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Oral Answers to Questions
(5 years, 10 months ago)
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Julian Knight (Solihull) (Con)
Colin Clark (Gordon) (Con)
The Minister for Energy and Clean Growth (Claire Perry)
My hon Friends and the House will agree that we should be proud of the UK’s progress in cutting emissions while driving economic growth. Since 1990, we have reduced our greenhouse gas emissions by over 40% while growing the economy by over two thirds—the best performance per capita in the G7. And we will, as part of our modern industrial strategy, continue to exploit the opportunities for future growth across the UK through our clean growth grand challenge.
Julian Knight
As we rightly move towards eliminating the internal combustion engine in all new cars from 2040, does the Minister agree that, in the short to medium term, it is important to jobs and growth that we recognise the role of clean diesel engines such as those in the cars that roll off the production in my local car plant?
Claire Perry
My hon. Friend rightly champions the incredible employer in his constituency. He knows that we are right to move towards eliminating internal combustion engines from our roads, but we must do it in a managed way and ensure that we preserve those jobs and particularly the investment in clean diesel during the transition to zero-emission vehicles. I know that there have been announcements today of job losses in his constituency, which will be concerning. However, they are part of the manufacturing plan that has been announced.
Colin Clark
The oil and gas industry plays an active role in protecting the environment and reducing emissions. Does the Minister share my shock that the shadow Chancellor advised Cambridge University to divest itself of oil and gas investments when that industry supports 300,000 jobs in the UK? Does she agree that the industry is playing its part, and that 300,000 UK jobs are worth protecting despite the Opposition’s—
Mr Speaker
Order. I say very gently that the Minister will want to focus on the policy of the Government. Her view about the policy of the Opposition is neither here nor there. With experience, I know the hon. Gentleman will realise that those questions are disorderly.
Claire Perry
The Government’s policy is to support a sector that employs 300,000 people and contributes £21 billion to the UK economy. We recognise that the vital oil and gas industry has an integral role to play as we transition to a low-carbon economy, which is why we are investing in technologies such as carbon capture, usage and storage, and exploring how things such as our world-leading submersible technologies can work to support oil and gas.
Albert Owen (Ynys Môn) (Lab)
The Minister will be aware of the potential of the marine energy sector in terms of both UK economic growth and reducing emissions. Will she assure me that projects such as Minesto and Morlais in my constituency will not be crowded out by the funding mechanism in place now, which favours offshore wind?
Claire Perry
The hon. Gentleman knows that we have set out £557 million to support all renewable technologies over the next few years. We want to make sure that we decarbonise at the right price for taxpayers and bill payers, which is one reason why the mechanism will continue.
Chris Elmore (Ogmore) (Lab)
One way in which the Government could invest in economic growth while decreasing emissions would be to invest in the Swansea Bay tidal lagoon project. They have flip-flopped over the past 10 days, with leaks about when the announcement will or will not be made. May I press the Minister? Can she please tell us when she will deliver that major economic investment for Wales?
Claire Perry
Having grown up on one side of the Bristol channel and seen the second-highest tidal range in the world on an almost daily basis, I will take no lessons on the value of tidal and marine technology. As guardians of public money, it is absolutely right that we make investments that deliver the right decarbonisation and the right value for the taxpayer. The hon. Gentleman should not rely on leaks and assume that they are Government information. That announcement will come in due course and the House will be the first to know.
David T. C. Davies (Monmouth) (Con)
Does my right hon. Friend agree that the recent announcement of support for Wylfa underpins the Government’s commitment not only to reducing emissions, but to economic growth, not least in Wales?
Claire Perry
My hon. Friend is right. I should clarify that we are entering commercial negotiations—a deal needs to be done—but we should make a virtue of the fact that we have one of the most diversified energy supplies in the world and one of the lowest-carbon energy supplies. We have also managed to get ourselves off coal, which other countries long to do.
Rebecca Long Bailey (Salford and Eccles) (Lab)
The Government’s shambolic policy on the solar and onshore wind sectors in recent years has meant that significant economic growth and decarbonisation opportunities have been lost. For example, we have seen dramatic feed-in tariff subsidy cuts; business and VAT rate hikes; and obstruction to clean power auctions. Sadly, as we have heard today, there are reports that the Swansea Bay tidal lagoon, the world’s first tidal lagoon, which would create thousands of jobs and local supply chains and use 100,000 tonnes of majority British steel, is potentially on the Secretary of State’s hit list. Will the Minister buck that trend today and confirm when the decision will be made, and outline what support she will give to solar and onshore wind?
Claire Perry
I remain bemused by the hon. Lady’s ability to seize a disaster out of a triumph. We have delivered more renewable energy than we ever thought possible, at a price that is unimaginable—[Interruption.] I know the Opposition Front Benchers do not give a stuff about consumer bills, as they have made that totally obvious, but we care about decarbonisation at the right price for the consumer.
Rebecca Long Bailey
I think we touched a nerve there. The Minister is living in a parallel universe to me, because in the first quarter of 2018 the deployment of new solar slowed to its lowest level since 2010, and next year onshore wind installation is expected to be at its lowest level since before 2008. But it gets worse: last November, the industrial strategy was published, yet seven months on progress has been slow, with business becoming increasingly frustrated. The industrial strategy council has not yet been appointed, no strategy for reaching the research and development target has been published and dozens of sectors are waiting for responses to their sector deals. So does the Minister accept, as some key business leaders do, that perhaps her Government’s chaos over Brexit and the apparent inability even to concentrate on an industrial strategy are undermining British business and indeed our growth?
Claire Perry
The previous point still stands. We are incredibly proud of our industrial strategy, with its groundbreaking opportunities to link up government and businesses for the first time. I go back to the point on the hon. Lady’s questions about solar: the thing about offshore wind is that we lead—[Interruption.] Again, if they could all stop chuntering, Mr Speaker—God almighty. We lead the world in terms of the installed capacity, and we have created tens of thousands of jobs. I know the Opposition Front Benchers, as per the first question, do not give a stuff about jobs, let alone consumer bills, but the point is that—
Mr Speaker
Order. Minister, please resume your seat. I am most grateful to you, but I am afraid dilation is not in order today. We have a lot to get through and not much time in which to do so. We have to make progress. We need short questions and short answers.
Mr Philip Hollobone (Kettering) (Con)
The Minister for Energy and Clean Growth (Claire Perry)
The last time I talked about dilation, I was in labour. However, in Kettering—
Mr Speaker
Order. What is required is a brief answer and a brief question—no dilation.
Claire Perry
In 2016, at least 150 GWh were generated in Kettering, mostly from renewables; this is enough generation to power 38,000 homes. In 2016, 405 GWh of electricity were consumed in the Kettering local authority area.
Mr Hollobone
It is great news that Kettering is one of the greenest boroughs in the country, but we do have a very large number of wind turbines in the borough. What are the Government doing to encourage offshore wind turbines, rather than onshore ones?
Claire Perry
We have maintained, and will continue to maintain, our manifesto commitment that says that no more large-scale onshore wind development is right in England. That should reassure my hon. Friend and his constituents.
Mr Speaker
No. This question was purely about Kettering—both the question and the answer—so we must move on.
Scott Mann (North Cornwall) (Con)
The Secretary of State for Business, Energy and Industrial Strategy (Greg Clark)
Food and drink grown and made in Cornwall is exported and enjoyed around the world. My hon. Friend, both as chairman of the all-party group on dairy and as North Cornwall’s MP, will welcome the £75 million investment by Dairy Crest in its Davidstow creamery, announced two weeks ago, to expand its cheese production by nearly 50%. We are working closely with the industry to ensure that companies continue to invest and grow, right across the UK.
Scott Mann
I am grateful to the Secretary of State for that answer, and I do welcome Dairy Crest’s recent announcement. The food and drink sector is flourishing right across the south-west, particularly in North Cornwall. We have some fantastic brands, including Tarquin’s Gin, Kernow Chocolate, Sharp’s brewery and Buttermilk fudge, to name but a few. Many of these small and medium-sized firms are looking to export for the first time. What discussions is his Department having with the Department for International Trade to expand some of these opportunities for those firms?
Greg Clark
We know that there is huge demand for these products. For example, one reason behind the expansion of the creamery is the increasing appetite in China for cheese produced in Cornwall. My hon. Friend mentioned Sharp’s brewery, and the investment in the facility at Rock now means that 340,000 pints of Doom Bar a day can be produced there. I hope some of those will leave these shores and be enjoyed around the world.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
Controversially, Britain’s earliest pasty recipe comes from Plymouth rather than Cornwall. It dates from 1510 and was found in Plymouth borough’s accounts. Pasties are a key part of both Plymouth and Cornwall’s identity. What discussions has the Minister had to ensure that the name “Cornish pasties” is protected after we leave the EU, preventing anyone else around the world from forging pasties, whether Cornish or from Plymouth?
Greg Clark
Anyone who has enjoyed pasties in Cornwall or—dare I say?—Plymouth will attest to their unique qualities. We have products across the United Kingdom that are associated with the places where they are manufactured. It is an association of quality, and we will ensure that they continue to be protected as part of our negotiations.
Colleen Fletcher (Coventry North East) (Lab)
The Secretary of State for Business, Energy and Industrial Strategy (Greg Clark)
The automotive sector is one of our great success stories, and our recently published automotive sector deal, as part of the industrial strategy, sets out how we will continue to support it in future. The partnership continues to deliver results. In April, Vauxhall announced an investment of over £100 million in its Luton plant to build the next generation of Vivaro vans. Last month, the Society of Motor Manufacturers and Traders, the sector body, reported that UK van production had increased by almost a fifth compared with last year.
Colleen Fletcher
Jaguar Land Rover is one of Coventry’s biggest employers. Recently, JLR revealed its intention to make Coventry the heart of its large-scale battery and electric vehicle production plans. This is welcome news for my city. With that in mind, what support can the Minister offer to Jaguar Land Rover to ensure that Coventry becomes the centre for large-scale battery and electric vehicle production?
Greg Clark
I am grateful for the hon. Lady’s question and I completely agree with her praise and support for that very important employer. JLR’s expansion plans and its plans to make electric vehicles in Coventry are reinforced by the Faraday challenge, which is part of the industrial strategy, and the national battery manufacturing development facility is based at Warwick University’s campus there to support that company and many others besides.
Andrew Selous (South West Bedfordshire) (Con)
Does the Secretary of State agree that it would be a cruel irony if Volkswagen, the author of the emissions cheating scandal, were to make large pay-outs in Germany and the United States, which would help those countries to boost their electric vehicle capacity, but made no similar pay-out to help the United Kingdom move ahead in this area?
Greg Clark
My hon. Friend is right that the consequences have to be borne by the companies that cheated the system. We need to make the transition to ultra low emission vehicles to make sure that we lead the world in this area. Just a few weeks ago, Toyota announced a big investment in the future of mobility here in the UK, based on the commitments that we are making as part of our industrial strategy.
Matt Western (Warwick and Leamington) (Lab)
Greg Clark
The hon. Gentleman is right that we need to see a managed change. Earlier, my right hon. Friend the Minister for Energy and Clean Growth pointed out that the next generation of diesel can play a big part in not only reducing greenhouse gas emissions, but improving air quality. We will shortly be setting out our proposals on how we make the important transition to zero emissions across our vehicle fleet.
Lucy Allan (Telford) (Con)
Hundreds of jobs in my constituency rely on the Jaguar Land Rover supply chain. Will the Secretary of State tell the House what he is doing to help car manufacturers to deal with the uncertainty of Brexit and the fall in demand for diesel vehicles?
Greg Clark
I will. My hon. Friend is right to comment on the supply chain. A big part of the automotive sector deal, which we concluded with the sector, is to boost the proportion of components that are sourced in the UK. This is a joint commitment that we make, as part of the industrial strategy, but she is also right to draw attention to the importance of our continued ability to trade with the rest of the European Union, free of tariffs and with low friction, so that we can maintain the just-in-time model, which is so crucial to our automotive sector.
Sir Vince Cable (Twickenham) (LD)
Following the loss of the Discovery model to Slovakia, which was a decision at least partly influenced by Brexit, what steps is the Minister taking to head off the risk to Jaguar Land Rover’s exports to China where the rules of origin will conflict with the interests of the company in the event that we lose the customs union and we no longer have sufficient UK content in the cars?
Greg Clark
The right hon. Gentleman is wrong about the decision that was made. In fact, it is a decision to prepare Solihull for the next generation of the Range Rover and the Range Rover Sport. JLR described that as a huge investment and a technology upgrade in Solihull, so I hope he will welcome that. He knows that the importance of making sure that we are able to continue to trade—this includes recognising rules of origin not just with the European Union, but around the world—is vital for this company.
Mark Pawsey (Rugby) (Con)
Many intending to purchase new cars are unsure what type of engine to opt for, partly as a consequence of Government taxation policies. That is having a serious effect on the British motor manufacturing industry. Will the Secretary of State confirm that there remains a future for clean diesel?
Greg Clark
I will indeed. We are not the only country that is seeing a fall in the sales of diesel. As I and my right hon. Friend the Minister of State have said, clean diesel and the new generations of diesel engines have a very important role to play in the transition to ultra low emission vehicles.
Laura Pidcock (North West Durham) (Lab)
Contrary to what the Secretary of State has said, over the past six months nearly 2,000 job losses have been announced in the UK’s automotive sector. This week in the media we have seen speculation about thousands of further redundancies caused by a combination of factors, including worries about possible consequences of a no-deal Brexit and the absence of the customs union. May I press the Secretary of State to set out how the Government will work with business, industry bodies and trade unions to ensure security of the automotive industry and those employed in it both in the immediate future and beyond UK’s exit from the EU?
Greg Clark
We work very closely with the industry with great success. Engine production in this country was up over 17% last year, reaching 1 million engines. That is a record. Never in the history of the British motor industry were more engines produced than last year. Over the past year, the net number of jobs that are being created—note the word “created”—in the automotive sector in this country is 9,000.We have a very good record of working closely with the industry to support an industry that is not only very successful today, but will continue to flourish in the future.
Antoinette Sandbach (Eddisbury) (Con)
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
The Secretary of State for Business, Energy and Industrial Strategy (Greg Clark)
The Government are committed to helping energy consumers. We have brought forward the price cap Bill, and more than 2 million low-income households receive £140 a year through the warm home discount.
Antoinette Sandbach
Does the Secretary of State agree that a wide-reaching energy efficiency programme would help vulnerable customers in Eddisbury and elsewhere, as well as helping the UK meet its climate change targets?
Greg Clark
My hon. Friend is absolutely right. One of the missions that the Prime Minister announced as part of our grand challenges in the industrial strategy is to reduce by 50% the energy consumption of homes built in the future. That has an important impact not only on our greenhouse gas emissions, but on the bills that people face.
John Lamont
With recent rises in fuel costs, many motorists in the Scottish borders feel like they have been taken for a ride. What steps are the Government taking to try to reduce the impact of higher taxation on fuel, and what analysis has the Department carried out on the allegations of rocket and feather pricing on petrol and diesel sales at the pump?
Greg Clark
I am grateful to my hon. Friend for the question. It is a very important market. Obviously, recent oil price rises have had an impact at the petrol pumps. It is important that prices are competitive and not, as he implies, subject to rising quickly and then taking a long time to decline. The Office of Fair Trading last looked at this in 2013, but I expect its successor, the Competition and Markets Authority, under Andrew Tyrie, a noted consumer champion, to keep this under close review.
Rachel Reeves (Leeds West) (Lab)
Up to 200,000 customers do not benefit from the warm homes discount because they get their energy from smaller energy suppliers. Is it not time to extend the warm homes discount, especially since energy bills are going up and we are trying to crack down on rip-off tariffs?
Greg Clark
The hon. Lady, Chair of the Business, Energy and Industrial Strategy Committee, makes a very important point. We are reviewing whether the threshold for exclusion is appropriate; I know that she will welcome that.
Dr Philippa Whitford (Central Ayrshire) (SNP)
Some 169 households in my constituency have been affected by the mis-selling of insulation and solar panels by HELMS. This company was accredited by the Government under the old green deal scheme, so what will the Government do to compensate these people—often vulnerable pensioners—and how will they prevent such mis-selling from happening under the new green deal scheme?
Greg Clark
As with any other supplier, consumer protection rights are in place and available. I would be very happy to meet the hon. Lady to discuss this particular case and see whether we can help.
Stephen Kerr (Stirling) (Con)
Vulnerable customers can benefit from the use of smart meters. Will the Secretary of State update the House on how many SMETS 2 meters have now been installed and are connected to the Data Communications Company?
Greg Clark
I can tell my hon. Friend that 1,000 new SMETS 2 meters have already been installed. That is a significant milestone because it represents the beginning of the roll-out of the next generation of meters.
Mr Gregory Campbell (East Londonderry) (DUP)
As businesses look to expand their market share in the wider evolving world market beyond the EU ahead of next year, what priority are the Government giving to maintaining and trying to reduce energy bills to create employment and prosperity right across the United Kingdom?
Greg Clark
The hon. Gentleman makes an extremely important point. We have commissioned Professor Dieter Helm to look at how we can reduce the costs of our energy system for businesses and consumers. One of the advantages of the strategy that we have pursued is that we have brought down the costs of offshore wind—a major contribution—by targeting and investing substantially in it at a rate, as my right hon. Friend the Minister for Energy and Clean Growth said earlier, which has resulted in a reduction beyond what anyone expected even a couple of years ago.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
The Minister for Energy and Clean Growth (Claire Perry)
Since 2010, we have seen a large increase in renewables deployment and investment, with more than £52 billion invested, and indeed it is paying off. In 2017, more than half our energy generation came from low-carbon sources. As prices tumble, we can buy more with the same amount of money, which is why we are making £557 million available for further contracts for difference. We have started negotiations with Hitachi to bring forward the country’s second new nuclear plant, which my hon. Friend the Member for Monmouth (David T. C. Davies) mentioned.
Dr Huq
The Minister talks a good talk, but rooftop solar panel take-up is at a seven-year low. In my seat, Alternergy has gone from topping the Fintech 100 to an 80% drop in business since the end of the feed-in tariff was announced in 2012. What assurances does the Minister have for such firms after the scheme closes next year?
Claire Perry
It is right that we look at how we can deliver subsidy-free energy using schemes such as the feed-in tariff that have been wildly successful. I will shortly be launching a call for evidence so that we can come up with a good replacement for the feed-in tariff scheme.
Sir Desmond Swayne (New Forest West) (Con)
What was the principal driver in the reduction of the price of new offshore wind?
Claire Perry
There were two things. First was the world-leading contract structure that we set up with our auctions; I pay tribute to that very good coalition policy. The second thing was the enormous deployment globally and the reduction in price of the various components. It has been a great British success story.
Barry Gardiner (Brent North) (Lab)
In 2015, the then Secretary of State said that 2018 would be the year for the UK to ratchet up our Paris climate commitments and our progress towards sustainable generation, but in the past three years the Government have capped support for low-carbon energy and destroyed 12,000 solar jobs. Clean energy investment, which fell by 10% in 2016, fell by a further 56% in 2017 to its lowest level in a decade. How about the Minister comes down off cloud complacency and finally gives investors certainty about the renewables industry, starting with a date for the consultation on the post feed-in tariff framework?
Claire Perry
I think that the question in all that preamble was, “What is the date?” As I said, we will be announcing that soon.
Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)
Globally, the nuclear power market is declining rapidly while the low-carbon power of offshore wind and battery storage becomes more affordable. How can the UK Government justify taking a reported £5 billion direct stake, and a further guarantee of £9 billion, in the nuclear white elephant that is Hitachi Wylfa Newydd?
Claire Perry
As I have said repeatedly, we have entered into negotiations. I have to tell the hon. Gentleman that one of the saddest things I saw at the conference of the parties in Bonn this year was the barge-loads of dirty brown coal sailing down the Ruhr because countries like Germany have made an ideological choice about their energy supply rather than focusing on what keeps the lights on, costs down and carbon falling.
Drew Hendry
The Minister said earlier that she “gave a stuff” about household budgets, yet Tory dogma is set to saddle consumers with nuclear energy costing about £80 per megawatt-hour compared with under £60 for offshore wind. Is it not time that the UK Government stopped living in the past, scrapped this nuclear project and put households, who bear the brunt of costs, front of mind?
Claire Perry
The hon. Gentleman cites numbers that have no relevance to the negotiations. We have to keep bills down, and we have to make sure that the lights are on, that we have a secure energy supply and that we decarbonise. We think nuclear is very much part of that mix.
Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)
Tim Farron (Westmorland and Lonsdale) (LD)
The Minister for Energy and Clean Growth (Claire Perry)
The feed-in tariff scheme was launched in 2010 and now delivers £1.5 billion-worth of support a year for low-carbon generation. It has been really successful, and over 6 GW of it has been deployed—2.5% of UK electricity consumption. We want to see how we can deploy it at a subsidy-free level, as that is where prices are going. I will launch a call for evidence on the future of small-scale generation soon.
Mr Sweeney
Although I was delighted to hear that the world-leading small wind turbine manufacturer in my constituency, Gaia-Wind, was saved from liquidation this week by an overseas buyer, the unnecessary uncertainty that the Government have created around the future of small-scale renewable energy persists. So will the Minister put investors and companies at ease and make a cast-iron promise to bring forward the consultation on future support before the summer recess?
Claire Perry
I am really glad that, as the hon. Gentleman says, it looks as though at least some of the jobs at the company in his constituency have been saved. With these schemes, we always have to think about what is value for money and what is the right thing to do in terms of energy security and supply. I will not make cast-iron guarantees, but I can promise him that it will happen soon.
Tim Farron
Ben Dyson at Lakes Renewables Ltd in Kendal, which focuses on solar power, has seen a 50% reduction in his work due to the impending closure of the scheme. He has kept going by diversifying, but many other firms have gone to the wall. Ben urgently needs policy clarity from next March, and to see business rates on commercial rooftop solar abolished. What steps will the Minister take to ensure that these rates are abolished and that the growth of small green businesses such as Ben’s is encouraged?
Claire Perry
I met representatives of the various trade associations to discuss this really important point. It will be considered separately from the consultation. However, I invite the hon. Gentleman and his constituent to make any representations; I would be keen to receive them.
Maria Caulfield (Lewes) (Con)
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Andrew Griffiths)
The retail sector is an important part of our economy and our industrial strategy, as are the 3 million jobs employed in it. In March, I established the Retail Sector Council so that retailers can work together with the Government to develop policies to support the sector. Last week, the Secretary of State and I held a roundtable in Downing Street with retailers to establish how to tackle the challenges facing the sector.
Maria Caulfield
As more retailers struggle to survive on our high streets, what discussions has the Minister had with Treasury colleagues to move business rates away from a property-type tax so that high-street retailers can compete on a level playing field with online businesses?
Andrew Griffiths
As my hon. Friend will know, in April 2017, retailers saw a 6% reduction before inflation in their business rates, with £3.6 billion of transitional relief. We are doing what we can to support businesses. The Retail Sector Council will be looking at a range of issues, including business rates. The Government are determined to ensure that the taxation system is up to date and fit for purpose.
Toby Perkins (Chesterfield) (Lab)
One of the areas on the high street that is particularly struggling is that of our important pubs. I would be interested to hear the Minister’s view on the extent to which pub-owning businesses and tenants enjoy confidence in the Pubs Code Adjudicator—and if they do not, what steps the Government are taking to put that right.
Andrew Griffiths
As the hon. Gentleman will know, I take a particular interest in the health of public houses up and down the country. He will know that this Government set up the Pubs Code Adjudicator to ensure that landlords and tenants across the country got a fair deal. It is still early days, but the adjudicator is getting on and making decisions. I know that the Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Watford (Richard Harrington), is in close discussions with the adjudicator to ensure that he is getting the job done.
Sir Patrick McLoughlin (Derbyshire Dales) (Con)
Do the Government feel that there is a level playing field between internet providers and businesses on the high street?
Andrew Griffiths
I congratulate my right hon. Friend on his election to the Select Committee; I am sure he will do a great job in standing up for British business. He highlights a key issue, which is the transition from traditional bricks and mortar to online. Last year alone, we saw a 9% increase in online retail. Clearly, that is a challenge for Government and business. That is why we are looking at the business rates structure and also at what we can do to help business to transition during this difficult period.
Laura Smith (Crewe and Nantwich) (Lab)
The British Retail Consortium has estimated that up to one third of retail jobs could disappear by 2025 as a fundamental transformation of the market occurs. Does the Minister agree that providing retail workers with the opportunity to upskill and reskill is critical to avoiding mass job losses over the next decade?
Andrew Griffiths
I absolutely agree that it is important to ensure that our workforce are properly skilled, which is why that is an important part of our modern industrial strategy, but I am less pessimistic than she is. Retail employment has been stable at about 3 million. Yes, those jobs are changing, but retail sales totalled some £362 billion last year, and jobs are being created in the retail sector.
Bill Esterson (Sefton Central) (Lab)
Last week, House of Fraser announced that 6,000 jobs were at risk. Yesterday, another 5,000 jobs went at Poundworld. Since the start of the year, tens of thousands of retail workers have lost their jobs. Some 3.9 million people work in our retail sector. They, their employers and anyone who cares about our high streets want a retail sector deal, so when are the Government going to publish the strategy? More to the point, will it have any meaningful action?
Andrew Griffiths
I thank the hon. Gentleman for his question. Yesterday, I spoke to the chief executives of both House of Fraser and Poundworld to properly understand the challenges that those businesses face and what Government can do to support them. The hon. Gentleman talks about a sector deal. I politely point out that it was this Government who had to take action to bring together the Retail Sector Council, a forum in which to develop policies. While the Labour party sits by and watches, this Government are getting on and working with the retail sector to protect those jobs.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Richard Harrington)
The Sirius Minerals polyhalite project has the potential to create 1,000 skilled jobs at the mine near Whitby and on Teesside, with many more jobs in their supply chains. That is an important type of business that will benefit from our industrial strategy, creating skilled jobs in the north of England.
Mr Goodwill
I am sure the Minister is aware of the recent Quod report, which shows the long-term economic benefits of this investment. The polyhalite fertiliser mining project does not only bring the 1,000 jobs that the Minister mentioned but is the largest single investment in the north. Product will be exported to the world through Teesport, growing the local economy by almost 20% and adding £2.3 billion to the economy. Does the Minister agree that that is precisely the kind of project that the Government should be getting behind as part of the modern industrial strategy?
Richard Harrington
I agree with my right hon. Friend. This is a very important project for him, as the Member of Parliament for Whitby. It is an important developing business, and I agree that it is exactly the kind of business that would benefit from our industrial strategy.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
I worked for some years in the chemical industry, so let us talk in real terms. We are talking about potash, and as one of the biggest reserves of potash in Europe, this business is seriously important. On a day like today, when we face the ruination of Brexit, when my local engineering companies are desperate about losing their markets in Europe and when Ministers are resigning, it is vital that we use this resource to compensate for the disaster in the rest of the economy.
Richard Harrington
I agree with the hon. Gentleman; this potash project is very exciting and very good for the UK. It is exactly the kind of business that he would want in his area, and it will help businesses throughout the United Kingdom.
