenship is the means by which an individual is able to construct a life, settle, earn a living and feel at home in their circumstances. However, individuals fulfilling Clause 2 conditions will be denied those things. They will most likely be kept in a form of limbo, waiting to be moved elsewhere. Ineligibility for citizenship is particularly important for children, who, in effect, will be denied a future by this Bill through no fault of their own.
The Bill does not comply with many of the UK’s international obligations and penalises the most vulnerable and threatened people. The safeguards of ministerial discretion to protect people from breaches of international law are inadequate, as the report of the JCHR makes clear in its recommendations. I would be interested to hear the Minister’s response to those recommendations.
We have heard from noble Lords some of the punitive measures in the Bill, so how could any of us support what the Government propose in terms of treatment of children? How can it be right to punish children for the activities of their parents? That is unjust and insupportable. To flout international law is deplorable, as it condemns many who have already suffered to more injustice. The Joint Committee has exposed the inadequacy of the Bill, and I hope that the Minister will consider its recommendations.
As others have said, the systematic wrecking of long-supported safeguards for the protection of refugees and asylum seekers is totally unacceptable. The potential for the contravention of international obligations has been clearly established by the JCHR, and is the basis for Amendment 98EA and many other amendments in this part of the Bill, which deserve our support. I look forward to hearing the Minister’s response.
Lord Paddick (LD)
My Lords, my noble friend Lady Ludford has fully explained our reasons why Clauses 29 to 36 should not stand part of the Bill. The lifelong prohibition on status is disproportionate; extending the prohibition to children, who may not have had any choice in their irregular arrival in the UK, is both unfair and unlawful.
As my noble friends Lady Ludford and Lady Janke have said, these provisions will produce a permanent underclass who are unable to work and reliant on the state. We believe that these provisions are incompatible with the European Convention on Human Rights, the UN Convention on the Rights of the Child and the Children Act 1989.
We also support the amendments from the noble Lord, Lord Moylan, and my noble friend Lady Brinton, on the narrow issues affecting citizenship by registration and British national overseas citizens, particularly the children of those settling here from Hong Kong and their inability to acquire travel documents.
We believe that Clauses 29 to 36 should not stand part of the Bill, and we also support my noble friend Lady Ludford’s Amendment 98EA, to ensure that the Home Secretary has to comply with all international agreements and not just the European Convention on Human Rights.
Lord Ponsonby of Shulbrede (Lab)
My Lords, as we have just heard, Clauses 29 to 36 place a permanent bar on those who fall within the scheme outlined in Clause 2 from lawfully travelling to the UK or securing settlement or British citizenship through naturalisation or registration; this is subject only to exceptions to comply with international agreements or where there are compelling circumstances. If the Bill fails to succeed in its aim of removing people, there will likely be a whole class of people stuck in the UK for extended periods without access to a system through which they can obtain lawful status. Therefore, they will be unable to work or rent a home. The noble Baroness, Lady Ludford, expanded on this point eloquently. To sum up the noble Baroness’s speech: she wants compliance with international law. We support her Amendment 98EA.
The noble Lord, Lord Moylan, gave a clear exposition of the Government’s intentions with this Bill, and on the different statuses on the second step, as he put it—the ban on acquiring citizenship by naturalisation but also by registration. As he said eloquently, registration is not a concession or a reward for good behaviour but an entitlement. His amendment seeks to address that point, with particular examples given in his speech.
The noble Baroness, Lady Brinton, also spoke about the specific cases of Hong Kongers and BNOs, and how this Bill could cut across—or seems to cut across—their potential rights. My noble friend Lady Lister, who added her name to the amendment in the name of the noble Lord, Lord Moylan, attacked the problem from the perspective of concern for children who could be subject to this ban because of the actions of their parents. As she rightly argued, this is not fair on those children; she wants to revert to the original wording of Clause 35.
We support the amendments in this group. I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, I thank all noble Lords who have spoken in this short debate. It has been particularly illuminating; I have noted the quality of the speeches and hope that I can answer the questions that have been put in relation to these clauses.
Clauses 29 to 36 prevent a person who has entered the United Kingdom unlawfully, and meets the conditions in Clause 2, being able to lawfully re-enter the UK, secure settlement or become a British national through naturalisation or most registration routes. A person who arrives in the UK illegally should not be able to make the UK their home and eventually settle here. Settlement in the UK confers significant benefits, such as the freedom to study, work and access healthcare and public funds; of course, it is also a pathway to British citizenship which, in turn, confers further benefits.
Allowing someone who arrives in the UK illegally to settle clearly creates an incentive for people to make those dangerous journeys. It is a vital part of the deterrent effect that those categories should be included. This is because people taking advantage in that way is unfair. It is unfair on those who play by the rules and come here legally, it is unfair on those who are genuinely in need, as it constrains our capacity to help, and it is unfair on the British public.
Clause 29 precludes people who meet the conditions in Clause 2 from ever settling here and, once removed, being able to re-enter. This is achieved by preventing them from being granted any form of permission through the immigration system. We do, however, recognise there will be occasions when we will need to waive the bans and grant permission; for example, as the noble Baroness, Lady Lister, noted, where not granting permission would contravene our obligations under the European Convention on Human Rights. Clause 29 balances our need to disincentivise people from making dangerous journeys to the UK by ensuring that there is no benefit to be gained from entering the UK illegally, while recognising there may be a limited number of scenarios in which it is appropriate to grant permission. I put it to the noble Baroness, Lady Ludford, that this is a proportionate and balanced provision. Therefore, I do not recognise her description of the Bill as “wielding a sledgehammer”.
Clause 30 sets out that a person will not be eligible for British citizenship, British Overseas Territories citizenship, British overseas citizenship and British subject status if they enter the UK unlawfully and meet the criteria in Clause 2. The ban will also apply to someone who enters a Crown dependency or British Overseas Territory unlawfully in a similar way. We have included the other types of British nationality as we do not think it is right that illegal entry should allow a person to acquire any form of British nationality, but also to prevent a person using it as a stepping stone to register as a British citizen. Illegal entry into the UK, a Crown dependency or an overseas territory will have the same effect. We do not want people to be able to enter illegally in any of those locations and use that as a way to acquire citizenship and, ultimately, a right to enter and live in the UK.
Clauses 31 to 34 set out the routes to which the citizenship ban will apply. The key citizenship route which will be affected is naturalisation, as my noble friend Lord Moylan noted. This is the main way in which adults born outside the UK can acquire British citizenship and British Overseas Territories citizenship. The ban will also apply to certain registration routes. However, those applying under provisions that address historical inequalities in British nationality law will not be affected. This includes people born before 1983 to British mothers, those who missed out on citizenship because their parents were not married or those applying on the route for descendants of Chagossians.
Clause 35 allows us to exempt a person from the citizenship ban if treating them as ineligible for citizenship would contravene our obligations under the human rights convention. This means that if a person can demonstrate that, for example, their right to a family or private life can be met only by us considering a grant of citizenship, we will not exclude them from applying. We do not think that acquiring citizenship will usually be essential to allow a person to have a private or family life in the UK; other options, such as leave to enter or remain, may satisfy that. However, in very exceptional cases where considering a grant of citizenship is needed to prevent us breaching our ECHR obligations, Clause 35 may apply. We will publish guidance for nationality caseworkers setting out how to assess human rights in the nationality context.
The amendments tabled by my noble friend Lord Moylan would remove registration routes for British citizenship and British Overseas Territories citizenship from the ban so that it applies only to naturalisation. They would also remove the bans on becoming a British overseas citizen and British subject through registration. My noble friend Lord Moylan has described registration as an “evidence-based process”, with decisions not based on the Secretary of State exercising discretion. I am afraid to say that I disagree with my noble friend as this is not universally the case: some registration routes are dependent on ministerial discretion and there is no automatic entitlement.
Let me explain this further. As my noble friend Lord Moylan said, not all registration routes are included in the ban. Those that allow people to acquire British nationality they missed out on because of previous unfairness are not included; nor are the specific routes for children born in the UK or stateless persons. However, registration routes that rely on residence or specifically for children born outside the UK are included in the ban, as we expect people who want to become citizens to have followed a compliant pathway, including having entered lawfully.
For example, Section 4(2) of the British Nationality Act 1981 allows people who already hold another form of British nationality to register as a British citizen on the basis of five years’ lawful residence in the UK. The residence requirements mirror those for naturalisation: the only significant difference between the routes is that other British nationals wanting to register under that route do not need to meet the knowledge of English and life in the UK requirements. Given that the residence requirements are the same as for naturalisation, it would be appropriate for them to be subject to the ban in the same way as naturalisation applicants. This is the route that BNOs can use if they come to the UK under our scheme and become settled: they can go on to apply for citizenship. It is right that those who apply and come through legal routes should have the right to become citizens, but we do not think it is right that those who enter unlawfully should benefit.
The registration routes for children who are subject to the ban include two routes for children born abroad to British citizens by descent. Both have a residence element: either that the parent lived in the UK for a period of three years before the child was born or the family lived in the UK for the three-year period before applying to register the child. We do not anticipate that children of British citizens would be brought to the UK on a small boat when there are routes available to them as family members, but should that happen, the child will not be able to register as a citizen.
The other child route that is included in the ban is registration of children at the Home Secretary’s discretion. The only statutory requirements are that the child is under 18 and is of good character if over 10. However, guidance sets out expectations about when a child will be registered. The normal expectation is that the child will be settled in the UK, and that the parents will be British, or at least settled. It is unlikely that children who enter the UK unlawfully would be able to meet the normal expectations of having a British or settled parent, being lawfully present and having completed a period of residence, as under the Government’s proposals, children who have entered illegally will be removed. The citizenship ban will, however, prevent a child being registered under this provision unless there are ECHR grounds. This fits with the Government’s intention to discourage parents from bringing children to the UK via dangerous methods, including crossing the channel in a small boat, and that such a child cannot become a British citizen and create a means for the family to stay.
My noble friend raised, quite rightly, the issue of compassionate cases. As I have said the ECHR exemption will allow us to consider registering, in rare and exceptional cases, where a person meets the statutory requirements and granting citizenship would be essential to allow them to exercise their family or private life.
Baroness Chakrabarti (Lab)
I have two short questions. First, how can a child be culpable? The whole point of the Bill, as I understand it, is that people should not be encouraged to come by illegal means, they should not jump the queue, et cetera. We disagree about that, but none the less, in that conversation about culpability, how can a child be culpable? Secondly, why should the ECHR take on the slack of compassion? There are many members of the Minister’s Government who do not think we should even be signatories of the ECHR any more, and now the ECHR is being relied on for discretion and for slack and compassion. How can that sit well with this Government?
Lord Murray of Blidworth (Con)
On the first point, there is no suggestion that these measures impute culpability in the way that the noble Baroness suggests. On the second point, I would have thought that the noble Baroness would approve of the fact that the statute relies upon the convention rights as being the pressure valve for exceptional circumstances in the way that I have described.
Baroness Lister of Burtersett (Lab)
It may be that I have not quite understood what the noble Lord is saying, but the noble Baroness, Lady Ludford, and I specifically asked the kind of question that was posed by the JCHR. Why have the Government narrowed the reference down from the original wording of the clause to the ECHR, when originally it was to any other international agreement to which the United Kingdom was a party? Why has that gone?
Lord Murray of Blidworth (Con)
The answer, which I will turn to in a moment, is that it was considered that greater clarity and concision was needed. In that respect, it is the Government’s view that the test set out in Clause 35 meets that requirement. That was the reason for the change.
Turning now to Amendment 98ZA—
Lord Moylan (Con)
Before my noble friend turns to that amendment, I am of course not a lawyer but really quite a simple soul, who is struggling to catch up in some ways with the things he has explained to us. But it seems—forgive me if I have grasped this entirely wrongly—that we are now talking about two quite separate Bills. In one Bill, if your pestilential foot is set upon English soil the Home Secretary, as the Secretary of State, has a duty to remove you forthwith. That duty having been satisfied, the question might arise in your mind: are you in fact entitled to registration as a British national on the facts of your case? I fully accept that a degree of discretion is always involved in judging these facts, because they will rarely be compelling either way. You would be doing this, presumably, from your new home in Rwanda or whatever country it is to which you have been safely deported.
On the other hand, the Bill my noble friend is describing is one through which these people will, having landed illegally, already have acquired some sort of settlement here—the Home Secretary, presumably, having failed entirely in the duty that we are imposing on her to remove them. They will be exploiting the advantages of that settlement and clocking up hours on the clock, qualifying increasingly for British nationality, which my noble friend thinks—I rather agree with him—is a little unfair because you are getting ahead of the queue by getting in illegally. Then the clock is running and you would be accumulating all the benefits. Which Bill are we discussing here? The Bill I thought I was discussing was one through which the vast majority of the people who would be making a claim for registration of British nationality, with very few exceptions, would already have been subject to the duty to remove. How many does my noble friend think will not have been subject to it?
Lord Murray of Blidworth (Con)
I thank my noble friend for that contribution. The position, as he outlined in his speech, is that the deterrence effect takes its force from a number of sections in the Bill: the first, obviously, being the detention and removal, as he rightly identified; the second being the bans on the ability to settle or stay here, the idea being that that disincentivises people from entering illegally using dangerous routes. I do not accept that there are two Bills in the way that my noble friend identifies. The reality is that the question of registration of citizenship, which he raises, is unlikely to arise in as many cases as the naturalisation circumstance—I think we can agree on that—so it is natural that what we are talking about is probably an exceptional state of affairs, in any event. That is potentially why my noble friend perceives a dissonance between the deterrent effect and the two factors, but in fact there is no such distinction.
Amendments 98ZA and 98EA, tabled by the noble Baroness, Lady Ludford, seek to expand the circumstances in which the bans on settlement and citizenship are to be disapplied. The noble Baroness, Lady Lister, also touched on this issue. We consider that the circumstances in which a grant of settlement or citizenship would be an appropriate remedy are wholly covered by the ECHR, so our view is that the addition of other international agreements is unnecessary, hence the amendment, as we have already canvassed.
I turn now to Amendment 98I tabled by the noble Baroness, Lady Brinton. This seeks to provide a broader protection for those holding British national (overseas) status. We do not believe this is necessary. The clauses which prevent people from obtaining various forms of British nationality already do not mention British national (overseas) status. This is for the simple reason that no one has been able to obtain that status since 1997 and, consequently, there is no need to ban people from obtaining it should they arrive illegally.
We already have in place a dedicated migration route for people from Hong Kong and, as the noble Baroness knows, it has been a significant priority for the Government and the department to offer this route to British national (overseas) people from Hong Kong in response to the situation there. We have done a great deal for the citizens of Hong Kong and hope to continue to do so. As cited in my response to my noble friend, Lord Moylan, a route to citizenship exists under Section 4(2) of the British Nationality Act 1981. There should therefore be no reason for a person holding British national (overseas) status to arrive illegally in the manner which would mean they fall under this Bill’s provisions.
Baroness Kennedy of The Shaws (Lab)
I was just going to posit to the noble Lord that some of these people having to flee are aged 16 and 17 and were involved in demonstrations and so on and then fled by unusual routes out of Hong Kong. Some of them are making their way via Europe to join family members here in the United Kingdom. Would they automatically, under this Bill, be deprived of ever joining their families?
Lord Murray of Blidworth (Con)
I thank the noble Baroness for raising that. In fact, I was just turning to that very issue.
The noble Baroness, Lady Brinton, asked a couple of specific questions about the children of BNO passport holders—the issue that the noble Baroness now raises again. These address issues which fall outside this Bill; none the less, I can advise the noble Baroness and others interested in this topic that dependants of BNO status holders who themselves do not hold BNO status do not need a valid Hong Kong Special Administrative Region passport to renew their BNO visa. However, I am afraid that renewal of Hong Kong Special Administrative Region passports is not something the UK Government can assist with and until they qualify for British citizenship, such children are not eligible for a British passport.
The Government’s view is that this is not relevant to this clause, but I am, however, very interested in this topic and can entirely understand the concern that has been expressed. I would be content to meet the noble Baroness and perhaps the right reverend Prelate, the noble Baroness, Lady Lister, and some BNOs to discuss this issue because it is obviously important. I suggest that this amendment is not the mechanism for us to discuss this, but I entirely understand that clarification and explanation is needed.
Baroness Brinton (LD)
I am very grateful for the Minister’s answer. One of the reasons why I wanted to lay this probing amendment is that BNO paper-holders feel they are getting a clear message from Border Force and immigration officials that their children do not have that protected status. It is that hole that we are trying to get the answer to, and we have not had it yet. I am very grateful for the meeting, but they need to know because at the moment some of them are being told that their children have no rights and should have Chinese travel documents. If the Government’s officials are saying that, surely that is wrong.