Julian Sturdy (York Outer) (Con)
Vicky Ford (Chelmsford) (Con)
The Minister for Universities, Science, Research and Innovation (Mr Sam Gyimah)
When it comes to science, research and innovation, this Government are putting their money where their mouth is. We are investing an additional £7 billion in research and development funding by 2022—the biggest ever increase in public funding. Our ambition is to increase the UK’s R&D spend to 2.4% of GDP by 2027, which will be an additional £80 billion over the next decade to help us to dominate the new industries of the future.
Julian Sturdy
The industrial strategy’s commitment to supporting new innovation and investment in science and technology for food production was much welcomed, especially in areas such as North Yorkshire. Will the Minister update the House on what the Government are doing to deliver on these ambitions so that we can fully realise the sector’s potential as a source of high-skill jobs and growing exports?
Mr Gyimah
My hon. Friend is right to mention agri-tech. As he is aware, we set out in the industrial sector that agri-tech is one of the six priority areas for the artificial intelligence and data economy grand challenge. On progress in what we are doing, we have announced a £90 million transforming food production challenge, which will continue to bring together the UK’s world-class agri-food sector with expertise in robotics, AI and data science.
Vicky Ford
In Chelmsford, we are making the sensors that will go on the Sentinel satellites, which will provide a step change in how we monitor our planet’s environment from space. Many European countries have national space programmes and are members of the European Space Agency. Will the UK have a national space programme and contribute to the European Space Agency going forward?
Mr Gyimah
I can answer categorically: the UK will continue to be a member of the independent European Space Agency—currently, for every £1 we invest, we get £10 back—and Innovate UK is looking at a national space programme with the UK Space Agency. In addition, we are looking at a space sector deal to boost the work in our thriving space sector.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Some of the most exciting and innovative work in engineering at the moment is being done on the development of renewable energy from wave and tidal stream power. The sector itself has come up with a proposal for innovation in power purchase agreements. Will the Minister, or perhaps some of his colleagues, agree to meet me with a delegation from the sector to discuss how it can contribute to the Government’s industrial strategy?
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
No mention of Galileo—not one word.
Mr Speaker
Order. The hon. Gentleman does not need to keep banging on about Galileo from a sedentary position. We want to hear the views of the hon. Lady, but we have heard the hon. Gentleman chuntering and we may hear him on his feet in due course.
Lucy Powell
When looking at investment in science and innovation across the UK, will the Government do what has not been done in recent years, and make sure that the north gets its fair share?
Mr Gyimah
The hon. Lady mentions the Strength in Places fund—it is actually a big part of our industrial strategy—which is designed to ensure that research and development does not just benefit the so-called golden triangle, but benefits all parts of the UK in terms of jobs and growth.
Hannah Bardell (Livingston) (SNP)
Even though telecoms are reserved to Westminster, the UK Government are contributing just £21 million to the Scottish Government’s programme to provide superfast broadband to everyone in Scotland. What representations will the Minister therefore make to the Chancellor about matching the Scottish Government’s whopping £600 million contribution?
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
Science is a great British success story, supporting jobs and growth across the country. With Europe’s funding for UK science down a fifth, more than 6,000 engineers and scientists denied visas in this year alone and universities reporting that Brexit chaos is freezing them out of Europe’s new £90 billion science fund, UK science risks crashing down to earth. Does the Minister accept that his threat to spend the entire UK science budget on duplicating Galileo because the Government have bungled negotiations on this £9 billion UK-EU collaboration is final proof that his science strategy is lost in space?
Mr Gyimah
As I said, we have the biggest increase in science and innovation in this country for 40 years. As for the UK-EU science collaboration, the EU Commissioner himself said:
“It is very important for the UK and it is very important for the EU to have a relationship in science and innovation. We’ve had this relationship for so long”.
On Galileo, negotiations are under way and we have made it very clear not only that it benefits the UK but that EU member states stand to lose skills and other important issues without the UK’s involvement.
Alan Brown (Kilmarnock and Loudoun) (SNP)
The Minister for Energy and Clean Growth (Claire Perry)
This Government have provided unprecedented levels of support to help this incredibly important sector—that is something on which we do agree. The Government announced the transferable tax allowance, the sector’s No. 1 ask; established the Oil and Gas Authority; invested in the Aberdeen city deal, including the excellent £90 million Oil and Gas Technology Centre, which I was pleased to visit; and put together a fiscal package worth £2.3 billion. It is working, with 16 new final investment decisions this year.
Alan Brown
That all sounds very good, but the reality is that in 2016 the Budget measures on support for the oil and gas industry were only a third of the measures on inheritance tax. The measure on transferable tax history has been delayed further, so when will that come forward? Why can the Government find billions and billions of pounds for nuclear but not for the oil and gas sector?
Claire Perry
The hon. Gentleman and I usually talk about the sector in very positive terms. We have delivered the things that the sector has asked for and it is working. It is fantastic to see investment happening in the North sea basin. The fact that the sector has gone through a time of building resilience given the oil price decline means that it is now starting to invest and grow again.
Mrs Madeleine Moon (Bridgend) (Lab)
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Richard Harrington)
In December 2017, we published Government-commissioned independent research that identified high-value market opportunities for UK steel producers worth up to £3.8 billion a year by 2030
Mrs Moon
The national shipbuilding strategy sought to improve UK prosperity through shipbuilding. The MOD fleet solid support ships contract is worth more than £1 billion. What steps will the Government be taking to ensure that British steel manufacturers are ready to bid for that contract?
Richard Harrington
As the hon. Lady will know, because I met her the week before last, I am very conscious that Tata is in Port Talbot in her constituency. I promise that I will do everything in my power to ensure that Tata and other British steel companies, all of whom I meet regularly, are poised to act on these contracts.
John Grogan (Keighley) (Lab)
The Minister for Energy and Clean Growth (Claire Perry)
I am delighted to answer this question and continue the conversation about carbon capture and storage that the hon. Gentleman and I were having last night. We are determined to deploy cost-effective carbon capture and storage at scale and in a way that helps to decarbonise both generation and industry. That is why we have asked the taskforce, the best minds in the country, and our CCUS council to convene. I am looking forward to receiving their report and acting on it very soon.
John Grogan
Does the Minister agree that the development of carbon capture and storage is crucial for much of British manufacturing and for the use of gas during the transition, and will she encourage innovation not just in technology but in finance, with both the Government and the fossil fuel sector contributing?
Claire Perry
The hon. Gentleman might have been reading one of the report’s recommendations. He is absolutely right. We must deliver this in a way that is cost-effective and supports further innovation. I am confident that, with the taskforce’s help, we will have very good recommendations and ideas to move forward with.
Ms Marie Rimmer (St Helens South and Whiston) (Lab)
The Secretary of State for Business, Energy and Industrial Strategy (Greg Clark)
Our modern industrial strategy will boost productivity and earning power across the UK. We have announced four sector deals in areas including life sciences, the creative industries, the automotive sector and artificial intelligence. More will come in the weeks ahead. I am encouraged by the work of the mayoral combined authorities and local enterprise partnerships in developing local industrial strategies.
Ms Rimmer
I and my Front Bench colleagues have been informed that dozens of sectors have put forward proposals for a sector deal, including the steel industry, but have had little or no engagement from the Government. Will the Secretary of State confirm how many proposals for sector deals he has received and to how many he has formally responded?
Greg Clark
I am delighted to report that we have had a huge interest from sectors right across the country, including the steel sector. The Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Watford (Richard Harrington) and I have had substantial discussions with the steel industry and we look forward to developing that deal in the weeks and months ahead.
Martin Vickers (Cleethorpes) (Con)
What progress is being made on the Greater Grimsby town deal?
Greg Clark
I know this deal is close to my hon. Friend’s heart and that of his constituency neighbour. I have made a commitment to come to Cleethorpes and, I dare say, Grimsby to help with that negotiation. I look forward to doing so soon.
Several hon. Members rose—
Sir Edward Davey (Kingston and Surbiton) (LD)
The Minister for Energy and Clean Growth (Claire Perry)
The right hon. Gentleman knows, more than many in the House, the need to invest in innovative technologies, while maintaining a focus on value for money. We have rightly looked at this project with very serious scrutiny. There are some very attractive things about it, but it has to pass the value for money test. When that decision is made, the House will be the first to know.
Sir Edward Davey
Does the Minister accept that nuclear and offshore wind needed pathfinder projects, first-of-a-kind projects, to prove the technology and the economics and to get the cost down. Why can tidal lagoons not have such a pathfinder project, just as Charles Hendry recommended?
Claire Perry
Partly because of the right hon. Gentleman’s great policy decisions, we have had a world-leading advance in offshore wind in terms of the cost at which we can deploy it. He is right to say that we have to consider the whole life cycle of technologies and that is exactly what we have been doing in considering tidal technology.
Mr Speaker
The right hon. Gentleman has been given the accolade of being the source of world leadership in a particular field. I trust, therefore, that he will be gratified with his efforts today.
Diana Johnson (Kingston upon Hull North) (Lab)
The Secretary of State for Business, Energy and Industrial Strategy (Greg Clark)
Since our last departmental questions, we have taken further steps to implement our industrial strategy. In early May, we launched UK Research and Innovation, with a budget of £6 billion a year, to drive forward our growing investment in research and development. The Prime Minister announced four missions that our grand challenges will achieve, including to save 20,000 lives a year through artificial intelligence-assisted cancer diagnosis. We have launched sector deals in AI, convened the first ever Retail Sector Council and launched a major programme to drive productivity in smaller companies. On the 150th anniversary of the creation of the TUC, from the party that established the royal commission that decriminalised trade unions, that brought in widows pensions and holiday entitlements, that created the national living wage—in other words, Mr Speaker, the true workers’ party—we wish the TUC a very happy birthday.
Diana Johnson
Of course, I say to the Secretary of State that the Labour party was founded by the trade unions.
My question is about retail. In Hull, retail employs 12,000 people. Hull’s House of Fraser store is going to close, with the loss of 207 jobs. Hull has three Poundworld stores that are under threat and there are also concerns about Hull’s Marks and Spencer store, which may be one of the 60 unidentified branches closing by 2022. After the Comet collapse, which cost taxpayers some £45 million, what is the Minister going to do to assist shop workers and protect taxpayers?
Greg Clark
The hon. Lady will concede that the efforts and engagement through the city of culture year between the Government and Hull were very substantial and very effective. I am familiar with the House of Fraser store in Hull. I know what an important part it plays in the life of the town centre. I understand that the council is confident that such a prime site, which I know well, will be taken up. I will work closely with the council to make sure, through the sector council, it has all the help it needs.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
The Minister for Energy and Clean Growth (Claire Perry)
Of course, the whole House will shortly be able to pass the price cap Bill, which will assist all consumers with the cost of energy, and this comes on top of the prepayment meter and vulnerable consumers price caps that are in place. We are determined to continue supporting vulnerable consumers through such things as the warm home discount, winter fuel payments and repurposing the very large energy company obligation scheme to tackle fuel poverty.
Thangam Debbonaire (Bristol West) (Lab)
Claire Perry
I have always admired the hon. Lady’s passion. Again, as I have said multiple times, we absolutely are very keen to scrutinise this deal. It has to deliver the low-carbon energy we all want and the jobs we all want at a price that is affordable for the consumers we all represent.
Luke Graham (Ochil and South Perthshire) (Con)
Claire Perry
Those who missed the Clackmannanshire energy project Adjournment debate missed a massive treat: it was a very enjoyable, informative debate. We are very supportive of the project. My officials are working closely to explore funding opportunities, and I commend my hon. Friend for his continued leadership in this important area.
Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Richard Harrington)
As you may well be aware, Mr Speaker, highland products are absolutely excellent and should well be distributed to all parts of the UK. The Government’s policy, with the industrial strategy to develop business by helping with research and development and through keeping fuel prices low, without the troughs and peaks that the Secretary of State mentioned, will help significantly.
Michelle Donelan (Chippenham) (Con)
The Minister for Universities, Science, Research and Innovation (Mr Sam Gyimah)
The Festival of Engineering is particularly important for students because we want to encourage and inspire people to take engineering subjects and follow engineering careers. A lot of activity is planned and I will be delighted to share this with my hon. Friend.
Lucy Powell (Manchester Central) (Lab/Co-op)
Greg Clark
We are getting on with major infrastructure investments that would be good for the whole United Kingdom and that the previous Government did not take.
Richard Graham (Gloucester) (Con)
Claire Perry
I must pay tribute to my hon. Friend’s brilliant chairmanship of the all-party group on this technology area. He is absolutely right: we do think that water power has incredible potential. That is why the Government have invested over £100 million since 2010 in investigating various forms of the technology and why we are keen to continue to pursue opportunities, but they have to be at the right price for consumers.
Mr Virendra Sharma (Ealing, Southall) (Lab)
Richard Harrington
As I hope the hon. Gentleman is aware, I meet the steel industry regularly, and I am very interested to meet him to hear his views on the subject. I can assure him that everything that can possibly be done to deal with tariffs is being done. I had a meeting with all the chief executives of the steel business. I went to Brussels last week and met the director general of trade, as well as other CEOs and European colleagues.
Huw Merriman (Bexhill and Battle) (Con)
High street businesses lose out when banks close, pensioners lose banking services, and post offices are also facing challenging times. What can be done to make sure that the main high street banks provide their services at least in a host post office that acts as a hub?
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Andrew Griffiths)
My hon. Friend, who makes some important points, will know that the Government have invested £2 billion in the post office network to ensure that across the country, in communities where retail banks are closing, the Post Office can step up and allow his constituents and businesses, among others, to access both personal and business banking in their local post office. That is good for the post offices and for our communities.
Paula Sherriff (Dewsbury) (Lab)
Andrew Griffiths
The hon. Lady will know that the retail sector is particularly impacted on by changes in consumer behaviour. More people are shopping online, and that is a challenge for the sector. There is no silver bullet, but through the retail sector we are sitting alongside industry and trying to understand the challenges it faces, such as on business rates and how we adapt to ensure that we not only help the sector to make that transition, but protect the jobs of the 3 million people employed in the sector.
Stephen Kerr (Stirling) (Con)
When will the Government respond to the joint report on Carillion by the Business, Energy and Industrial Strategy Committee and the Work and Pensions Committee?
Andrew Griffiths
I thank my hon. Friend for his question and thank the Select Committees for their work on Carillion. They did a truly remarkable job in holding the directors of Carillion to account and uncovering exactly what went on with the Carillion collapse. I think the report was issued on 16 May, and the Government have 60 days in which to respond, but I can assure him that we are doing all we can to meet the challenge.
Several hon. Members rose—
Mr Speaker
Order. We have run out of time so we must have very brief questions. I think a sentence will suffice.
Jim Shannon (Strangford) (DUP)
Factory output has decreased, according to the papers today. Will the Minister outline what he can do to assist factory manufacturing and initiate a clear industrial strategy?
Greg Clark
As the hon. Gentleman knows, through the industrial strategy, which has been developed in close collaboration with the Engineering Employers Federation, and through investment in research and development and skills, we are doing everything we can to take the opportunities arising.
James Cartlidge (South Suffolk) (Con)
Given the success of auto-enrolment, will the Minister outline what steps the Department is taking to ensure that as the country saves more, we invest more in British industry?
Andrew Griffiths
The hon. Gentleman will know that through the industrial strategy we are doing all we can to support British business and make sure it gets the investment it needs, particularly through the British Business Bank, which is looking to release £20 billion of patient capital to give our businesses the rocket fuel they need to grow.
Mr Adrian Bailey (West Bromwich West) (Lab/Co-op)
The decision by JLR to invest in electric vehicles is very welcome, but equally the decision to produce the Discovery model in Slovakia is profoundly worrying. Does the Secretary of State agree that it underlines the need for tariff-free access for both cars and components in the EU?
Greg Clark
I agree with what the hon. Gentleman said at the end—of course we need tariff-free access with a minimum of frictions to these important markets—but I disagree that this is not a sign of significant confidence. JLR is investing in the next generation of vehicles. I hope he will welcome that.
Melanie Onn (Great Grimsby) (Lab)
What is the Secretary of State’s No. 1 initiative to ensure that the Greater Grimsby town deal moves from theory to reality?
Greg Clark
As I said to my hon. Friend the Member for Cleethorpes (Martin Vickers), I will come and sit down with Grimsby and Cleethorpes leaders to negotiate it myself.
Rachael Maskell (York Central) (Lab/Co-op)
There is clearly a crisis on our high street, so will the Minister ensure that business rates are fully addressed in this year’s Budget?
Andrew Griffiths
I can assure the hon. Lady that, together with the retail industry, we are looking at business rates, their impact on businesses and our ability to ensure we have a fair taxation system.
Kirsty Blackman (Aberdeen North) (SNP)
The industrial strategy challenge fund round closed in April, but the Government are not expected to make a decision until the tail end of this year. Can they speed up the process please?
Fiona Onasanya (Peterborough) (Lab)
Employees in my constituency have time limits imposed on their toilet breaks, which are insufficient. What assessment has the Department made of businesses adopting such practices?
Andrew Griffiths
The Department keeps a close eye on developments of this kind, and I assure the hon. Lady that the matter is firmly on our agenda. We want to ensure, through the Matthew Taylor review and the work we are doing ourselves, that workers are treated fairly, receive the support that they need in business, and are fairly paid.
Alison Thewliss (Glasgow Central) (SNP)
One of the biggest missing links in the tackling of money laundering is the Government’s own agency, Companies House. When will the Minister ensure that it is funded adequately and has enough staff to carry out proper checks on businesses?
Andrew Griffiths
I assure the hon. Lady that we are seeking to ensure that Companies House is fit for purpose. As she will know, in 2016-17 it brought some 3,182 prosecutions. Companies House is very attuned to the challenges that it faces, particularly in relation to money laundering. That is why we are introducing, for instance, measures relating to Scottish limited partnerships, which I am sure the hon. Lady will welcome.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
I know that the Secretary of State is an honourable man. He is the Business Secretary. If we have a hard Brexit, British business will be devastated. Will he join us today in voting to keep us in the single market?
Greg Clark
I work night and day to make sure that British and international businesses continue to invest in this country, and they have shown a willingness to do so. We want to be the best location not only for trade with Europe but for trade around the world, and that will form part of our negotiations.
Stewart Malcolm McDonald (Glasgow South) (SNP)
What support can my constituents, who are among the 5,000 set to lose their jobs at Poundworld, expect from the Government?
Andrew Griffiths
As the hon. Gentleman will know, I spoke to the chief executive of Poundworld yesterday to try to understand the challenges that it faces. Through the official receiver, the special manager is seeking to do everything possible to rescue the business, and they are hopeful that there are buyers out there for at least part of it. We in the Government have pledged to do all that we can to ensure that the business is rescued.
Points of Order
(5 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Tim Farron (Westmorland and Lonsdale) (LD)
On a point of order, Mr Speaker. May I seek your advice? Last Monday, following the oral statement on rail timetabling, I asked the Transport Secretary whether he would refuse any request by Arriva Northern to extend the immensely disruptive two-week suspension of the Lakes line in Cumbria. He replied:
“I am not prepared to accept more than the current two weeks and…I have been clear to Arriva that doing this over the long term is simply unacceptable”.—[Official Report, 4 June 2018; Vol. 642, c. 58.]
I was therefore horrified to learn on Friday that Arriva Northern had, in fact, extended the suspension by a further two weeks, to 2 July, and that a spokesperson for the Secretary of State’s Department had said that it did not object to the “operational decision”.
The Transport Secretary told the House that he would do one thing, and he has gone and done the complete opposite. What can you do, Mr Speaker, to compel him to appear before the House and explain himself and to ensure that commitments made by Ministers of the Crown in this House are actually fulfilled?
Mr Speaker
I am grateful to the hon. Gentleman for his point of order. I am not privy to the details of this matter, but my response to the hon. Gentleman, off the top of my head, is twofold.
If a Minister feels that he or she has been inaccurate in a statement to the House, it is incumbent upon, and open to, that Minister subsequently to correct the record. It may be that the Minister holds a view, and would offer an interpretation of the sequence of events, that differs from that of the hon. Gentleman. I do not, in all candour, know.
I would just add, without offering any judgment on the merits of the case—which it would not be right for me to do—that a less than 100% correlation between what is said at one time and what happens at another time is not entirely without precedent in our parliamentary history.
I feel that on this occasion—and he will take it in the right spirit—the hon. Gentleman was perhaps more interested in what he had to say to me than in anything that I might have to say to him, and he has been successful in his mission: it is on the record.
Chuka Umunna (Streatham) (Lab)
On a point of order, Mr Speaker. Sir Winston Churchill said:
“The first duty of a member of Parliament is to do what he thinks in his faithful and disinterested judgement is right and necessary for the honour and safety of Great Britain. His second duty is to his constituents, of whom he is the representative but not the delegate.”
With that in mind, Mr Speaker, I would like to draw your attention to the disgraceful front page of today’s Daily Express, which gives one “simple” warning to “our elected representatives”:
“ignore the will of the people at your peril.”
This is a threat, pure and simple, and an attempt to intimidate and threaten Members ahead of the votes on the Lords amendments today.
That paper is not the only protagonist. This gives licence to people to abuse and threaten Members of this House who exercise their judgment to do what they think is best for our country, as the Under-Secretary of State for Justice, the hon. Member for Bracknell (Dr Lee), has done in resigning this morning. Already on social media, a UKIP supporter has called for him to be hanged, and another individual has called for him to be hung, drawn and quartered; and you will know, Mr Speaker, that just last week a gentleman was given a nine-week suspended jail sentence for sending threatening emails to the right hon. Members for Broxtowe (Anna Soubry) and for Loughborough (Nicky Morgan), my right hon. Friend the Member for Tottenham (Mr Lammy), my hon. Friend the Member for Wolverhampton South West (Eleanor Smith), the hon. Member for South Cambridgeshire (Heidi Allen) and other Members. What advice, Mr Speaker, would you give to Members in the face of such abuse and threats?
Mr Speaker
My advice, in so far as it is ever required, is: do as your conscience dictates. That is what Members of Parliament on any side of any argument are not merely entitled, but perhaps constitutionally obliged, to do. The freedom of speech that we enjoy in this place was hard-won and by all Members of whatever hue will I am sure be jealously, and rightly jealously, guarded.
I must say en passant to the hon. Gentleman that until he held up that copy of that paper I had not seen the headline or report to which he referred; I am not in the habit of reading this sort of material and it is a matter of no interest or concern to me whatsoever. All that is of interest and concern to me is that right hon. and hon. Members do what they believe to be right by their constituents, by their conscience and by their country.
Anna Soubry (Broxtowe) (Con)
Further to that point of order, Mr Speaker. Do you share my concern that to my knowledge at least one hon. Member on these Benches will today and tomorrow not vote in accordance with their conscience because of threats to their personal safety, to members of their parliamentary staff and to members of their family? Do you take that as a very serious threat to the democracy of this place, and if you do would you expect a senior member of Her Majesty’s Government to come forward and make it clear that this will not be tolerated by any party against any Member of Parliament?
Mr Speaker
I can only repeat what I have said: Members must speak and vote as they think fit. No Member of this House, whatever opinion he or she holds, should be threatened because of it. No Member should be subject to threats, and any Member subject to threats of a kind—
Mr Speaker
In a moment, I will of course come to the Leader of the House.
Any Member subject to threats of a kind that would be unlawful must take the appropriate action. As we know, there are lots of things that happen in politics whereby attempts to persuade people are made which are perfectly legitimate and in which neither the Chair, nor I suspect the Leader of the House or any other Member, would seek to involve himself or herself. If the right hon. Member for Broxtowe (Anna Soubry) is suggesting that illegality is involved, Members know what course of action to follow. I would hope, and am confident, that today’s and tomorrow’s debates will take place in an atmosphere of mutual respect, in which opinions sincerely held will be robustly articulated. But no one in this place under any circumstance should be under threat.
If the Leader of the House still feels that anything needs to be added, she is welcome to attempt to do so.
Andrea Leadsom
Thank you, Mr Speaker. I should like to accept the invitation from my right hon. Friend the Member for Broxtowe (Anna Soubry) and to say on behalf of the Government that any threats of violence or intimidation are utterly unacceptable to the Government. The Government will absolutely uphold the right of every Member to do what they believe is the right thing to do.
Mr Speaker
I am most grateful to the Leader of the House. That is very clear, and it is on the record. I for one appreciate it and I rather imagine that it will be appreciated by other Members. If there are no further points of order—at any rate for now—we come to the ten-minute rule motion. [Interruption.] Order. I know that colleagues are eagerly anticipating the next business, but I am sure that they will want to accord a courteous hearing to the hon. Member for Congleton (Fiona Bruce) as she presents her ten-minute rule Bill.
Alcohol (Minimum Pricing) (England)
Tuesday 12th June 2018
(5 years, 10 months ago)
Commons ChamberRead Full debate Alcohol (Minimum Pricing) (England) Bill 2017-19 View all Alcohol (Minimum Pricing) (England) Bill 2017-19 Debates Read Hansard Text
A Ten Minute Rule Bill is a First Reading of a Private Members Bill, but with the sponsor permitted to make a ten minute speech outlining the reasons for the proposed legislation.
There is little chance of the Bill proceeding further unless there is unanimous consent for the Bill or the Government elects to support the Bill directly.
For more information see: Ten Minute Bills
This information is provided by Parallel Parliament and does not comprise part of the offical record
Fiona Bruce (Congleton) (Con)
I beg to move,
That leave be given to bring in a Bill to make provision about the minimum price at which alcohol may be sold from licensed premises in England; and for connected purposes.
I should like to begin by thanking the Government for the action that they have already taken on alcohol harm, including the duty increase on white ciders proposed by the Chancellor in his latest Budget, when he said:
“Excessive alcohol consumption by the most vulnerable people is all too often done through cheap, high-strength, low-quality products, especially so-called white ciders.”—[Official Report, 22 November 2017; Vol. 631, c. 1053.]
The Health Secretary recently announced £6 million of funding to support the children of alcoholics, stating:
“The consequences of alcohol abuse are devastating for those in the grip of an addiction”,
as well as for those around them. Alcohol harm affects not only those who drink but their families, children and colleagues, and wider society. Tackling this issue is a matter of social justice.
In England, more than 23,000 people die every year from alcohol-related causes, and many are from the poorest sections of society. The availability of cheap alcohol is a key driver of health inequalities, and it perpetuates deprivation. Of the 1 million alcohol-related hospital admissions last year, half were from the most deprived sections of society. Alcohol harm is the leading cause of death among 15 to 49-year-olds, and in 2015, it caused more years of life to be lost to our workforce than the 10 most common cancers combined. Alcohol harm is estimated to cost the NHS £3.5 billion a year, which equates to 117,000 nurses’ salaries, and Public Health England has estimated that the problem of dependent drinking could be costing UK society as much as £52 billion a year.