Lord Murray of Blidworth (Con)
My Lords, clearly this needs to be looked into and I hear what the noble Baroness says. After the conclusion of the Committee we can have that meeting, explore the issue and I can respond in full. I am certainly not unsympathetic to the points raised.
The benefits of permanent settlement and British citizenship should not be available to those who come to the UK illegally. These clauses serve to underline our core message that if you come to the UK unlawfully, you will not be able to build a life in this country. I commend Clauses 29 to 36 to the Committee and invite the noble Baroness to withdraw her amendment.
Baroness Ludford (LD)
My Lords, our debate on this group has given me a new respect for nationality law, which is at least as confusing as I ever imagined. It has always been a rather “Here be dragons” subject for me; that has been fully confirmed by this debate. I need to try to make sense of my scribbles.
One thing still puzzles me: I do not really understand why the Government are excluding registration for some forms of British citizenship but not for others. I remain bemused by that; I shall have to read exactly what the Minister said in Hansard. Perhaps the noble Lord, Lord Moylan, grasped that explanation better than I did.
I have sympathy with the particular issues raised by the noble Lord, Lord Moylan, and the noble Baroness, Lady Lister, on registration. I happen to think that there is more commonality with the issue of excluding routes to naturalisation than the noble Lord, Lord Moylan, wishes to acknowledge or give any quarter to, but on the issue of registration he made some important points. I wish him well in his pursuit of those issues with the Minister, but I also believe that there are serious issues around excluding people from the right to remain and a route to citizenship.
I did not grasp the Minister’s explanation of why the phrase “other international agreements” was taken out by the Government. Why did you—I do not mean the Minister personally; I mean the Government and the Home Secretary—put it in the original draft of the Bill a few months ago and then take it out if it did not meet the tests of clarity and concision? I think that was the Minister’s explanation. I accept that taking out those few words makes the clause more concise, but I do not think that doing so makes it clearer because we are then left wondering how the Government are going to secure compliance with those other international agreements —including the refugee convention, the statelessness conventions and the UN Convention on the Rights of the Child—which are not referred to in the Bill.
In answer to the noble Baroness, Lady Chakrabarti, the Minister tried to explain that hanging fast to the ECHR was some new discovery by the Government. As I said last week, we tend to find it quite confusing as to when the Government like the ECHR and when they do not. They appear to act rather fast and loose on this subject.
I applaud the probing amendment in the name of my noble friend Lady Brinton. I hope that she gets a fruitful meeting with the Minister because, as she and other noble Lords said, this issue seems to be the subject of considerable muddle and is having a severe impact on people’s lives. It is giving them extra anxiety. They have had to leave home and come to this country, but now they are being given the runaround by Home Office staff.
I was left unclear, it has to be said, on the situation raised by the noble Baroness, Lady Kennedy. What will happen to the dependants of BNO status holders who are having to leave Hong Kong irregularly and perhaps also arrive in this country irregularly? I am not clear whether we are sure about how their welfare and status will be assured. The Minister said that BNOs are not covered by this Bill, but if somebody who is not a BNO but is a dependant of one arrives in this country irregularly, surely they will potentially be subject to the Clause 2 duty to remove.
Also—and almost finally—the noble Lord, Lord Moylan, highlighted a very interesting contrast between the Government wanting a duty to remove people but wanting only a discretion to be fair to them in legal and human rights terms. That does not seem very consistent. So I end by saying that I still feel very firmly that the duties under Clause 29 and 35 should be expressed in terms of not a discretion but a duty to obey our international legal obligations under the ECHR and other international treaties that we have signed.
Lord Murray of Blidworth
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Murray of Blidworth at page 5, line 38.
Baroness Ludford (LD)
I warned your Lordships that I would keep popping up this evening, but I am glad to say that the cavalry is coming to my assistance. On the Bench opposite there are all my legal heavyweight friends who are going to row in on this issue. In moving that Clause 37 should not stand part of the Bill, I shall speak similarly with regard to Clauses 38 to 42 and in support of my Amendments 114 and 115 as well as all the other amendments in this group.
At the moment, under existing law, a human rights claim would effectively suspend a claimant’s removal; the suspensive effect of a human rights claim is a crucial safeguard against individuals being removed to face human rights abuses before the validity of their claim has been established. As was referred to in earlier groups, we on these Benches believe that pursuing a claim from another jurisdiction is likely to be very difficult and in some cases impossible. We were talking about trafficking victims earlier, but I contend that it applies to anyone trying to pursue a claim from abroad. The European Court of Human Rights has held that the right to an effective remedy under Article 13, taken together with Articles 2 and 3, guarantees the ability to present an asylum claim effectively. We would say that you cannot do it effectively if you are outside the country.
Clause 4 of the Bill makes it clear that the Clause 2 duty on the Secretary of State to make arrangements for removal will still apply to a person making a claim that removal would violate their human rights. The continuing application of the duty means that, under the Bill, these claims would all be non-suspensive. The Bill provides narrow exceptions to this non-suspensive effect by establishing two categories of suspensive claims that prevent the removal of the claimant while they are ongoing: the serious harms suspensive claim and the factual suspensive claim. These are the only ways in which anyone who satisfies the Clause 2 conditions—whether they are seeking asylum, have been trafficked or have otherwise come without permission—would be able to challenge their removal before it takes place. Even a successful claimant will remain subject to the Secretary of State’s removal duty and prohibition on getting leave to enter or remain under Clause 29, as we have just been discussing, and will thus remain in a state of limbo regarding their immigration status—at least theoretically still awaiting removal—so it does not necessarily solve the problem. Most human rights claims will stay non-suspensive and have to be pursued from outside.
I turn to the test for these suspensive claims, which I think is where some of the amendments come in. The test established in the Strasbourg court is where substantial grounds have been shown for believing that the person in question would face a real risk. However, this appears to mean that individuals who can establish a real risk of treatment contrary to Articles 2 or 3 but cannot establish that it is imminent would still be removed under this Bill and left to pursue their claims from overseas. The JCHR says, and we on these Benches agree, that this would likely breach the Government’s obligations under the ECHR—the convention to which the Government are newly converted.
Another problem is that a serious harm suspensive claim would have to contain compelling evidence that the serious harm condition is met. This appears to be a new evidential standard created by this Bill. Freedom from Torture told the JCHR that this amounts to
“an extremely high evidential threshold which may, in fact, be higher than ‘real risk’ or even ‘the balance of probabilities’. How an individual who has just fled persecution could provide evidence to this threshold is unclear”.
The next problem is that the Bill retains a power for the Secretary of State to make provision about the meaning of “serious and irreversible harm” in regulations. Our Constitution Committee considers that
“the implications of this definition are so significant that it should be amended only by primary legislation unless any delegated power to do so is limited to prevent fundamental risks of harm being removed from the definition”.
The committee supports my proposition that Clause 39 should be removed from the Bill or heavily circumscribed.
This is also the subject of criticism by the JCHR. Not only does the committee
“urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims”
but it believes:
“The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations”
and:
“Clause 39 should be removed from the Bill”.
Lastly, timeframes are the subject of my Amendments 114 and 115. In the Bill, the Government are imposing very tight timescales: the lodging of a claim within seven days following receipt of the notice, a decision within three days and appeal to the Upper Tribunal within six days. My amendments aim to increase both the claim and the decision deadlines to 30 days. All in all, my amendments in this group, with the support of other noble Lords, are designed to restore better fairness to the possibility of people appealing against removal. I beg to move.
Lord Etherton (CB)
My Lords, I will speak to a number of amendments in my name in this group: Amendments 100, 102, 103, 104, 105, 107, 108, 109, 111 and 112, all of which are supported by my noble friend Lord Carlile of Berriew, who is a co-signatory. I am grateful to him and to the noble Lord, Lord Cashman, who has also supported one of them. I am also grateful to the Minister for a remote meeting with me to discuss my amendments, which I appreciated.
We are here dealing with the situation where a person claiming refugee status has been given a third country removal notice. That notice will be for removal to a country specified in Schedule 1, and the refugee claimant has a well-founded fear of persecution if they are removed to that country. Under the Bill, the removal notice can be challenged only by a serious harm suspensive claim. The serious harm condition is defined in Clause 38(3): the person claiming refugee status must, within a specified period called “the relevant period”,
“face a real, imminent and foreseeable risk of serious and irreversible harm if removed … to the country or territory specified in the third country removal notice”.
The majority of my amendments in this group focus on the inappropriateness of the requirement to show an imminent risk of “irreversible” harm within a specified period.
The first point to note is that, by way of general observation, whereas the serious harm suspensive claim focuses on the situation of an individual claiming refugee status, the well-established approach both internationally and under our own jurisprudence is to ask, in the case of a “particular social group” within Article 1A(2) of the refugee convention, whether the members of that group have a well-founded fear of persecution by virtue of being a member of that group.
Secondly, that change in approach is explained by the appearance, for the first time, of a requirement for an individual claiming refugee status to be able to resist removal to an otherwise unsafe country only if they can additionally show that they would personally suffer serious and irreversible harm. There is no such requirement in the refugee convention or in any jurisprudence of our own courts or, so far as I am aware, those of any other country.
Baroness Chakrabarti (Lab)
My Lords, it is an enormous pleasure to follow the noble and learned Lord, Lord Etherton. I declare an interest as a former and retired Home Office lawyer and therefore there is a small pension that is being administered by some private company. The important point about that declaration is that when I was a Home Office lawyer in the 1990s, working on matters that included asylum, there was a moment when a particular failed asylum seeker who was removed was shot on arrival in their home country.
I make that point because the noble and learned Lord, Lord Etherton, has made the detailed, forensic point so clearly, but as we move into this part of the Bill and start considering non-suspensive appeals, interim relief and what should happen to someone while there is a dispute about the safety of the place to which they are being sent, that is the story that hangs in my mind, and that is really the best contribution that I can make to the Committee’s thinking when we think about non-suspensive and suspensive appeals, and when we think in due course about my own group of amendments, which is about interim relief from domestic courts and international courts.
To facilitate the swift progress of the Committee I will do something that seems counterintuitive. The Government Chief Whip, who is returning to her place, gave us some very good advice about the Committee not liking reading. Which day was that on exactly? Was it Wednesday or Thursday? Was it this year or last year? I understand that point but this is not a filibuster; this is a very short, pithy quote from the JCHR report, which makes the point better than I could about what is wrong with the particular provisions dealt with in this group.
Noble Lords will find the quote on page 105 of the blockbuster JCHR report, which we will not all be able to read in its totality. Paragraph 333 says:
“Making human rights claims ‘non-suspensive’”—
non-suspensive means that you can appeal from the place you say are not safe in; it is perhaps not the place you say you will be shot but the place you might be sent to where you will be shot or otherwise persecuted—
“can only be consistent with our human rights obligations if pursuing those claims from the destination state is viable”.
This is from the JCHR, which is an all-party committee of both Houses. It continues:
“We are concerned that this has not been established for the states deemed safe for removals”.
That was one of the many excellent points made by the noble and learned Lord. It goes on:
“The threshold required to establish a suspensive claim based on serious harm under the Bill, and the requirement for ‘compelling evidence’ to support it”—
for those desperate refugees—
“puts at risk of removal those who have genuine human rights reasons why they should not be removed. Furthermore, allowing the Secretary of State to redefine ‘serious and irreversible harm’ by regulations opens up the possibility of increasing disparity between the protections against refoulement in domestic law and those to which the UK is committed in international law, including”—
the Minister’s favourite—
“the ECHR. We urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims. The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations. Clause 39 should be removed from the Bill”.
Lord Hope of Craighead (CB)
My Lords, I have three amendments in this group: Amendments 101, 110 and 113. Two of these amendments, to which the noble Lord, Lord Anderson, has added his name, are about the meaning of words. They are words to which the noble Baroness, Lady Ludford, drew attention in her opening remarks on this group.
Amendment 101 directs attention to the definition in Clause 38(3) of the serious harm condition. The Bill says that this requirement will be satisfied if the person faces a
“real, imminent and foreseeable risk of serious and irreversible harm if removed from the United Kingdom … to the country … specified in the third country removal notice”.
Amendment 113 directs attention to the requirement in Clause 41(5) that a serious harm suspensive claim must
“contain compelling evidence that the serious harm condition is met in relation to the person”
making the claim. I am grateful to the noble Baroness, Lady Chakrabarti, for drawing our attention to the reference in the JCHR report to the word “compelling” and its consequences.
So far as
“real, imminent and foreseeable risk”
is concerned, we suggest that that phraseology is unnecessarily complex. If a risk is imminent and foreseeable then one would say it must be a real risk and not a hypothetical one. Conversely, if the risk is real then it would follow that that is because it is imminent and foreseeable. These words are unnecessarily complex. It would be better, we suggest, to delete the words “imminent and foreseeable” or, alternatively, delete the word “real”. The real question is whether the word “real” adds anything if the other two words are satisfied.
As for the word “compelling”, there is an important question in addition to the fundamental point raised in the JCHR report as to what exactly “compelling”, in Clause 41(5), is dealing with. Clause 41(5) is telling the asylum seeker what his or her claim must contain. There are various requirements set out, and the first is that it
“must … contain compelling evidence that the serious harm condition is met”.
The first question is who is to judge that the evidence in that claim is compelling? The clause begins by telling us that the Secretary of State must consider the claim, before the end of the decision period, and make one of the following decisions:
“that the serious harm condition is met … or … that the serious harm condition is not met”.
Lord Cashman (Lab)
My Lords, I will speak briefly to the amendments in this group. In so doing, I refer your Lordships to my entries in the register of interests, particularly as patron of the AIDS and HIV charity, the Terrence Higgins Trust.
I particularly support the amendments of the noble and learned Lord, Lord Etherton, who brilliantly explained the reasoning behind them. As he says in his explanatory statement to Amendment 105, the current wording of Clause 38(5)(c) is too wide and would preclude
“a human rights claim pursuant to Article 3 of the European Convention on Human Rights”,
which the Government are suddenly clinging on to. It would also preclude a protection claim pursuant to the refugee convention. I am not a lawyer, so I will not dwell too much on those matters; however, I support the argument that what is proposed in this clause is not in conformity with the jurisprudence of the European Court of Human Rights in Strasbourg and not in accordance with the jurisprudence of the United Kingdom.
At the heart of this provision is the removal to the so-called safe countries in Schedule 1. As your Lordships will know, I am not alone in my concerns; they were discussed with great concern on the first and third days in Committee and today. Indeed, the Minister, the noble and learned Lord, Lord Bellamy, tried to reassure me and others that the list was really an amalgam and that the countries, where people who might be subject to discrimination because they belong to a particular social group will be going, might perhaps say, “We don’t want them”. That is a wonderful hypothetical answer, but my reply is: what if a person who is HIV positive is sent to a country, such as Uganda, where that person, if they are lesbian, gay or bisexual, would have to say to their medical practitioner that they are lesbian, gay or bisexual? That medical practitioner, if they did not reveal that information to the Government, would face two years’ imprisonment, while the person receiving treatment themselves could be criminalised. That is just one country from a huge range of countries, not only around the world but particularly within the Commonwealth. Some 80% of the countries of the Commonwealth currently criminalise people because of their sexual orientation and gender identity.
Because of the lateness, I will now take my place. But for the reason I have just cited, and many more, I heartily and unreservedly support these amendments, particularly those of the noble and learned Lord, Lord Etherton.
Lord Carlile of Berriew (CB)
My Lords, I will speak in support of both my noble and learned friends, who sit to my right in the Chamber. I am particularly grateful, as I think the whole Committee is, to my noble and learned friend Lord Etherton for the very clear exposition he gave of the law and of the consequences of these provisions which change the law.
I will put my very short analysis of this into “faults” and “conclusions”. Clause 38 is word soup, full of tautology and contradictions—the sort of thing that makes fortunes for lawyers if they can get in front of judges, like my noble and learned friends in the very senior courts, and make esoteric arguments based on an analysis of the text. The word soup is most certainly not a consommé clarified by the use of egg whites, so that you can see through it to the bottom of the bowl. It is more like a sort of mad minestrone, into which the draftsman has thrown every word vegetable that he or she could find.
Let us look at Clause 38(3), where the “serious harm condition” is in inverted commas. I was taught at school never to use inverted commas, if you could avoid it, because they show a weakness in your argument, unless it is a quotation that someone said. It says:
“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a real, imminent and foreseeable risk”.