There is no silver bullet to eradicate alcohol harm, but I do not accept that we have exhausted our options for reducing it. There are still a number of reasonable, targeted policies that would have a significant impact, socially, economically and fiscally, and not least by helping to boost productivity. One is minimum unit pricing. What is minimum unit pricing? MUP sets a minimum price, sometimes called a floor price, below which drink cannot be sold. It is based on the number of units of alcohol that a drink contains. For example, the floor price could be set at 50p per unit, as has been done in Scotland, where MUP was recently introduced. That would mean that the minimum price at which a pint could be sold would be £1.15.
Crucially, that would leave most drink prices untouched, including those in pubs, while increasing the price of the cheapest, strongest products, which are consumed by the most dependent and vulnerable drinkers and which cause the most harm. That should end the sale of irresponsibly discounted drinks in the off trade and, in so doing, provide some protection for local pubs. Moderate drinkers would barely notice the difference, as nearly all the alcohol they buy would be above the minimum price. Under a 50p MUP, moderate drinkers would spend just £2.25 extra a year, according to research quoted by the Institute of Alcohol Studies and Alcohol Concern. MUP is not a tax, nor is it telling people how to live their lives. It is a policy aimed at discouraging consumption among those drinking at harmful levels, many of whom want desperately to reduce their drinking and are far more likely to purchase alcohol at less than 50p a unit than other drinkers.
MUP would have the limited, specific impact of helping
“those who are most vulnerable: the heaviest drinkers, the lowest socioeconomic groups and children.”
That is not my claim, but what was said in expert evidence to the Select Committees on Health and Social Care and on Home Affairs earlier this year by Professor Sir Ian Gilmore, chair of the Alcohol Health Alliance. Rosanna O’Connor, director of alcohol, drugs and tobacco at Public Health England, told those Committees that MUP is “exquisitely targeted” at people who are drinking the strongest, cheapest alcohol. That is a staggeringly small group of people. About 4% of the population drinks just under a third of the alcohol consumed in this country—about 2 million people. Again, to distinguish it from a tax, Professor Nick Sheron, academic clinical alcohol adviser to Public Health England, told the Committees that MUP
“is far more likely to be effective in reducing alcohol-related harm, because it does not put up the price of alcohol across the board, it does not increase the price of alcohol in pubs and clubs, and it is targeted at cheap alcohol.”
By affecting the affordability of the lowest-cost, often high-strength alcohol, the policy is well targeted at health outcomes, and the Government’s own evidence review, undertaken by Public Health England in 2016, stated that tackling affordability is
“the most effective and cost-effective approach to prevention”
and health improvement. Since then, Scotland has introduced MUP, the Republic of Ireland is preparing to legislate for it, and the Welsh Assembly’s Bill is currently at stage 3—its Report stage. Aside from the cross-border complications that will ensue if England is out of step with both Scotland and Wales, particularly across the more populated England-Wales border, and notwithstanding what the Government are saying about waiting to see how MUP impacts in Scotland a year or so hence, would it not be preferable, and indeed right, to prepare for action now? Hence, my Bill. Can it be right that England lags behind on this social justice issue?
The policy would disproportionately benefit the poorest, with evidence suggesting that 80% of the lives saved by MUP would come from the lowest-income groups. An MUP in England of 50p would save 525 lives, prevent 22,000 hospital admissions and lead to 36,500 fewer crimes every year. MUP is targeted well, because it does not adversely affect local community pubs. Indeed, research by the Institute of Alcohol Studies shows that publicans support MUP by a rate of two to one. The measure is widely supported not only by colleagues across all the major parties, but by doctors, the police, homelessness services, children’s charities and 51% of the public. The significant and tragic impact of alcohol harm is far too great for us to fail to act. This matter is urgent. Public Health England’s latest update, published in January this year, states:
“In recent years, many indicators of alcohol-related harm have increased.”
This Bill has support from across the House, and I urge the Government to give it serious consideration without delay.
As a postscript, I thank the Under-Secretary of State for Health and Social Care, my hon. Friend the Member for Winchester (Steve Brine), for announcing just last month—after I applied for this motion—that he is commissioning a review of the evidence for MUP in England. No doubt that will form part of the current Home Office-led consultation on a new alcohol strategy, which I greatly welcome. I hope that that work will eventually lead to a Government Bill on MUP in England and that my Bill will therefore become unnecessary. In the meantime, I thank all colleagues who support my Bill here today.
Question put and agreed to.
Ordered,
That Fiona Bruce, Sir David Amess, Jack Brereton, Dr Lisa Cameron, Alex Cunningham, Sir Jeffrey Donaldson, Frank Field, Norman Lamb, Sir Edward Leigh, Jeremy Lefroy, Dr Philippa Whitford and Dr Sarah Wollaston present the Bill.
Fiona Bruce accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 26 October and to be printed (Bill 223).
European Union (Withdrawal) Bill (Programme) (No. 3)
Tuesday 12th June 2018
(5 years, 10 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 12 June 2018 - (12 Jun 2018)
12:56 - The House divided: - Ayes: 321 / Noes: 304 - Question accordingly agreed to.
Lords Amendments | Time for conclusion of proceedings |
|---|---|
Amendments 110, 128, 37, 39, 125, 19, 52, 10, 43, 45, 20, 11 to 14, 18, 21 to 23, 44, 47, 102 to 107, 112, 113, 115 to 119, 121 to 124, 126, 127, 130 to 134, 136 to 140, 142 to 148, 150, 152, 154, 156 to 158, 171, and 172. | Three hours after the commencement of proceedings on consideration of Lords amendments on the first day. |
Amendments 25, 15 to 17, 26 to 31, 46, 48 to 50, 54 to 101, 108, 109, 111, 114, 120, 129, 135, 141, 149, 151, 153, 155, 162, 165, 169, and 173 to 196. | Six hours after the commencement of proceedings on consideration of Lords amendments on the first day. |
Amendments 51, 1, 2, 5, 53, 4, 3, 24, 32, 6 to 9, 33 to 36, 38, 40 to 42, 159 to 161, 163, 164, 166 to 168, and 170. | Six hours after the commencement of proceedings on consideration of Lords amendments on the second day. |
Tom Brake (Carshalton and Wallington) (LD)
On a point of order, Mr Speaker. You will be aware that on today’s Order Paper there is a Liberal Democrat amendment to extend from two to three days the debate on the Lords amendments. I understand the reasons why it has not been possible to vote on that amendment today. However, can you advise me on how in future it will be possible for this House to secure adequate time to debate critical amendments, take back control and avoid situations such as the one we are likely to face today where, by Government design, there will be no time at all to discuss critical Northern Ireland amendments and critical devolution amendments? [Interruption.]
Mr Speaker
First, I say to the right hon. Gentleman that a lot of these matters will still be able to be debated—whether they will be divided upon is another matter. Secondly, in response to those who were muttering from a sedentary position that he was eating into the time, let me say that simply as a matter of fact that is not correct. He is not eating into the time, for the simple reason that the Clerk has not yet read the Orders of the Day—we have not yet got to the start of the six hours. It is therefore quite wrong for people to say that the right hon. Gentleman is eating into the time—it is factually wrong and that is all there is to it.
Thirdly, I realise that the right hon. Gentleman regrets the course of events, but the passage of the programme motion has set in train a course of events and that is the reality of the matter. The only remedy would be for the House to divide upon fewer questions in the first group, but in relation to that I say simply two things to him and for the benefit of the House. First, on the merits of such a course of action—having fewer votes earlier—there would be different opinions in the House. Secondly, as he knows, such a remedy lies outside my hands.
European Union (Withdrawal) Bill
(5 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
16:15 - The House divided: - Ayes: 324 / Noes: 302 - Question accordingly agreed to.
16:31 - The House divided: - Ayes: 325 / Noes: 304 - Question accordingly agreed to.
16:45 - The House divided: - Ayes: 326 / Noes: 301 - Question accordingly agreed to.
16:58 - The House divided: - Ayes: 324 / Noes: 302 - Question accordingly agreed to.
17:13 - The House divided: - Ayes: 328 / Noes: 297 - Question accordingly agreed to.
17:30 - The House divided: - Ayes: 324 / Noes: 298 - Question accordingly agreed to.
17:45 - The House divided: - Ayes: 326 / Noes: 301 - Question accordingly agreed to.
17:58 - The House divided: - Ayes: 320 / Noes: 305 - Question accordingly agreed to.
18:12 - The House divided: - Ayes: 322 / Noes: 306 - Question accordingly agreed to.
18:25 - The House divided: - Ayes: 317 / Noes: 306 - Question accordingly agreed to.
18:38 - The House divided: - Ayes: 321 / Noes: 305 - Question accordingly agreed to.
19:16 - The House divided: - Ayes: 321 / Noes: 40 - Question accordingly agreed to.
Mr Speaker
I must draw the House’s attention to the fact that financial privilege is engaged by Lords amendments 3, 13, 18, 22, 72, 103 and 121 to 124.
Clause 1
Repeal of the European Communities Act 1972
The Secretary of State for Exiting the European Union (Mr David Davis)
I beg to move, That this House disagrees with Lords amendment 110.
Mr Speaker
With this it will be convenient to discuss the following:
Lords amendment 128, and Government motion to disagree.
Lords amendment 37, and Government motion to disagree.
Lords amendment 39, and Government motion to disagree.
Lords amendment 125, and Government motion to disagree.
Lords amendment 19, amendment (a) thereto, Government motion to disagree, amendments (i) and (ii) to Government amendment (a) in lieu, and Government amendments (a) and (b) in lieu.
Lords amendment 52, and Government motion to disagree.
Lords amendment 10, and Government motion to disagree.
Lords amendment 43, and Government motion to disagree.
Lords amendment 45, and Government motion to disagree.
Lords amendment 20, and Government motion to disagree.
Lords amendments 11 to 14, 18, 21 to 23, 44, 47, 102 to 107, 112, 113, 115 to 119, 121 to 124, 126, 127, 130 to 134, 136 to 140, 142 to 148, 150, 152, 154, 156 to 158, 171 and 172.
Mr Davis
Let me start with the obiter dictum that there is a difference between eating into time and exhausting patience.
Over nine months, across both Houses, we have debated more than 1,000 non-Government amendments and hundreds of Government amendments to the Bill. Before us today are 196 Lords amendments—the outcome of hundreds of hours of debate in the other place. I beg your indulgence, Mr Speaker, in paying tribute to my ministerial team who have brought the Bill this far: my hon. Friends the Members for Wycombe (Mr Baker) and for Worcester (Mr Walker), my hon. and learned Friend the Member for South Swindon (Robert Buckland), my hon. Friend the Member for Esher and Walton (Dominic Raab) and my right hon. Friend the Member for Aylesbury (Mr Lidington); and, in the other place, Baroness Evans, the Leader of the House of Lords, and her team—Lord Callanan, Lord Keen, Baroness Goldie, Lord Duncan and Lord Bourne. I extend the same thanks to Opposition Front Benchers.
It is worth at this early point remembering that the Bill has a simple, clear purpose: to ensure that the whole United Kingdom has a functioning statute book on the day we leave the European Union. That involves the considerable task of converting 40 years of EU law into United Kingdom law. This is an unprecedented task, carried out under a strict timetable.
The Government respect the constitutional role that the House of Lords has played in scrutinising the Bill and, whenever possible, we have listened to sensible suggestions to improve it. However, when amendments seek to—or inadvertently—undermine the essential purpose of the Bill, which is to provide for a smooth and orderly exit, or the referendum result, we must reject them. For example, on the interpretation of Court of Justice of the European Union case law, we have worked closely with former Law Lords such as Lord Hope, Lord Judge, Lord Browne, Lord Neuberger and Lord Thomas to develop a solution that has genuinely improved the Bill. Our other Lords amendments represent the outcome of similarly productive discussions. The role of the House of Lords is clear: to scrutinise legislation that comes from this House, not to recast it or repurpose it. Of course, it should not undermine decisions that were put before the British people in manifestos or in referendums.
The House of Commons’ improvements to the Bill span a number of areas, ranging from narrowing the types of deficiencies that can be corrected using the delegated powers in the Bill to bolstering the rights of individuals by extending the ability to bring certain challenges under the general principles to three months after exit day. I will address in turn the main issues covered by this group on which the House of Lords has asked this House to think again but where their lordships’ approach has either undermined the essential purpose of the Bill, or attempted to overrule well-considered amendments from this House.
The first such area is the sifting system proposed in this House by my hon. Friend the Member for Broxbourne (Mr Walker), the Chairman of our Procedure Committee. The proposal was that a committee would consider instruments subject to the negative procedure that were brought forward under the main powers in the Bill, and could recommend that they be subject to the affirmative procedure instead. This unanimous recommendation of the cross-party Procedure Committee was clearly born out of careful and detailed consideration by that Committee, and the Government were happy to accept it. My hon. Friend’s amendments were agreed by this House following an extensive debate.
What we have back from the other place—Lords amendments 110 and 128—is both an imposition on our procedures by the other place and a threat to the workability of the whole process of correcting the statute book. This is for two important reasons. First, a binding recommendation following the sifting process is not a recommendation at all—it is an instruction to the Government that would mark a significant departure from established procedures for handling secondary legislation. It is equally unacceptable, as the Chair of the Procedure Committee has noted, for the opinion of a Committee of the unelected House to govern procedure in this place. The Commons Procedure Committee’s proposals have teeth. As my hon. Friend the Member for Broxbourne said in December:
“The political cost to my Front-Bench colleagues of going against a sifting committee recommendation would be significant. The committee will have to give a reason why it is in disagreement, the Minister will be summoned to explain his or her Department’s position, and it will be flagged up on the Order Paper if a particular SI has not been agreed between the sifting committee and the Government. That will result in a significant political cost”.—[Official Report, 12 December 2017; Vol. 633, c. 266.]
He was right.
Secondly, although I understand concern about the pace at which committees will be required to operate, an extra five sitting days, as the Lords propose, would risk taking the process for a negative statutory instrument into what might well be its fifth or sixth calendar week. That would seriously jeopardise our ability to deliver a functioning statute book in time. For our part, the Government are poised to do everything we can to support the speedy work of the sifting committees. On a slightly wider point, I understand that the House of Lords wants to improve the Bill in various ways. Some of its changes can individually seem sensible and proportionate when seen in isolation, but the cumulative effect of those changes could sometimes make it impossible to deliver the smooth and orderly exit we want.
I turn now to the question of exit day. After considering the issue at length, this House accepted amendments tabled by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) that set exit day in the Bill, but allowed that time to be altered in the unlikely event that the exit date under article 50 differed from that written into the Bill. That is a sensible approach. It provides certainty about our exit day, but it also incorporates the terms of article 50. Let us remember that exit day will be determined by international law rather than by this House.
We discussed this issue at length when we considered the Bill that became the European Union (Notification of Withdrawal) Act 2017. Their lordships have suggested that this House abandons the conclusions of the lengthy and considered debates that we have already had on this issue by returning the Bill in broadly the same state in which it was first introduced. I accept the helpful scrutiny of the Lords on many aspects of the Bill, but this House has already reached a sensible position, which commanded a significant majority, and we propose to adhere to this House’s original decision on this matter.
At the heart of the Bill are the delegated powers that are essential for the United Kingdom’s orderly departure from the European Union. Those powers will ensure that the statute book continues to function as we leave the European Union. As we have consistently said, we do not take the powers lightly, which was why, in addition to the changes approved by this House, we made further amendments in the Lords. When using the principal powers in the Bill, Ministers must now give their good reasons for the changes they are making, exactly as the Lords Constitution Committee recommended. We have introduced further safeguards by preventing the powers in the Bill from being used to establish public authorities. We have also removed the international obligations power from the Bill entirely, as it has become clear that there are better and more effective ways to ensure that the Government’s international obligations continue to be met than through the use of that power.
That means that the approach before us is substantially different from what we first introduced, while still protecting the core purpose of the Bill. This reflects the fact that the Government have listened to the views of Parliament throughout the Bill’s passage, but we cannot accept Lords amendments 10, 43 and 45, which replace “appropriate” as a reason for using the powers to “necessary”. This House has accepted the premise of the Government’s approach to delivering a functioning statute book—specifically, that we will preserve and incorporate EU law, and then make the appropriate corrections via secondary legislation. Given the scale of the task and the speed necessary, that could never have been done through primary legislation, but at every turn we have sought to ensure proper parliamentary scrutiny.
Given that that fundamental premise has been supported, there needs to be sufficient flexibility for Ministers to propose changes that might not be strictly considered necessary, but that everyone here would think appropriate. “Necessary” is not a synonym for sensible, logical or proper; it means something that it is essential to do.
Joanna Cherry (Edinburgh South West) (SNP)
Does the Secretary of State recall that on page 21 of the original White Paper on the great repeal Bill, the Government pledged to make changes to retained EU law by delegated legislation only “where necessary”? Does he accept that if this House does not accept the Lords amendments, the Government will be breaking the pledge that they made in their original White Paper?
Mr Davis
With great respect, the hon. and learned Lady is a lawyer, and she knows that the words in an Act of Parliament matter, and matter very precisely, rather more than an individual word—[Interruption.] They matter very precisely. Let me explain why.
As I said, “necessary” is not a synonym for sensible, logical or proper. In many cases, changes such as correcting inconsistencies, changing terminology, removing redundant provisions, or improving clarity and accessibility could be left unmade, even if the consequences were perverse. That is not the best outcome for businesses or individuals across the United Kingdom. I do not believe that their lordships intended to constrain our ability to change the names of documents such as European aviation documentation. Nor do I think that they intended to require us to use cumbersome terms such as “national regulatory authorities of member states”, and then to have to designate our national regulators underneath that. That would be an inefficient way of making Ofcom the regulator for our open-access internet legislation, for example. This will be UK law, applied only in the UK. It would be confusing to businesses and individuals to keep laws that suggest otherwise, but such changes, while appropriate, might fail the “necessary” test.
Mr Dominic Grieve (Beaconsfield) (Con)
I understand the point that my right hon. Friend is making, but I have to say that I am not sure that I agree with him. I think that all the examples that he has given would meet the necessity test without any difficulty at all. Where the necessity test provides a higher bar is that if it were thought that a Minister was using powers to change legislation in a way that was not necessary, he would be prevented from doing so. My right hon. Friend cites examples, but I just do not think that the test would be a problem for a Minister at all.
Mr Davis
My right hon. and learned Friend, as I have known for a long time, is a very good lawyer, but I am afraid that other lawyers disagree quite seriously.
The Lords amendments effectively increase the risk of judicial review. What that does—[Interruption]. This is an incredibly serious point, because that process asks judges to make a policy decision that this House should be making by saying yes or no to a statutory instrument. It really is as simple as that.
Mr Kenneth Clarke (Rushcliffe) (Con)
I am rather sorry that my right hon. Friend is so distrustful of judges on what are essentially procedural or constitutional matters, but could he define “appropriate” to me? It is one of those vague words that I suspect means “if the Minister feels that he or she wants to, one way or the other”. A decision could almost certainly not be challenged by judicial review, because the word is so wide and vague that there is no conceivable argument that could be raised to challenge the Minister’s opinion. We cannot take powers in that way meaning that the Government are able to legislate on matters that will be important to some individuals entirely at a Minister’s uncontrolled discretion.
Mr Davis
I hear my right hon. and learned Friend—and old friend, because we are still capable of having a dinner for two hours and not talking about Europe throughout it; in fact he paid, and it was lunch.
The simple fact is that we are not just leaving this to a single word. As I said earlier, the House of Lords Constitution Committee looked at the matter, in the context of this Bill and the sanctions Bill, and said that we should require the Minister to give “good reasons”—that was the test—which is what we have proposed in our amendment.
Mr Davis
If the hon. Lady will forgive me, I will make a little progress, because I am quite sure that my next section will provoke quite a lot more interventions than the last one.
Let me turn to Lords amendment 19 and parliamentary approval of the outcome of the negotiations. This is the Hailsham amendment, which Lord Bilimoria described in the other House as the “no Brexit” amendment. What it amounts to is an unconstitutional shift that risks undermining our negotiations with the European Union. It enables Parliament to dictate to the Government their course of action in international negotiations. [Interruption.] Labour Members ask what is wrong with that. Well, I will read them a quote from Professor Vernon Bogdanor, who is not exactly a well-known leaver, but he is a constitutional expert. He described this at the weekend as “a constitutional absurdity” that
“would weaken the position of Britain’s negotiators.”
I agree with him that this is not practical, not desirable and not appropriate.
Chuka Umunna
I am very grateful to the Secretary of State for giving way. What the Lords amendment seeks to do is to reassert parliamentary sovereignty such that this House approves and gets to vote on every scenario that can be conceived of in terms of the way that we withdraw from the European Union. On the Secretary of State’s amendment, may I ask him a factual question? I am not asking him whether or not he thinks we will be in a situation where there is no deal. I am simply asking him this: is it not the case that his amendment to Lords amendment 19 gives his Government a passport to take this country out of the European Union with no deal, with this House having had no say on it whatsoever?
Mr Davis
I start by saying to the hon. Gentleman that I respect his point of view. He has the honesty to say that he would like us to stay in the European Union irrespective of the referendum result. Although I disagree with it, it is honest position to take. But what he describes as giving the Government the right to take us out of the European Union under, frankly, any circumstances was article 50, which was passed by this House and the other House by a very large majority, so I am afraid that he is not right in that respect.
Mr Davis
I will give way in a moment.
It is accepted practice that Governments negotiate treaties, and this was the case for the European Communities Act 1972, the Lisbon treaty, the Nice treaty, the Amsterdam treaty and the Maastricht treaty. I do not remember any argument over Parliament undertaking those treaties from people who today argue that this amendment is appropriate.
Frank Field
I hope that our Whip’s Office is kinder than the Government’s Whip’s Office will be in getting this measure through.
Mr Speaker, I hope to catch your eye in a moment to talk about what the effects on the Labour vote will be in those constituencies that voted to leave, but on this crucial issue, is it not true that if we pass what the Lords want us to do, we, as Aneurin Bevan said, will be sending our negotiators back naked into the negotiating room? The European Union will know that the Government are beaten and that it can then impose any terms whatsoever on them.
Mr Davis
The right hon. Gentleman makes a very good point. It is certainly the case that the European Commission reads every newspaper in Britain, particularly the Financial Times and The Times. It reads them all, but, more surprisingly, it believes them. The simple truth is that it looks at any option that it thinks the British political system will throw up, which will allow it to get a negotiating advantage. Let us remember, too, that most, if not all, of the 27 would much rather that we did not leave—full stop. If it sees an opportunity to create that outcome, that is what it will do.
Mr Davis
I want to make a little progress, and then I will give way again.
Furthermore, the Lords amendment sets deadlines that would simply allow the other side to use time against us, as it has already tried to do. What we have proposed in lieu is an amendment that builds on commitments that I first set out to the House in a statement on 13 December last year. The amendment provides that the withdrawal agreement cannot be ratified unless both the agreement and the future framework have been approved by a motion of this House. It also prevents the agreement from being ratified unless an Act of Parliament has been passed to implement it. This is all before the Constitutional Reform and Governance Act 2010 as well. Therefore, this is in addition to the Government’s commitment to introduce the withdrawal agreement and implementation Bill if Parliament votes in favour of a final deal.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
I am very grateful to the right hon. Gentleman for giving way. It is not clear what the choices are on a meaningful vote. Is a meaningful vote going to be between the deal that might be struck with the European Union on the current status quo, or a deal struck with the European Union and the World Trade Organisation? We need to know that.
Mr Davis
People keep using the phrase “meaningful vote”. What it conceals in some cases, and I suspect that that is the case for the hon. Gentleman, is that they want to reverse the result of the referendum, and nothing we do will be organised to allow reversal of the result of the referendum.
Mr Davis
I will give way in a moment.
The Government have also made provisions to allow the vote to happen in this House before the European Parliament votes on the deal, as long as it is practical. This follows the spirit of the Lords amendment, but our proposal has some significant differences. First, we have attached a deadline to the Lords’ consideration of a motion on the final deal. It is not right that the Lords could have a veto on the deal simply by filibustering or refusing to consider the motion. Anyone who suggests that this is unlikely should consider that it was a concern raised by their lordships’ themselves in debate.
Stephen Gethins (North East Fife) (SNP)
Will the right hon. Gentleman give way?
Mr Davis
Not for the moment, no.
Secondly, we have removed Parliament’s power to give binding negotiating directions to the Government. As I have said, this would represent a profound constitutional shift in terms of which branch of the state holds the right to act in the international sphere. I turn again to Vernon Bogdanor, who said:
“Parliament’s role is to scrutinise legislation and policy; 650 MPs, still less 800 peers, cannot themselves negotiate.”
Mr Davis
I will give way in a moment.
Instead, we have provided that, in the event that Parliament rejects the deal put to it, the Government will be legally obliged to make a statement on their proposed next steps in relation to article 50 negotiations within 28 days of that rejection. This House would of course then have plenty of tools at its disposal to respond, but I am as confident as ever that we will secure an agreement that this House will want to support.
Stephen Hammond
I think that everybody in this House would accept my right hon. Friend’s proposition that we cannot bind the negotiations, but clearly the point of concern, which he is getting to now, is this: if there were no deal, does the amendment in lieu cover that circumstance? If it does not, how does he propose to deal with that?
Mr Davis
If there were no deal for some reason other than the House rejecting it—it is incredibly, almost implausibly, unlikely, but let us imagine that the Government decided that they would not have a deal at all—we would of course do the same thing and come back and make a statement to the House, and the House would then have the right to respond.
Mr Grieve
I am grateful to my right hon. Friend for giving way. I recognise some of the problems that he has and why the Government came forward with their amendment in lieu, and some of the deficiencies that can be identified in the Lords amendment. But the simple fact is that the Government have not made provision for no deal, and there is a way of doing it. The amendment that I have tabled provides a mechanism for doing that. One of the key issues for me at the end of this afternoon will be whether we make some progress on having a proper structure to address no deal. I do not think that this Bill can finish its course and get Royal Assent until we have that.
Mr Davis
I thank my right hon. and learned Friend for his view on this. He sort of expressed it in an amendment that he tabled late last night, so I only saw it this morning. I have not really had a lot of time—[Interruption.] Well, this is an interesting demonstration of the Labour party’s perception of how easy it is to make constitutional law on the fly. Its own voters will come to a view on that.
Let me say this with respect to my right hon. and learned Friend’s proposed amendment—as he knows, I am always open to have a conversation with him on this although he seems to have fallen foul of my telephone security system—I always want to keep three principles in mind. First, we must never do anything that undermines the Government’s negotiating position, or encourages delays in the negotiations. That is very, very important. Secondly, we cannot change the fundamental constitutional structure, which makes the Government responsible for international relations and international treaties.
Mr Davis
In a moment.
We cannot do that. This constitutional structure has stood for hundreds of years and many thousands of treaties. As I said earlier, nobody suggested for a moment that the House of Commons should negotiate the Maastricht treaty, the Lisbon treaty, or one or two other controversial treaties that came before the House. We cannot change that structure now, on this basis.
Mr Davis
Not for the moment.
Thirdly, we must—under all circumstances—respect the result of the referendum. That is what this House voted for when it voted on article 50. I am very happy to talk to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) again in the next day or two, and we can discuss how we can meet his concerns in that time, within those principles.