Supposing we missed out the words “real, imminent and”, what difference would it make if it simply read,
“before the end of the relevant period, face a … foreseeable risk of serious and irreversible harm”?
If one missed out the words “and irreversible”, would it mean less if it read:
“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a … foreseeable risk of serious … harm if removed from the United Kingdom”?
What are they trying to gain by the word soup—the possibility of making bizarre submissions in front of the senior courts in which my noble and learned friends sat?
After those comments, if you were asked, “What does all this mean?” by a lay man who might be up at 10.10 pm looking at parliamentary TV or parliamentlive.tv and fascinated by every word in this debate, you would say to him, “Just go and have a look at Clause 38(5)(c)”, which refers to
“where the standard of healthcare available to P in the relevant country or territory is lower than is available to P in the United Kingdom”.
They—or at least those who were well informed enough to be sitting up at 10.10 pm, watching parliamentary TV—would immediately say, “This is deliberate discrimination against gay men”. What else is this for?
We should be ashamed of ourselves if, at least when it comes to Report, we allow this kind of provision to remain in the Bill and do not help my noble and learned friends to pass their amendments. But I hope that we do not have to reach that stage, because this word soup should seem as ridiculous to our noble friends the Ministers as it does to some of us.
Lord Paddick (LD)
My Lords, this has been an interesting, if not bewildering, debate—at least to us non-lawyers. My lay interpretation of the provisions we debated in this group is that they highlight the danger of asylum seekers being removed to countries where they could come to harm by making the level of proof required to suspend removal so high, and by making the evidence required to prevent their removal so compelling—within impossibly short timescales—as to make the likelihood of a successful claim diminishingly small. If it turns out that it is not diminishingly small enough, the provisions allow the Secretary of State to redefine what “serious and irreversible harm” means to make sure that the tap is turned off almost completely.
The noble and learned Lord, Lord Etherton, questioned whether such an approach is compatible with existing law. It is quite clear what the Government are trying to do here: make it impossible for anyone to resist removal from this country under the provisions of the Bill. That is why we do not believe that Clauses 37 to 42 should stand part of the Bill.
Lord Coaker (Lab)
My Lords, this was an interesting debate. I thought I was with lawyers, but then, listening to the noble Lord, Lord Carlile, I realised that I was also struggling to be a chef.
The serious point was well summed up by the noble Lord, Lord Paddick, and it was interesting—it answers the point of the noble Lord, Lord Carlile, about people who may be watching parliamentary TV, and certainly members of the public who read our deliberations. The legal dissection of the clause done by the noble and learned Lords, Lord Etherton and Lord Hope, the noble Baroness, Lady Chakrabarti, and others is of immense benefit. But the real point for members of the public reading our proceedings will be what the noble Lord, Lord Paddick, said: there can be no other interpretation of how these clauses are laid out and, essentially, the Government are trying to make it as hard as possible for an individual to stop their removal from the country when they are subject to the provisions in Clause 2. There can be no other interpretation—this is designed to make it almost impossible. The key question for the Minister is: why is that wrong? Why is it not the case that the Government are seeking to make it as difficult as possible for people to leave?
Lord Murray of Blidworth (Con)
My Lords, Clause 37 provides for two types of suspensive claims, which have the effect of suspending a person’s removal—a factual suspensive claim and a serious harm suspensive claim. A factual suspensive claim is a claim that a mistake was made in deciding that a person meets the four conditions set out in Clause 2. A serious harm suspensive claim is a claim that a person would, before the end of the relevant period, face a risk of serious and irreversible harm if they were removed from the UK to a country other than their country of origin. As the noble Lord, Lord Carlile, noted, the risk must be real, imminent and foreseeable. The serious and irreversible harm test is designed to be a high threshold, reflecting the test of the European Court of Human Rights when considering whether to indicate an interim measure under Rule 39.
These amendments seek to change how Clause 38 defines the risk of harm, lowering the threshold for a serious harm claim to succeed. In responding to the amendments tabled by the noble and learned Lord, Lord Etherton, I start by making the general observation that suspensive claims are relevant to people who have received a third-country removal notice. In this context, an asylum claim would not be relevant. Therefore, they do not impact the definition of “refugee” in the way that he suggested.
Amendments 100 and 108 would remove the requirement for the harm to occur in the period that it would take for any human rights claim or judicial review to be determined from the third country. If accepted, these amendments would enable people who receive a third-country removal notice to raise serious harm suspensive claims against their removal, based on a risk of harm that many not materialise for many months, if not years, after the person’s removal to the safe third country. This cannot be right. We cannot have a position whereby a person’s removal from this country is prevented based on a risk that does not currently exist and may not exist until a significant amount of time has elapsed after the person is removed.
Amendment 101 would remove the need for the risk of harm to be imminent and foreseeable. If accepted, this would have a similar effect to Amendments 100 and 108, enabling a person to successfully challenge their removal based on a risk that may occur a long time in the future.
Baroness Kennedy of The Shaws (Lab)
A great deal of research has gone into the risks associated with countries where the law still criminalises homosexuality. The research of the Inter-American Court of Human Rights has shown that those countries permit levels of murder of gay men and women, violence towards them and discrimination against them in many different forms. The violence experienced by people who are part of the LGBT+ community in those countries is exponentially greater than anywhere else, even in countries known for high levels of violence. The idea the Minister is talking about—risk that is far down the line and many years ahead—is not what we are talking about here. For many people going to those countries, there will be risks almost immediately.
Lord Murray of Blidworth (Con)
The noble Baroness makes an entirely fair point. In those cases, of course, it would be an imminent feature. As she points out, in those circumstances that is something the courts would be able to have regard to.
The inclusion of “imminent and foreseeable” is intended to prevent the courts from considering risks that are dependent on a series of hypothetical events before the harm might occur. That is the reason, as I understand it, that “imminent” features in the European Court of Human Rights practice direction on interim measures. We cannot allow illegal entrants to be able to thwart their removal based on an unknown risk that cannot be foreseen and may not even arise for many months or years, if at all.
Amendments 102, 103, 104, 109, 111 and 112 would remove the requirement for the risk of harm to be irreversible. These amendments would significantly lower the threshold for a serious harm suspensive claim to succeed and undermine the purpose of the Bill to deter illegal entry to the UK. Again, I point out with the greatest of respect to the noble and learned Lord, Lord Etherton, that
“a real risk of serious and irreversible harm”
is the test applied by the Strasbourg court when considering applications for Rule 39 interim measures, as he alluded to during his speech.
Amendments 105, 106 and 107 would remove specific examples of harm, relevant to the availability of healthcare and medical treatment in a third country—a passage that the noble Lord, Lord Carlile, drew the attention of the Committee to—in circumstances that do not or are unlikely to constitute serious and irreversible harm. There is existing case law that indicates that claims based on harm resulting from differing standards of healthcare fall short of the Article 3 threshold. It is simply unjustifiable for those who enter this country illegally to be able to remain here indefinitely and have unlimited access to our healthcare systems solely on the basis that they may not receive the same level of medical treatment in the country or territory they are rightly removed to.
For these reasons, Clause 38 makes it clear that a serious harm suspensive claim based on a risk of harm relating to differing standards of healthcare cannot succeed and, as a result, will not prevent that person’s removal to the safe third country. Clause 38 also makes it clear that a claim based on pain or distress resulting from a lack of medical treatment is unlikely to succeed. By including specific examples of harm that do not or are unlikely to constitute serious and irreversible harm in Clause 38, it is ensured that the courts take a consistent approach in their consideration of the risk of serious and irreversible harm and go no further than intended.
The Bill provides a fast-track process for the consideration of a claim which may temporarily suspend a person’s removal from the UK. Clauses 41 and 42, as the Committee has noted, set out the procedure and timescale for making a suspensive claim and the timescale for a decision to be made on a suspensive claim.
Amendment 113 would remove the requirement for a serious harm suspensive claim to include compelling evidence of the risk of serious harm that a person would face if removed to a third country, as noted by the noble and learned Lord, Lord Hope. Reducing the evidential burden in this way risks the process being abused through spurious and unmeritorious claims, similar to those that we have seen in other immigration applications. Evidence that is compelling is defined as that which is reliable, substantial and material to a person’s claim. I suggest that this is a reasonable requirement and necessary to ensure that the suspensive claims process is not open to abuse.
Lord Hope of Craighead (CB)
I am grateful to the noble Lord for setting out an explanation of the word “compelling”. He used three adjectives and my impression is that that explanation is intelligible; it is not quite as alarming as “compelling”. Would it not be better to substitute the three words that he quoted for “compelling”? “Compelling” could be read as setting a very high standard indeed, which I do not think the three adjectives that he mentioned do.
Lord Murray of Blidworth (Con)
I am grateful for that suggestion from the noble and learned Lord. If I may, I will take a moment to reflect on that and will revert to him in relation to it.
Amendments 114 and 115 would significantly increase the timescales for making and deciding a serious harm suspensive claim, undermining the fast-track process that we have created in the Bill and our ability swiftly to remove illegal entrants. Where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period. Legal aid will be available to assist a person in receipt of a removal notice in making a suspensive claim. With these safeguards, I suggest to the Committee that it is reasonable to expect a person to bring a suspensive claim within the time periods set out in the Bill. I hope that that addresses the point made by the noble Baroness, Lady Ludford.
The purpose of the Bill is to ensure that illegal entrants are removed as quickly as possible. Extending the decision and claim periods to a total of 60 days for all cases increases the risk that immigration bail would be granted by the First-tier Tribunal and, where bail is granted, that a person would disappear into the community in order to frustrate their removal. The use of detention is therefore necessary to make sure that they are successfully removed from the UK, and our ability to detain a person is dependent on any suspensive claim being both considered and decided quickly. The timeframes outlined in the Bill send a clear message that if you arrive in the UK illegally you will be swiftly removed.
The noble and learned Lord, Lord Hope, referred to the Constitution Committee’s recommendation that the regulation-making power in Clause 39 should be removed from the Bill. We are considering that committee’s recommendations and will respond before Report stage. I would, however, comment that the Delegated Powers Committee did not comment on this power.
The amendments put forward would undermine the suspensive claims procedure and the timeframes outlined in the Bill, where what this Government need to do is send a clear message that if you arrive in the UK illegally you will be swiftly removed. For the reasons that I have outlined, I ask that noble Lords do not press their amendments.
Lord Etherton (CB)
Before the Minister sits down, there were two specific questions that I raised at the end of what I said that I would like an answer to. I do not believe that he has answered them at the moment.
The first is confirmation that there is nothing in the Bill that in any way derogates from the decision of the Supreme Court in HJ (Iran) that a person qualifies as a refugee under our jurisprudence if they would face persecution living openly as an LGBT person. This is relevant to the question of serious irreversible harm, the question being whether it is the Government’s view that you would have to, if necessary, act discreetly and that, if you acted discreetly, the harm would not be suffered. Is it intended, through the Bill, to undermine this landmark decision of the Supreme Court?
The second point on which I would like a specific answer was similarly in relation to the UNHCR’s latest advice—from 2023, I think—about what constitutes an appropriate flight alternative. Where would it be appropriate to deny refugee status because there is a place within a territory or country where there would be no persecution and where it would be reasonable for the person in question to live in an ordinary way?
Lord Murray of Blidworth (Con)
I thank the noble and learned Lord for repeating those questions. He is entirely right that I should have answered them; I apologise for not doing so.
The short answer is that this is a separate strategy regime to the one that the case of HJ (Iran) was decided under. Of course, although the findings in that case and the line of cases concluding in that case would be relevant, the decision will always be taken on the facts of each case. I cannot, I am afraid, give the noble and learned Lord an undertaking on what he might perceive to be an inconsistent decision in relation to that case. I am happy to look into it further and will write to him about that, but that would certainly be my instinctive reaction.
In relation to the further report from the UNHCR, again, each of these matters is fact-sensitive to each serious harm suspensive claim. It would not be right for me to try to predicate at this Dispatch Box what the outcome might be.
Lord Etherton (CB)
I am sorry to come back on this, but it is important. The Government must give some guidance to the judges of the Upper Tribunal who try these cases with these novel and, if I may say so—I am adopting the approach of the noble Lord, Lord Carlile—complicated provisions. These are new provisions that are not found anywhere else in our jurisprudence or in anybody else’s. We are talking about a special type of irreversible harm that has to be predictable. Any guidance that we can give on how the existing jurisprudence and UNHCR advice would still apply will be extremely important for the actual mechanics of delivering justice in these cases.
Lord Murray of Blidworth (Con)
I can only repeat that the Supreme Court decision in HJ (Iran) and the other documents provided by the UNHCR are not relevant in this context because they do not deal with the same mechanics. Those cases were asylum or protection claims, whereas this deals with the specific statutory category of serious and irreversible harm. Of course, although there may be some crossover in the arguments deployed, ultimately they address a different issue. I cannot provide the type of assurance that the noble and learned Lord seeks, I am afraid.
Baroness Ludford (LD)
My Lords, if two noble and learned Lords and one learned with a small “l” noble Lord—if I may call the noble Lord, Lord Carlile, that—are frowning and struggling to understand what the Minister has just said, there is no hope for me. I must confess that I found it pretty difficult to understand. I would be most grateful if the Minister could put the letter that he has promised the noble and learned Lord, Lord Etherton, in the Library so that the rest of us can try to understand.
It would be of great concern if the worry that the noble and learned Lord raised was to be shrouded in doubt in terms of the status of the Supreme Court case, which said that you cannot expect a gay person to have to live in a closeted fashion—that is, you would expect them to be able to live openly for a country to be considered safe. If that precedent were to be put in any doubt, it would have serious implications, as would the concerns that were raised about healthcare; I am not sure what point we have precisely got to on that subject.
The overall concern, if I may put it like this, is if it ain’t broke there is no need to fix it. The courts seem to have got a handle on these issues, and what the Government are doing with their word salad is creating quite a lot of instability and confusion in something that is being handled pretty competently by the courts. They have reached some position on how to assess issues such as risk, foreseeability and reality of risk—and here the Government come, like a bull in a china shop, trying to upset and disturb all that. I am rather minded to think that the Government would do better just to leave it to the courts.
The Minister was not very persuasive in his argument that the wording in the Bill is necessary to stop projections of hypothetical risk. Surely, the courts can be relied on to filter out fantastical imaginings when they assess the reality of risk. I am afraid I found his responses on this group pretty unpersuasive. He keeps coming back to this hoary old chestnut that the use of detention is necessary to ensure swift removal. The idea that this Government are going to ensure swift removal of a lot of people strikes most people living in the real world, to use that phrase again, as for the birds. However, with that said, I shall not oppose the clause standing part.
Baroness Ludford (LD)
Yes, I am sorry, it is me again. I am looking forward to the next group, when someone else will be in charge.
I shall speak to the question of whether various clauses should not stand part of the Bill. I am grateful for the support of the noble Baroness, Lady Chakrabarti, on Clauses 49 and 51, the ouster clauses. The situation at the moment is that, generally, immigration and asylum decisions can be appealed to the First-tier Tribunal with a further appeal to the Upper Tribunal on a point of law, but under the Bill, the rejection of a suspensive claim may be appealed only to the Upper Tribunal, bypassing the First-tier Tribunal. The fear is that while reducing appeal rights may speed up the process, it could be at a significant cost to justice. As with the suspensive claims themselves, the Bill requires the notice of appeal to be supported by compelling evidence, and this could result in a notice of appeal being rejected despite there being evidence that, while not coming under the definition of “compelling”, is nevertheless sufficient to establish the normal tests that the Upper Tribunal would apply.
Also, if the Secretary of State certifies that the claim is clearly unfounded, there needs to be permission from the Upper Tribunal to appeal to the Upper Tribunal and this will be granted only if the Upper Tribunal considers that there is compelling evidence that the serious harm condition is met, with the additional requirement that serious harm is “obvious”. This could result in the Upper Tribunal refusing permission despite being satisfied that the serious harm condition is met. It could have to refuse it on the grounds that it is not obvious serious harm, which could expose the claimant to a risk of irreversible harm in breach of the convention.
We come to the denial of the right to judicially review the decisions of the Upper Tribunal. Justice said in its evidence to the JCHR that since vulnerable individuals will be
“restricted to one, fast-tracked hearing, it is even more important that there is proper oversight from experienced judges”.
The Bill therefore denies the right to judicial review even where an error has been made in reaching the decision. It insulates decisions of the Upper Tribunal from any kind of judicial oversight or correction by the higher courts. This is a cause of considerable worry. The risk to those removed despite having a human rights claim pending is extremely serious. If appeal rights in suspensive claims are limited, there should at least be effective judicial supervision and the Bill should be amended to remove the unnecessary ouster of judicial review.
Lord Paddick (LD)
My Lords, my noble friend Lady Ludford has clearly explained why Clauses 43 to 51 should not stand part of the Bill. The Government just seem to dismiss all the safeguards around access to justice and making sure that the court process has integrity, to speed up any sort of appeal process against decisions under this Bill, to the extent that they are destroying the whole principle of justice. That is why we do not believe these clauses should stand part of the Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Baroness, Lady Ludford, for explaining this really quite complex area. The only thing I was going to ask the Minister was whether he could explain the timeframes within which the appeal must be lodged: seven days for the Upper Tribunal and then 23 days for a further appeal to the Court of Appeal or the Court of Session. Are those timeframes standard in these types of cases? How have they arrived at them?
The noble Baroness, Lady Ludford, expressed the case very fully and I thought the way the noble Lord, Lord Paddick, summarised it was a fair comment about the accessibility of these processes to people taking part in them.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, Clauses 43 to 51 are an essential part of the scheme of the Bill, just like Clause 54 on legal aid, which we discussed earlier. I think by now your Lordships are very familiar with the scheme of the Bill but, just briefly, for the record, I will try to outline these clauses and answer the questions that have arisen as we go through.
The first thing the Bill does is to render certain claims —protection of human rights and modern slavery claims—non-suspensive so that making them does not delay the removal of an illegal migrant to a safe third country. However, the Bill then provides safeguards for removal in two cases: where there is a serious harm suspensive claim and where there is a factual suspensive claim—there has been a mistake as to whether the conditions are met.
Then the Bill goes on to provide that if the Secretary of State refuses those claims there is then an appeal to the Upper Tribunal. In general, the Government’s position is that that provides proper safeguards. It does not dismiss safeguards—if I may use the phrase just used by the noble Lord, Lord Paddick—it strikes a fair balance between expedition and fairness to the migrant. It does not in any way destroy justice because the ultimate decision in relation to the suspensive claims is in the hands of a very respected and senior judicial body and legal aid is available in order to bring those claims.
The basic timetable, to answer the question from the noble Lord, Lord Ponsonby, is that there are seven working days from receipt of the notice of removal to bring the claim, subject to the possibility of an extension if that is necessary to secure justice in a particular case. The 23-day period—I think I am right although I will correct myself in writing if I am wrong—is for the Upper Tribunal to take its decision. Those time limits for appeals are specific to this Bill. This is an expedited procedure that provides strict time limits, but in the Government’s view they are fair time limits.
One should make it clear that we have two situations. The first is where the Secretary of State certifies that the claim is clearly unfounded. In that circumstance, the person concerned has to apply for permission to appeal. That is the current approach, as I and the Government understand it, in the asylum and human rights system. It is effectively to weed out unmeritorious appeals as those designed to do no more than frustrate removal. Those cases are decided by the tribunal on the papers. Similarly, if you make a late suspensive claim—a claim out of time—it will be considered only if there are compelling reasons. That is at the level of the Secretary of State but if they consider that there are no compelling reasons, you can go to the tribunal and say, “There are compelling reasons why I was out of time”. Again, that is for the tribunal to decide on the papers.
These provisions are designed to ensure that claims are made at the earliest opportunity and prevent late claims being used to frustrate removal, undermining the overall effectiveness of the claims process. Once a claim has been made to the Secretary of State but not refused, and then to the Upper Tribunal as well, the whole process is suspended until the tribunal has taken a decision, so there is protection during that period.
Clause 47 also deals with another problem that constantly arises in this kind of case, where somebody tries to raise something new at a late stage. Again, there is a procedure for dealing with that: effectively, that the new matter can be considered by the Upper Tribunal only if there have been compelling reasons for it not to have been raised earlier. In relation to late claims, claims out of time and new matters, there are those checks to prevent the system being abused.
Clause 48 then requires the various timeframes to be respected. It places a requirement on the tribunal procedure rules to secure that those timeframes are respected. As I have just said, there are seven working days for the submission of a substantive appeal—I think that is in Clause 48(1)(a)—and a 23 working-day period for the tribunal to decide that substantive appeal. Those timeframes may, as I say, be extended. What we have here is a process that, in the Government’s view, is essentially a fast-track process but none the less a fair and balanced one.
Lord Ponsonby of Shulbrede (Lab)
These very short timescales are no doubt part of the deterrent effect which the Government are seeking to put in place through the Bill. What estimate have the Government made about the workload on the tribunal process? Is it really sustainable to have such short timescales?
Lord Bellamy (Con)
My Lords, the Government have been working closely with the senior judiciary to ensure that we have the relevant judicial manpower and resources to deal with the workload. I am not, as of this moment, in a position to give specific details but one of the reasons for allowing the judges of the First-tier Tribunal to sit in the Upper Tribunal, which gives us a pretty wide pool to draw upon, is that it enables us to draw upon recorders, retired judges and others. The Government are at the moment satisfied from the discussions they have had that there will be sufficient judicial capacity to meet any reasonably foreseeable workload, but that is a perfectly good question and I thank the noble Lord for raising it.
I will come in a moment to the point from the noble Baroness, Lady Ludford, about judges in general, but I will first deal with government Amendment 115A, which provides for the first set of tribunal rules effectively to be made by the Lord Chancellor rather than, as would normally be the case, by the Tribunal Procedure Committee. That committee normally takes quite a long time to make new rules—maybe 12 months or more—so, since we are working to implement the Bill as soon as practicable, government Amendment 115A provides for the first set of tribunal procedure rules, including these time limits, to be made by the Lord Chancellor so that we have the relevant tribunal procedure rules in place as soon as possible after Royal Assent.
Baroness Ludford (LD)
I thank the Minister for his responses. I am not really persuaded by his answer on Clause 49: that these are just some little minor issues that cannot be JRed from the Upper Tribunal. Subsection (3) states that
“the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision”.
So the fact that it has made an error is apparently not subject to judicial review, which seems to me not particularly minor. An application for judicial review can be made if the tribunal
“has acted … in bad faith or … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”.
I do not suppose those crop up very often, and I would imagine that bad faith would be very difficult, if not impossible, to establish, so I do not think there is much wiggle room in Clause 49—but those who know more about how these things work might have other thoughts, and if they do I would be grateful if they would share them with me in due course.
I do not think the Minister covered the point about First-tier Tribunal judges being appointed to act as Upper Tribunal judges. If he did not—I will check what he said—perhaps he could write to me with any answers.
Lord Bellamy (Con)
I will happily write to the noble Baroness. I thought I had covered it when I said that it was creating a pool. The noble Lord, Lord Ponsonby, nods. It is creating a pool of judges so we have enough judges of relevant standing and experience to decide what are essentially factual questions. These are relatively limited factual questions.
Baroness Ludford (LD)
I apologise. I was clearly inattentive as I was trying to look at the other groups that are coming up. Even so, I think concerns remain about promoting, and possibly overpromoting, people before they are ready. What the Government are proposing to do seems a little odd.
On the tribunal rules, I note the Minister’s citation of a precedent, but at one point he said that the problem is that the committee works too slowly. I would have thought that if processes do not work very well or do not work in a reasonable timeframe, the way to resolve that is to work with the relevant bodies to speed them up rather than to grab power from them. However, I find that this Government seem to have an appetite for grabbing powers from everybody else, whether it is the courts, other agencies or indeed Parliament. I worry that the Government are getting rather too big for their boots. Perhaps one day they will even come a cropper. That said, I think I have probably taken these issues as far as they can go.
Lord Murray of Blidworth
“Procedure for Tribunal Procedure Rules(1) The first time after the passing of this Act that Tribunal Procedure Rules are made for the purposes of any of sections 43 to 48 (appeals in relation to suspensive claims), the Rules may be made by the Lord Chancellor rather than by the Tribunal Procedure Committee.(2) Before making Tribunal Procedure Rules by virtue of subsection (1), the Lord Chancellor must consult—(a) the Senior President of Tribunals,(b) the Lord Chief Justice of England and Wales,(c) the Lord President of the Court of Session, and(d) the Lord Chief Justice of Northern Ireland.(3) The Lord Chancellor is not required to undertake any other consultation before making Tribunal Procedure Rules by virtue of subsection (1).(4) A requirement to consult under subsection (2) may be satisfied by consultation that took place wholly or partly before the passing of this Act.(5) Tribunal Procedure Rules made by virtue of subsection (1) are to be made by statutory instrument.(6) A statutory instrument containing Tribunal Procedure Rules made by virtue of subsection (1) must be laid before Parliament after being made.(7) Tribunal Procedure Rules contained in a statutory instrument laid before Parliament under subsection (6) cease to have effect at the end of the period of 40 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(8) In calculating the period of 40 days, no account is to be taken of any whole days that fall within a period during which— (a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(9) If Tribunal Procedure Rules cease to have effect as a result of subsection (7)—(a) that does not affect the validity of anything previously done under the Rules, and(b) subsection (1) applies again as if the Rules had not been made.(10) In this section “Tribunal Procedure Committee” means the committee of that name constituted under Part 2 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.”Member’s explanatory statement
This new Clause provides for the first Tribunal Procedure Rules made after the passing of the Bill for the purposes of any of Clauses 43 to 48 to be made by the Lord Chancellor and to be subject to the made affirmative procedure.
Lord Murray of Blidworth
“(b) in subsection (9), at the beginning, insert “Subject to subsection (10),”;(c) after subsection (9), insert—“(10) A statutory instrument containing the first rules made for the purposes of section 2AA (appeals in relation to the Illegal Migration Act 2023) must be laid before Parliament after being made.(11) Rules contained in a statutory instrument laid before Parliament under subsection (10) cease to have effect at the end of the period of 40 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(12) In calculating the period of 40 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(13) If rules cease to have effect as a result of subsection (11)—(a) that does not affect the validity of anything previously done under the rules, and(b) subsection (10) applies again as if the rules had not been made.””Member’s explanatory statement
This amendment provides for the first rules made by the Special Immigration Appeals Commission under section 5 of the Special Immigration Appeals Commission Act 1997 for the purposes of section 2AA of that Act (inserted by Clause 51(5)) to be subject to the made affirmative procedure.
Lord Murray of Blidworth
Member’s explanatory statement
This amendment and the amendments in the name of Lord Murray of Blidworth at page 54, line 1 and page 54, line 7 modify Clause 52 so that a tribunal (as well as a court) may not grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of a person from the United Kingdom under the Bill.
Baroness Chakrabarti
Baroness Chakrabarti (Lab)
My Lords, this may be the graveyard shift, but I will do my best to keep the Committee awake for a little longer. I give huge thanks to all members of the Committee for being here for whatever reason—under pain of whipping, out of love for human rights or whatever it is. I thank you for being here.
The whole Bill is a clash between politics—I would say rather tawdry, populist politics, but politics none the less —and human rights. But this group—Amendments 116 to 119 and the issue of whether Clauses 52 and 53 should stand part of the Bill—is not even about human rights. It is about something that precedes both human rights and democracy itself: the rule of law. In our country, the rule of law came before we had even democracy. I would argue that no civilised society, let alone a democracy, can be sustained anywhere in the world without the rule of law.
Clauses 52 and 53 are, in effect, about ousting the jurisdiction of domestic and international courts to grant interim relief—interim injunctions in our domestic courts and interim measures in the European Court of Human Rights. They deal with some of the concerns that have been raised in previous groups about what you do when you have not actually considered the person’s substantive claim yet. They say, “You send me to Rwanda, Uganda et cetera. I will not be safe there. Bad things might happen to me there and/or I might be sent on to the country from which I originally came, where I feel I would be killed or tortured”. This is about interim relief: whether the courts should be allowed to grant it and whether our Government should respect that. All other parties to litigation have to respect the decisions of courts in relation to interim relief when there is an arguable case and a real risk.
If noble members of the Committee will forgive me, I will take the clauses backwards to make my point better. I will start with Clause 53, work backwards to Clause 52 and come to the amendments last.
Clause 53 deals with the European Court of Human Rights, and I am delighted to see the Foreign Office Minister in the Chamber to hear this. I am very grateful for that, because this is a matter of foreign policy and our relationships with the Council of Europe and the wider world, as well as a domestic legal matter.
Baroness Ludford (LD)
My Lords, I can be relatively brief. I thank the noble Baroness, Lady Chakrabarti, for introducing her amendments so powerfully and with such knowledge. I agree with her that there is a curious disparity between Clauses 52 and 53, and my proposition is that they should be swept away and should not stand part of the Bill. As she said, the Home Office getting its act together and making decent decisions in the first place would be how to reduce the workload and what the Government seem to think is the overreach of the courts—I do not agree that it is overreach. If you get things right first time, you would not need to keep attacking the courts.
Clause 52 is a straightforward ban on domestic courts granting interim remedies to stop the removal of a person from the UK. We are familiar with this “courts are enemies of the people” stuff. The interim remedies are valuable because they allow the courts to maintain the status quo while a claim is considered. When the harm in question is a violation of human rights, the ability to freeze the situation is valuable. Denying the courts the ability to use interim remedies when justice demands it undermines the guarantees of Articles 2 and 3 of the ECHR. Clause 52 should be removed, and I am glad to say that the JCHR agrees.
Clause 53 is a different animal altogether. It is really rather peculiar, and it takes a strange and circuitous route to block interim measures from Strasbourg, by giving a Minister discretion to decide whether or not to disapply the duty on the Home Secretary to remove the person. Given the negotiations under way over the procedure for deciding interim measures, as reported in the press and alluded to by the noble Baroness, Lady Chakrabarti, this clause appears to be more politics than law. It is strange, given that the Prime Minister was recently in Reykjavik, at the summit of the Council of Europe—and given that the JCHR’s recent report says:
“We welcome the Prime Minister’s recent reaffirmation of his ‘deep and abiding’ commitment to the ECHR”
and the European Court of Human Rights, made at that very recent summit.
Then, the Government propose in Clause 53 to give Ministers permission to act in direct violation of the UK’s obligations under the ECHR. Talk about right hand and left hand: it is not only incoherent but provocative. That does not seem wise, if the aim is open and good-faith negotiation on possible procedural reform. It is very reminiscent of the way the Government went about dealing—or rather, not dealing—with Brussels over the Brexit negotiations: always aiming to antagonise, then turning around and saying that they are punishing us.
Clause 53 is irresponsible and it is not going to progress any negotiations, in so far as they are necessary, and given the small number of interim measures issued by the Strasbourg court, it seems to be taking a sledgehammer to crack a nut. Not only is Clause 53 likely to hinder discussions on procedural reform, if that is necessary; it makes broader conflict with the European Court of Human Rights all but inevitable. If there is dissatisfaction with the procedures in Strasbourg, the solution is to pursue reform at the European level—and there have been many instances of discussions in the Council of Europe about the processes of the convention and the court. It is not even saying, “We will never obey interim measures”; it gives the Minister the discretion to refuse to comply with our obligations by obeying interim measures. Surely, the UK’s interests are better served by remaining, in the Foreign Secretary’s words, a “serious player” on the world stage, rather than undermining its own influence in this way. I therefore believe that Clauses 52 and 53 should not stand part of the Bill.
Lord Carlile of Berriew (CB)
I want to make a brief contribution on Clause 53. We cannot ask the Minister to comment on the impact assessment, because it is yet to be born, but we have the advantage of the report of the Joint Committee on Human Rights, referred to by the noble Baroness, Lady Ludford. At paragraph 12, on page 121 of that report, in its recommendations and conclusions, it says that
“clause 53 gives Ministers legislative permission to act in direct violation of the UK obligations under the ECHR. Where a Minister chooses to ignore an interim measure and therefore breach Article 34 of the ECHR, clause 53 also prevents the courts from having regard to interim measures when considering proceedings under this Bill. This clause therefore permits deliberate breaches of our obligation to comply with interim measures of the ECtHR. Clause 53 must be removed from the Bill”.
That is the conclusion of an all-party Joint Committee of both Houses of this Parliament, and I trust that, in his response to the debate, the Minister will respond and give us his reasons for not accepting that carefully considered conclusion of the committee in one of the largest reports it has ever produced—and in the time when they could have produced 20 impact assessments.