Sir Edward Leigh
Is not the kernel of the problem that all the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and others make no deal more likely, because they give every incentive to the European Commission not to agree to a deal? The amendments would bind the Government and we would end up with the worst possible result. Therefore, they should be resisted.
Mr Davis
My hon. Friend goes to the heart of the problem, which is that we have to consider that anything passed in this House and the other House will have a very serious effect on the negotiating strategy of the other side. I hope that this House will recognise that the Government have taken a fair and positive approach to the new clause, retaining those elements that are sensible and viable, while removing those elements that are practically and constitutionally untenable. These constitutional and practical concerns also apply to Lords amendment 20, on a mandate for negotiations on the future relationship. The Government cannot demonstrate the flexibility necessary for a successful negotiation if their hands are tied mid-way through that process. That will do nothing but guarantee a bad deal for Britain. It is for the Government to set the direction during the negotiation. That is the key point.
I do not need to remind the House about the importance of this legislation. The purpose of this Bill is to maintain a functioning and effective statute book when leaving the European Union—a statute book that people and business can rely on. That is what our approach will deliver.
Matthew Pennycook (Greenwich and Woolwich) (Lab)
May I start by paying tribute to their lordships for the diligent and considered manner in which they so thoroughly scrutinised the Bill? In particular, I pay tribute to Labour colleagues in the other place for the extensive effort they put into securing many of the cross-party amendments that we are debating today.
This Bill began life as a fundamentally flawed piece of legislation. Many of its original flaws stem, I suspect, from the fact that at the time it was being drafted, the Government had yet to fully work through precisely how withdrawal would have to take place. Indeed, some of us still remember the Secretary of State’s glib dismissal of the need for any transitional arrangements after 29 March next year, and the misplaced magnanimity with which he made it clear that he would only consider granting transitional arrangements to “be kind” to the EU. But as with so many aspects of the Brexit process—even if not yet in every respect—reality has slowly caught up with the Government, just as the very real deficiencies in this Bill have now been subject to thorough scrutiny in the other place.
If anything has vindicated the Opposition’s decision to vote against this legislation on Second Reading, it is the succession of defeats that the Bill has faced in both Houses, as well as the scores of amendments that the Government themselves have had to table. That said, after successive defeats in the other place and the latest round of concessions from Ministers, some of the worst aspects of the Bill have been ameliorated.
As we only have three hours of debate on the first group of amendments, I intend to touch only briefly on most of the Lords amendments towards the end of my remarks, and focus instead on what we believe to be the critical issue in this first group. That is the issue of what form parliamentary approval of the withdrawal agreement should take. Many of the amendments passed in the other place are of great significance in terms of their constitutional implications and how they might shape what is left of the Brexit process. It is deeply disappointing that the programme motion only allocates 12 hours to debate them.
Graham Stringer (Blackley and Broughton) (Lab)
Rather than praising the Lords for the number of amendments they have passed, would it not be more in line with Labour party philosophy and views to say that they have gone way beyond their constitutional remit in trying to overturn not only the decision of the electorate but the decisions of both the Labour party and Conservative party manifestos, which together received 82% to 84% of the vote at the last general election?
Matthew Pennycook
I respect my hon. Friend’s argument and his long-held views, but I have to fundamentally disagree. None of their lordships’ amendments seeks to frustrate the Brexit process in any way or to allow this House to overturn the referendum result.
Wes Streeting
I am very grateful to my hon. Friend for giving way, and pay tribute to the work that our Front-Bench Brexit team in this House and in the Lords have done to improve the Bill. The Secretary of State was not courageous enough to take my intervention, so may I ask my hon. Friend what does more to harm the Prime Minister’s hand at the negotiating table—the principle of parliamentary consent; the Foreign Secretary making damaging, unguarded remarks at a private dinner; the Brexit Secretary playing the hokey cokey about whether he is going to stay in the Government; or the spectacle of Ministers resigning because their own Government are too intransigent to listen to the constructive and sensible direction on Brexit that many of us would like them to pursue?
Matthew Pennycook
My hon. Friend makes a good point. There is nothing more damaging. As the Secretary of State himself said, the EU monitors with great interest developments in this House and what is said across the country. It sees the open warfare and disagreement in the Cabinet and the Foreign Secretary continually undermining the Prime Minister’s approach.
Emma Reynolds (Wolverhampton North East) (Lab)
Will my hon. Friend give way?
Matthew Pennycook
I am just going to make some progress.
Lords amendment 19 is of critical importance. In many ways, it is the most important amendment that we will consider over the 12 hours allotted. Before I explain why and set out the reasons why we agree with Lords amendment 19 and disagree with the Government’s amendment (a) in lieu, it is worth taking a little time to remind the House how we arrived at this point.
As hon. Members may recall, before 7 February last year Parliament was to be given absolutely no role in approving the final terms of the UK’s exit from the EU, because there was no commitment from the Government to a parliamentary vote of any kind. Under pressure, the then Minister, the right hon. Member for Clwyd West (Mr Jones), came to the Dispatch Box during the Committee stage of the European Union (Notification of Withdrawal) Bill with a concession—a vote on a motion in this House and the other place on the article 50 deal, including the framework for a future relationship. We welcomed that concession, but we were clear that it did not provide for a meaningful vote, merely a vote on a non-binding motion and one that would essentially take the form of “take it or leave it”—accept the final draft withdrawal agreement, even if it is found wanting, or accept that the UK will walk away without a deal, triggering the hardest of departures from the EU.
Mr Speaker
Order. No discourtesy intended to the right hon. Gentleman, but I think that the hon. Member for Greenwich and Woolwich (Matthew Pennycook) had the hon. Member for Wolverhampton North East (Emma Reynolds) in mind.
Emma Reynolds
Is it not the case that some of the staunchest Brexiteers, including the Secretary of State himself, have always defended parliamentary sovereignty, but when it comes to a meaningful vote on the deal, they seem to ignore it?
Matthew Pennycook
That is absolutely right, and I thank my hon. Friend for that point.
Frank Field
Some people in this House have been quite clear that they want to prevent Brexit. Others disguise that fact with the very careful construction of terms. In the Lords, where there are no constituencies to vote Members out—sadly—people have been more honest. Surely my hon. Friend was wrong to say that there was nobody in the Lords who was saying that this was actually a “stop Brexit” vote; we have already heard a quotation. The aim was to prevent Brexit; the Lords have no responsibility to anybody and they said that that was their aim.
Matthew Pennycook
I have to disagree with my right hon. Friend’s point. I did not say that there were no lordships that do not intend to block Brexit, just as there are hon. Members in this House for whom that is the intention. But the aim of the Lords amendments, as they are designated, is not to frustrate Brexit. There is no majority in this House for overturning the referendum result, as my right hon. Friend well knows. It is disingenuous to say that that is the aim of this amendment.
Mr Speaker
Order. I know that the hon. Gentleman is not accusing any individual Member of being disingenuous—[Interruption.] I need it to be clear that that is not the case. Would the hon. Gentleman be good enough just to confirm that he is not making any such suggestion?
Matthew Pennycook
Thank you, Mr Speaker.
As I was saying, the choice that faces us under the Government’s amendment is between the draft withdrawal agreement, even if it is found wanting, and the hardest of departures—the most disorderly exit. Let us remind ourselves of what that would mean: legal chaos, significant damage to our economy, the erection of a hard border in Northern Ireland and serious harm to Britain’s standing in the world. That is why in Committee we tabled new clause 66, which would have guaranteed both Houses a vote on the motion on the terms of withdrawal—and, just as critically, a vote in the event that no such agreement is reached.
Matthew Pennycook
I am going to make a bit of progress.
However, we also recognised in Committee stage that there were other requirements needed to ensure that Parliament has a meaningful vote, one of which is the need for a vote on a statute. That is why we supported amendment 7 in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve) and other hon. Members—an amendment that ultimately passed in this House by 309 votes to 305. That amendment took a slightly different approach in that it was quite deliberately aimed at restricting the use of, and limiting the potential abuse of, the extensive and wide clause 9 power in the Bill as it then stood.
Sir William Cash (Stone) (Con)
Would the hon. Gentleman care to reflect on the fact that the decision to transfer the vote to the people was done quite deliberately and voluntarily by this House by six to one, as a sovereign Act of Parliament? Any attempt to reverse that is in defiance of the decision that was taken by Act of Parliament.
Matthew Pennycook
The hon. Gentleman makes the same point as many others have done, and I have dealt with it in saying that their lordships’ amendment is not about overturning the referendum result. [Interruption.] No, it is not—not at all. It is about giving Parliament a say in shaping the direction under one scenario that could well occur.
Angus Brendan MacNeil
Would it not be one of the most supreme ironies of this entire Brexit debacle if, at the end of it, the European Parliament has a meaningful vote and 27 member states have a meaningful vote, but the state that is leaving—and leaving in a state—does not have a meaningful vote?
Matthew Pennycook
The hon. Gentleman makes a good point. The Commission cannot approve the deal on the European Union side until the European Parliament has given its consent, and if it does not give its consent, the Commission cannot move on and ratify.
Ms Angela Eagle
My hon. Friend is making the points about a meaningful vote with a great deal of power. Does he agree that if we get to a stage—which I suspect some Eurosceptics want—where we are approaching a disorderly, no-deal, hardest-of-hard Brexits, this House has a right not to be given a fait accompli of a deal that is inadequate, or no deal at all? Is that not what this battle to have a meaningful vote on the deal is actually all about?
Matthew Pennycook
My hon. Friend is absolutely right. That is the choice that faces every hon. Member in the Chamber today when we come to vote on Lords amendment 19.
Matthew Pennycook
I am going to make some progress.
I want to return to amendment 7 in the name of the right hon. and learned Member for Beaconsfield. As I said, that amendment took a very different approach that was about restricting the clause 9 power. That amendment having been passed, the Government cannot now give the final withdrawal agreement domestic legal effect without first gaining parliamentary approval in primary legislation for the planned EU withdrawal and implementation Bill. But what his amendment 7 did not do, consciously and deliberately—I remember him saying so at the time—was deal with a scenario in which Parliament does not approve the draft withdrawal agreement. That scenario, I would argue, cannot be ruled out given how badly this Government are handling the negotiations and the limited time they have left before agreement must be reached.
Several hon. Members rose—
Matthew Pennycook
I am going to make some more progress.
With their new clause, their lordships have developed the right hon. and learned Gentleman’s amendment 7 in its guarantee of a statutory vote and made explicit provision for what would happen if Parliament were not to approve the deal when it is put before us later this year. In those circumstances, under the provisions of their lordships’ amendment, it would be for Parliament, by resolution of this House—the Government having found time for that resolution—and subject to consideration in the other place, to give direction to the Government about how then to proceed. It is not about Parliament taking over the negotiations or about stripping Ministers of their authority to make decisions.
Richard Graham
The hon. Gentleman said earlier that no Lords amendment is intended to frustrate the result of the referendum, but amendment 19 says very clearly that Her Majesty’s Government
“must follow any direction in relation to the negotiations…approved by a resolution of the House of Commons, and…subject to…a motion in the House of Lords.”
That is entirely transferring responsibility for the aims and the detail of everything we negotiate to Parliament and away from the Government. Can he name any precedent for that in the whole history of this nation?
Matthew Pennycook
If such a scenario were to occur—this is the important point; I take head on what the hon. Gentleman has said—it would be for Parliament, although we are talking about any unknown number of hypothetical situations at that point, to direct the Government by resolution. Is he saying that Parliament would come forward and support a resolution to overturn the referendum result? There is no way that that could happen. He knows that there is no majority for that in this House.
Matthew Pennycook
No, I am going to make some progress.
The aim of this amendment is to establish a clear process, with appropriate deadlines, by which Parliament can approve the outcome of the article 50 negotiations, and to provide clarity on what should happen if a majority of hon. Members in this House come to the conclusion that the final deal the Government return with is not good enough for the country.
Several hon. Members rose—
Matthew Pennycook
I am not giving way; I will make some progress.
The amendment is about ensuring that in a scenario where this House rejects the withdrawal agreement, Parliament does not then simply become a passive spectator to what happens next but instead secures a decisive role in actively shaping how the Executive then proceed.
Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)
My hon. Friend has said that supporting this amendment would not necessarily lead to a resolution of this House saying that we wish to maintain membership of the European Union. Can he explain, for the purposes of clarity, what safeguards are in place to prevent such a thing from happening, given that we cannot bind Parliaments and that, as such, if we vote for this amendment, we could resolve to tell the Government that re-entry is the point of the negotiation?
Matthew Pennycook
My hon. Friend is dealing in hypotheticals. Under that scenario, it might be the case that an hon. Member tries to bring forward a resolution, and that the Government provide time, but does he believe, realistically, that such a resolution could pass and would command a majority in this House? It would not.
This is not about frustrating Brexit. Ministers know full well that there is no majority for that in this place, and it is disingenuous, as I said, to argue as much. Lords amendment 19 is about trusting this sovereign House of Commons to do what is right for the country.
Joan Ryan (Enfield North) (Lab)
Does my hon. Friend agree that it is Government’s job to bring forward policy and Parliament’s job—the Commons, in particular—to legislate? It seems to me that far from taking back control or establishing sovereignty, the Government appear to want to deny Parliament its fundamental role as legislator.
Matthew Pennycook
My right hon. Friend makes a good point.
Lords amendment 19 is about trusting this sovereign House of Commons to do what is right for the country should it come to pass that the Government bring back a deal that does not secure approval in this House.
Matthew Pennycook
I will not give way.
By contrast, the Government’s amendment (a) in lieu of amendment 19 would guarantee precisely the opposite. It would ensure that in the event that this House does not approve the withdrawal agreement, Parliament would have almost no role whatsoever.
Matthew Pennycook
I am not going to give way at this point.
Yes, the amendment provides for a statutory guarantee of a vote before the withdrawal agreement is put on the statute book, but it removes from the Bill what their lordships deliberately chose to insert: provision for the legislature to constrain Ministers in deciding to crash us out of the EU without a deal should Parliament choose to reject the deal. What does the Government amendment offer in its place? It offers provision to send a Minister back to the House within 28 days with a statement—a statement!—as to how the Government intend to proceed: a commitment that does not go much beyond what was set out in the written ministerial statement that was hurriedly issued on 13 December in a last-ditch attempt to thwart the House in voting for the right hon. and learned Gentleman’s amendment 7.
Matthew Pennycook
I am not giving way; I will make some progress.
It almost beggars belief. The vast majority of Members of this House want the Government to succeed and to return with the best deal possible, but let us be clear about what it would mean were the House to decline to approve the deal they bring back. That would represent a catastrophic failure of the Government’s Brexit policy and their handling of the negotiations. In such a scenario, are hon. Members really content for the sum of their role to be the chance to listen to a ministerial statement and attempt to catch the Speaker’s eye to ask a question? That is what hon. Members will be giving their consent to if they vote for the Government’s amendment in lieu today. It is the same “take it or leave it” vote that the Government offered last year, with a few extra baubles.
John Mann (Bassetlaw) (Lab)
Does my hon. Friend understand that Labour voters in the midlands and the north, who voted in large numbers to leave the European Union and who are a little bemused at the arguments even among the Cabinet over how that is delivered, do not wish to see the negotiations carried out by 650 Members of Parliament and want to see Brexit got on with? If the Lords amendments are agreed to, how will we explain to those Labour voters that the unelected House of Lords can overturn both the Commons and the referendum?
Matthew Pennycook
I will tell my hon. Friend how we will explain it to them. We will say that their lordships asked us to consider and vote on whether, in the event that a majority of Members of this House do not approve the deal, we should take control of the situation and shape how the Executive then proceed. I think they would support that.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
Will my hon. Friend give way?
Matthew Pennycook
I am going to make some progress.
There has been a considerable amount of debate over the past 16 months about what is meant by a “meaningful” vote. Any member of the public watching our proceedings today will struggle to understand how a vote on the draft withdrawal agreement that simply takes the form of “take it or leave it” could in any sense be genuinely meaningful. In reality, it would be anything but. It would be meaningless, not meaningful. It would be a Hobson’s choice.
Simon Hoare
I am grateful to the hon. Gentleman for giving way. I put it to him gently that his proposition presupposes that the European Union would wish to re-engage in negotiations. Were there to be a meaningful vote and this House were to veto the deal, we would be likely to crash out without a deal and not deliver the pragmatic common-sense Brexit that I think he and I would like to see.
Matthew Pennycook
I disagree with the hon. Gentleman. Crashing out of the European Union without a deal is exactly what this amendment is designed to prevent. [Interruption.] Yes, it is.
Kevin Hollinrake (Thirsk and Malton) (Con)
Will the hon. Gentleman give way?
Matthew Pennycook
I said that that was the last intervention; I am not giving way again.
I want to turn briefly to the amendment tabled yesterday evening by the right hon. and learned Member for Beaconsfield. We welcome it as a significant improvement on the Government’s amendment in lieu. His amendment is a clear acknowledgment that the Government’s amendment is deficient, that there is a need to make provision for a scenario in which Parliament does not approve a motion on the withdrawal agreement and that this House may need to insist on a decisive role for Parliament in what we all acknowledge would be an unprecedented situation.
We recognise that the right hon. and learned Gentleman has, throughout this process, been at great pains to secure a consensus around how this complex legislation can be improved in the context of the many challenges that the Government face. In taking such an approach, his and his colleagues’ intent has not been, as many have suggested and as is plastered across the front of many of the tabloids today, to sabotage the will of the people or betray their country. They are simply trying to secure what the vast majority of hon. Members of this House desire: a proper process codified in law that ensures that the right decisions are made at the right time and that Parliament has the tools to hold the Executive to account effectively on some of the most significant decisions any of us will be asked to take.
Matthew Pennycook
I am not going to give way; I am going to conclude.
The question of what form parliamentary approval of the withdrawal agreement takes is one of the most significant decisions this House will have to take. To be meaningful, a vote cannot simply take the form of a binary “take it or leave it” choice. It must provide a means by which Parliament can indicate to the Government that it desires a re-examination of particular aspects of the draft withdrawal agreement or even a change of approach. Unless hon. Members insist on it, Parliament will not have a genuinely meaningful vote on the terms of our withdrawal, as this House insisted upon in December. That is why we must insist on it and why I urge hon. Members to agree with Lords amendment 19 when we go through the Division Lobby in a few hours.
I want briefly to turn to some of the other Lords amendments in this group, starting with Lords amendments 37, 39 and 125, with which we agree. We remain of the view that amending the Bill to incorporate a specified exit day and time was an ill-conceived and unnecessary gimmick that unduly fetters the Government. Ministers are well aware, just as they were when they amended the Bill in Committee, that exit day for the purposes of the Bill is a very different matter from the actual date on which the UK will cease to be an EU member state, which is a settled matter and a legal certainty. Common sense dictates that we return to the situation before November in which there was a necessary degree of flexibility around exit day for the purposes of the Bill, although we agree with their lordships that it is Parliament, not Ministers, who would agree the various exit dates.
We agree with amendments 110 and 128, which we believe strengthen parliamentary scrutiny—for example, by ensuring that Ministers cannot overturn decisions made by the triage committee. We also agree with amendments 10, 43 and 45, which rightly circumscribe the scope of the sweeping delegated powers in the Bill. We debated that issue extensively in Committee, and we remain of the view that concerns about the subjectivity inherent in the word “appropriate” must be addressed. Lastly, we agree with amendments 20 and 52.
I know that many Members on both sides of the House wish to speak, so I have sought not to repeat or rebut every argument made about each of the Lords amendments in this group with which we agree, but simply to set out, with particular focus on Lords amendment 19, why we believe they must be retained.
Matthew Pennycook
I am not going to give way at this stage.
The amendments in this group are, at their core, about what we, as hon. and right hon. Members, believe the role of Parliament should be in the Brexit process. They are about ensuring that Parliament plays an active role in shaping our country’s future, rather than accepting that the House of Commons is to be little more than a spectator and a passive observer to one of the most important decisions that has faced our country in generations. They are about ensuring that the withdrawal agreement cannot be ratified unless we approve it and, in the event that we do not approve it, that the UK cannot crash out of the EU by ministerial fiat. They are ultimately about reasserting the primacy of the House of Commons, so that this House, should the situation arise, is able to do what is right for our country.
Mr Kenneth Clarke
Thank you for calling me, Mr Speaker. I will try to be as brief as I can. Everybody knows that that is an effort for me, but I really will try to be positively terse where I can, and I am afraid that if I give way at all, it will be very briefly. That is only right, because the programme motion we have just passed, which I voted against, allows just three hours for debate on this whole group. I am well aware that hundreds of Members will find it almost impossible to get in, and therefore if I abuse the privilege you have given me, Mr Speaker, I should cause a great deal of damage to the quality of the debate.
First, let me say that I have never known an issue of this importance to be taken in this way. I remember being in debates on the European Communities Bill back in 1972 and in debates all the way through Maastricht, when there were hours and hours of debate and repeated votes before the approval of this House was obtained. Nobody throughout would have dreamt of arguing that as part of the process, the House of Commons could be excluded and the Government could be given an absolute privilege to proceed. Such a suggestion would have been treated as a complete absurdity.
Mr Clarke
I will not, I am afraid, because had the suggestion been put to my hon. Friend during the Maastricht debates that if the Government got defeated on a resolution, they could take it over on their own and let Parliament know in due course what was going to happen, I do not think he would have welcomed it. I understand that we are in a different position.
Sir William Cash
Will my right hon. and learned Friend explain whether he believes it is possible, with the meaningful vote, to manage to maintain the Brexit process? Does he not accept that the effect of the meaningful vote is actually to reverse the Brexit process, and furthermore, to use a certain expression, that it is completely failing to understand the nature of the amendments to suggest otherwise?
Mr Clarke
I am grateful my hon. Friend—he is a genuine personal friend, and always has been—and he has brought me to the point I was moving on to.
This debate is being dominated, as far as the Brexiteers are concerned, by the argument that the amendment on the meaningful vote—Lords amendment 19, as amended by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—is really an attempt to get around the referendum. For the past several months, I have found that I am told on practically every subject, when the details get a little difficult and the argument gets a little odd, “Ah, you’re not accepting the will of the people.” I first faced that when I opposed our withdrawal from Euratom, and I still do not believe that the public voted for that.
For the avoidance of doubt, as I have repeatedly made clear, I was on the losing side in the referendum—much as I regret it—but after the majority on article 50, we are going to leave the European Union. I have not joined the campaigns to have a second referendum, and I hope I do not live to see another referendum on such an important subject in my lifetime. The fact is that the key decision was then taken, but I will not go back over the quality of the debate and the arguments put forward by the leading figures on both sides that then dominated the national media.
Once the decision was taken by this House, on invoking article 50, that we are leaving, hundreds and hundreds of detailed questions arose about what new arrangements we are going to have for our relationships with the European Union on a huge range of subjects, some of which we have scarcely looked at at the moment, and for our relationships with the rest of the world, because all our trade agreements are based on the European Union as that is how we have entered into them for the past several decades.
The idea that the yes/no vote—leave or remain—on referendum day actually decided each and every issue that now arises, if I may say so to people for whom I actually have respect, is, frankly, intellectually lazy. It is a refusal to engage with what we are actually talking about. I realise that many of the public are exasperated. The prevailing mood among the public is, “What are they all doing, and why don’t they get it over with?” I am sorry about that, but the fact is that leaving poses a lot of questions. I do not think that most members of the public feel that their vote decided the issues we are talking about today in relation to parliamentary scrutiny and control. I am only guessing, but if we had said, “Of course, if you vote leave, you are giving the Government the absolute right to do what they wish in the negotiations and come to whatever agreements they want,” I do not think it would have been easy for my right hon. and hon. Friends to get a majority for such a proposition.
Let me get on to what we are really talking about, because I have already taken longer than I wished. As I have said, any suggestion that Parliament should hand over absolute discretion to any Government to handle such things would have been treated with absolute outrage, not the usual cheers and counter-cheers, expressed to any Minister who dared to do so. It is said—the hon. Member for Bassetlaw (John Mann) is persuaded by this, but I do not agree with him—that the next argument we will face is, “Well, what you’re saying is that the House of Commons should take over the negotiations.” Of course we are not. I quite agree that that is a ridiculous proposition.
The Lords amendment was proposed by my right hon. and learned Friend Lord Hailsham. As we are all aware, he and others gave a lot of thought to putting together a parliamentary process that would be practicable and workable; the drafting might be improved, but the Government could have done that if their lawyers thought it was worth while. My right hon and learned Friend had in mind that a further resolution would be required, but this second resolution, after the proposed settlement had been rejected, would of course be moved by a Minister. The amendment tabled by my right hon. and learned Friend the Member for Beaconsfield makes that even clearer. The idea that we would have a mass meeting of 650 people to decide what resolution to put forward is not postulated in the Lords amendment, and nobody is suggesting that.
Mr Mark Harper (Forest of Dean) (Con)
Will my right hon. and learned Friend give way?
Mr Clarke
No, I have taken too long already. I apologise to my right hon. Friend.
The Government would of course be in a bit of a dilemma—I imagine we would all be even more excited than we have been for the past few days—but the fact is that they would have to go away and work out what resolution to bring forward that would carry the House of Commons. I assume that would be a continuation of the negotiations, but the House would demand that its approval was sought for the next turn in the negotiations, and the directions in which they would go, to satisfy its objections. I regard that as a perfectly serious proposition.
The public debate on the whole question of Brexit has largely been ridiculous—not just in the Daily Express, but in many other areas—but in this place we actually need to take seriously what we are doing not only for the future prospects of generations of our citizens, but for the constitutional position of this House. We have already given up all kinds of things that I have always taken for granted. I have never known such a weak Parliament for allowing things to get through, ending with the latest timetable resolution, but to take the Government’s amendment would be the ultimate in doing so.
With this amendment, the Government have had to accept the decision of the House when we successfully defeated them before Christmas. They have had to come back and set out a better process of parliamentary approval before ratification. The big question then is: what if the Government reject it and there is no deal? In the House of Lords, the Minister was quite clear in resisting the amendment: “Oh, this meaningful vote is going to be deal or no deal—take it or leave it.”
Mr Clarke
No, I will not give way.
It would be a yes/no vote. Members may not like the deal, but if they vote against it, all they will get is no deal. The result is that, whatever deal they come forward with, only a handful of my right hon. and hon. Friends would vote against it, because they do not want any deal at all, but they are an absolutely tiny minority in this House of Commons.
What do the Government say in their amendment that the House will be faced with? The amendment says that, within 28 days, a written statement will be produced. It will be one of the piles of written statements we have every day, and—dare I suggest it?—not every Member of Parliament usually bothers to go through those piles of written statements every day. [Interruption.] Well, obviously I am exceptionally negligent in not doing so. What is the written statement going to say? It could say, “Well, in that case, as there’s no deal, we’re leaving.” or, “Well, we’re going to do this, and that’s it—that’s the end of the parliamentary process.” It might as well say, “O House of Commons, get lost!” This is a wholly inadequate response to the votes we will have had in Parliament.
Several hon. Members rose—
Mr Clarke
No, I want to make two more points. I will now be very brief, and I will not expound on all the points I would have expounded on.