Lord Sandhurst (Con)
My Lords, I shall speak to Amendment 119 and to the overall challenge to Clause 53. To be absolutely clear, there is no reason why the Government should not ignore and override an interim measure by the Strasbourg court. The requirement that Amendment 119 seeks to impose is also neither necessary nor appropriate. I regret to say that I disagree with the conclusion of the Joint Committee: what is proposed does not breach Article 34 of the convention.
Neither is Clause 53 a circuitous route to block interim measures. It permits Ministers to disapply the duty to remove a person to whom interim measures under Rule 39 have been asserted by the European court. Equally, the Minister will retain the power to ignore the interim measure if he or she so wishes. There are a number of reasons for this. First, as has been explained by my noble friend Lord Wolfson on previous occasions—I think he will add more later this evening—our treaty obligations have force in our domestic law only when Parliament enacts legislation to this effect, hence the Human Rights Act direct effect. Secondly, and of importance to others in this House who, like me, value this country’s good name and reputation, the interpretation which is now used to found this interim measure was placed only in 2005 on Rule 39 by the Strasbourg court. That decision was contrary to previous decisions of that court: in other words, it did not follow what we would call precedent. Indeed, it was contrary to the express intentions of those who drafted the convention, as a study of the travaux préparatoires would make plain.
Time does not permit tonight a lengthy exegesis, but for those who would benefit from further learning on this topic, I recommend the recent policy exchange paper, Rule 39 and the Rule of Law, by Richard Ekins KC (Hon), professor of law and constitutional government at the University of Oxford, with a preface by Lord Hoffmann, formerly a judge of the House of Lords, and a foreword by Lord Sumption, a former Supreme Court justice. It is important for us all to understand that Rule 39(1) states:
“The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings”.
That is just an indication of view or, as Lord Hoffmann says, a shot across the bows. It is not a power to make an order or direction against a contracting party. The court has not been given power under the convention to make an interim order binding on a party to the convention. The convention does not, in terms, as it would have to, confer a power to grant binding interim relief. The member states, including this country, made a deliberate decision in 1949, and subsequently, not to empower the court in this way.
I have already referred to Lord Sumption. He described Professor Ekins’s arguments as timely and powerful. In the preface to the paper, Lord Hoffmann explains that a ruling of a court such as the Strasbourg court is binding upon parties only if the court had jurisdiction to make it, and that not only is there nothing in the language of the convention which expressly confers such a power but that the usual aids to the construction of a treaty—the travaux préparatoires and the subsequent practice of the court—reflect a clear understanding that no such power exists. The court does not have jurisdiction.
What has happened in the court’s recent jurisprudence is that this advisory power—a sensible advisory power—has been assumed to be a power to grant legally binding interlocutory relief. In short, there is no breach of treaty obligations by the United Kingdom if it does not comply with an interim direction, so Clause 53 should remain and Amendment 119 is inappropriate.
Lord Wolfson of Tredegar (Con)
My Lords, the noble Baroness, Lady Chakrabarti, threw down a verbal gauntlet, so let me try to pick it up and answer the central question that she posed. That was this: why should the UK think that it does not have to abide by Rule 39 indications from the court in Strasbourg? The short answer is that the Strasbourg court does not have jurisdiction to grant those Rule 39 indications and certainly not in the manner in which they are currently granted. I will develop that point shortly, but the fact that it is a jurisdictional point—I would say, with respect, that jurisdiction ought to unite all lawyers, even commercial lawyers—means that whether the court has jurisdiction or not is pretty important. I will focus my remarks on Clause 53 and the amendments thereto. I yield to nobody in my respect for the rule of law.
There is a great danger, which happens here and in other places, of the following syllogism being rolled out: the rule of law is a good thing, this—whatever issue you are talking about—is a good thing and therefore this is part of the rule of law. Well, it is not always. Even what is incorporated within the rule of law is a matter of some debate. One can compare the famous work of Lord Bingham, which is expansive to the work of Sir John Laws, which is rather narrower. But this is not about whether we have respect for the rule of law. It is about whether the Strasbourg court in fact has jurisdiction. To put the matter in that way shows respect for the rule of law, because jurisdiction is fundamental to that. Certainly, as far as I am concerned—I am sure as far as the Minister is concerned as well— words such as “game” and “swindle” are not entirely appropriate ways of approaching this topic.
I spoke on this point on Second Reading; we are now in Committee and I am not going to give a Second Reading speech. I expanded on it for those few people who did not read Hansard in the Daily Telegraph a week or so ago. What happened since Second Reading —I touched on it in my piece in the Telegraph—is, as my noble friend Lord Sandhurst mentioned, a powerfully argued paper from Professor Richard Ekins at Policy Exchange. It is unfortunate that in opening the debate on this the noble Baroness, Lady Chakrabarti, did not engage with any of the arguments in that paper; I do not think that she even mentioned it. The paper is a fine piece of legal work. You can agree or disagree with the conclusions. I am going to be disagreeing with the conclusions of the Joint Committee on Human Rights. That, I hope, does not indicate any disrespect or discourtesy towards any of the people who sit on that committee; I just disagree with their conclusions. But I am going to deal with their argument because, if I do not, it is difficult to see how the land actually lies. Again, as my noble friend mentioned, we have a preface and a foreword by Lord Sumption the noble and learned Lord, Lord Hoffmann, two names that, frankly, should make any lawyer sit up and take notice. Even if one does not agree with the conclusion, one has to engage with the arguments.
The main thrust behind the amendments and the clause stand part debate is that the clause breaches international law. That raises the question of whether we have an international law obligation to abide by Rule 39 indications. The short answer is that, no, we do not. Why do we not? Because we have signed up in the convention to abide by judgments of the Strasbourg court against the UK and Article 46(1) where the judgment is of the full court. This is not a final judgment—it is not of the full court—so we have no obligation under Article 46(1).
The Strasbourg court then tries to ground its jurisdiction in Article 34. The reason why it does that— I will not repeat what my noble friend said—is that there is a history to this. There was a suggestion in the draft, back in the 1940s, that the court would have the right to give interim relief. That was deliberately excluded. People tried to persuade the court that it should have that power, but that was rebuffed. The court gave a series of judgments setting out that it did not have that power, but then it did a volte-face and by a majority—I think of one, but I may be mistaken—it held that it did have that power. Of course, the court can change its own jurisprudence, but what it cannot do is to arrogate to itself the jurisdiction. In international law, the court has only the powers that the member states have given to it.
What does the court do? The court seeks to ground its power in Article 34 of the convention. What is Article 34? It is the right not to have your right of access to the courts impeded. I accept that there will be cases where you could justify interim relief and Article 34; a death penalty case would be one of them, as you cannot unscramble that later on, for obvious reasons. However, there will not be many cases like that. The Rwanda case last year was not a case like that. That was a case where the High Court, the Court of Appeal and the Supreme Court had all held that the Government’s promise to bring people back if they were to win meant that there was no impedance of their human rights. That point was decided three times in this jurisdiction, so that was certainly not an Article 34 case.
It also does two other things. First, it shows that if the Strasbourg court is doing a balancing act under American Cyanamid, it is odd that it reached completely the opposite conclusion from that reached by three courts here when applying that approach. Secondly, it belies another point put to the Committee by the noble Baroness, Lady Chakrabarti, in relation to Clause 52. She made the point that if courts here have the ability to grant interim relief, Strasbourg will not interfere. Three courts here heard the Rwanda case and Strasbourg still interfered. I am not sure that that argument works.
Where I agree with the noble Baroness, Lady Chakrabarti, is that there is a procedural problem as well as a substantive problem. The procedural problem cannot solve the jurisdictional problem but makes it worse. Why is there a procedural problem? There is a procedural problem because the rules and procedures do not cater for this jurisdiction, as it has been created out of whole cloth. That is why we have a system at the moment where there is no effective natural justice, where these injunctions are given and indications are made without the state being heard and, importantly, without there being a proper opportunity for the state to put its case even after the indication has been made. That is why these orders are given by a single judge when—the detail is in Professor Ekins’s paper—under the structure of the Strasbourg court a single judge should not have and does not have the powers to do this.
Does this mean that there are no circumstances in which a Rule 39 order can be justified? No, I do not go so far as that. I have already identified a death penalty case as such a case. However, one needs to have a proper review of the court’s jurisdiction. One also needs to have a proper procedure; again, I agree with the noble Baroness, Lady Chakrabarti, who said that it ought to be possible to create such a procedure. It ought to be possible and it must be possible. If one therefore has a Rule 39 indication with a proper procedure which is grounded in Article 34, which recognises the principle of subsidiarity that is now inherent in the court’s jurisprudence and which gives the state an opportunity to come back in a proper timeframe against the order that has been made, I suggest all of that is the way through.
I will take two minutes, if I may, to say something about the report of the JCHR, because it is an important piece of work and I have read it carefully. On page 45, there is a heading before paragraph 129:
“What are the legal implications of this clause?”
This is Clause 53. It goes on to say that some commentators have suggested that
“the UK is not bound to comply with”
Rule 39 orders. It goes on:
“This is particularly because Article 46 of the Convention, which concerns the ‘Binding force and execution of judgments’, only commits the UK to abide by ‘the final judgment of the Court’ and does not mention interim measures”.
I agree with that, except it is only judgments against the UK, but we will let that pass. It goes on to say that the Grand Chamber in Strasbourg
“has held that a failure to comply with interim measures would amount to a violation of Article 34”.
That is right; that is what it has held. It goes on to say, in paragraph 130:
“It is therefore a binding obligation, as a matter of international law, for the UK to act in accordance with interim measures”.
What is the force of that “therefore”? Because the Strasbourg court has held—in the last sentence of paragraph 129—that it would be a violation of Article 34, it is therefore a binding obligation. With the greatest respect to the Committee and whoever authored that part of the report, that is what—before the noble and learned Lord, Lord Woolf, banned the use of Latin in our domestic courts—used to be called an ipse dixit. That “therefore” is a conclusory statement; you simply cannot justify the jurisdiction by saying that the court itself says that it has jurisdiction. That is an entirely circular argument. If I could win all my cases with reasoning like that, it would be a very good thing, even though I am only a commercial lawyer.
Baroness Ludford (LD)
I beg the noble Lord’s indulgence in standing up and asking him a question. I was piqued by a tweet by the noble Lord, Lord Anderson of Ipswich, who is not in his place. He intervened on a Question from the noble Baroness, Lady Chakrabarti, last Tuesday. The noble and learned Lord, Lord Bellamy, was replying. The noble Lord, Lord Anderson, pointed out:
“The member Governments of the Council of Europe, including our own, have repeatedly confirmed the binding nature of interim measures under Rule 39—in the Committee of Ministers, and in the Izmir and Brighton declarations. Is the Minister proud of the United Kingdom’s record of compliance with interim measures?”
The noble and learned Lord, Lord Bellamy, replied:
“On the general point about acceptance in practice of the position of interim measures under the convention, there are two legal views”.—[Official Report, 6/6/23; col. 1244.]
The noble Lord, Lord Wolfson, and others have talked about the paper by Professor Ekins for Policy Exchange and that is a view, but the Minister did not confirm last week that he shared that view. Clause 53 does not actually say that the Government think that interim measures from Strasbourg are not binding. The tweet by the noble Lord, Lord Anderson, noticed that the Minister
“declined to commit to the long-standing governmental position that”
interim measures
“are binding in international law. Views can always change, but surely the government has one”.
What we have not established is what the view of the Government, as opposed to that of Policy Exchange and Professor Ekins, is on whether interim measures from Strasbourg are binding. Our long-standing practice has been to comply with those interim measures. That is what is more important. With full respect to Policy Exchange and Professor Ekins, that is all very interesting, but what is the Government’s view? I do not think that what we are getting out of this whole affair is finding, among this thicket of confusion, what the position of this current British Government is on whether interim measures from Strasbourg should be observed. Indeed, on the Rwanda case, they did observe them, so that is quite different from commentary from Policy Exchange.
Lord Wolfson of Tredegar (Con)
I am grateful for that short intervention. I am now not sure whether I am intervening on the noble Baroness’s speech or she is intervening on mine but she made a couple of points. I do not know whether she has seen my notes because I was going to come to the state practice point in a moment. Frankly, I should not really give this away but that point is probably the best point against the arguments that I am running. I am a little surprised that the noble Baroness, Lady Chakrabarti, did not mention it but I shall do so; it is the best point. I am not speaking for the Government so I am not going to divine what is in the mind of the noble and learned Lord, Lord Bellamy, or that of the Minister who will respond; they can speak for themselves and I will speak for myself.
What I was saying is twofold. First, I was not saying that there are no circumstances in which you cannot justify a Rule 39 order. I thought I had made it clear that, if you can justify it properly under Article 34 in the particular circumstances of the case—such as a death penalty case—and there are proper natural justice provisions, it could be justified. That is my first point.
My second point is that the mere fact that states abide by Rule 39 indications will not, I suggest, be enough for state practice as a matter of international law. The fact that a court tells me to do X and I do it does not show that I accept that the court has jurisdiction to tell me to do it. I might choose to do it because I do not want to pick a fight with the court. One has to find a more detailed and forthright statement that is sufficiently unambiguous, and then look at that coupled with everything else.
I have delayed the Committee long enough. On this point, I direct the noble Baroness, Lady Ludford, to Policy Exchange, on which she is absolutely right. The point made by the noble Lord, Lord Anderson of Ipswich, was picked up and dealt with by Professor Ekins in that report.
Lord Wolfson of Tredegar (Con)
Before I give way, may I make one other short point? I respectfully suggest that state practice cannot give a court jurisdiction when it does not have it. All state practice can do is go to the interpretation of a treaty. It does not go to the creation of a power or a jurisdiction; that point may not be one to discuss as the clock strikes midnight, but now is a good time for me to give way to the noble Lord, Lord Carlile.
Lord Carlile of Berriew (CB)
I am grateful to the noble Lord. I draw his attention to the current, as of today, UK Visas and Immigration guidance, Judicial Reviews, Injunctions and Applications to the European Court of Human Rights. Where it deals with Rule 39, it says that
“a Rule 39 indication is similar to an Administrative Court … injunction but is”,
to state the obvious, made by the European Court of Human Rights. It goes on:
“Where you have been notified that a rule 39 indication has been made, you must … defer removal immediately”
and,
“where the person is detained, make sure this development is considered in relation to any decision to continue with detention”.
In other words, in their current guidance on the subjects that we are concerned with, the Government regard these Rule 39 rulings as binding. That is what the guidance tells the members of the public who have bothered to look at the Government’s own website this evening, as I have.
Lord Wolfson of Tredegar (Con)
I think that goes back to the point I was making a moment ago. With the greatest respect—I do not know whether the noble and learned Lord, Lord Hope, is going to intervene; I will give way if he wants to do so, of course.
Lord Hope of Craighead (CB)
I am grateful to the noble Lord. It strikes me, in reading this clause, that it proceeds on the basis that the UK is bound by the decision. I greatly respect the analysis that the noble Lord, Lord Wolfson, has given us—I am very much in sympathy with it—but, like it or not, the Government’s position has been that it is binding. That is why the clause is so carefully drafted.
Lord Wolfson of Tredegar (Con)
On that, I entirely agree: the clause is very carefully drafted. The Government’s position—as I understand it and I will stop in a moment so we can actually hear from the person we want to hear from, the Minister—is first that they wish to, and will always, abide by international law. Secondly, it gives the Minister a discretion in some circumstances not to abide by Rule 39 orders. It seems to me that if one puts those together the Government’s position has to be that there are at least some circumstances in which you do not abide by a Rule 39 order without breaching international law; otherwise, the two propositions which I set out cannot be put together.
I hope that is an answer to the noble and learned Lord’s question. I am not sure whether the smile indicates it is or is not—
Lord Hope of Craighead (CB)
I think we really have to hear from the Minister, frankly. The clause does set out the various objections and by our jurisprudence the procedures are very defective and I can well understand why one is very uneasy about the whole structure of the rule. The Minister really has to explain the Government’s position and I very much agree with the noble Baroness, Lady Ludford, that that question needs to be answered.
Lord Wolfson of Tredegar (Con)
In which case, I will give one final statement before I finish. On this we all agree—the answer to this issue, I suggest, lies ultimately in Reykjavik. The answer lies in the engagement between this Government and other Governments with the Strasbourg court to improve the jurisprudence, to set the jurisdiction on a proper footing and to improve the procedures. In that way, for those of us—and I include myself—who want this country to remain part of the convention and play a part in its jurisprudence, that is surely the way forward.
Lord Paddick (LD)
If I understand the noble Lord, Lord Wolfson, correctly, he is saying that the solution is not Clause 53 but to engage with the court to ensure that proper processes are followed when it comes to Rule 39 rulings.
Lord Wolfson of Tredegar (Con)
My point is that I am supporting Clause 53. It is not inconsistent to say that we will have Clause 53 and will engage with the court.
Lord Paddick (LD)
What I am hearing from the noble Lords opposite is that if the Government ignored Rule 39 it would not be a breach of international law. But the Government accept that Rule 39 is binding on them; otherwise, there would be flights to Rwanda, surely.
The other thing to say about the two clauses is the stunning silence about Clause 52—absolutely no comment at all. For the noble Lords opposite to say this is not about the rule of law when they have said nothing at all to defend Clause 52 is quite extraordinary.
I think enough has been said—and there has been a very interesting sideshow for 20 or 25 minutes from the noble Lords opposite—but it takes us no further forward as far as the arguments here are concerned. Even if one was to accept the arguments of Policy Exchange, there has been no argument about the fact that Clause 52 is contrary to the rule of law, and that is why we believe that neither Clause 52 nor Clause 53 should stand part of the Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I think everybody is really waiting to hear what the Minister has to say about this. It has been a fascinating debate and, as the noble Lord, Lord Carlile, said, it appears that Government, whatever the rights and wrongs, accept Rule 39—the Minister made that very clear in what he read out—and yet we have had the silence about Clause 52. I do not think I can add anything of substance to the debate at this stage and I look forward to what the Minister has to say.
Lord Murray of Blidworth (Con)
My Lords, Clause 52 underpins the suspensive claims and appeals process by prohibiting the courts from granting interim remedies in relation to any other proceedings which would prevent or delay the removal of an illegal entrant subject to the duty. Amendments 116 and 117 would require the Home Secretary to provide a statement to Parliament, on a case-by-case basis, explaining why the courts should prevent the granting of an interim remedy and for this to be approved by the other place—and only the other place, I note—before the restrictions set out in Clause 52 could come into effect.
These amendments seriously risk undermining our efforts swiftly to remove illegal entrants from the UK. To prevent the courts granting an interim remedy and delaying removal, it would be necessary to seek parliamentary approval in every case subject to the duty to remove. This, I am sure the Committee will agree, is simply not practicable; nor is it necessary or appropriate.
These amendments are fundamentally misconceived. They proceed on the basis that there is an individual rationale for barring interim remedies in each case, but the rationale is universal; namely, that the Bill itself provides for a mechanism for a person subject to the duty to remove to challenge their removal and for removal to be suspended while the claim and any appeal to the Upper Tribunal have yet to be determined. That being the case, it is the Government’s contention that there is no case for the courts separately to grant interim remedies. The blanket approach taken by Clause 52 is therefore entirely appropriate, and I suggest to the Committee that that is an entire answer to the second point made by the noble Baroness, Lady Chakrabarti.
Clause 52 will encourage compliance with the suspensive claims process. It also provides an effective safeguard against other types of legal challenges being brought in an attempt to thwart removal. This will ensure that our ability promptly to remove those with no legal right to be in the UK is not undermined.
Turning then to what may be seen as the main event, Clause 53, I want to make it clear from the outset that the UK is fundamentally committed to the international rules-based order and there is nothing in this clause which requires us to act incompatibly with our international obligations. Under Rule 39, an interim measure may be indicated by the European Court of Human Rights where there is an imminent risk of irreparable harm. The inclusion of Clause 53 reflects the concerns we have raised with the Strasbourg court about its interim measures process, as identified by the noble Baroness, Lady Chakrabarti.
We want the interim measures process to have greater transparency and fairness to ensure the proper administration of justice, reflecting what we would apply in a domestic scenario, as identified by the noble and learned Lord, Lord Hope. This includes clear and reasoned decisions and an opportunity to make meaningful representations before and after a decision is made. It cannot be right that our ability to control our borders is undermined by an opaque process conducted at the last minute, with no formal chance to put forward our case or to appeal that decision. This process risks derailing our efforts to tackle the people smugglers and prevent people making dangerous, illegal and unnecessary journeys across the channel.
Clause 53 affords the Home Secretary, or other Minister of the Crown, personal discretion to suspend the duty where an interim measure has been indicated. This will mean that a Minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law to do so. This will be dependent upon the individual facts of each case. For broader context, I direct noble Lords to the recent and well substantiated paper by Professor Ekins of Policy Exchange, already discussed by the Committee, together with its valuable forewords written by Lord Sumption and the noble and learned Lord, Lord Hoffmann. The key arguments made by Professor Ekins were helpfully summarised and powerfully expanded upon by my noble friends Lord Sandhurst and Lord Wolfson, who I know will have given great consideration to the Strasbourg court’s jurisdiction and procedural rules in their preparation for the Committee.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who spoke in this debate—it was not that short—and even more grateful to those who sat through it without getting anything off their chest. I am grateful to the noble Baroness, Lady Ludford, who pointed out, and I agree, that the double act of the noble Lords, Lord Sandhurst and Lord Wolfson, did not help the Government very much, nor was the Committee hugely assisted. To suggest that rulings of interim measures indicated by the court are not binding or important except sometimes is a very strange approach to any kind of court order or indication. If a court order is important only sometimes, we get into who gets to choose and when, which is not the way to develop any kind of trust between people, nations or legal systems.
Neither of the noble Lords mentioned the Russia situation or answered on whether it would be okay for the Russian Federation now to ignore interim indications that prisoners of war in the Russia-Ukraine conflict should not be executed. They also did not mention that, in an earlier group, the Government prayed in aid the Strasbourg test as the test that they want to adopt before anyone can have a non-suspensive claim. That is odd, because you would expect the Strasbourg court to trust Governments more than you would expect His Majesty’s Government to trust removal of individual people to places outside the jurisdiction of the Council of Europe.
I was grateful to the noble Lord, Lord Paddick, for pointing out that Clause 52, which is about our own courts, was totally ignored in the extensive vaudeville. We had the pleasure of the vaudeville but there was no mention of the ouster in Clause 52 of our own courts, and that is rather telling. However, I am grateful to the Minister. I think he got to the point of the debate between us in his closing remarks. He talks about the last-minute opaque process. With emergency interim measures, there is always the possibility for ex parte—get the judge out of the Garrick Club late at night or get the judge up in his or her pyjamas. The crucial thing is that I agree with the Minister that thereafter, even if that emergency relief has to be granted, even ex parte, there ought to be the possibility of looking again, with both parties represented. The Minister and I agree about that.
I think that Clause 52 is totally unconscionable. I think that Clause 53 is the Government’s attempt at negotiating. We are negotiating now by legislation—so we do policy by legislation and now we do negotiation with the Council of Europe via this legislation. I disagree about whether that is the right way to make friends and influence people, but it may be that I am wrong about that. Perhaps it will work, but if it has not worked by the time of Report I will be back, and I will be urging the Committee, and by that point the whole House, to reject not just Clause 53 but Clause 52 as well. For the moment, I beg leave to withdraw the amendment.
Lord Murray of Blidworth
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 53, line 40.
Lord Murray of Blidworth
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 53, line 40.
Lord Murray of Blidworth
Member's explanatory statement
This amendment corrects the references to the Clauses in the Bill under which advocacy in the Upper Tribunal can take place, and adds a reference to the Tribunal Procedure Rules made for the purposes of those Clauses.
The Lord Bishop of Durham
Member's explanatory statement
This amendment reinstates the right of appeal against age assessments in respect of putative children whom there is a duty to remove under the Bill.
The Lord Bishop of Durham
My Lords, in moving Amendment 121 I shall speak to Amendments 122 and 126 in my name. I am grateful to the noble Baronesses, Lady Lister and Lady Neuberger, for their support. My comments will also be in support of Amendments 124 and 125, which were tabled by the noble Baroness, Lady Lister.
Before I get going, I note that on the Nationality and Borders Bill the debate on age assessment took place at 2.30 am on 9 February last year. We now find ourselves at 12:25 am discussing age assessments once again. Age assessments are serious matters. I know that it was not designed that this has happened again but it is extremely unfortunate, and since we have more time on Wednesday, I think we could have moved this to Wednesday. However, we have not, so I will carry on.
I believe strongly that these changes need to be made to Clauses 55 and 56 if we are to ensure that the welfare and best interests of children are protected. I will try to be brief, but they are critical amendments that are worthy of full consideration. It is vital that we adequately scrutinise the impact this Bill will have on children; it is therefore a failure in their safeguarding responsibility for the Government not even to have produced a child rights impact assessment. They are asking this Chamber to agree to these additional clauses on age assessments, added on Report in the other place, which on their own admission are more likely than not to be incompatible with conventions under the ECHR—not on the rights of anyone here today but on the rights of children. We have a duty to ensure that their voices are heard. Will the Minister guarantee that an assessment will be published before Report?
The Home Secretary’s duty to detain and remove all those who meet the conditions laid out in Clause 2 does not apply to unaccompanied minors before they reach the age of 18. Therefore, it is clear that if the Home Office inaccurately assesses the age of a child and deems them to be an adult when this is not the case, and they are subsequently removed, the consequences would be irreversible. Can the Minister confirm that the removal of a child in these circumstances would be unlawful?
I was going to follow up by asking whether, in these circumstances, steps would be made to retrieve the child and bring them back under the child protection system in the UK, but the Bill also introduces no right of appeal for a child to challenge an age assessment and places significant limitations on judicial review, so we may not know whether a child has been deported unlawfully. I therefore ask the Minister: when a judicial review is ongoing and the claim is continued out of country and is successful, will arrangements be made for this child to be returned to the UK?
The lack of data required adequately to scrutinise this legislation has been a common theme throughout the Bill and is a prevalent issue for age assessments. The Government currently do not share how many age dispute cases are of children who have initially been sent into the adult system after a flawed decision on their age. However, even based on the incomplete data published by the Home Office, we can see that last year nearly two-thirds of all age dispute cases were found to be children—that was 1,042 children who, if this Bill had been in operation, would have been eligible for removal to a third country.
Numbers are important. The Minister of State justified the inclusion of Clauses 55 and 56 in the Bill by saying that
“around 50% of those people who are assessed are ultimately determined to be adults”.—[Official Report, Commons, 26/4/23; col. 777.]
Can the Minister confirm that this figure is misleading, given that it includes individuals subsequently found to be children after referral to a local authority? A detailed report by the Helen Bamber Foundation found that, of the 1,386 individuals referred to local authorities in 2022, 867 were found to be children and had therefore been placed at risk of significant harm when in adult-based accommodation.
It is not surprising that visual-age assessments by immigration officers can lead to inaccurate judgments. The Home Office’s own guidance for the National Age Assessment Board states clearly that
“physical appearance is a notoriously unreliable basis for assessment of chronological age”
and
“demeanour can also be notoriously unreliable and by itself constitutes only somewhat fragile material”.
Given this acknowledgement, can the Minister confirm that when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and child protection team for a more comprehensive age-assessment process?
Baroness Lister of Burtersett (Lab)
My Lords, Amendments 124 and 125 are in my name and they have the support of the noble Baroness, Lady Neuberger, the noble Baroness, Lady Prashar, who cannot be here but wanted me to say that she strongly supports the amendments, and the right reverend Prelate. I also support other amendments to which I have added my name—indeed, all amendments in this group, including the propositions that Clauses 55 and 56 should not stand part of the Bill. My amendments are more limited and would simply remove the power through regulation to treat those claiming to be a child as an adult, should they refuse to consent to scientific age assessment, and instead stipulate that regulations must make it clear that refusal to consent to such an assessment should not be taken to damage credibility.
The Immigration Minister justified the introduction of these clauses by way of government amendment on the unevidenced grounds that
“a very large number of young adults do pose as children”
and that he did not want
“to see a situation in which young adults are regularly coming into the UK illegally, posing as children, and ending up in our schools, in foster-care families and in unaccompanied-minor hotels, living cheek by jowl with genuine children”.—[Official Report, Commons, 26/4/23; col. 777.]
The new provisions would, he concluded, help to “stamp out this evil”. Clearly, it was not such an evil that these provisions were included in the original Bill. Instead, they appear to be a response to an assertion in Committee from Ben Bradley MP, again unevidenced. Yet, as the JCHR points out, it is not clear why the Government are legislating again on the issue so soon after passing the Nationality and Borders Act, without first subjecting that to post-legislative scrutiny.
More detailed evidence published around the same time by the Helen Bamber Foundation and cited by the right reverend Prelate indicated that the Minister had “wildly”—its word—exaggerated the proportion of age-disputed children found to be adults; this was based on freedom of information requests. Just today, Full Fact reported that a claim made in Parliament by the Immigration Minister that up to a fifth of adult male asylum seekers pretend to be children on arrival was false. FoI data showed that, between January and November last year, the actual figure was 1%. Can the Minister explain the discrepancy please?
This all reinforces the evidence from a Refugee Council study last year, which found that only 14 out of 223 young people with whom it worked in 2021, whose age had initially been determined as “certainly adult” by the Home Office, were in fact found to be adult. The council expressed serious concern that the wrongful assessment of children as adults is causing long-term harm to children as well as significant safeguarding risks. More recently, some of the children it has helped, who are at risk of being sent to Rwanda because of wrongful assessment, spoke of their fear and shock.
A different form of evidence came last year from a highly critical report by the independent Chief Inspector of Borders and Immigration on the processing of small boat arrivals. It said:
“The treatment of those claiming to be children was not child-centred …The age assessment process was perfunctory and engagement with the young people was minimal”.
As the interim Age Estimation Science Advisory Committee pointed out, safeguarding issues do not arise only when adults pose as children. It said in a report:
“There is an equally important safeguarding issue when minors are incorrectly aged as adults and so inappropriately placed in adult facilities where they may be at risk”.
The implications of all this have become that much more serious in the context of Clauses 55 and 56 and of changes to age assessment—rejected by this House last year, to no avail. Our main focus last year was the introduction of scientific assessment and, in particular, the use of X-rays, in response to considerable concerns voiced by health bodies such as the British Dental Association and the Royal College of Paediatrics and Child Health. The latter is particularly concerned about Clauses 55 and 56 in the current Bill, noting that
“The science on age assessment is not robust enough to accurately determine a person’s age, which could result in a child being incorrectly assessed as an adult”.
The interim advisory committee itself proposed a cautious approach given that:
“There is no method, biological or social worker-led, that can predict age with precision”.
It also advocated that
“Any methodology used for the assessment of age must respect and prioritise the dignity of the individual being assessed and should minimise physical or psychological harm”.
I would argue that these clauses do not respect and prioritise the dignity of the child, as they are based on the assumption that the child is lying.
Crucial here is the issue of consent, on which the committee’s recommendation was very clear, saying that the child
“should be provided with clear information explaining the risks and benefits of biological evaluation in a format that allows the person undergoing the process to give informed consent and no automatic assumptions or consequences should result from refusal to consent”.
The committee’s advice underlined that
“in cases of refusal, the applicant should not be automatically considered an adult”,
and that:
“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.
It advised that
“it should be accepted that there may be many reasons”
for refusal to consent to biological assessment, which reflect different backgrounds. For example, the child may
“have witnessed or experienced trauma from their own homeland’s government institutions and may view all authority with suspicion and fear”.
Critical too is the question of capacity for consent. Can the Minister say how capacity will be determined and what will happen to children who lack the capacity to consent to the use of scientific methods? The British Association of Social Workers makes the point:
“The question of whether the asylum seeker can consent to the medical intervention is completely separate from the question of whether they are a child”.
Yet Clause 56, which gives the Home Secretary considerable discretion through regulations, in effect conflates the two. In doing so, it undermines the possibility of genuine consent and risks further trauma for children.
In response to the interim advisory committee’s report, the CEO of the Refugee Council said:
“These children simply want to start rebuilding their lives after the traumatic experiences they went through. They put their trust in us hoping they will get the support they need — it’s vital that they are safeguarded and provided the care that they need as they go through the system. The government must not ignore the committee’s findings”.
Can the Minister explain why the Government have ignored the very clear advice of their own advisory committee on the question of consent?
Do the Government at least accept the Constitution Committee’s recommendation that
“The power in clause 56(1) has such significant implications for an individual’s legal rights that it should be subject to the draft affirmative procedure”,
and the committee’s suggestion that “indicative draft regulations” should be made available during the Bill’s passage? In a similar vein, the JCHR recommends that guidance is issued
“as soon as possible setting out what would constitute reasonable grounds for refusing consent”.
Can we expect to see this before Report?