The argument that we are undermining the Prime Minister’s position in the negotiations is equally ridiculous. It is based on the proposition that, out on the continent, people do not know that there are divisions in the Cabinet or what the situation is in the House of Commons, and were a whisper to get out about some slightly unusual votes in the House of Commons, this would undermine the position of my right hon. Friend the Secretary of State and the Prime Minister and make that position much weaker.
I suspect that the feeling among those on the continent at the moment is that they are utterly bewildered by the Anglo-Saxons and that they have no idea what we think we are doing. They are not hostile to this country; they are waiting for us to make up our minds about what we wish to negotiate before the negotiations start. All the other Governments have to get the approval of 27 national Parliaments. What they are watching is an attempt by the real zealots in this House to stop this Parliament playing any part in the process, which is totally unacceptable.
The time has come to say that all Government policies on any subject, great or small, depend on the ability to command a majority in the House of Commons on the key principles and the direction in which the country is going. I will certainly vote on that basis and I hope that the Government regret the rather intolerant response and all the pressure they have been applying on my right hon. and learned Friends in trying to resist such an obvious proposition.
Peter Grant (Glenrothes) (SNP)
Thank you for calling me, Mr Speaker. It is always a daunting prospect to follow the right hon. and learned Member for Rushcliffe (Mr Clarke), although I am grateful to him on this occasion for warming up the audience a wee bit.
I do not often go along with the tradition of spending the first part of a speech being enormously grateful for getting the chance to speak in this place. After all, speaking here on behalf of our constituents is the absolute right of all Members. Today, however, it is appropriate for me to acknowledge that I am one of the privileged few because I will get to speak today and, who knows, perhaps even tomorrow, whereas the vast majority of elected Members in this place will not have a chance to speak at all.
If we all got an equal say over the next couple of days, every MP would speak for about 10 seconds—and no, I am not going to call time on myself just yet. Each of the amendments, many of them vital for the future, would be debated for about three minutes. In reality, most MPs will not be called and we will be asked to vote on amendments that have never been before this House and that will literally not even be mentioned by name, rank or serial number in the debate because there will not be time. Anybody who believes that that is an example of participative democracy at its best needs to get out of here and spend some time reconnecting with the real world.
The programme motion that the Government got through today is an absolute travesty of democracy, following days and days on which the business collapsed and the Government were inventing things to talk about because they did not have the political courage to bring this Bill or umpteen other Brexit-related Bills before the House. The idea that we can give proper consideration to 160 or 170 amendments in effectively nine or 10 hours of debate is utterly laughable. It is an indication of how far the hard Brexiteer propagandists and sloganisers have parted company from any kind of rational logic that they and, indeed, many in the Government denounced the Lords for approving 15 amendments that the Government did not like, while welcoming the fact that those self-same Lords approved 166 amendments that the Government asked them to approve. One hundred and sixty-six amendments were requested by the Government, and 15 by the rest of the world, and it is the rest of the world who are the villains and the enemies of democracy in this.
It was inevitable but deeply disturbing to see how the battle lines have been drawn on the front pages of some so-called newspapers, and I know that there was a point of order on this exact point earlier today. Their lordships are the “traitors in ermine”, the “enemies of the people”, as, indeed, are judges in the Supreme Court, for daring to do the job that they are there to do. I am not a fan of the unelected House of Lords, but they are there for a purpose and, whether we agree or disagree with the way in which they have discharged their purpose, the abuse that has been heaped on them in the past few weeks is utterly uncalled for and has no place in any kind of civilised debate.
Ian Murray (Edinburgh South) (Lab)
The hon. Gentleman is right to suggest that, rather than deriding the House of Lords, we should be thanking them for introducing 15 sensible amendments and that the Government should also be thanking them for making hundreds of their own amendments because they made such a Horlicks of the Bill in this place in the first place.
Peter Grant
The hon. Gentleman makes a valid point. It seems like the definition of an enemy of the people is not based on where they take the decisions but on whether the decision finds favour or disfavour with Her Majesty’s Government. That is not democracy, Mr Speaker. We are heading to dictatorship if someone’s integrity or patriotism is judged on whether or not they agree with the minority of people who sit on the Government Front Bench.
As I have said, and I shall come back to this later, I am not a fan of the House of Lords. I do not think that it is a democratic institution, but it is not the real threat to our democracy. The real threat to such democracy as we have in these islands does not come from people who disagree with what I say or with what the Government say but from those who use terms such as “traitor” or “enemy” to denounce anybody who holds or expresses a view that differs from their own.
This weekend, we will mark the second anniversary of the murder of one of our colleagues. Possibly the last words she heard in this life were “death to traitors”. Surely, in the name of God, we should know that, when we allow the language of hatred to become normalised, the actions of hatred will follow. Today, someone has pleaded guilty to planning to murder another of our colleagues. I say to colleagues on all sides that we can disagree passionately and fervently with each other, but please get the language of violence out of the vocabulary of this debate and of all debates, not just in the few days before we remember Jo’s sacrifice but every day thereafter, so that Jo and others did not die in vain.
As I have mentioned, the SNP are not fans of the House of Lords, but when the House of Lords has passed amendments to turn a bad Bill into a slightly less bad Bill, we will seek to retain those amendments. Let us be clear that, even with those amendments, this is still a bad thing. It will be damaging to all our interests, but if we can make it the least bad thing that we possibly can, we will have achieved something.
John Redwood (Wokingham) (Con)
Is the hon. Gentleman saying that the SNP’s official position is that we should stop Brexit outright?
Peter Grant
I am not quite sure how to break this to the right hon. Gentleman, but nothing would please me more than to allow his country to implement the decision that its citizens have taken and for my country to be given the right to implement the decision that the people of my country took.
We support the removal from the Bill of a purely arbitrary and symbolic exit day; it does nothing to improve our chances of getting a less damaging deal and makes the prospect of a cliff-edge no deal more likely. It was agreed to only because the Prime Minister was too weak at the time to stand up to the hard-line minority in her own party, who are a vanishingly small minority across the House of Commons as a whole. Recently, the ubiquitous “sources close to the Prime Minister” have been working very hard to spin the line that she is now prepared to face down some of the extremists in her party. May I suggest that she would make a good start by facing them down by supporting the removal of an unnecessary exit day from the Bill and supporting that Lords amendment?
On the amendments to change “necessary” back to “what the Minister deems appropriate,” I am flummoxed by the idea that it needs to be put into legislation that a Minister only does things that they think are appropriate. Do the Government seriously think that their own Ministers will do things that they think are inappropriate? I know that they do things that I think are inappropriate all the time, but imagine having legally to prohibit them from doing things that they thought were stupid, rather than trying to stop them from doing things that everybody else thinks are stupid.
The Secretary of State, who obviously has much more important things to do than staying to listen to the defence of his legislation, told us twice that “necessary” is not a synonym for logical, sensible or proper. The trouble is that the entire Bill is written on the assumption that Her Majesty’s Government are a synonym for logical, sensible or proper, and, indeed, that the whim of a Minister is a synonym for logical, sensible or proper.
The Government do not have a monopoly on logic, good sense or propriety. A Government who lost their overall majority in this place at the demand of the people of these islands should surely have the humility to accept that sometimes, just sometimes, when the ermine-coated lords along the corridor disagree with them, they have got it right and the Government have got it wrong.
Mr Alister Jack (Dumfries and Galloway) (Con)
The hon. Gentleman confirms that he and his party want to keep Scotland in the European Union. Can he confirm to me whether he wants to keep Scotland in the common fisheries policy as well?
Peter Grant
Certainly not, as currently constituted. If there were a common fisheries policy that actually protected Scotland’s fishing industry, instead of it being used by successive UK Governments as an excuse to sell it out, that might be a different matter.
There has of course been a public vote on the possibility of one of the consequences of a hard Brexit: a hard border across the island of Ireland.
Angus Brendan MacNeil
Is my hon. Friend aware that the front page of today’s Financial Times refers to a shortage of doctors? The Tories in Scotland have the cheek to blame the Scottish National party for the lack of doctors, when they are the ones not giving them the visas to get in to the country. The Tories sold out fishing once and then twice. They told us that they would not accept fisheries in the transition agreement and now they are talking as if they are saving the fisheries—the people who have sold out fishermen twice!
Peter Grant
Few of us can speak on the fishing industry with such knowledge and authority as my hon. Friend.
The nearest we have had to a public vote anywhere on any of the consequences of a hard Brexit was the public vote against the possibility of a hard border across the island of Ireland. The people of Northern Ireland and the people of the Republic of Ireland overwhelmingly rejected such a notion when they endorsed the Good Friday agreement and, of course, the people of Northern Ireland, the only people in the United Kingdom who would be affected by a hard border, voted to remain in the EU. How can anyone argue that the best way to give effect to those votes is for decisions to be taken by Ministers who represent a party with no MPs in Northern Ireland? The people of Northern Ireland have no way of re-electing or not re-electing those Ministers, based on whether their decisions are in the interests of those people.
Tom Brake (Carshalton and Wallington) (LD)
Is the hon. Gentleman as outraged as I am that it looks as though we will have no possibility to debate those issues today? Is he as surprised as I am that, unless the Department for Exiting the European Union has not kept its website up to date, we do not even have a Minister from DExEU here listening to the debate?
Peter Grant
I can assure the right hon. Gentleman that we are quite used to seeing Government Ministers abandoning their posts as soon as anybody from the third party in Parliament gets up to speak. He will have to take it up with them why that might be.
At the end of this entire process, we owe it to ourselves, to each and every one of us, to acknowledge that later this year some Members of Parliament—possibly those on the Conservative Benches, possibly those on the Opposition Benches—may in all conscience want to go back to their constituents and say, “I recognise the way that you voted in June 2016. I respect your right to take part in that vote, but in all conscience I cannot be part of a decision that I believe in my heart of hearts will be deeply damaging to your community and to these islands and nations.” Members of Parliament must have the right to say to their constituents, “On this occasion, what I fundamentally believe to be in your interests differs from what you believe to be your wishes.” Each of us should be given the right to go back to our constituents and face the potential political consequences. I have no qualms whatever about the political consequences of following my own conscience if it is against the wishes, expressed or otherwise, of my constituents. That is a decision we all have to be prepared to take from time to time.
This is possibly the most important occasion of this Parliament—and of many previous Parliaments. Members of Parliament must be given the opportunity to decide for themselves where they place the balance between what we believe is best and what our constituents have told us they want. If Members of Parliament are not prepared to face up to that very difficult dilemma, there is a question whether they should be Members of Parliament at all.
Sir Mike Penning
The hon. Gentleman has been very generous in giving way. Surely we cannot ignore a referendum that was voted for by this House. The people made a decision and we cannot go against that decision. To say that perhaps they did not realise what they were doing when they voted to leave the European Union is an insult to the electorate.
Peter Grant
I never suggested that, although it is perhaps worth remembering that at least one of the right hon. Gentleman’s own colleagues, a Conservative MP, has admitted that they did not vote in the referendum because the question was too hard for them to understand. I wonder how many other people were in the same position. There is a big, big difference between not fully understanding and being stupid. It is an insult for Conservative Members to suggest that anyone who admits they did not fully understand it, or still do not feel they understand it, is stupid.
My comments were not based on suggesting that people did not understand. My comments were based on the fact that the ultimate responsibility we have is to act on what we believe to be the public’s best interest, not simply to follow what we think will get us re-elected next time around. The fact that so many Brexiteers are horrified at the idea that Members of Parliament should be given the chance to make that statement to their constituents suggests that an awful lot of them think that such a statement may be needed. They think that we will get to the end of the process and a large number of MPs will want to go back to the people and say, “I’m sorry. I supported it this far but I cannot support it any longer because I can see the damage it will cause.” I will leave that for Members to think about. I do not expect anybody to be persuaded just now, but I appeal to Members to think about that over the next wee while. It is fundamental to the nature of the representative democracy we have in this place.
Of course, it goes without saying, on the other amendments the SNP will be supporting, that, in this partnership of equal nations, the elected Parliaments of all the equal nations must have a say on the final deal. They must have a much greater say than they have had up until now. With the contempt shown for the devolved nations through the process so far, it is difficult to believe that the intention has been anything other than inflammatory.
Peter Grant
I will not give way because I know a number of people who did not support the programme motion will struggle to get in.
The mantra of the “most powerful devolved Parliament in the world” has never been true, but it sounds even more hollow if that “most powerful devolved Parliament in the world” can be stripped of its powers by a party that never wanted it to have those powers, never wanted it to exist in the first place and are intent on acting not just against the majority view of the Parliament of Scotland but against the majority view of Opposition Members of the Parliament of Scotland.
In their continued belief that they and only they are the guardians of common sense, the Government are determined to force this place to have a binary decision on whether we accept the final deal. This is the same Government who keep telling us that the customs union is not a binary decision, the single market is not a binary decision and controlling immigration is not a binary decision. The only time it is a binary decision is when they have to make a decision. The Government are determined that the final decision this Parliament will have to take on what the future will be is “take it or leave it”. For some of us, other futures are available. The Government would do well to reflect on that fact before it is too late. If the only choice they offer is take it or leave it, they may find that the people of Scotland, the people of Wales and the people of Northern Ireland will interpret take it or leave it in a very different way from that which the Government intend.
Several hon. Members rose—
Mr Speaker
Order. I remind the House of what it knows, namely that the time available for this debate is very limited. I want to accommodate as many right hon. and hon. Members as possible, so we will begin with a limit on Back-Bench speeches of 10 minutes, although it is not obligatory to take the full allocation of time.
Sir Edward Leigh
I agree with the hon. Member for Glenrothes (Peter Grant) that we should use the language of respect. I, for one—and many of my colleagues, I am sure—would never use words such as “traitor”. We all accept that there are very different views in this place, but this is not the EU negotiating Bill. It is not a Bill designed from its inception to give the Government guidance about what sort of deal we should have. I thought—this has been explained to us many times by the Government—that this Bill was simply to try to transform and transfer, in an orderly way, EU laws into our legal system. That was what I understood the Bill to be; it is not an EU negotiating Bill.
I said earlier that we should use the language of respect. I know that it is not in order to call any Member “disingenuous”, but I think that it is in order to call an argument disingenuous, and I do so now. I respect the House of Lords. I understand that it is not elected. I understand that it should try to improve legislation. I serve on the Procedure Committee, and when the Committee considered these matters, there was a detailed debate on the sifting committee and I could understand how the House of Lords can try to improve how we deal with legislation. That seems entirely sensible and credible, but many of us suspect that these amendments, particularly Lords amendment 19, are designed not to improve the legislation or to improve the sifting process by which we transfer these laws, but to frustrate the whole process.
John Redwood
My hon. Friend will remember that we had many hours of debate and decisive votes before we sent the article 50 letter. That was the point when Parliament made up its mind to back the referendum. We cannot keep chopping and changing.
Sir Edward Leigh
I agree with that. As I was saying, although it is perfectly in order for the other place to try to improve legislation, when it seeks to frustrate it, I think that Members of the elected House should start to get worried. Lords amendment 19 is very clear in saying:
“Her Majesty’s Government may implement a withdrawal agreement only if Parliament has approved the withdrawal agreement and any transitional measures…Her Majesty’s Government must follow any direction in relation to the negotiations under Article 50”
and so on. What would be the result of that amendment? I say to colleagues that we are not just acting in a vacuum. What would be the result if we fail to overturn this amendment from the other place?
Layla Moran (Oxford West and Abingdon) (LD)
Will the hon. Gentleman give way?
Sir Edward Leigh
My hon. Friend takes a very different point of view from me, so in all courtesy, I give way, but this must be the last time I do so.
Antoinette Sandbach
I am very grateful to my hon. Friend for giving way. Does he agree that the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) deals with the issues that he is raising?
Sir Edward Leigh
No, I do not agree. I talked to my right hon. Friend the Brexit Secretary earlier today. He simply said—he does understand these things—that all the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) would do would be to implement what the House of Lords wants to do in fewer words, so I do not accept that, I am afraid. We have to bite this bullet now. We have to support the Government and reject the amendment.
As I was asking, what would be the result—we do not operate in a vacuum—if the House of Lords had its way? Of course it would be a catastrophe for the Government. There would be banner headlines in every single newspaper tomorrow saying that the Government had been defeated and that the whole Brexit momentum was in danger. Much more important than that—this is why I think the argument is disingenuous—is the fact those who support the House of Lords are dressing up their arguments in terms of parliamentary sovereignty. It is in order, is it not, for Parliament to debate and amend a Bill, as the House of Lords can do? That is what we do all the time, but what the Lords really want to do is to create a situation in which the whole process is frustrated.
Mr Kenneth Clarke
These arguments were put—almost as forcefully as my hon. Friend is putting them—when we had our debates before Christmas in Committee. This House then passed an amendment on a meaningful vote, defeating the Government. People had foreseen that that would undermine the Prime Minister, cause an election and represent a crisis, but the next morning, apart from the fact that there was now to be a meaningful vote, nothing stirred. The position of the Prime Minister was not weakened and negotiations have not been hindered. My hon. Friend is putting his arguments with his usual great eloquence, but, with great respect, they avoid what we are really talking about, which is the important process of parliamentary accountability.
Sir Edward Leigh
I am afraid that my right hon. and learned Friend was not listening to his own speech. Was I not listening—was I not two or three feet away from him—when he said that the amendment that we passed earlier was not going to make much difference to the whole process? It was like giving a statement, was it not? What we are talking about is completely different. This really is the ultimate wrecking amendment, and it is not the wrecking of parliamentary sovereignty; it is the wrecking of the will of the people and democracy. There are so many compromises that we all have to make. There are so many things that I do not understand about this negotiating process, and about how we have got stuck on the hook of Ireland, the backstop, “max fac” and all these other things, but the essential thing is this: the people want us to leave the EU. They want to regain control of their borders and they want us to be out of the European Court of Justice. All this Bill does—it is not the EU negotiating Bill—is simply to implement the will of the people. Parliament, do not stand against the people! Implement their will.
Sir Vince Cable (Twickenham) (LD)
Many Members will today be speaking under pressure or while considering different interests. Some will be observing what the hon. Member for Streatham (Chuka Umunna) called the pure Churchillian principle of accountability and thinking clearly about our consciences and judgments, while others will be concerned about the will of the people as expressed by their own or other people’s constituents, or by parts of the UK such as Scotland that are distinct. Others will be thinking about their party and—dare I say it?—some may even consider the views of their party Whips. People will come to different conclusions and weigh these things differently, and the most vocal people will be those who are not necessarily balancing them with the greatest difficulty. We should respect those on both sides who are struggling to reconcile these different pressures.
We are weighing up a difficult constitutional matter, and two constitutional questions are wrapped up in Lords amendment 19. One is about how we reconcile the rights of a plebiscite with those of Parliament—we have debated that many times, and the hon. Member for Gainsborough (Sir Edward Leigh) was very unambiguous about where he stands—and the other is about how we balance the rights of the Executive with those of the legislature. We have debated that in different contexts. A few weeks ago, we were talking about exactly how to weigh war powers and accountability.
Lords amendment 19 takes us forward in one crucial respect with regard to the so-called meaningful vote. It gives additional clarity. It might be better had we taken the wording proposed by the right hon. and learned Member for Beaconsfield (Mr Grieve), but the amendment does give clarity, and it would not have the exaggerated consequences that some have predicted, as was set out very sensibly by the right hon. and learned Member for Rushcliffe (Mr Clarke).
Andrew Bridgen
Does not the right hon. Gentleman concede that when Lord Bilimoria introduced Lords amendment 19, he said that it had the ability to stop Brexit? Will the right hon. Gentleman not concede that this is a wrecking amendment?
Sir Vince Cable
The House would have to vote in that way, fully conscious of what it was doing. We just have to wait and see how the House chooses to proceed. The overall effect of the Lords amendment is clearly to—
Sir Vince Cable
No, but stopping Brexit is one option we need to consider.
Although Lords amendment 19 takes us forward, it would not, as the right hon. and learned Member for Rushcliffe just explained, have the damaging consequences anticipated by many exaggerated predictions. It would not necessarily undermine our negotiating position. The EU countries have their own legislation to consider and have already made it clear that their objective is a smooth, quick, clear Brexit. Anything that might cause major disruption—if they were unfair to the UK, for example—and therefore lead to Parliament’s rejecting the deal would not necessarily be in their interests, and they would, I am sure, reject that.
The crucial point, which is made in the article by Professor Bogdanor that the Brexit Secretary has quoted at length, is that whereas the amendment is a necessary step, it is not sufficient, and that is because Parliament cannot overthrow the judgment of the people in a referendum. The article is quite clear about that, and so are the Liberal Democrats, although we approach this from the opposite direction to some of the Brexit supporters on the Government Benches. We believe that when Parliament has considered the final deal or the absence of a deal, the public should have the final say on the matter. This is not an extraordinary observation. Countries that rule by plebiscite, such as Switzerland, regard confirmatory referendums as a matter of course. The people vote and then the legislature and Executive review the matter. At the end, there is a confirmatory referendum to determine whether the people accept the proposal. There is no reason why that should present a problem. It is a matter of fundamental—
Several hon. Members rose—
Sir Vince Cable
I will complete my remarks and then let others contribute.
Our amendment (a) to Lords amendment 19 expresses that thought very clearly. I notice that the hon. Member for Bracknell (Dr Lee), who probably more than anyone else is reconciling these different forces today, has accepted that the logic of the position is not simply for the House to have a meaningful vote, but to go back to the people and then accept the result of that vote. Were there to be a vote on the final deal, I would accept it fully, and I would then then work with people who support Brexit to make that work. If we continue on the present path, however, with a definition of Brexit that is narrow and specific, as in the Lancaster House speech—it was supposedly drafted by the Prime Minister’s then adviser—and that many of us would not accept as a proper definition of Brexit, which the Prime Minister has pursued in a stumbling and incoherent way, we will not accept that, and we will not accept the result of the Brexit negotiations even after Brexit has taken place. The public need to have a vote on the final deal at the end of the process.
Mr Speaker
Order. The right hon. Member for Twickenham (Sir Vince Cable) cannot give way; he has concluded his oration. We await the thoughts of the hon. Member for North West Norfolk (Sir Henry Bellingham) at a later stage, perhaps.
Mr Grieve
I was amused to discover that my right hon. Friend the Secretary of State was a little taken aback by the amendment I tabled late last night. I tabled it with his best interests at heart. Having spent last week understanding that he might imminently be joining me on the Back Benches and realising that Lords amendment 19, if endorsed by the Commons, might precipitate the same thing again, I thought I ought to do what I could to help him. That is why I tabled my amendment, in addition to the one he has tabled, in lieu of the Lords amendment.
I must tell the House that I really am worried: the irrationality of the debate on the detail of Brexit is truly chilling. A person opens their newspaper and discovers they are about to prevent Brexit, when what the House is doing is legitimately looking at the detail of one of the most complex legal and political exercises in which we have ever engaged in peacetime, and, as a result, our ability to have a rational debate entirely evaporates. If we continue in this way, we will make mistakes and not achieve the best possible outcome.
The House of Lords was not acting irrationally when it agreed amendment 19. It had picked up on something that ought to be of great concern to everybody in this House—namely, that although we can make provision for achieving a deal, if we do not achieve a deal at all, we will be facing an immense crisis. It might be that some of my colleagues on the Government Benches are excited at this prospect and think it a wonderful moment, but I am not; I think it will be catastrophic. The question, therefore, is: how do we take sensible steps, in anticipation of this, to try to ensure a coherent process for dealing with it? That is what this is about. It is not about obstructing Brexit.
If we want to obstruct Brexit, there are plenty of other ways to do it. We could replace the Government with one that would like to stop it, although, having already triggered article 50, we would still have to get the consent of our EU partners. There is, then, a complete constitutional incoherence in imagining that the Bill and the way it is presented somehow leads to that dastardly outcome.
Mr Jacob Rees-Mogg
My concern about my right hon. and learned Friend’s amendment is that it would change the constitutional balance and separation of powers. There is a perfectly reasonable way of ensuring that the Government do the proper thing, and that is a vote of no confidence. As long as the Government maintain the confidence of this House, they ought to be able to negotiate international treaties, but if they fail in their negotiations, the House has a remedy that has been a remedy for very many years.
Mr Grieve
I take my hon. Friend’s point, but I would like him to consider for one moment the last part of my amendment, new section 5C, which deals with what happens if, on 15 February 2019, we have no deal. His invitation would be for the House to express no confidence in the Government and to get rid of them. Can one imagine a more chaotic process than the triggering of a general election five weeks before we fall off the edge of the cliff?
Justine Greening (Putney) (Con)
I agree with what my right hon. and learned Friend is saying. I think that, far from suggesting that his amendment was wrong, my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) gave the very reason why it is sensible to adopt this structural process to deal with the different scenarios that the House may face.
Mr Grieve
I agree entirely with my right hon. Friend. Let me explain. I did take on board the Government’s concerns regarding the Lords amendment, but I could see that the micro-management of their negotiating position after the autumn, if there were no deal, could present difficulties. My amendment sought to avoid that by doing two things. First, it sought to provide a mechanism whereby no deal, if there is no deal, must come to this House. That would provide great reassurance to all Members that there was a system in place to deal with the position. Similarly, there would be a system in place to deal with the rejection of a deal, and finally—and only then would there be a mandatory condition —a system that would operate if by February we were still faced with an impossible position of having no deal at all.
The Solicitor General (Robert Buckland)
Of course I accept that my right hon. and learned Friend and other colleagues wish to discuss further the role that Parliament will play in all the Brexit scenarios that may present themselves to us. We cannot bind the negotiations, nor can we disrespect the referendum result, but—as my right hon. Friend the Secretary of State said in his speech—we do commit ourselves to meeting to see how we can build on Her Majesty’s Government’s amendment (a) in lieu today, ahead of the Bill’s stages in the House of Lords, and to meeting my right hon. and learned Friend tomorrow to make that important progress on what we have achieved today.
Mr Grieve
I take my hon. and learned Friend’s comments at face value, and I am most grateful to him for making them. He must understand, however, that, as usual when we reach this stage of a process, we face some difficult challenges. There is a Lords amendment, and if we agree to it, that is what will go into the Bill. Alternatively, we may endorse the Government’s approach and support the amendment in lieu. The Government could, I think, adopt my amendment; it is a rather arcane procedure, but they could include it. If they do not want to do that, however, I shall need some pretty cast-iron assurances that when the Bill returns to the Lords, with the Government’s amendment in lieu, we will implement significant parts of what I have put forward, because we cannot allow a situation in which there is no mechanism for dealing with no deal.
The Solicitor General
Overnight, I read my right hon. and learned Friend’s amendment (ii) to Government amendment (a) very carefully, and I think that there is much merit in the approach that he urges the House to adopt in subsection (5A). I need more time to think about the other parts of the amendment—[Interruption] —but by indicating my position on a key part of it, I am indicating that the Government are willing to engage positively ahead of the Lords stages.