The Constitution Committee also warned that Clause 55 raises serious legal and constitutional issues. Others are better placed to pursue these, but as Justice, among others, points out, it “drastically reduces the accountability” of the Home Secretary for complex decisions about age and permits a child’s
“deportation when they are still pursuing a legal claim that they are a child”—
the normal right of appeal having been abolished.
The supplementary ECHR memo states that the Government
“concluded that it is important to make this change to prevent individuals frustrating the aims of the Bill”.
Could the Minister explain how this mean-minded conclusion can justify the limitations on a child’s rights? As the JCHR points out, this is clearly not in any child’s best interests and is not, in its view, reasonable given the
“far-reaching consequences for their treatment, their lives and their rights”.
What is the Government’s response to the clear recommendation of the UN Committee on the Rights of the Child that age-disputed children should not be removed to a third country? What steps will be taken to ensure that, in the words of the memo,
“The appropriate support and facilities”
are
“in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad”?
Even with Zoom et cetera, it is difficult to see how a child can participate effectively from afar.
In conclusion, I simply quote the Children’s Commissioner, who has said in no uncertain terms that it is unacceptable to treat a child as an adult on the basis of their refusal to consent to scientific methods. She asks how genuine consent is possible, free from duress, given the implications of not consenting. She concludes:
“Where a child’s age is disputed … those awaiting resolution should be treated as vulnerable children first and foremost”.
Instead, as elsewhere in this Bill, it is a case of migrant first, not child first and certainly not child foremost.
Lord Hope of Craighead (CB)
My Lords, I will speak to Amendments 123 and 140, following on the points made by the right reverend Prelate and the noble Baroness, Lady Lister of Burtersett. Amendment 123 in the name of my noble friend Lord Anderson, and to which I have added my name, is directed to the provision about judicial review in Clause 55(5), to which the right reverend Prelate drew our attention. His amendments ask for subsections (2) and (4) to be taken out, while this amendment asks for subsection (5) to be taken out, so I am building on the very impressive speech he made earlier.
The provision we seek to have removed states that a court “may quash the decision” relating to a person’s age only on the basis that it was wrong in law, not because
“the court considers the decision … wrong as a matter of fact”.
That is a very considerable restriction. As the Constitution Committee pointed out in its report on the Bill, errors are normally made in this context,
“not because of an error as to the definition of ‘a child’”,
which should be an issue of law, but
“because of problems with evidence to prove that an individual is under 18”.
Indeed, it is very hard to think of any error of law, in the proper sense of that phrase, that might arise in the context of age assessment. The effect of this restriction is to exclude judicial review, even in a case where there is an error of fact which no reasonable decision-taker, taking reasonable care, would have made. That is quite an extraordinary situation to be created by a provision in a Bill of this kind.
The report of the JCHR, which has been referred to often in these debates, says:
“Given errors of fact are highly likely when conducting age assessments based on subjective judgment, this is extremely concerning and gives carte blanche to Home Office errors”.
Without elaborating on that point—instead, I endorse all the points made by the right reverend Prelate—we suggest, in this amendment, that the restriction in Clause 55(5) is unreasonable, given the nature of the assessments that have been made; therefore, it should simply be deleted from the Bill.
While Amendment 123 is about something to be taken out from the Bill, Amendment 140 raises a point referred to by the noble Baroness, Lady Lister. It is about the power in Clause 56(1) to make regulations about the effect of a decision by a person
“not to consent to the use of a specified scientific method for the purposes of”
that person’s
“age assessment … where there are no reasonable grounds for”
that decision. The scope of the power, as explained in Clause 56(2), extends to setting out the circumstances in which civil legal services—in other words, civil legal aid—is not to be available to that person, and the person
“is to be treated as if the decision-maker had decided that”
the person
“was over the age of 18”.
It is significant that the clause does not go so far as to say, without qualification, that, if there are no reasonable grounds for the person’s decision not to consent, the person is to be treated simply as over the age of 18. The approach, which I suppose is to be commended, is to say that it all depends on the circumstances—that is, the purpose of the regulation which will be designed to set out what those circumstances are. Nevertheless, the exercise of this power has serious consequences for the person in respect of whom the power is to be exercised, as the Constitution Committee pointed out in its report.
At present, this power to make regulations is subject to the negative procedure, which we suggest is not appropriate, given the nature of the power being referred to. So our amendment seeks to add regulations made under this power to the list of regulations in Clause 63(4) that
“may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.
Given the wide scope of this power and the lack of definition of how it will be exercised, we suggest that it is entirely appropriate for it to be added to that list and not subject to the negative procedure. Those are the reasons that the Constitution Committee wishes to put forward, and I give them in support of the point made by the noble Baroness, Lady Lister.
Baroness Neuberger (CB)
My Lords, I thank the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister of Burtersett, for what they said—they said most of what I wanted to say. I declare an interest as chair of University College Hospital’s foundation trust and the Whittington Hospital NHS trust, because it is relevant to what I will say.
When we debated, rather later than this, the Nationality and Borders Bill in February 2022, as the right reverend Prelate observed, we debated something that allowed the Government to introduce regulations that specified scientific methods that could be used to assess age, including examining or measuring parts of a person’s body and analysing saliva, cell or other samples and the DNA within them. As we heard, the use of scientific methods to assess age has long been the subject of debate, and professional medical bodies have been unequivocal in rejecting the use of dental X-rays, bone age and genital examination as extremely imprecise as methods for assessing age, quite apart from being singularly unpleasant. I have not yet met a health professional who thinks that we should use these methods to assess the age of children or young people.
Yet the legislation went ahead and is now being strengthened, and young people who do not consent will be assumed to be adults, which is really worrying for all sorts of reasons already stated in this House. But, of course, it also undermines the fundamental premise that people have to be able to give free consent to any medical procedure or examination and should not be pressured into undergoing them. In the way that these clauses, and this particular clause, are drafted, there is no way in which these young people are not being pressured into undergoing these examinations and procedures. We should take this very seriously because almost every medical and healthcare body would say that this is unethical.
We debated much of this only 15 months ago. Back then, I said that there was wide concern about age assessments among the various voluntary and statutory agencies concerned with young asylum seekers and among many medical, dental and scientific bodies. But, as I said last week, I chair a small family charity in memory of my parents that provides opportunities for education for young asylum seekers, most of whom are slightly older than the group we are discussing here—but a few have not been. Without exception, they all say that the worst of all this is not only the procedures they are being asked to undergo but the fact that they are not believed. It is almost as if there is an assumption that they are not telling the truth.
It is clear that the use of some of these procedures is unethical—certainly if it is not for the young person’s benefit. Since that is the case, can the Minister tell the Committee why a young person or child who does not give consent to these procedures should always be disbelieved, and why they should be regarded as an adult if they do not consent? As a parliamentary body, we have to look at this really seriously. If we do not trust young people at all to tell us the truth, we are making a terrible assumption about those who come to this country, often traumatised and very vulnerable, looking for a better future.
Baroness Brinton (LD)
My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham, the noble Baronesses, Lady Lister and Lady Neuberger, and the noble and learned Lord, Lord Hope. In this group, I propose that Clauses 55 and 56 should not stand part of the Bill. I will not repeat the points or arguments made so eloquently by noble Lords, save to say to the Minister that I echo all the questions that they posed.
The noble and learned Lord, Lord Hope, referred to the errors with age assessment. Given those, for me one of the key points was made by the British Association of Social Workers, which said that social workers are currently responsible for compiling age assessments, known as Merton assessments, but they are designed to ensure that the children’s needs are met—not for immigration purposes. That raises an issue that many doctors have also raised: that these professionals are registered, and in that registration have to abide by the ethics committee of their registration body, and therefore the individual that they are serving. The problem with the proposals in Clauses 55 and 56 is that they will become the agents of the Government and will not be there to best provide for the needs of the individual concerned.
Doctors also make the point that it is absolutely unethical to expose anyone to radiation from X-rays that are not for clinical purposes. There are risks associated with overexposure, particularly for young people who are still growing. I know from my own familial experience that there is quite often a debate between doctors about the frequency of MRI scans and X-rays.
The other problem, also covered by others, is that, should a person refuse to have scientific assessments, they will automatically be deemed adults. That is balanced by the comments made by the Children’s Commissioner about Gillick competence. I have not heard anybody else ask the Minister what government body will be responsible for ensuring that anybody who is deemed an adult but in fact is not, and therefore should have been under local authority care, will be able to access medical treatment and any other care that they would have been given had they had looked-after status and been with a local authority. Perhaps the slightly shorter way of saying that is to return to the question that we have covered quite a lot of times here in Committee: what is the role of the Home Office in all this, when the status of the child—or potential child—is not understood?
At Second Reading, when I raised this issue about the technology and asked why the clauses should remain in the Bill, the Minister said that he agreed that the technology was not ready but asserted that the clauses should remain because it was quite probable that it would be ready in a fairly short space of time. All the evidence that we have had, including from the previous Home Secretary’s committee, says that it is not ready and that, although it might come, there is absolutely no clear date on the horizon.
From the perspective of these Benches, the science does not work and there is no firm data or technology to show that it will; all the professionals involved have ethical considerations about the registration bodies, and these two clauses would force them to move away from that; carrying out tests such as MRI scans and X-rays for non-clinical reasons could well damage the people undergoing them; and, finally, there is the question of whether the child can give consent, not just because of Gillick competence but because their language ability and the trauma they have been through might not allow them to do so under duress. That is why we believe the only solution is to remove Clauses 55 and 56.
Lord Coaker (Lab)
My Lords, this is a very important group of amendments. I shall not speak particularly to my Amendment 127, supported by the noble Lord, Lord Alton, the noble Baroness, Lady Kennedy, and the noble Lord, Lord Carlile, because the debate has focused on some of the other amendments in the group and, given the hour, it is probably important to say a few words about those.
I start by saying to the Government that, unless they listen to some of the points that have been made by many noble Lords, children who deserve support will not receive it. That is the reality. Therefore, it is incumbent on the Government to look at what the Bill says and, at the very least, mitigate some of it and tighten up some of the various procedures.
Lord Murray of Blidworth (Con)
My Lords, as we have heard, these clauses and amendments take us on to the provisions regarding age assessments. As I set out last week, the duty to make arrangements for removal in Clause 2 of the Bill does not apply to unaccompanied children until they reach adulthood. There is a power to remove them, but the Bill provides, as the Committee well knows, that this may be exercised only in very limited circumstances, such as for the purposes of reunion with a parent or where removal is to a safe country of origin.
Given that unaccompanied children will be treated differently from adults under the Bill, and the obvious safeguarding risks of adults purporting to be children being placed within our care system, it is important that we take steps to deter adults from claiming to be children and to avoid lengthy legal challenges to age-assessment decisions preventing the removal of those who have been assessed to be adults. Receiving care and services reserved for children also incurs costs and reduces accessibility of these services for genuine children who need them.
Assessing age is inherently difficult, as the right reverend Prelate identified. However, it is crucial that we disincentivise adults from knowingly misrepresenting themselves as children, given that unaccompanied children will be treated differently from adults under this Bill. Our data shows that between 2016 and March 2023 there were 8,611 asylum cases where age was disputed and subsequently resolved following an age assessment, of which nearly half—47%, 4,088 individuals—were found to be adults. Accordingly, Clause 55 disapplies the yet to be commenced right of appeal for age assessments, established in Section 54 of the Nationality and Borders Act 2022, for those who meet the four conditions in Clause 2 of this Bill. Instead, those wishing to challenge a decision on age will be able to do so through judicial review, but that review will not suspend removal and can continue from outside the UK after they have been removed.
In addition, Clause 55(5), identified by the noble and learned Lord, Lord Hope—
Baroness Brinton (LD)
The Minister referred to the figures increasing for disputed children, because the figures in 2021 had increased. I am looking at the information from the Helen Bamber Foundation. The foundation makes the point that in 2021, the Home Office started publishing statistics which included children who were being treated as adults by the Home Office after a short visual assessment only, but the actual data has not been disaggregated beyond that. Does the Minister recognise that it is apples and pears—it is not looking at the same thing? A different group of children were being included within the data.
Lord Murray of Blidworth (Con)
I do not recognise those statistics, but I will of course look at the Helen Bamber Foundation report that the noble Baroness identifies. The facts are stark. As I have already identified, a large proportion of disputed age-assessment cases result in the applicant being found to be over 18.
Clause 55(5), as commented upon by the noble and learned Lord, Lord Hope, seeks to ensure that age assessment judicial reviews will be considered by the courts on normal public law principles such as rationality, public law unreasonableness and procedural fairness. Such a challenge on these grounds is not as restrictive as the noble and learned Lord, Lord Hope, has suggested. However, Clause 55(5) will seek to ensure that the court does not consider age as a matter of fact and will not substitute its own decision on age, distinguishing itself from the position of the Supreme Court in the judgment of R (on the application of A) v London Borough of Croydon 2009.
Amendments 121 to 123, tabled by the right reverend Prelate the Bishop of Durham, and the noble and learned Lord, Lord Hope, seek to negate these provisions by omitting Clause 55(2), (4) and (5). They are not amendments which I can commend to the Committee. The right reverend Prelate the Bishop of Durham asked whether a person would be returned to the UK if a judicial review was successful. This would depend on the nature of the court’s judgment and any associated order. We will, of course, comply with any order of the court.
Amendments 124 to 126, tabled by the noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Durham, would similarly have the effect of neutering Clause 56. Clause 56 again seeks to disincentivise adults from knowingly misrepresenting themselves as children by making use of scientific age-assessment methods already employed in many other European countries, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. Specifically, Clause 56 will enable us to bring forward regulations to provide that a person is to be treated as an adult if they refuse to consent to specified scientific methods for the purpose of age assessment, and the clause already provides that this would be the case only if the refusal was without good reason. I assure the noble Baronesses, Lady Lister and Lady Brinton, and other noble Lords that the regulation-making power will not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood.
Given this, it would be premature to provide draft regulations as to the level of parliamentary scrutiny to apply to those regulations. We note the Constitution Committee’s recommendation that the affirmative procedure should apply—a point raised by the noble and learned Lord, Lord Hope—and we will respond in advance of the next stage.
Lord Coaker (Lab)
Can I just pick up something before the Minister leaves this point? If I understood the noble Baroness, Lady Neuberger, correctly, she wanted to know how a child could consent to a scientific assessment that assesses their age.
Lord Murray of Blidworth (Con)
They participate in the particular type of medical scan that is utilised. That is the practice adopted by our European partners.
Baroness Brinton (LD)
Whether it is adopted by our European partners or not, Gillick competence is the key UK law that is used to decide whether a child can or cannot do it. It is not just Gillick competence; it is about whether they have the language to understand what is being asked of them. Could the Minister respond on the Gillick competence point, please? That is UK law.
Lord Murray of Blidworth (Con)
The provisions in the Bill are clear, and, as I say, in due course draft regulations will be provided, and they will be subject to scrutiny by this House. I am afraid there is little point speculating in the abstract on questions of Gillick competence in the absence of the regulations. But the point is clear that it would be contrary to the purpose of these provisions if an applicant was able simply to refuse to participate in scientific age assessment and that were to have no consequences; that would rob such provisions of efficacy, as the noble Baroness would have to concede, I suggest.
Lord Coaker (Lab)
It is quite astonishing to hear a Minister of the Crown say, from what I can understand, that a child can therefore be forced to comply with some scientific method of age assessment. In every area of public life in this country, the competence of a child to make a decision is structured in a way that takes into account the fact that they are children, even if, as in this case, they are potentially children. What the Minister is saying is quite astonishing. I have no idea what it means regarding how you assess the age of a child and ensure that that child in some way gives consent. Is there a social worker? Is there someone acting in loco parentis? Is there some sort of structure that means that you cannot just force a child to take part in some sort of scientific method that looks into their age?
Lord Murray of Blidworth (Con)
I fear that we are speaking at cross purposes. I certainly would not compel any child to participate in age assessment.
Baroness Lister of Burtersett (Lab)
The whole point is that they are, in effect, being compelled. This point was made by the interim age advisory committee—a committee set up by the Government. Why are the Government ignoring its advice? They are doing the opposite of what it says should be done. It said:
“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.
That is exactly what is happening.
Lord Murray of Blidworth (Con)
It is difficult to debate these measures. As I say, in the event that the situation is advanced by the development of these scientific methods and regulations are brought forward, we can have further discussions about the provisions on that occasion. However, in principle, there is nothing wrong with having available a protection that would mark the fact that, if you have scientific age assessment, simply saying “I don’t consent” would provide you with an opportunity not to adhere to the scheme that applies to everyone else. For those reasons, at an abstract level, there is no reason you could not have a situation where willingness to undertake a scientific age assessment is given full weight by a decision-maker in a way that, if someone refused to participate, it might not be. It always depends on the circumstances in regulations.