Mr Grieve
Again, I am very grateful to my hon. and learned Friend, and let me say to the House that I do not think his views should be dismissed. I am conscious that if we are to make progress, we ought to try to do this by consensus. However, my hon. and learned Friend must also understand—as my right hon. Friend the Secretary of State must understand—the difficulty in which the House finds itself when faced with a choice of this kind. I have been through the same process in opposition and now in government. If the House makes the concession of allowing the dialogue to continue—and I can see the merit in that—it must be done in good faith. Let me say to my hon. and learned Friend that without that good faith, the other place will put the amendment back in, and the good will will be gone when the Bill comes back to this House.
The Solicitor General
I can give my right hon. and learned Friend that assurance. Everything that I do with him and other colleagues is always in good faith, and that will remain the case.
Mr Grieve
I am grateful to my hon. and learned Friend. I was glad to hear what he said about the principle—which, in my view, is entirely innocuous—that
“Within seven days of a statement under subsection (4) being laid, a Minister of the Crown must move a motion in the House of Commons to seek approval of the Government’s approach.”
That is not exactly rocket science. The second principle is that there must be a mechanism providing for a Minister to come to the House of Commons by a suitable date—and I think 30 November 2018 must be the one—in the event of no deal, so that the Government can tell the House how they intend to proceed and seek the approval of the House for that.
I know that subsection (5C) causes my hon. and learned Friend much more difficulty. I understand the constitutional issue, and I will come to that before I finish my speech; but the reality is that without a mechanism whereby the House can properly shape the crisis that will be enfolding us at the end of February if we have no deal, we will do it in an ad hoc way, which is likely to be infinitely more damaging to the wellbeing of the citizens of the United Kingdom than putting together a package that can be looked at now.
The Solicitor General
As usual, I am listening very carefully to my right hon. and learned Friend’s observations. They will form a clear basis for a formal set of discussions that we can start at the earliest opportunity ahead of the Lords—
Mr Speaker
Order. I do apologise, but the Solicitor General must address the House. This is not a private conversation with another Member, conducted sotto voce. I want the whole House to hear what the Solicitor General wants to blurt out, preferably briefly.
The Solicitor General
Of course, Mr Speaker. I was about to give a clear undertaking to use my right hon. and learned Friend’s comments as the basis for structured discussions ahead of the Lords stages. [Interruption.]
Chris Bryant (Rhondda) (Lab)
I know that the Solicitor General has spoken in good faith, but would it not be best for those discussions to take place in a forthright way, for us to vote with their lordships for their lordships’ amendment and for the Government to return to the matter in the House of Lords after the discussions?
Mr Kenneth Clarke
Both my right hon. and learned Friend and I accept without hesitation the good will of our hon. and learned Friend the Solicitor General, who is doing his best to resolve the slightly odd situation that we are all in. I think that the majority of Ministers—although I do not know about my hon. and learned Friend—would give my right hon. and learned Friend the undertaking for which he is asking now, and that the majority of our party would be quite happy with an arrangement of the sort proposed in his amendment. However, all we can have is what we had in Committee—offers of good faith, discussions and earnest attempts—because our proposals will be vetoed by the hard-line Brexiteers in the Government.
Mr Grieve
No. I am sorry.
Let me end by saying this. The idea that it is wrong, in a crisis, for Parliament to direct the Government what to do is plainly fallacious. It cannot be right. We are entitled to do that. Of course, if the Government do not want to do what we direct them to do, that is another matter.
Several hon. Members rose—
Mr Speaker
Order. We will have one more speech of up to 10 minutes, but then the limit will have to be cut, because I want to accommodate the maximum number of colleagues.
Hilary Benn (Leeds Central) (Lab)
It is with some hesitation that I involve myself in the negotiation that the Government are clearly attempting to conduct with their own Back Benchers. I simply want to observe that this is the single most important amendment that we will be discussing today and tomorrow in relation to the role that Parliament should and indeed must play in determining what kind of Brexit happens.
I simply do not accept the argument that the Secretary of State and other Conservative Members have advanced in trying to suggest that this proposal is somehow illegitimate or improper, or is intended to overturn the result of the referendum. Is it improper for this House to decide that in leaving the EU, we wish to remain within a customs union with it? Is it improper for this House to decide that we wish to remain in a single market, or to continue to have the European arrest warrant system, or that we want to co-operate in future with our friends and neighbours on foreign policy, defence and security? If the answer to all those questions is no, it is not improper; this Lords amendment is about giving Parliament the ability to ensure it can exercise that judgment when the time comes. It seeks to make it clear who will be in control when we come to the end of the process: the Government can go away and negotiate, but they will have to win the consent of the House when they return.
The Government’s attempts to neuter the Lords amendment will not work for a number of reasons that have been set out already. I say to the Solicitor General that, frankly, we do not have more time, which is why this is the moment when we have to make the choice. Secondly, as has been clearly pointed out, it makes no provision for what happens in the event of there being no deal. The House is aware of what the consequence of no deal would be for the border in Northern Ireland, our trade, the rights of British citizens abroad and EU citizens here, future co-operation on security and many other matters.
Angus Brendan MacNeil
Given all that the right hon. Gentleman has been outlining, is it not fascinating that when Brexiteer MPs ask themselves about a vote on Brexit, they fear they will lose it and therefore that Brexit will be reversed? That displays no confidence in their argument at all.
Hilary Benn
I say to the hon. Gentleman that the British people have made their decision about the fact that we are leaving the institutions of the European Union in March next year, but it is for this House to decide the way in which we leave and the future of our relationship with our friends and neighbours, who will remain our friends and neighbours after we have left.
Several hon. Members rose—
Hilary Benn
I will not give way again as many other Members wish to speak.
The question is: who decides what happens next in the circumstances either of there being no deal or of Parliament rejecting the deal the Government bring back in October or November? In the event of a rejection I think it is pretty safe to assume that Parliament will, in moving an amendment to the motion asking for approval of the withdrawal agreement, set out its reasons why. Parliament might say for example that it declines to give approval to the withdrawal agreement because it makes no provision for the UK remaining in a customs union with the EU. In those circumstances, as many Members— including the right hon. and learned Member for Rushcliffe (Mr Clarke), the Father of the House—have made clear, it is perfectly reasonable for the House of Commons then to expect the Government of the day to go back to those with whom they have been negotiating. As always happens in negotiations, people come back and say, as the Chief Whip is now experiencing, “I’m really sorry, I have tried, but the Members will not wear it; we need to talk about doing something else.” It is perfectly reasonable for the House to do that; otherwise, as we have heard many times, the notion that we have somehow taken back control has no force whatsoever.
We need a mechanism that can enable the House to have its say both in the event of there being no deal because an agreement cannot be reached and in circumstances where the House of Commons says it does not accept the deal the Government have brought back.
Hilary Benn
My hon. Friend is correct: it is the only opportunity to make it clear to the Government that we intend to have our say when the negotiations have been concluded. This is the one chance that we have to exercise the sovereignty that we all believe properly rests with this House, whether we voted leave or remain in the referendum. I hope very much that the House, recognising that this is its one chance, will take that opportunity by voting later today for Lords amendment 19.
Several hon. Members rose—
Mr Speaker
Order. I am sorry to disappoint colleagues but do so in the spirit of maximisation: a six-minute limit now applies.
Anna Soubry (Broxtowe) (Con)
I have never written a speech before and then had it typed out, Mr Speaker, and now I do not know why I bothered: not only have you cut the time, but you can see how the debate has advanced.
I am sorry but I am going to speak, as ever, frankly. This has got to stop; this is unseemly; this is the most important piece of legislation that this House has considered arguably since the second world war, and we sit here and watch a peculiar sort of horse-trading over the perfectly excellent amendment put forward by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who served in the Government for decades—[Interruption.] He served in the Government for a number of years, but he has served this party for decades and he has never rebelled once. I gently say to my hon. Friend the Member for Gainsborough (Sir Edward Leigh), who in just eight years rebelled 58 times, and to the Secretary of State for Exiting the European Union, who along with my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) rebelled in total 160 times, that we here understand the concept of being loyal to leadership and, indeed, being true and honourable to our principles—and I believe they are men of conscience and principle.
Let us look around us at what is happening. There are good men and women of great ability, and indeed courage, who are, unfortunately, no longer in our Cabinet, such as my right hon. Friends the Members for Ashford (Damian Green), for Putney (Justine Greening) and for Hastings and Rye (Amber Rudd)—all great people who have been lost from our deeply divided Cabinet. Never before have we had a Cabinet that is so divided, and with some of its most senior people, who hold the greatest offices of state, at every twist and turn, when our Prime Minister moves towards securing a Brexit that will serve everybody in our country—the softest, most sensible of Brexits—both publicly and privately undermining her and scuppering her attempts. It simply has to stop, and the moment for it to stop is now.
I know absolutely that the Solicitor General is a man of great honour, whose word will always be true, but I say with the greatest respect to him that he is not the most senior person around today and it is not his decision. He knows that I say that as somebody with great respect and love for him. So where is the Secretary of State? All he has to do is accept the amendment of my right hon. and learned Friend the Member for Beaconsfield. If he does not, he will force Members who for decades have never before rebelled to traipse through a Lobby or sit and abstain, just as they did in the Lords—and who I will support in each and every one of those important amendments on the EEA and the customs union and amendment 19.
Those Lords were Members of this place once; they include a former Chief Whip, a former Deputy Prime Minister, more Secretaries of State than we could shake a stick at, a former Leader of the House and two former party chairmen. For decades they were always loyal to every leader. Meanwhile, there lurk some, I am afraid, who for decades have plotted and connived. They have got rid of leaders and anybody and anything that stood in their way, and they will continue so to do. Even if they are supported by Russian bots and their dirty money, they will do what they have had a lifetime’s ambition to do, which is to take us over the cliff into the hard Brexit that my constituents did not vote for. I will continue to represent my constituents. We reckon that overall 52% voted to leave, but the 48% who voted to remain have been put to one side in this process and ignored. That has to stop. We have to come back together and we have to do the right thing.
I know and understand how difficult it is for many of my colleagues to go through the Lobby and vote against their party, but I say this: I am getting a little tired of the right hon. and hon. Members on the Back Benches, in government and even in the Cabinet who come up to me and others in quiet and dark corridors; of the British businesses that demand private meetings in which they lay bare their despair but refuse to go public; of the commentators who say to me, “You’re doing a great job. Keep on going,” in the face of death threats which have meant that one of our number has had to attend a public engagement with six armed undercover police officers—that is the country that we have created and it has got to stop; and of the journalists who fight nobly for every cause but on this most important of issues are mute. It has got to stop. Everybody now has to stand up and be true to what they believe in.
Finally, Mr Speaker, I hope you will give me time to find and read out some great words:
“The House is made up of 651 robust individuals whose position gives them a powerful say in what the Executive can and cannot do. The powers of the House are sovereign and they have the ability to upset the best-laid plans of Ministers and of Government, which no Minister ever forgets, and nor should any Back Bencher”.
Those words were true then, and they are true now. They were spoken by the Secretary of State for Exiting the European Union. Accept the amendment!
Mr Chris Leslie (Nottingham East) (Lab/Co-op)
The right hon. Member for Broxtowe (Anna Soubry) has spoken with passion and clarity, and above all she has spoken about courage and about putting our country first. I should like to pay particular tribute to the hon. Member for Bracknell (Dr Lee), who has done exactly that today. This involved personal sacrifice—and who knows what the electorate might do in the future—but he is using his judgment and making an assessment about what is in the best interests of his constituents, and that is greatly to be respected.
I was fascinated to hear the exchange between the right hon. and learned Member for Beaconsfield (Mr Grieve) and those on the Government Front Bench a moment ago. It seems to me that the obvious solution would be for the Government to signal that they will accept the amendment in lieu tabled by the right hon. and learned Gentleman—
Mr Leslie
No, I am not going to give way. There are lots of others who want to speak—[Interruption.] No, sit down.
If the Government were to accept the amendment, and if the House were to approve that—as it would, because this would be done by consensus—that issue would then go to the House of Lords. Through the discussions that would subsequently take place there, it might be amended or tweaked in some way, and there would then be an opportunity for the other place to send it back here for final confirmation. However, if the right hon. and learned Gentleman were simply to take the word of Ministers on this question—I understand that that sometimes happens—the leverage of this House could be lost if those discussions came to naught.
Mr Grieve
We have to be realistic, and there is an issue here. If the Government wanted to accept the entirety of the amendment, that could probably be done this afternoon and that would be the amendment that went back to the Lords, incorporated in theirs. In fairness to the Government, I have always appreciated that there might be some tweaking to be done. I understand that. Having said that, does the hon. Gentleman agree that there needs to be some certainty that the substance of this amendment will come with the acceptance of the Government in the other place?
Mr Leslie
That is right, and a bird in the hand is worth two in the bush. I suggest that it is far better to have that amendment in the Bill as it goes to the other place, which may decide to tweak or change it following discussions. That seems to reflect what feels like the majority view in the Chamber today on the need for a sense of certainty that something will be done. This is not just a matter of one Minister, because a Minister’s word can be given and then changed—
Mr Leslie
No, I will not give way.
Ministers can come and go, but we across this Chamber need that level of certainty. We of course accept the fact that there will be further discussions. The question about taking back control was put to us consistently throughout the referendum. As someone was saying earlier, we obviously cannot call hon. Members hypocrites, but we can point out the hypocrisy in general of the argument of those who might have said in one breath that we should take back control and then had the audacity to come here and say, “Oh well, the UK Parliament clearly has to be cut out of this issue altogether.” I know that we were all elected in 2017 on a mandate drawn up subsequent to the referendum. Our mandate, collectively, has a value, and we should not diminish that and pretend that we should be cut out of this process altogether when there are so many things at stake.
This is not a binary question, and I do not believe that the British people voted to take back control from Brussels only to give that control unilaterally and in its entirety to the Prime Minister and her friends. This is a matter for us, and our constituents would expect nothing less than for us to say, “Hang on a minute, what about our jobs in the manufacturing sector? What about the car industry? What about those who work in the financial services sector?” All the people working in those sectors have the right to expect us to do our job with due diligence.
The right hon. and learned Member for Rushcliffe (Mr Clarke) has rightly pointed out that we could find ourselves in a situation in which no deal is reached because the discussions and negotiations have collapsed. There is no certainty that the motion would then come forward. When the Secretary of State was intervened on and asked what would happen if no deal were to materialise, he said that the Government would come forward with a statement. When he was asked how the Government were going to prevent us from falling over the cliff, no answer was forthcoming. This is an incredibly important point. We have a duty to safeguard our constituents from harm. That harm could affect not only their livelihoods and their jobs but all the revenues that taxpayers pay towards our public services. So if we care about our NHS, we have to ensure that there is a safeguard in place. If we care about schools and council services, we need this insurance policy in place. We should not go through such a crucially important issue without those particular safeguards.
Mr Jim Cunningham (Coventry South) (Lab)
Does my hon. Friend recall that, during the general election, the Prime Minister said that she was being obstructed in Parliament and needed a big majority? Well, she got her answer at that election. Coming back to another point that my hon. Friend has made, the midlands rely on trade, and we should not be jeopardising hundreds of thousands of jobs in the west midlands.
Mr Leslie
My hon. Friend says it perfectly. We would be failing in our duty if we were simply to delegate all our decisions to the Prime Minister and say, “That’s it. Everything has been done.” Leaving the customs union or the single market was not on the ballot paper, and those are things on which we have a right to express our view.
Mr Leslie
I want to conclude. The other problem with the deal is the future relationship, because when that motion comes, my constituents expect that it will be about not just the divorce proceedings, the money and the process of leaving, but what our future relationship will be. It must be. If there is simply a side of A4—a flimsy statement of words—with the famous fudge that we are so used to hearing about stapled as an annex to the back of it, that will be unacceptable. We have a duty to press Ministers to do a proper deal that safeguards our constituents’ interests. As MPs, we must ensure that we exercise pressure on the Government to do things properly.
The right hon. and learned Member for Beaconsfield clearly now has the majority of the House with him, because we would not see the Government Chief Whip scuttling around so rapidly—I have never seen him move so quickly—trying to find a form of words. I hope that the right hon. and learned Gentleman will take this opportunity to get his amendment in lieu in the Bill now and send it to the House of Lords. The Lords can always amend, change it or look at it again, and we can come back to this next week and do things properly. It is not our fault that only 12 hours were allocated to this whole ridiculous process; we could have had far longer. The Government have made their bed, and they must now lie in in it. They set up this process, and they cannot realistically complain, “Ooh, I didn’t have the chance to read this overnight.” If they want a particular change, they need to accept the will of the House. They can always table amendments in the House of Lords. That seems the best way forward.
Several hon. Members rose—
Mr Speaker
Order. With the last speech on the six-minute limit, I call Sir William Cash.
Sir William Cash
I am somewhat troubled by what the hon. Member for Nottingham East (Mr Leslie) just said, not least because he wants to kick the matter back to the House of Lords. I thought that the whole argument in respect of the amendment tabled by Viscount Hailsham was about the primacy of the House of Commons. Why would we go back to the other House and ask the Lords for an opinion when it is this House that voted 6:1 in favour of having a referendum? Furthermore, this House endorsed the decision taken by the people to leave the European Union. That is what is now being put under pressure, and it is complete nonsense—junk—to suggest that the amendment about the meaningful vote is not in fact an attempt to reverse the decision of the people.
Sir Edward Leigh
It has been said that the amendment of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is a compromise, but people should read it. Proposed new subsection (5C) is absolutely clear. It states:
“If no political agreement has been reached”,
the Government must come back for
“a resolution in the House of Commons”.
That is exactly the same thing as in proposed new subsection (5) in Lords amendment 19. It is not a compromise; it is a wrecking amendment.
Sir William Cash
I am most grateful to my hon. Friend, because I have the texts of the two amendments in front of me and was just about to make the point that they are not that different. Both state that the Government
“must follow any direction in relation to the negotiations under Article 50(2)…which has been—
(a) approved by a resolution of the House of Commons”.
What on earth is that supposed to mean? There is no way in which this House of Commons—650 Members of Parliament—can arrive at a motion that would prescribe what the Government will do in the negotiations. It is not simply a question whether we are somehow or other departing from normal constitutional procedures; it is that the amendment is complete nonsense and makes no sense.
Furthermore, what would such a resolution say? I heard the right hon. Member for Leeds Central (Hilary Benn), who chairs the Exiting the European Union Committee, talk about the customs union and the single market and so forth. However, the amendments talk about approving a resolution of the House of Commons. Who would devise it? What would it say? How on earth would we get 650 people to agree either on what the motion would say or on what the outcome would be?
I have listened to this debate with great interest, and I must say that this is just a cover for a reversal of the decision. That has to be said, and it has to be said clearly. I find it extraordinary that there should be some attempt to throw the matter to the House of Lords so that they can then tell us—we, the people who are elected by the people of this country, who themselves were given the right by the transfer specifically of the responsibility to make the decision on behalf of themselves, their families and future generations—what to do. This is what people fought and died for, which is who governs this country. I say—[Interruption.]
Mr Speaker
Order. The hon. Gentleman must be heard. I have never known him to be shouted down, and now is not going to be the first time.
Sir William Cash
Thank you, Mr Speaker. You did quite a good job to shout down the shouter downers.
The reality is that this is about who governs this country. This country is governed ultimately by an Act of Parliament that gave the sovereign right to the people. It was a deliberate and voluntary transfer and—the primacy of the House of Commons rests in this—it was done by 6:1 in this House. Some Opposition Members did not vote for that referendum.
George Freeman (Mid Norfolk) (Con)
My hon. Friend knows that I am not a remoaner and that I am completely committed to delivering Brexit, but he is not being fair to the thinking behind the amendment. Many of us are committed to delivering Brexit. Our fear is this, and the question for him is this. I do not want to tie the Prime Minister’s hands or to put her negotiations in Europe at the whim of this great colourful Parliament. I want her to be able to go and negotiate, but if we were to vote down a deal or have no deal, is his view that the House would then be locked into accepting no deal, or that this sovereign House at that point should have the ability to say to the Prime Minister, “Go back and push harder.”?
Sir William Cash
I absolutely disagree with the notion that this House has the right to overturn the decision taken by the people. Furthermore, approval on the terms of the amendment is completely unacceptable. I repeat that the amendment states that the Government
“must follow any direction in relation to the negotiations under Article 50(2)…which has been—
approved by a resolution of the House of Commons”.
That is not acceptable for one simple reason: the decision was taken by the people. We gave them that decision and we have to stand by it.
Several hon. Members rose—
Mr Speaker
Order. The hon. Gentleman has concluded his oration, and we are grateful to him. The time limit is now reduced with immediate effect to four minutes.
Chris Bryant
The most important point is that we should not be complacent about no deal, first of all for security reasons, which was precisely the point the Prime Minister made in her letter to Donald Tusk notifying the European Commission that we were leaving the European Union. She said in terms:
“In security terms, a failure to reach agreement would mean our cooperation in the fight against crime and terrorism would be weakened.”
That was not a threat, but a very simple statement of the truth and of the fact. Consequently, we should not be complacent about the fact that there may be no deal—I do not think the Prime Minister is complacent.
I fear that there is not much overlap in the Venn diagram of what the Chancellor of the Exchequer, the Foreign Secretary, Conservative Members and Parliament will vote for and what the European Commission will allow, so there is a real possibility that we will end up with no deal. That is why I say to the Government and to the Solicitor General that we have to have a resolution of this matter today, not in future days.
I was wrong when I said earlier to the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve), that we could come back to the Lords amendment if we accepted it. However, what is true is the point made by several hon. Members that, if the Solicitor General accepts the right hon. and learned Gentleman’s amendments, they could go back to the House of Lords, which can tidy up afterwards. I honestly say to the Solicitor General that I believe that that is the view of the majority. If I am honest, I believe it is also his view. For that matter, if the Secretary of State were here, and if he were not the Secretary of State, it would probably be his view as well. It was certainly his view in every previous debate that the fundamental principle is that, of course the Government govern, but in the end, Parliament governs the Government.
We have to have government by consent. My anxiety about the way the Government have conducted this whole process is that they do not seem to think that they have enough power. Surely the processes before us today show that they have phenomenal power. We can vote only on matters that the Government allow us to vote on today. The only way we can move forward on the amendment tabled by the right hon. and learned Member for Beaconsfield is if the Minister allows it. The Government have phenomenal power in our system and this is just a brief moment when I think this House would like to say to them, “Go on, you know that that is what the will of the House is. There is no need to divide the Conservative Members. There is no need to divide the House on this. Just accept the amendment from the right hon. and learned Member for Beaconsfield and we can all move forward.”
Dr Phillip Lee (Bracknell) (Con)
Resigning ministerial office has been an incredibly difficult decision. I did that in order to support my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—my trusted friend—in his attempt to amend the Government amendment to Lords amendment 19. I am devastated to have had to take this decision. I owe the House an explanation and there are four points I would make.
For me personally, this is a matter of deep principle. I believe in the Burkean principle that our institutions guarantee our human rights. Most important of all, a Government’s first responsibility is to protect their citizens. That is usually understood in military terms, but I believe it applies more generally. It means that, sometimes, when a majority of our people want something that is against the good of society, the Government and Parliament have a responsibility to protect us. That was the case on the death penalty, when for decades politicians went against the majority view and refused to reinstate it. I believe it now needs to be the case on the Brexit process.
Dr Sarah Wollaston (Totnes) (Con)
I congratulate my hon. Friend on his courageous decision. Does he agree that there is no majority in this House or in the country for a destructive, cliff-edge, no-deal Brexit?
Dr Lee
I agree with my hon. Friend on that and would add that I am not convinced there is a majority for such a Brexit in my constituency. It is fundamentally important that Parliament should have a voice so that it can influence the final outcome, in the interests of the people it serves. A fake choice between a potentially bad deal and a cliff-edge no deal—a vote between bad and worse—is not a meaningful choice. It would breach such fundamental principles of human rights and parliamentary sovereignty that we would not recognise it as being valid in other countries, and it is not one that our Parliament should accept. In all conscience, I cannot bring myself to vote for it in this bastion of liberty, freedom and human rights.
The people of Bracknell are my first and most important responsibility, as their Member of Parliament. It now seems inevitable that the people, economy and culture of my constituency will be affected negatively, and I cannot ignore that, as it is to them that I owe my first responsibility, as their Member of Parliament. I must be able to speak out on their behalf on this greatest political issue of our age. It is important at this point to clarify that the Brexit vote in the Bracknell constituency in the 2016 referendum was not clearcut; the Bracknell Forest part of the constituency was marginally in favour of Brexit, whereas the Wokingham part was more strongly in favour of remain. But this is not about whether we Brexit or not. I voted to remain in the 2016 referendum and still believe that, despite the European Union’s manifest flaws, that would have been the better strategic course for our country at the time. In this interconnected world, it is nations with allies that will thrive. But we cannot and should not turn back the clock. The point is that, if Brexit is worth doing, it is worth doing well.
It is a huge sacrifice to give up ministerial office. For the past two years, I have been completely committed to enabling our criminal justice system to serve our society better, in a small way bringing some influence to bear to help to make our society more just and secure. The experience has been deeply humbling. I am incredibly sad that I cannot reconcile continuing in ministerial office with representing my constituents’ best interests or my own integrity.
I fully support the Prime Minister’s leadership and strong Conservative Government. It would be dishonourable, and indeed unprofessional, and it would undermine the leadership that the Prime Minister and our party can give our country, and that it so badly needs at this time, if I were either to keep quiet or to criticise the Government’s approach from within. In politics, as in the medical profession, trust and integrity are fundamental. The principle of collective responsibility is also important. That is why I felt that I had to choose this course. I urge my parliamentary colleagues to follow my lead and vote to give our great institution, this House of Commons—and our constituents and our country—the powers it needs to leave our children a legacy of which we can all be proud.
Kate Hoey (Vauxhall) (Lab)
The hon. Member for Bracknell (Dr Lee) said that if Brexit is worth doing, it is worth doing well. I absolutely agree, and I absolutely agree that people in the country want to see Brexit being done well. That means leaving the European Union properly by getting out of the single market and not being in the customs union. If we stay in either of those, we are not really leaving the EU.
I urge the House to reject Lords amendment 19. I spent a few hours—I was going to say “an interesting few hours”, but it was not particularly interesting—reading the entire House of Lords debate on that amendment, as I am sure most Members in the Chamber have. I regret very much that many leading Lords made it clear that they wanted to stop Brexit. I believe that Lords amendment 19, dressed up as it is in the language of parliamentary democracy, is not right and not true. If that means saying that it is disingenuous—if that is the word we have to use—that is what it is, although I would probably use a stronger word.
Mrs Anne Main (St Albans) (Con)
Did the hon. Lady note that the right hon. Member for Twickenham (Sir Vince Cable) talked in his speech about the rights of Parliament but not the duties? The duty of this Parliament is to implement the wishes of the British people.
Kate Hoey
No, I will not.
The people of this country will see that Lords amendment 19 is really about trying to go back on Brexit. Their lordships can say what they want, but that amendment is actually about reversing Brexit. We want to take back control, but taking back control was about the people of this country taking back control and our complying with our constitutional duties as a parliamentary democracy.