Baroness Neuberger (CB)
I am sorry but can the Minister explain how this can be acceptable when subjecting young people—children—to investigations such as X-rays that are not at all for their benefit is inherently unethical? How can this be justified in the way he has just done?
Lord Murray of Blidworth (Con)
I am not sure that I agree with the allegation that this is unethical because, as the noble Baroness may recall, on a previous occasion when the principles of age assessment were discussed in this House, my noble friend Lord Lilley observed that the radiation risk in taking an X-ray is comparable to that of a transatlantic flight. I suggest that, as long as the appropriate safeguards are in place, there is nothing in principle wrong with inviting an applicant who says that they are under 18 to participate in an X-ray procedure.
Baroness Brinton (LD)
It may be that the noble Lord, Lord Lilley, has expertise that the Committee is not aware of but the Royal College of Paediatrics and Child Health is very clear that every single doctor registered with the GMC—and the equivalents for X-ray technologists and others—would be required, under the terms of their registration, to consider whether the work that they were doing was ethical. It is absolutely confident that it would not be, so one further question here—I do not want us to go into it now because we do not have time—is: how will the Government deliver this measure if all registered professionals are told by their registration bodies that they should not do this work?
Lord Murray of Blidworth (Con)
As the noble Baroness rightly says, now is not the moment to discuss this hypothetical but it is notable that our European neighbours operate such schemes and clearly have professionals who participate. These are all matters that would need to be looked at in the event that the scheme—
Baroness Brinton (LD)
Has the Minister had discussions with the GMC and social workers, for example?
Lord Murray of Blidworth (Con)
The noble Baroness now invites me to embark on a discussion that she just said she did not want to have. I agree with her first position because it is not relevant to the amendment that she raises.
Amendment 127 in the name of the noble Lord, Lord Coaker, would place a duty on the Secretary of State to publish an annual report on scientific age assessment methods, the attendant scientific advice and the statistics relating to their use. The Home Office already publishes such information: quarterly datasets including age disputes are available on GOV.UK—we have heard references to those in Committee this evening—and, when scientific methods of age assessment are introduced, the Home Office will ensure that we report and monitor that information. The Age Estimation Science Advisory Committee continues to provide scientific advice to the Home Secretary and the Home Office’s chief scientific adviser. Their first report was published on GOV.UK, as the noble Baroness, Lady Lister, identified, and the Government will continue to seek advice from the committee. Given that we already publish the kind of information and data proposed by the noble Lord, I submit that his amendment is unnecessary.
Baroness Lister of Burtersett (Lab)
What is the point of seeking advice if it is then ignored? While I am on my feet, because I was not quick enough earlier, the Minister gave some figures that the right reverend Prelate, other noble Lords and I disputed, but it is as if we have not spoken. The evidence we presented was just ignored. It suggests that government Ministers tend to wildly exaggerate the proportion of children who are wrongly assessed as adults presenting themselves as children. We want the Minister to engage, if not now then in writing, with the figures that we came up with. I am appalled that the Minister has not even read the Helen Bamber Foundation report, because that is the best report on age assessment that there is. I very much hope that at least his officials have read it, but I will leave it at that.
Lord Murray of Blidworth (Con)
Of course we consider the advice provided by the Age Estimation Science Advisory Committee and the Home Office’s chief scientific adviser, and we will continue to do so. It is because we are in the process of awaiting such advice that the age assessment process is not fully operational. That demonstrates that we take and appreciate the advice that we are given.
As to the information questions, I will look at the statistics that the noble Baroness raises. I do not recognise them immediately, which is not to say that they are not properly reflective. There are a lot of statistics published on the Home Office website, so I appreciate that there may be some conclusions to draw. I will certainly look at that.
Government Amendment 123C is a clarificatory amendment that simply ensures that Clause 55 applies to any decisions following the regulations made under Clause 56, which automatically assumes someone to be an adult as a result of their refusal to consent to a scientific age assessment. It includes a decision as to whether an individual has reasonable grounds to refuse consent to a scientific age assessment.
We cannot escape the fact that almost half of asylum seekers claiming to be children were found to be adults. Those seeking to game the system in this way create clear safeguarding risks to genuine children and delay their removal. Clauses 55 and 56 are a necessary part of the framework of the Bill to ensure that we can swiftly remove those subject to the duty in Clause 2. I therefore invite the right reverend Prelate to withdraw his amendment.
Lord Paddick (LD)
The Minister did not allow me to intervene earlier, so will he allow me to intervene now? In what world can he say that a child freely consents to a scientific assessment on the basis that, if that child does not consent, they will be treated as an adult and removed from the United Kingdom?
Lord Murray of Blidworth (Con)
We have already canvassed these topics, but there are many ways for a decision-maker to take a refusal to consent into account. It need not be an automatic presumption that somebody is of age; it can be treated in a variety of potential ways, which will be described in the regulations. They will be subject to debate at that time. I am afraid that that is the answer to the noble Lord’s question.
The Lord Bishop of Durham
I thank all noble Lords for contributing to the debate and for interjecting during the Minister’s response with many of the questions that I noted. I repeat what I said earlier: the Minister of State justified the inclusion of Clauses 55 and 56 in the Bill by saying that
“around 50% of those people who are assessed are ultimately determined to be adults”.—[Official Report, Commons, 26/4/23; col. 777.]
To be fair, the noble Lord, Lord Murray, said just under 50%, which is a slight change.
However, I went on to ask whether the Minister could confirm that this figure is misleading, given that it includes individuals subsequently found to be children after referral to a local authority. He has not answered that question, but please do not try to do so now; please write. The Helen Bamber Foundation found that 1,386 individuals were referred to local authorities in 2022, of whom 867 were found to be children. That is about 62% to 63%. Clearly, several of us are going to read Hansard very carefully and we would like the Minister to go away and reflect on the figures a bit further.
For all the reasons that have been raised by colleagues, who I thank for all their support—I also thank the noble and learned Lord, Lord Hope, for his additional proposal, which makes complete sense—the Minister will not be surprised that we are likely to return to this on Report, because we think these things matter enormously.
I think there is an assumption made by the Home Office that it is adults pretending to be children; most of us come at it the other way round, and are worried about children who are deemed to be adults and are therefore placed in unsafe places. Somewhere, the two have got to meet and talk with each other and consider each other. I suggest that the Home Office has some very good conversations with the DfE, social workers and health professionals about how to understand children and how they work, including children who are 16 and 17 years old, because they are still not adults. However, I beg leave to withdraw my amendment.
Lord Murray of Blidworth
Member's explanatory statement
This amendment and the amendment in the name of Lord Murray of Blidworth at page 56, line 36 supplement references in Clause 55 to the court with references to the tribunal.
Member's explanatory statement
See the explanatory statement in the name of Lord Murray of Blidworth at page 56, line 33.
“(7A) For the purposes of this section, the cases in which a relevant authority decides the age of a person on an age assessment under section 50 or 51 of the Nationality and Borders Act 2022 include where a relevant authority is treated by virtue of regulations under section 56 of this Act as having decided that a person is over the age of 18.”Member's explanatory statement
This amendment clarifies that the provisions in Clause 55 about decisions as to a person’s age apply to a case where a decision-maker is treated as having decided a person is over the age of 18 by virtue of regulations under Clause 56.
Lord Murray of Blidworth
“(iii) at the appropriate place insert—““national” includes citizen;”;”Member's explanatory statement
This amendment modifies the amendments to section 80A of the Nationality, Immigration and Asylum Act 2002 in clause 57. The new amendment to section 80A inserts a definition of “national” which applies to references to a person who is a national of a State (in that section and section 80AA of that Act) so that citizens of that State are included. This is for consistency with the freestanding provision in the Bill.
Member's explanatory statement
This amendment seeks to remove Albania from the list of “safe states” with reference to which asylum and human rights claims will be deemed inadmissible.
Baroness Lister of Burtersett (Lab)
My Lords, Amendment 128A is also being proposed by the JCHR. I thank my noble friend Lord Cashman for his support, although I am afraid he has had to leave.
The amendment seeks to remove Albania from the list of safe states with reference to which asylum and human rights claims will be deemed inadmissible. I was prompted to table this amendment following a meeting with a group of young Albanians, which was organised by the Migrant and Refugee Children’s Legal Unit, MiCLU, and the Shpresa Programme. I am grateful to them, and to Professor Helen Stalford, for the information they have provided. All the young people had sought asylum in the UK. Some had been accepted, and some were still awaiting determination of their claims.
The young people had two clear messages. The first related to how they are talked about and perceived, by politicians and the media in particular, which frames discussions about the rights of Albanians to enter and stay in the UK. The young people talked about how hurtful and injurious to their identity it was to be constantly talked about as criminals with no right to be here.
One young Albanian asylum seeker quoted in the MiCLU briefing talked about having experienced racism:
“When you say you are from Albania, people distance from you. People have said I am a criminal and other words. It becomes hard for people to engage in society. Even people who have status”.
Lord Hacking (Lab)
My Lords, I rise—when I get my papers in proper order—to support my noble friend Lady Lister of Burtersett in her Amendment 128A. As she explained, the purpose of this amendment is to remove Albania from the list of safe states in new Section 80AA on page 59 of the Bill.
As I rise, I am looking at the clock at 5.40 am—or rather 1.40 am; happily, we have not got as bad as 5.40 am, and it is certainly better than 4.20 am. I do regret that we are having to debate these important matters so late in the night. My sympathy, first of all, goes to the Ministers: they have had to work so hard on this matter. My sympathy extends to all those friends of the Minister sitting behind him. They seem to have left him now, but earlier there were hordes of them here. But this has happened and it is all part of a purge to get this Bill through in the summer—
Lord Hodgson of Astley Abbotts (Con)
My Lords, I am sure we are all grateful for his sympathy. I am delighted to be here, but we would move forward a great deal faster if we had not had so many repetitious speeches.
Lord Hacking (Lab)
Well, my Lords, I do not know whether the noble Lord thought my speech about sympathy was repetitious. I have not heard it yet today, and I give those words of sympathy with great sincerity.
The important thing is to look at the state of Albania. Albania was a communist state under a particularly vicious dictator, Hoxha, until the mid-1980s. Great steps have been made since then, and when the USSR broke its ranks many Albanians worked very hard in democracy. But things have not always gone right. For example, in 1997 the Government of Berisha, who was then the president of the country, collapsed in the wake of pyramid schemes and widespread corruption. More recently, in February last year the president was subject to impeachment proceedings which were stopped only by the Albanian constitutional court.
I mention that because in the number of years that I acted as an international arbitrator and conducted arbitrations arising out of activities in the former countries of the USSR, time and again one came across very serious corruption which led to feuds and sometimes to heinous blood feuds. Corruption is a matter of great concern, and one wonders exactly how the list of safe states was drawn up; in that list are other countries of similar background to Albania—Bulgaria and Romania to name two. One looks at the Nationality, Immigration and Asylum Act to see what the test is, according to that Act, for the Secretary of State to take their decision. In new Section 80AA(3) it says:
“The Secretary of State may add a State to the list only if satisfied that … there is in general in that State no serious risk of persecution of nationals of that State”.
How strictly has that been applied, if it has been applied at all?
As my noble friend Lady Lister said, there is a lot of evidence of significant and outstanding issues in Albania relating to corruption, trafficking, blood feuds, discrimination and violence against the LGBT community, and stigma and discrimination against ethnic Roma and Egyptian communities and so forth. There are real grounds to be concerned whether, on any definition, Albania is properly placed as a safe country. That view is supported in our own Home Office’s work in 2022 when the UK granted protection status to 700 Albanian nationals, including 60 unaccompanied children.
For all those reasons, I hope your Lordships will feel that they should be on the safe side and remove Albania from the list of safe states.
Baroness Ludford (LD)
My Lords, I will speak to the proposition that Clause 57 should not stand part of the Bill. Before I do, let me say that there are various myths arising around this Bill, one of which is that the Government are going to deport vast numbers of people, and another is that speeches from this side of the Committee are repetitious. I think it is regrettable that that sort of claim is being made. I referred at the beginning of proceedings today to the fact that this Bill got almost no scrutiny in the other place. As Dr Hannah White, the director of the Institute for Government, said last night on the radio, it has just come to expect that we will do that job.
Lord Coaker (Lab)
My Lords, I will be interested to hear what the Minister has to say to many of the questions raised. We will then consider what to do between now and Report.
Lord Murray of Blidworth (Con)
My Lords, I thank all noble Lords who have spoken: the noble Baronesses, Lady Lister and Lady Ludford, and the noble Lord, Lord Hacking.
The measures in Clause 57 aim to deter claims from nationals from safe countries who seek to abuse our asylum system and do not need to seek protection in the UK. It will consequently reduce pressure on our asylum system and allow us to focus on those most in need of our protection.
Treating asylum claims from EU nationals in this way is not new, as I think all noble Lords recognised. It has been a long-standing process in the UK asylum system and is also employed by EU states. However, EU states are not the only safe countries. It is right that we expand these provisions so that they apply not only to nationals of the EU but to other safe countries that we have assessed as generally safe. At this time, the list has been expanded to include the other European Economic Area countries, Switzerland and Albania. This clause also includes powers that would allow us to expand this list further to other safe countries of origin in future.
Furthermore, these provisions will expand this approach to include human rights claims. If a country is generally safe, it stands to reason not only that asylum claims should be declared inadmissible but that any related human rights claims should be treated likewise. If a person has other reasons for wishing to come to the UK, they should apply through the appropriate routes. People should not seek to use our asylum system to circumnavigate those routes.
However, even if a country is generally considered safe, it is acknowledged that there could be exceptional circumstances in which it may not be appropriate to return an individual. If the person does not meet the conditions of the duty and makes an asylum or human rights claim, and there are exceptional circumstances as a result of which the Secretary of State considers that a claim ought to be considered, then their claims will be considered in the UK. If a person meets the conditions of the duty and makes a protection and human rights claim, and the Secretary of State accepts that there are exceptional circumstances which prevent removal to their country of origin, they will instead be removed to a safe third country. Therefore, it is considered that these provisions incorporate appropriate safeguards to ensure that we will not return an individual where it would not be safe to do so.
Amendment 128A in the name of the noble Baroness, Lady Lister of Burtersett, seeks to remove Albania from the list of safe states for the purposes of Section 80A. For a country to be added to the list of safe countries of origin, it must be assessed as safe, as per the test set out in new Section 80AA of the 2002 Act. We are satisfied that, in general, Albania—a NATO member, an ECAT signatory and an EU accession country—meets that test. Indeed, the cross-party Home Affairs Committee, chaired by Dame Diana Johnson, said in its report published just yesterday:
“Albania is a safe country and we have seen little evidence that its citizens should ordinarily require asylum”.
Furthermore, as already set out, the provisions incorporate appropriate safeguards, should it be accepted that there are exceptional circumstances why an Albanian national should not be returned there.
As I have indicated, these sensible extensions to the inadmissibility arrangements which currently apply to EU nationals will help to reduce the pressures on our asylum system and enable us better to focus on those most in need of protection. I commend the clause to the Committee and invite the noble Baroness to withdraw her amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I am grateful to those who have spoken, especially my noble friend Lord Hacking; he has been extremely noble to stay this late to speak, and he speaks from his first-hand experience of Albania.
The noble Lord, Lord Hodgson of Astley Abbotts, said that if there had not been so much repetition, we would not still be here at this time. However, the Minister, in his reply, has shown why sometimes there is repetition: because there is no evidence that the Minister listens. I talked about the Home Affairs Committee and why the response to it was not good enough, but he read his speech about the Home Affairs Committee as if it had not been mentioned. This happens time and time again. The main repetition I heard this evening was from the Government Benches giving very detailed information about the Policy Exchange report over and again. We could have done without that.
It is late, and I do not think that we want to go beyond 2 am, if we can possibly help it; I am shaking with tiredness. The Minister has not engaged at all with the arguments put that, while Albania may be a safe country for many people, it is not safe for everyone. It is just not good enough to say, “Well, in exceptional circumstances, their claims can be considered”. There are some very vulnerable people—people who have fled extremely difficult circumstances that none of us would want to face—who have sought asylum here and been granted asylum here for good reason. I sometimes wonder what the point is of us standing up saying these things, when the Minister then stands up and gives us a response that takes no account whatever of what has been said. That said, I beg leave to withdraw the amendment.