The European Commission has tried to be as negative and difficult as possible, and I find it absolutely amazing that anyone would think that if, at the end of the day, we did not negotiate a good deal and we said no, we would send that back for renegotiation. Do hon. Members really think that the European Commission would give us a better deal if it knew that the more obstructive it was, the more likely it would be that any deal would be sent back for renegotiation? The reality is that the European Commission does not want us to leave. It does not want to give us a good deal; it wants to punish us.
Kate Hoey
No, I will not.
If Lords amendment 19 is agreed to, it will be a recipe for the EU to try to get no deal so that we will have to go back from this Parliament, cap in hand, and ask for changes. What it really wants is for those changes to be staying in the single market, staying in the customs union, still having the European Court of Justice looking over us, still paying our money—more and more money—and reversing the decision. Whatever is said today, this is really about whether we believe in giving people the right to have their say. We said in the letter that went to everyone, which cost a huge amount of money:
“This is your decision. The Government will implement what you decide.”
Mr John Baron (Basildon and Billericay) (Con)
In addition to the referendum, will the hon. Lady reflect on the fact that at last year’s general election, both parties stood on a ticket of leaving the customs union, ending freedom of movement and repatriating our laws. Both parties were quite unequivocal, and that result needs to be respected.
Kate Hoey
The hon. Gentleman is right that all the manifestos referred to honouring Brexit by leaving the customs union and the single market. Labour put it in a slightly more nuanced way, but, particularly in leave areas, people were told that we would be leaving the single market and the customs union.
This will be very important vote. As we have heard, it is absolutely crucial that we do not allow Lords amendment 19 to be carried. Today we must make a decision. We either support those 17.5 million people who voted to leave, or we say that we will allow people who really want to stop Brexit—by using procedural mechanisms, legal challenges and legal words—to put the whole thing in doubt. I am confident that, in the end, we will not allow the Lords—the unelected House of Lords, which is full of former EU commissioners and people who are funded by the European Union—to decide what we are going to do.
Several hon. Members rose—
Mr Harper
In the three minutes available, let me just focus on what I think is at the heart of the argument made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). He is trying to deal with a situation in which either we cannot reach agreement, or this House does not support the Government’s policy. His approach is well meaning. He is trying to do the right thing, as the Solicitor General indicated during the debate, but his amendment is flawed for two reasons. I am reasonably attracted to the first two provisions, which would give the Government an opportunity to set out an overall strategy and invite the House to support it. I think that that would strengthen the Government’s hand, but the third provision is deeply flawed because it would set a time period after which the House would give the Government detailed instructions.
We must remember that this is a negotiation. If I were on the other side of the negotiating table looking at that mandate, I would stall and delay until the Government were in a position in which either they were forced to take whatever poor deal was on offer, or they were forced by this House to do so. That, I know, is not the intention of my right hon. and learned Friend.
The Solicitor General, who is a man of great honour, was making an offer on behalf of the Government. The right way forward is for the House to support the amendment proposed by the Secretary of State. The discussion could then take place, and the Government have given a very clear commitment that they will table an amendment in the House of Lords to reflect that discussion. That is the right way to achieve the outcome that we all want.
Some Members who have spoken in support of that course of action advocated leaving the European Union. I, like many colleagues who are nervous about the amendment tabled by the Secretary of State, advocated remain. I accept the decision that the public have made. I want to reach a good deal, but I also want the Prime Minister to have the best possible opportunity—the strongest cards to play—to get us such a deal that the House will find acceptable. That is the course that my right hon. and learned Friend the Member for Beaconsfield and those who support him ought to follow. The Solicitor General has set out the right course, and I urge my colleagues to support it.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I was utterly horrified when I saw this morning’s headlines in The Sun and the Daily Express. Those particular tabloids do not own patriotism in this country. When we hear a speech such as that made by the hon. Member for Bracknell (Dr Lee), we know that there are patriots on both sides of this House who are willing to vote with their conscience and with their constituents and the interests of their country at heart. I hope that all hon. Members will examine those three things when they vote today. That is what I intend to do throughout this process. It is what I have been doing, and it is what the hon. Member for Bracknell has made clear that he is going to do.
We have talked a lot about taking back control in this place. Unfortunately, the Government have, on a whole series of occasions, attempted to frustrate this process and Parliament’s ability to get information about their plans, whether by keeping papers in the Treasury or attempting to frustrate the release of others. Even for Members who have a wide range of views on Brexit and how the process should go, the Government are attempting to say that it is their way or the highway. That is not acceptable, which is why I support the Lords amendment on a meaningful vote, and I hope that all others will do so as well.
This week, Alex Kalinik—a constituent of mine who campaigned with me for a remain vote in the referendum—sadly died a week before his wedding, aged only in his 30s. He was an individual of great integrity and passion. He worked in the steel industry, but believed passionately in having a close economic relationship with our European partners. Earlier this year, we lost another good friend, Will Cousins, a young man who campaigned passionately as part of the “stronger in” campaign and as a part of Open Britain. Of course, we also lost our very deeply missed friend, Jo Cox, nearly two years ago. Like me, she was passionate about our relationship with our European neighbours.
We are in this place—indeed, in this life—for a very short time. There are some things on which we will compromise, make amends and move over, but when it comes to the very big and defining issues of our time, of which this is one, we should be voting with our conscience and in the interests of our country, and we should be doing so in the interests of a better future for all our constituents.
Charlie Elphicke
When I talk to people on Dover high street about the situation with Europe, they say to me, “Why haven’t we left already?” I tell them, “Well, we are now having debates on things like meaningful votes,” and they reply, “But we had a meaningful vote—we had a meaningful vote in a referendum two years ago, and you guys up in Westminster are just endlessly rediscussing that referendum.” In that referendum, I backed remain. I thought that leaving Europe would be big project that would take up a lot of our capacity as a country, and I urged caution on my constituents, but they were really clear that they wanted to leave the European Union.
We need to respect the result of the referendum. I take a very pragmatic approach that, having had the instructions of my constituents and knowing their clear view, my duty is to discharge the instructions that I have very clearly been democratically given by the people. Those people are my master and I am their servant, so their wishes and requirements ought to be honoured. And that goes for the country as a whole. The country as a whole had a referendum and made a decision. We need to make this work and we need to get the best position for Britain.
That brings me to the next question. When people say, “Parliament should approve this,” what do they really mean? What will they think across the channel? What deal will they want to offer us? The people in the European Commission are not stupid. They can see how the numbers stack up in our Parliament. They can see that, if this provision on a meaningful vote is passed, they could offer us any kind of rubbish deal and the Government would be in a position whereby the Commission would have this country over a barrel. If we want this country to have a really bad deal, measuring the level of this country’s problems in billions of pounds, and if we want to get the worst possible accommodation and the worst possible departure from the European Union, this is how we would achieve it.
That is why, while I have the utmost respect for my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), I would say to him that his proposal is not the right way to proceed. We cannot micromanage the negotiation, but, worse than that, we cannot have a negotiation where we cannot walk away from the table as the other side knows that we will never be able to do so. I urge the House to take the pragmatic approach of supporting the Government’s amendment in lieu, which will enable us to have an effective negotiation and support the national interest.
Seema Malhotra
I want to focus my remarks on Lords amendment 19, which is about the fundamental question of the engagement of Parliament in the process and the outcome of Brexit.
It has been argued that the amendment has been tabled to, in essence, frustrate the Brexit process, but that could not be further from the truth. At its heart, this debate is about what we mean by a meaningful vote. The Prime Minister and other senior Ministers have promised Parliament a meaningful vote. I echo the words of the noble Lord Hailsham, who said that
“in a parliamentary system of government, parliamentarians, and in particular Members of the House of Commons, have a right and a duty to determine what is meant by ‘a meaningful vote’.”—[Official Report, House of Lords, 30 April 2018; Vol. 790, c. 1847.]
If the decision of Parliament, on the basis of good argument or after effective scrutiny, is to reject the terms of the deal, then Parliament should have the right to determine and suggest further negotiations or options on how we move forward. There is an important principle that did not get as much of an airing in the Secretary of State’s speech as I would have expected—namely, the role of Parliament. In a parliamentary democracy, is it not right that whatever the outcome, deal or no deal, this country’s future should be determined by Parliament—ultimately, by the House of Commons—and not by Ministers? That is what ought to be meant by a meaningful vote.
It is in the interests of this country for there to be an orderly, stable and predictable Brexit process that enables businesses and families to plan ahead and do all they can to manage the risks of transition—a point often made to me by businesses in my constituency. If the Government are as confident as they make out about getting a good deal, they should have no problem accepting this amendment.
Andrew Bridgen
The hon. Lady claims that she is very worried about the fact that we could have a bad deal or no deal, but will she not concede that in advocating amendment 19, she is more or less guaranteeing that the EU will offer us a bad deal to create a constitutional crisis in our country?
Seema Malhotra
I thank the hon. Gentleman for that comment, but I do not agree.
Legislation is passed in this House not just to plan for when things go well but to provide protections and a route map for actions when things do not go well. There may well be an honest intention to reach a deal by October 2018, but there is no guarantee. I am not talking down the Government’s negotiation attempts, but there is a real possibility that that may not happen.
Let me be clear: this is not about an unnecessary extension of, or thwarting of, the process; it is about providing for clarity in this House, in the circumstances that may arise, about what happens in the final months before Brexit. This can only be helpful in managing the risks of Brexit for our country in the event that a deal is well under way but not reached, or that a deal has not been agreed. It would certainly not be against the spirit of the referendum result, and it could be precisely in the national interest at the time.
Kevin Hollinrake
As a remainer who voted to remain and campaigned heavily to remain, and who would do so again if we ever had another referendum—not that I am advocating that—I think it is fair that Members on both sides of the House raise their concerns about the economy and the effect on jobs and trade. As you know, Mr Speaker, I am still involved in business to this day, so this has a potential personal impact on me. It is quite reasonable that colleagues will want to see the substance of this deal. That is the temptation, but it is not a position I advocate, for a number of reasons.
The Prime Minister has sought to mitigate the effects of leaving, even in difficult circumstances. We have to keep this in perspective and take into account the fact that our exports to the European Union account for around 12% of our trade and of our economy. We also have to remember that the Prime Minister is quite rightly taking a staged approach to withdrawal, which involves staying in the customs union until we have customs processes in place, and maintaining regulatory alignment until we negotiate a reasonable new approach.
Subsection (5) of the new clause proposed in Lords amendment 19 raises the prospect of the Government following “any direction” that Parliament gives. Similarly, new subsection (5C) proposed in amendment (ii) to Government amendment (a) in lieu of Lords amendment 19, tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), raises the prospect that Parliament will simply send the Government back to the negotiating table. What will happen if we go back to the negotiating table and the European Union says no? There is no clarity at that point. It opens up and allows the possibility of staying in the EU for an extended time, with no clarity about how long that will be; it may be weeks, months or years. We should remember that those on the other side of the negotiating table do not want the United Kingdom to leave the European Union, and that raises the prospect of their being even more difficult in those negotiations, which are very difficult in the first place.
Angus Brendan MacNeil
I have heard a number of times that the meaningful vote might or would enable the European Union to give us a bad deal. I argue that it is the contrary. A UK Government with any wit about them would say to their negotiating opponents, “We’ll never get this through Parliament unless it is improved.” It actually strengthens their hand in the negotiations, rather than weakens it, if they have any wit about them.
Kevin Hollinrake
I find that assessment of the circumstances very hard to follow. We are not negotiating on our own; we are negotiating with another party, and clearly it is in their interest to put a bad deal on the table in that situation. That would delay the exit process, which is effectively what these amendments seek to do. I am not saying that my right hon. and learned Friend the Member for Beaconsfield is looking to frustrate the process of Brexit, but it would delay the process of Brexit and raise the possibility of that process never happening at all. We are handing over the negotiating advantage to the EU.
The Solicitor General
I thank my hon. Friend for giving way. I want to reiterate the commitment that I have given at the Despatch Box on behalf of the Government to further discuss the matter with my right hon. and learned Friend the Member for Beaconsfield and others. I am particularly interested in new subsections (5A) and (5B) of his proposals and want to use that as the basis of a structured discussion as we reach the Lords amendments.
Mr Speaker
I advise the hon. Member for Thirsk and Malton that others wish to speak.
Kevin Hollinrake
I am about to conclude, Mr Speaker.
The amendment would hand over the negotiating advantage to the EU and raise the prospect, whether Members intend it or not, that we may never leave. Opposition Members should not support it.
Several hon. Members rose—
Tom Brake
I say to the Secretary of State that if he goes naked to the negotiating table—flaunting it all—it is because he and his supporters have conducted their ideological warfare on the airwaves and in our newspapers, not because of any votes we may have today.
The Liberal Democrats have tabled amendment (a) to Lords amendment 19, which would provide people with a final say on the deal. It would be an opportunity to test the will of the people, and I do not quite understand why the Government—and, indeed, the Brexiteers—are so scared by the concept of testing the will of the people.
We have heard a lot about the will of the people, and I must say that it is now the only reason the Government can deploy for supporting Brexit. If we look at the economic grounds, we know from the impact assessments that it will do us damage. On the diplomatic grounds, our friends despair at what we are doing. On the security grounds, we hear threats and counter-threats about not delivering on the security agenda. On savings, we know there will not be any because, among other things, the Government will have to set up a whole series of parallel institutions doing exactly the same thing as the EU ones. On trade, do we really think we are going to get a huge boost from trade with Trump as a protectionist President?
Our amendment (a) to Lords amendment 19 would provide the people with an opportunity to have their views known on this subject, against a background in which much has changed since the referendum vote two years ago. It would give them a say on the final deal, which they are entitled to and deserve, and I think that would put this issue to bed once and for all.
Mr Jonathan Djanogly (Huntingdon) (Con)
The key difference between Lords amendment 19 and Government amendment (a) is that, in the event of a no deal scenario, the Government amendment simply requires a statement, while the Lords amendment in effect grants Parliament a power to issue negotiating directions. On the face of it, it looks attractive to say that if the Government cannot deliver, the Commons should be able to step in, but on these procedural amendments, I can see the other side of the argument.
Governments negotiate treaties, under the terms of the royal prerogative, and Executives govern, and I am not one who would wish to undermine that concept except in the most extreme circumstances. That is what I have been weighing up in recent days. I also recognise that the proposal in Government amendment (a) concedes the Lords request that Parliament should gain a legal right to a veto on an international agreement. I believe that this would be the first time such a veto had been allowed in law in the UK, and it moves us into line with the European Parliament approvals. It is fair to say that, in the past few days, the Government have gone some way to address the concerns on this issue.
In my considerations, I have been no little influenced by the Prime Minister, who I sincerely believe wants the best deal possible for the UK and who is asking to be able to go to the June EU meeting with the freest possible hand. However, if the Prime Minister gets the deal this country needs, even with the Government concession in their amendment (a), there is still no plan B if Parliament then rejects the deal. That is why I think the new compromise, tabled last night by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), moves towards the balance required in retaining both constitutional integrity and practical requirements. I was therefore very pleased to hear the Secretary of State say that this issue will now be looked at again in the Lords, and the Solicitor General reinforced that in his earlier comments.
Frank Field
Two great dramas are being played out. The Father of the House asked how we, as part of a representative system of government, should implement a referendum result. There has also been a drama on this side of the House. Two thirds of Labour constituencies voted to leave—
Mike Gapes (Ilford South) (Lab/Co-op)
But two thirds of Labour voters voted to remain.
Frank Field
I am not disputing that. If my hon. Friend wants to intervene, he can do so and give me another minute. I am not trying to impugn anybody’s motives, but when we signed up to the referendum, rather than the normal four sides of A4 of additions—
The Solicitor General
May I just say to the right hon. Gentleman that with regard to the issues we have been discussing, I and the Government are looking very carefully at amendments that may be tabled in the other place? Such amendments will be the product of any discussions I have with my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve).
Frank Field
For the referendum, it was not four sides, but a small telephone directory of people—they are generally talked about in a disdainful way—who were saying they had nowhere else to go. My real concern is what happens to representing those key Labour interests. I hope that there will be those further discussions and, in the process of coming to a good resolution and ensuring that the majority of the two thirds of the Labour constituencies are well represented, may I be part of any of those private discussions?
Antoinette Sandbach
I want to say how grateful I am that the Lords have given the consideration they have to the Bill, and they have improved it considerably before sending it back to us. I accept that the Solicitor General has given an important concession today and I would have supported the Lords amendment had that concession not been made.
Mr Ben Bradshaw (Exeter) (Lab)
I think it would be very helpful to the House if the hon. Lady could spell out in a little more detail exactly what the consensus is—
Mr Speaker
Order. I am sorry, but time is up— [Interruption.] Order. We are all governed by the programme motion, which the House voted to agree. I have no vote in these matters; the House adopted the programme motion.
Tom Brake
On a point of order, Mr Speaker. Having failed to secure three days of debate on the Lords amendments through an earlier Liberal Democrat amendment—which we can see was in fact desperately needed, because we are not going to have any time at all to discuss Northern Ireland or the devolution settlements— I must now seek your guidance on another matter.
There is a Liberal Democrat amendment on the amendment paper that would provide for a final say on the deal. It is supported by more than 20 Members of Parliament, and more have indicated that they would support it if it was pushed to a vote, but that is not going to be possible. Indeed, the hon. Member for Bracknell (Dr Lee), with his new-found freedom, may have wanted to support it.
I seek your advice on what we can do to make our proceedings more transparent to the public and ensure we vote on matters that are dear to the public’s heart, such as a final say on the deal. I also seek your advice on how to stop the Government closing down debate on matters that they consider to be uncomfortable or that would expose their incompetence or inconsistency.
Mr Speaker
I am most grateful to the right hon. Gentleman for his point of order and for his courtesy in giving me advance notice of his intention to raise it. Of course I understand his points; he would probably be more than a little perturbed if I did not. To be clear—I think it warrants a simple explanation or statement to the House—all I can do is to select or not select amendments and to decide whom to call to speak. His amendment was selected, and I vividly recall that he was able to make a brief contribution to the debate.
I am as tightly bound by the Standing Orders of the House as the right hon. Gentleman is, and—I say this for wider intelligibility of our proceedings—once the knife has fallen during consideration of Lords amendments, which means in simple parlance once time for debate is up, only Ministers may put propositions to the House. That may dissatisfy some colleagues, but I am sure everyone will accept that we have to operate in accordance with the rules, and where there is no discretion, I cannot assume that there is. I hope that that is at least helpful in explaining how we are doing things and why we are doing what we are doing. I am grateful to the right hon. Gentleman.
Before Clause 9
Parliamentary approval of the outcome of negotiations with the European Union
Motion made, and Question put, That this House disagrees with Lords amendment 19.—(Mr David Davis.)
Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)
On a point of order, Mr Speaker. I want to raise a real concern among Labour Members. We voted against the programme motion—we presented an alternative—and we will not be able to debate our amendment on the devolution settlement in the House because we will not have sufficient time. We therefore—[Interruption.]
Mr Speaker
Order. Mr Bowie, you are usually the epitome of urbanity and restraint. There is an enormous amount of gesticulation taking place of a very unseemly character, of which our witnesses, sitting cerebrally in the Gallery, would almost certainly very strongly disapprove. [Interruption.] Order. A Government Whip chunters from a sedentary position, “They love it.” I do not know whether he has conducted his own opinion poll, but they may not be a homogeneous group—some of them may love it and some of them may not, but we do not know. We are going to hear from the hon. Member for Glasgow North East (Mr Sweeney), who is himself a most cerebral individual, and then we will proceed.
Mr Sweeney
Insufficient parliamentary time has been allocated for debate. We presented an alternative programme motion that would have afforded sufficient time. I therefore seek your advice, Mr Speaker, in relation to how the Labour party will stand up for the people of Scotland and the devolution settlement, and how we can deliver that amendment. It is not acceptable that we are unable to debate it in Government time, so we seek your advice.
Mr Speaker
I always take the hon. Gentleman extremely seriously—[Interruption.] Order. I most certainly do. He is a very assiduous new Member of this House, and I do. However, I hope he will not take it amiss if I say that I think what he has just said amounted to a declaration of intent on his own behalf and that of his colleagues to get his message across. I am not sure that, in any meaningful sense at this point, he is really in need of my advice. In so far as he wants my advice, my general advice to all colleagues is a word beginning with p and ending with t—persist. Persist, man!
Mr Speaker
Order. I think that it is better if we—[Interruption.] Order. I am saving the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) up; it would be a pity to squander him too early in our proceedings—[Interruption.] Order. The hon. and learned Member for Edinburgh South West (Joanna Cherry) should calm herself. I will hear fully from the right hon. Gentleman when he is ready. All I am suggesting to colleagues—it is hardly a controversial proposition—is that it might be tidy if we first dispose of the remaining amendments in the group. I will hear the right hon. Gentleman either before or after the second group of amendments, the choice being his. The idea that that should evoke headshaking and disapproval is frankly beyond credulity. The leader of the Scottish National party, whose point of order it is, seems perfectly content with that proposed arrangement, and I am grateful to him for his nod from a sedentary position in confirmation of that important fact.
Mr Speaker
I am coming to the hon. Gentleman, too.
Lords amendments 11 to 14, 18, 21 to 23, 44, 47, 102 to 107, 112, 113, 115 to 119, 121 to 124, 126, 127, 130 to 134, 136 to 140, 142 to 148, 150, 152, 154, 156 to 158, 171 and 172 agreed to, with Commons financial privileges waived in in respect of Lords amendments 13, 18, 22 and 121 to 124.
Mr Speaker
As the House is in a state of repose, I suggest, building on earlier conversations that perfectly properly took place with the Chair, that we come now to the next Lords amendment, but if the right hon. Member for Ross, Skye and Lochaber, who leads his party, would prefer to raise his point of order now, I will be perfectly sanguine about that.
Mr Speaker
No. He will come to it afterwards. Very good; I am grateful to him for his guidance.
Before Clause 10
Continuation of North-South co-operation and the prevention of new border arrangements
The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office (Mr David Lidington)
I beg to move Government amendment (a) to Lords amendment 25.
Mr Speaker
With this it will be convenient to discuss the following:
Lords amendment 25, and Government amendments (b) to (e) thereto.
Lords amendments 15 to 17.
Lords amendment 26, and amendments (a) to (k) thereto.
Lords amendments 27 to 31, 46, 48 to 50 and 54 to 58.
Lords amendment 59, and amendments (a) to (d) thereto.
Lords amendments 60 to 101, 108, 109, 111, 114, 120, 129, 135, 141, 149, 151, 153, 155, 162, 165, 169, and 173 to 196.
Mr Lidington
This group of amendments covers two subjects: first, the operation of competences returning to this country from the European Union that intersect with devolved competences under the three devolution settlements; and, secondly, the Lords amendment on Northern Ireland and the Belfast agreement.
Let me turn first to the matters that apply to devolution. In its original form, the Bill, in what was then clause 11, provided for all those powers to be held initially at Westminster and transferred to a devolved level only when agreement had been reached on an appropriate UK-wide framework to protect and preserve the UK single market and respect our international obligations. The key charge against the old clause was that it was not right to hold otherwise devolved powers returning from the EU in Westminster by default.
Pete Wishart (Perth and North Perthshire) (SNP)
Is the right hon. Gentleman not ashamed, embarrassed and appalled that we have only 15 minutes to discuss these critical devolution issues? These amendments were designed in the House of Lords, but we, the directly elected Members, have not had the opportunity to debate them. Is he not ashamed of himself?
Mr Lidington
No. I think that the Government allowed perfectly adequate time for debate on these issues. As the hon. Gentleman knows, these questions on devolution matters have been discussed in great detail by me, my Ministers and officials, and the Welsh and Scottish Governments and legislatures for many months. As I hope to explain, the Government have made very substantial compromises to address precisely the concerns raised by both Scotland and Wales. I am pleased that the Welsh Government have accepted the merits of the compromise we proposed and reached an agreement.
Martin Whitfield (East Lothian) (Lab)
Does not the Minister agree that there might be more confidence in the Government’s approach if he had managed to table his amendments in this House before the Bill went to the other place?
Mr Lidington
The purpose of a parliamentary process is to examine in detail. In respect of these clauses, the House of Lords has done its job as a constructive revising Chamber. I certainly had very good conversations with Members of the House of Lords from the Labour and Liberal Democrat parties, as well as those from my own party and Cross Benchers. As I said, we continued very detailed conversations with not just the Welsh Government, who have agreed, but the Scottish Government. I want to put on record that although we have not been able to reach a final agreement, the Scottish Government have engaged for many months in a very constructive fashion. Many of the detailed changes embodied in this group of amendments actually reflect things that the Scottish Government, as well as the Welsh Government, sought from us.
We have, alongside the amendments, designed, working with the devolved Governments, a comprehensive intergovernmental agreement. This makes it clear that the UK Government will always seek agreement from the devolved Governments and should act by agreement, wherever possible. In response to the request from both Wales and Scotland, we have underpinned that principle with a commitment that we will not normally ask the UK Parliament to approve regulations to preserve existing frameworks without devolved consent for those regulations.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
Is it not the case that the Minister is placing legal constraints on the Governments of Wales and Scotland, but only political constraints on the Westminster Government?
Mr Lidington
It is simply not possible, by legislation, to constrain the UK Parliament. The UK Parliament is sovereign. I know the hon. Gentleman’s party in the Welsh Assembly opposed the compromise on offer, but I was very pleased to see that the Labour Government in Wales and the Liberal Democrats in Wales were prepared to accept what I thought was a reasonable compromise, to vote in favour of a legislative consent motion and to commit themselves to repeal the Welsh Government’s continuity Bill at the earliest possible occasion.
The Scottish and Welsh Governments have also been clear that we should not try to use these regulations as a mechanism to avoid seeking legislative consent when creating future frameworks. We agree, and we have spelled that out in terms in the agreement. They asked us for a guarantee that we would not legislate for England where devolved powers to legislate for their respective nations were frozen, and we have put that into the agreement as well. That is why I do not accept the case that has been put forward by the Scottish Government for withholding consent for these proposals.
Ian Blackford
I am grateful to the Minister for giving way. Does he not acknowledge that when we passed the Scotland Act 1998—the right hon. Gentleman was a Member of Parliament at the time—it was very specific about what are reserved matters? We cannot get away from the fact that what this Government are doing is legislating on matters that are devolved. This is a power grab. Will the Secretary of State commit today not to legislate without a legislative consent motion from the Scottish Parliament on behalf of the Scottish people?
Mr Lidington
Not only do the agreements that we have reached with the Welsh Government and embodied in these amendments respect the devolution settlement— indeed, Welsh Ministers have said very firmly that they believe that devolution is fully respected—but I think that we have complied in full with our obligations under the Sewel convention. The right hon. Gentleman should look again at the statement by Mr Mike Russell, the Minister for UK Negotiations on Scotland’s Place in Europe from the Scottish Government, who described the situation we are in as a “novel” one and said:
“In normal times, such a bill would follow a normal timetable, but these are not normal times.”—[Scottish Parliament, Official Report, 1 March 2018; c. 29.]
It is the Scottish Government who are saying that we are not in a normal situation.
Ross Thomson (Aberdeen South) (Con)
At a time when President Donald Trump and Kim Jong-un, the most difficult of partners, can show that an agreement can be reached, is it not telling that the only person who cannot reach an agreement is Nicola Sturgeon, because all the SNP cares about is grievance and independence?
Mr Lidington
My hon. Friend puts his finger on the truth. It is of course a great disappointment that the Labour party in the Scottish Parliament, despite its protestations of Unionism, on this occasion decided to ally itself with the Scottish nationalists.
Luke Graham (Ochil and South Perthshire) (Con)
Will my right hon. Friend confirm that the 119 powers coming to the Scottish Parliament and the 24 powers being reserved are exactly what people in Scotland want? It strengthens devolution but maintains Scotland in the United Kingdom. Does he also agree that perhaps if Holyrood had had more than 25 hours of debate versus the 252 hours of debate here, we could have reached an agreement, and we would not be here today?
Mr Lidington
I am grateful to my hon. Friend for reminding the House that we should bear in mind, when listening to the criticisms of the allocation of time here, that it is sometimes a question of people living in a glass house flinging rocks around. I say to him, too, that of course Scottish business has been very clear that we need UK-wide frameworks to protect a single UK market that brings great benefits both to Scottish business and Scottish consumers. It is only a few weeks since the Scottish Retail Consortium, the Scottish Food and Drink Federation and the Scottish Bakers said in terms in public that the maintenance of United Kingdom-wide frameworks on such matters as food standards and food labelling was of vital importance to the future wellbeing of their member companies and the customers whom they serve.
Ian Murray
While Government MPs and the SNP fight over flags, I would rather fight for my constituents, so can the Minister tell the House when I will be able to debate this particular clause on behalf of my constituents, because this elected House has had no time either to debate that clause or the very important issues in Northern Ireland and in Wales?
Mr Lidington
I say to the hon. Gentleman, who I suspect does not share the views of the Labour party at Holyrood on this matter, that he should address his concerns and criticisms to his own Front-Bench team. It was their decision to divide, but it was approaching the ridiculous for us to have three separate Divisions on whether the word “necessary” should replace the word “appropriate”. It was open to the Opposition to accept a single vote grouping those three amendments, but they chose not to, and that has used up a significant amount of our time.
We have ensured that no existing power will be taken from the devolved institutions and have provided for a significant increase in the decision-making powers of the devolved Administrations after exit. In doing so, however, we have also made sure that we do not compromise on those important common approaches we have to safeguard our internal market, manage our common resources and allow us to be an open and competitive trading nation as we develop new arrangements to replace the EU frameworks.
Jenny Chapman (Darlington) (Lab)
Will the Minister accept that the programme motion passed earlier today has led to the ridiculous situation that these important amendments, including amendments on the Irish border, have to be debated in such a short period and it looks as though his is the only voice that will be heard?
Mr Lidington
There is a balance between my giving way frequently and allowing more time for others to speak. I repeat to the hon. Lady that it was the choice of her Front-Bench team to have 11 or 12 Divisions, in a number of cases duplicating in one Division what had already been determined in another.
I will turn now to Lords amendment 25 on the Northern Ireland border. In many ways, the amendment is, as a number of noble Lords noted, a statement of Government policy and was prompted very eloquently in the Lords by my noble Friend Lord Patten. It seeks to ensure that we will not act incompatibly with the Northern Ireland Act 1998 and that we will have due regard to the joint report of December last year. It seeks to protect north-south co-operation between Northern Ireland and Ireland and to prevent, among other things, physical infrastructure on the border with Ireland.
Nigel Dodds (Belfast North) (DUP)
I welcome the decision to tidy up the jurisdiction and sovereignty issues raised in the House of Lords in the Patten amendment. Will the Minister confirm that the powers in the amendment are restricted purely to the purposes of the Bill?
Mr Lidington
I can confirm that the right hon. Gentleman’s interpretation of the Government amendment in lieu is exactly as he has described.
Lady Hermon (North Down) (Ind)
The Minister will be well aware that there is considerable concern in Northern Ireland that we should have no hard border. The Government have repeatedly confirmed their commitment to that, and I do not doubt the Minister’s bona fides, but that commitment appears to be contradicted on the ground by decisions of the Chief Constable of the Police Service of Northern Ireland, who has in recent weeks asked for funding for up to 400 additional police officers for operational duties along the border post Brexit and, significantly, is retaining three disused border police stations. What does the Minister think he is doing? Is he preparing for a hard border?
Mr Lidington
As the hon. Lady knows, Ministers in the United Kingdom Government have no power to direct or even give guidance to the Chief Constable of the Police Service of Northern Ireland or the Northern Ireland Policing Board. The Government could not have been clearer about our commitment to ensuring no hard border between Northern Ireland and the Republic of Ireland. That was a key element of the joint report agreed last December, and it is a commitment that the Prime Minister described in her Mansion House speech as a fundamental underlying principle of our approach to our negotiations with the European Union.
We said in the House of Lords that we agreed with the spirit and intent of Lord Patten’s amendment, but that it was not drafted in a legally appropriate way. We therefore tabled a number of amendments to try to tidy it up and ensure that it was in a fit form, which I hope will command consensus in the House. It reflects the reality that the withdrawal agreement—
Points of Order
Ian Blackford (Ross, Skye and Lochaber) (SNP)
On a point of order, Mr Speaker. This was an important day for the people of Scotland. The House has just agreed to a series of sweeping amendments to the European Union (Withdrawal) Bill made by the Government in the House of Lords that fundamentally changes the devolution settlement on these islands—changes from which the Scottish Parliament has expressly withheld its consent.
We have had no adequate time for debate and, in the time available, we simply heard from the Minister for the Cabinet Office. There was no chance for a vote on any of the amendments tabled by Members of Parliament from Scotland—amendments that would have protected the position of the Scottish Parliament. Moreover, Scotland’s voice has been shut out of the Brexit debate—[Interruption.] The Conservatives are chuntering and I can see the hon. Member for Moray (Douglas Ross) shaking his head. He has just voted with his colleagues to undermine the powers of the Scottish Parliament, and he should be ashamed of himself—[Interruption.]
Mr Speaker
Order. The right hon. Gentleman started out on a virtuous path of raising a point of order with the Chair, from which he was diverted by the forces of gesticulation. The right hon. Gentleman must and will be heard. His point of order is with the Chair, and it must not lead to a kind of conduct of orchestra scenario, with which the House is becoming all too familiar, between SNP Members and Government Back Benchers. Let me hear the point of order and respond to it.
Ian Blackford
I will just simply say that we are used to the boorish behaviour of the Scottish Conservatives.
Mr Speaker, I seek your advice on where we go next. We are in unprecedented, uncharted constitutional territory. The Conservative Government have used unelected lords to veto the will of the Scottish Parliament and have refused to allow time for this House to debate the alternatives properly. The Government could have ensured protected time for Scotland’s parliamentarians to speak today, but they did not, so we fell silent. What options are available to us in this House to ensure that the Government understand the real concern among people in Scotland at this unprecedented power grab? How can we ensure that our voices are heard?
Mr Speaker
I am most grateful to the right hon. Gentleman, and I will respond, but I think that the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) wants to raise a not altogether dissimilar point.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Further to that point of order, Mr Speaker. What avenues are open to me to seek further clarification on the operation of the Sewel convention, about which we heard so much, when the precedent set today is so corrosive to public trust in Wales?
Several hon. Members rose—
Mr Speaker
Order. Let me seek, if I may, to attend to the matters that have been raised, and then I will come to the hon. Member for Perth and North Perthshire (Pete Wishart) and others as necessary.
On the subject of the absence of a legislative consent motion from the Scottish Parliament, I can merely observe that I have no powers to stay—I use that term in a technical sense in this context—or to interrupt proceedings because there is no such motion passed. Whatever the very understandable sense of grievance that exists, which I am not disputing or arguing against or for, I am satisfied that, so far as the Chair is concerned, I can with authority say that the House has complied with its Standing Orders.
That may be very, very, very far from comforting or satisfactory to Members who are aggrieved. I understand what they are telling me, but the House has complied with its Standing Orders. That is the first point. There is in that sense no procedural impropriety, but the absence of procedural impropriety does not mean that people do not feel aggrieved for other reasons or on other grounds.
Secondly, both Members in a sense asked me, “Well, what recourse do we have?” Perhaps I should start by saying what recourse Members do not have. Today’s proceedings are effectively coming to an end and there is then an Adjournment debate, so the House will know that there is no recourse tonight, and people attending to our proceedings should know that. Moreover, tomorrow the House is treating of these matters appertaining to the withdrawal Bill, but it is dealing with very different sets of issues, on which the right hon. Gentleman’s concerns do not bite, so there is no obvious opportunity for these matters to be aired tomorrow.
However, without going into the full arsenal of weapons open to a Member of Parliament, there are means by which Members can try to secure the attention of the House to matters that they judge to be important, and if they feel that that needs to be done relatively soon. The right hon. Gentleman, who has now been here three years, is well familiar with some of the opportunities that are open to him and it is perfectly legitimate for him to seek to use those mechanisms. I get the impression, both from the right hon. Gentleman and from the hon. and learned Member for Edinburgh South West (Joanna Cherry), who has legal expertise and some experience of these matters, that the nodding of the head suggests that they understand what I am saying to them.
Several hon. Members rose—
Mr Speaker
Very well. As I referred to the hon. and learned Lady, I will take her point of order first.
Joanna Cherry (Edinburgh South West) (SNP)
On a point of order, Mr Speaker. When my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) was asking you what options were open to Scottish parliamentarians to raise their concern about what has just occurred today, the hon. Member for Bridgwater and West Somerset (Mr Liddell-Grainger) shouted, “Suicide”. Is that in order, Mr Speaker?
Mr Speaker
I would say to the hon. and learned Lady that I did not hear that. [Interruption.] I am not disputing it; I am simply saying that I did not hear it. If I had heard it, I would not have approved of it. [Interruption.] Order. What I would say to the hon. and learned Lady, and for the benefit of people listening to our proceedings, is that I would judge that, frankly, to be distasteful. Is it disorderly? It is almost certainly not disorderly. The hon. and learned Lady will probably know—she is a student of these matters—that the House long ago dispensed with the idea of a formal list of disorderly words, not least because the list became too long and therefore unmanageable. Therefore, everything has to be judged in context—on the basis of the context in which a particular word or phrase is used. Is the word “suicide” disorderly? No, but in this context, it is distasteful, and I am sorry that it was used.
Several hon. Members rose—
Mr Speaker
There are a lot of Members wanting to raise points of order. I think I will come to a Dorset knight first.
Sir Robert Syms (Poole) (Con)
On a point of order, Mr Speaker. Many of us on the Government Benches are disappointed that the matters of devolution did not have more debate. That was a consequence of the Opposition calling so many Divisions, thereby reducing the amount of time. What additional help can the House authorities give in time management training for the official Opposition so that, on future occasions when we have a clearly defined time for debate, they can decide when they are going to vote and when they can allow free-standing debate?
Mr Speaker
I hope the hon. Gentleman, who entered the House with me in 1997—I have known him a very long time—will not mind if I say that I think his point of order was delivered with a puckish grin and was of what I call a rhetorical character.
Pete Wishart (Perth and North Perthshire) (SNP)
On a point of order, Mr Speaker. Can you confirm that what has to happen now is that this Bill has to be presented for Royal Assent and that the timing of that presentation is a matter for the Government? Is it right that within that period they could still seek to make some arrangement with the Scottish Parliament and that Royal Assent should not be granted until a legislative consent motion has been passed in the Scottish Parliament? Surely that must now be what happens, because the Scottish people, who have been watching these proceedings today, are ashamed and appalled at what has happened in their name and at the way the devolution settlement has been turned on its head. Surely, even at this stage, something should be done to protect the devolution settlement.
Mr Speaker
I am grateful to the hon. Gentleman for his point of order. I hope he will not take it amiss if I simply say that the matter of Royal Assent is not one for the Chair—it is somewhat above my pay grade. It is for people with expertise in that subject. I hope he will not mind—I am going to say this even if he does—when I say that he is a little ahead of himself. I know he is a quick thinker, but he is a bit ahead of himself, because the Bill has first to complete its passage through the two Houses before the issue of Royal Assent arises. This Bill has not yet completed its passage through the two Houses. We are still engaged in what might be described as legislative or parliamentary table tennis with the upper House. Only when that process—that game of ping-pong—has been concluded will the issue of Royal Assent arise. So although I understand what he is telling me, and it may be an issue to be broached at some point by some person, that point is not now.
Ian Murray (Edinburgh South) (Lab)
On a point of order, Mr Speaker. I, like many Members in this House, have received hundreds, if not thousands, of communications from constituents on this Bill. As many Members from across the House have said, it is the most important issue this House has dealt with since perhaps the second world war. I seek your guidance, but I also seek to put this on the record. It reflects very badly not only on this House but on all parliamentarians of all colours that I cannot represent the thousands of constituents who have contacted me about significant amendments that have been brought forward from the other place because of the time restrictions put in place by the Government programme motion. I know that is not your responsibility as Chair, but if we want politics and Parliaments in this country to thrive, we have to ensure that we present something to the public that allows them to feel, first, that they are engaged and, secondly, that their representatives can take part in debate to make their representations known. We have been unable to do that this evening, and the Government should reflect on the fact that people will be watching these proceedings and will be very upset that their representatives have been unable to contribute.
Mr Speaker
I am very grateful to the hon. Gentleman for his point of order and for the courtesy with which he raised it. What I want to say succinctly to him, and for the benefit of the House and others interested in our proceedings, is that there are matters that admit of discretion and matters that do not. Where there is discretion that can be exercised by the Chair—I say this in no spirit of self-advertisement and am simply trying to put the fact on the record—my instinct, as I have said to a number of colleagues in conversation today, has always been to allow more debate and more votes. If there is a desire for an urgent question and I think it is urgent, I grant it. I have done that on hundreds of occasions during the past nine years. That will please some people and displease others, but I am trying to do the right thing by the House of Commons.
I hope that the hon. Gentleman will understand—I know Ministers will—when I say that the Standing Orders are not accidental. This is not an inadvertent omission or construction of words on the part of those who drafted the Standing Orders. The Standing Orders are as they are for a reason, which is that they were drawn up for a purpose and they have been accepted by the House, and they do not admit of any discretion on my part. If I had discretion, no doubt I would exercise it, but I do not. I entirely understand what the hon. Gentleman is telling me, but my advice to him and to others who are similarly concerned—this is a general piece of advice, not specifically in relation to this Bill—is that if they feel strongly that there is an aspect of our procedures that should be handled differently, it is a good idea to address such matters in what I would call “peacetime”, rather than simply raising them in “wartime”. I have never known any Member previously raise this matter with me by way of complaint. Members are now complaining—I am not complaining that they are complaining, as they have every right to complain if they so wish—because it affects them here and now, or it affects the point they want to make, the subject they want to broach or the amendment they want to put to the vote. I have to work on the basis of the Standing Orders as they exist, and that is what I have done. I am not insensitive to the wider point that the hon. Gentleman has made.
Several hon. Members rose—
Mr Speaker
Order. I call Dr Philippa Whitford, then I will come to Mr Coaker.
Dr Philippa Whitford (Central Ayrshire) (SNP)
On a point of order, Mr Speaker. We were told on Report and Third Reading that the Bill was going to the Lords, where there would be amendments, and that when it came back, because the Secretary of State for Scotland had not tabled his amendments, we would have time to debate it in detail. There was 19 minutes, all of which was used up by the Minister for the Cabinet Office. That is unacceptable, so how do we prevent it from happening when the Bill returns from the Lords next time?
Mr Speaker
I am alert to the danger of a repetition, as articulated by the hon. Lady. I think the answer is that it is up to the House to determine the programme motion. If the programme motion is considered unsuitable and unlikely to facilitate the nature and extent of the debate that the hon. Lady and her colleagues want, they know what their recourse is. They must seek to persuade a majority of the House to reject such a programme motion.
I have looked very closely at the amendability of such motions, and I know that an amendment was tabled. The Standing Order specifies that the Question on the programme motion should be put forthwith. As the hon. Lady knows, I regularly select amendments in debates that are voted upon, including on legislation, and while amendments to the programme motion are not prohibited—they can be tabled—there is no means by which they can be voted upon, as I interpret the Standing Order. It is therefore up to Members, if they do not like the programme motion, to defeat it. I am sorry if that does not satisfy the hon. Lady. I am not insensitive to this issue, but that is the factual position. Some Members may not like Standing Orders, but I owe it, in fairness to those who drew them up, to say that there is no constitutional or procedural impropriety in what has happened today. There may be other grounds for objection, but there is no procedural impropriety. The Minister, in addressing the matters as he did, allegedly for 19 minutes, was entirely within his rights to do so and, to be fair, he did take quite a lot of interventions in that period.
Several hon. Members rose—
Mr Speaker
Mr Gray, I do not think your mother would forgive me if I did not take your point of order.
Neil Gray (Airdrie and Shotts) (SNP)
On a point of order, Mr Speaker. I seek your advice on what constitutes a debate. Does one Minister speaking for 19 minutes, and riding roughshod over 20 years of the devolved settlement, constitute a debate in your eyes or under Standing Orders?
Mr Speaker
I do not have a photographic recall of the Standing Orders, but I am sorry to tell the hon. Gentleman that the word “debate” does not feature especially prominently in them. Ordinarily, one would of course interpret the word “debate” as meaning the exchange of opinions, and there was some exchange of opinions. I have known the right hon. Member for Aylesbury (Mr Lidington) for over 30 years. We knew each other before either of us came into this House and we have known each other for over 20 years in this House, including for the last 21 years as next-door neighbours, he in Aylesbury and I in Buckinghamshire. He is a most courteous fellow, and he did take a lot of interventions in his speech. Was it a debate in the sense that there was more than one speech? No, but if the hon. Member for Airdrie and Shotts (Neil Gray) is suggesting that the powers of the Speaker should be extended to allow him to adjudicate on these matters, heralding a panoply of new Standing Orders that would invest the Speaker with some sort of imperial power, I fear that he may find that this would not be altogether popular in the House. I would live with it—it would be a considerable burden, but I would do so with as much stoicism and fortitude as I could muster—but I rather doubt that the hon. Gentleman would persuade the House of the merits of such a proposition.
Vernon Coaker (Gedling) (Lab)
On a point of order, Mr Speaker. Is there nothing that we can do, through your good offices, to reflect on the fact—you will have seen it and it has been a privilege to have you here all day to observe these proceedings—that numerous Back Benchers have not been able to comment on what everyone has talked about as one of the most momentous days in the history of this Parliament? People of England, Scotland, Wales and Northern Ireland have been prevented from contributing. Not only that but, on the second set of amendments, the only person whom we heard from was the Minister. Labour’s Front Bencher could not contribute. Other Members who may have wished to contribute could not do so. We have spent three hours and 20 minutes on a momentous, historical change for our country. That is absolutely ridiculous.
May I just ask whether it is in order for the Minister simply to say, “These are the amendments which the Government think are a good thing and therefore the whole House should simply accept them.”? There was no opportunity for Members from Scotland, Northern Ireland, Wales or England to hold the Minister and the Government to account. Surely that is the function of this Parliament and the Minister should be ashamed of himself.
Mr Speaker
I am sorry to repeat myself. There is much to be said for originality, but there is more to be said for truth, and I am afraid that I do just have to stick to the truth that no procedural impropriety has transpired today. I say to the hon. Gentleman—again I came into the House with him more than 20 years ago; I respect him enormously and I think he is a very widely respected Member in this House—that, if there is a further need for this House to treat of these matters later in the week, for example, or subsequently, and if such a need therefore necessitates a new programme motion, it is perfectly open to the Government to frame such a motion to take account of, and to demonstrate either sensitivity to or acquiescence in, some of the concerns that have been expressed this evening. Of course discussions take place, as people should know, between the usual channels and behind the scenes, about such matters and there may be some accommodation there.
I am always in favour of an outbreak of amity on procedural matters. It is best if we can avoid grave disharmony on such matters, but it will be for others to decide whether that should happen. That could happen. If the hon. Gentleman feels strongly about that, I feel sure that he will make a beeline for those on his own Front Bench, who engage in discussions on these subjects with the Government, to try to ensure that his concern is reflected.
Simon Hoare (North Dorset) (Con)
On a point of order, Mr Speaker. It is clear, I think, from this afternoon’s proceedings that there is a feeling, shared, I suggest, on both sides of the House, that the Opposition have used the opportunity to call Divisions to act as a fig leaf to hide some of their embarrassment over this debate about devolution. Although I would probably have disagreed with many of the arguments deployed by SNP Members, they certainly have a right to be able to articulate them in this place.
Mr Speaker, accepting entirely your ruling that we are all bound by the rules of procedure and our Standing Orders, what scope, if any, exists—and, if it does exist, what avenues do Members have to promote this—to invite the Procedure Committee to consider that, on such a debate with multiple Divisions, the time taken by Divisions should not be included within the three-hour segment of debate, almost like the extra minute that we get when we give way to somebody when we are under a time limit? It would require a proper hearing by the Procedure Committee, but that might be one way to address what is clearly a very thorny issue.
Mr Speaker
I am very grateful to the hon. Gentleman for his point of order. It would be perfectly possible for a programme motion to allow for such injury time caused by Divisions, but it is not for the Speaker to stipulate that it should. However, it could. Moreover, these matters could indeed be considered by the Procedure Committee, of which the hon. Gentleman was a distinguished ornament and of which, for all I know, he may still be a member.
Mr Speaker
Ah, he advises me that he is no longer a member of that Committee. I am sure that the Committee will feel considerably impoverished by his departure from it, but will do its best to cope in the circumstances. It is an unenviable scenario for the Committee, but I hope that it will manage.
Several hon. Members rose—
Mr Speaker
Members seem determined to raise their points of order. I hope that they are genuine points of order.
Alan Brown (Kilmarnock and Loudoun) (SNP)
On a point of order, Mr Speaker. I have to be honest—sometimes I get easily confused. Today, I have wondered whether some hon. Members have been trying to confuse me further or, more concerningly, have perhaps inadvertently misled the House. I have two examples. The Minister for the Cabinet Office spoke about the Scottish Government withholding a legislative consent motion. The reality is that the Scottish Government do not have a majority at Holyrood, and three other parties voted alongside the Scottish National party—so it was the Scottish Parliament, not the Scottish Government. We then heard a point of order from the shadow Minister about standing up for Scotland, but the Labour Members then proceeded to sit on their hands in a vote for devolution. I am just wondering how I can—
Mr Speaker
Order. I do not mean to be unkind to the hon. Gentleman, who is an absolutely indefatigable Member of this House and an almost permanent presence in the Chamber, but the second part of his observations was pure politics. That is not a novel phenomenon in the House of Commons, but I am afraid that it was not even dressed up as a point of order. I think that we will have to leave it there.
Several hon. Members rose—
Mr Speaker
I will hear other Members if they insist, but the hour is late, so I would ask colleagues to show some sensitivity to the need to move on to the Adjournment debate. If people want to be heard, I will hear them briefly.
Peter Grant (Glenrothes) (SNP)
On a point of order, Mr Speaker. Earlier, the Minister for the Cabinet Office gave the House an assurance that the new powers over the devolved nations being taken by the Government would not normally be used against the consent of those devolved Parliaments. He used almost exactly the same words as those that are already enshrined in the Sewel convention, which the Government have today cast aside by whipping their own MPs to vote against it. As Members have heard assurances by the Minister, and in some cases have possibly been persuaded how to vote by those assurances, what means are available to Members to ensure that those assurances are not cast aside with the same impunity as the assurances in the Sewel convention or, indeed, the assurances that we were given by the Secretary of State for Scotland in the early stages of the debate?
Mr Speaker
The answer is that, if I may say so, scrutiny is a process, rather than a fact. It is not a matter of an isolated incident or a single statement, gesture or occasion. It is a process of—if you will—remorseless inquisition. It is perfectly open to the hon. Gentleman, who has fast become familiar with the mechanisms of House scrutiny, to scrutinise the Government through written and oral questions, pursuit of Adjournment debates and the like on the matter of the Executive’s adherence to the Sewel convention, or, as he sees it, their non-compliance with it. I do not want to get into a great attempted exegesis of the Sewel convention but, from memory, the convention stipulates that the Government will “not normally” proceed on matters without a legislative consent motion. But, as the hon. Gentleman will know, the presence of the words “not normally” does admit of exceptions. That is the reality of the matter. It is a political matter, rather than one that lends itself to a ruling from the Chair.
Kirsty Blackman (Aberdeen North) (SNP)
On a point of order, Mr Speaker. You have been a champion of this House, and you have done what you can to improve and to protect its reputation. Today’s events have damaged the reputation of this House irreparably. How can we ensure that such an undemocratic shambles never happens again?
Mr Speaker
Procedural change could prevent it. That is putting it very simply. The hon. Lady will probably be aware that I have heard representations privately from her leader and her Chief Whip, and in days to come, if she and her colleagues wish to take opportunities to air these matters further, it should not be beyond their ingenuity and sagacity to find such opportunities. If there is a desire for such opportunities, the Chair is not an obstacle; the Chair is a facilitator.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
On a point of order, Mr Speaker. Given that the effect of the vote on the last group of amendments was to create an even more powerful Scottish Parliament, which Scottish Nationalist party Members have voted against, what procedural changes will be made in this House to reflect those changes across the United Kingdom?
Mr Speaker
Off the top of my head, I do not have the foggiest idea. I do not know. The reason, however, why I do not feel very guilty in responding in such terms to the hon. Gentleman is that although it is always a pleasure to listen to him, and his intervention was enjoyable, it did suffer from the material disadvantage that whatever else it was, it was not a point of order.
Mr Speaker
I wonder whether the stentorian tones of the hon. Gentleman indicate that his point of order is, or alternatively is not, a point of order. I dare say we will learn ere long.
David Linden
On a point of order, Mr Speaker. In 1999, when I was nine years old, the Scottish Parliament was established. Tonight, in the space of 19 minutes, the Government have managed to swat that away, with all the powers and conventions of the Scottish Parliament completely disrespected. Have you been given advance notice of a ministerial statement tomorrow from the Secretary of State for Scotland so that he can come to this House and apologise for letting down the people of Scotland?
Martin Whitfield (East Lothian) (Lab)
On a point of order, Mr Speaker. I seek your guidance in relation to the amendments. When the Bill left this House and went down the corridor, we had clause 11, to which the Government tabled an amendment. That has returned today and has been voted on. If that amendment had fallen today, is it correct that we would have gone back to the previous drafting of the Bill, which we all agreed was deficient?
Mr Speaker
If Lords amendment 26 had been defeated, the effect would have been to restore to the Bill subsections (1) to (3), which that amendment omitted. But that is all hypothetical, and I would not want to go any further for fear of causing confusion, not least as there were proposals from all sides, as people will not be surprised to hear, for amendments to amendments.
Marion Fellows (Motherwell and Wishaw) (SNP)
On a point of order, Mr Speaker. I am very grateful to you for pointing out that no procedural impropriety has taken place here today. However, there has been an awful lot of walking and an awful lot of time—almost three hours—wasted on voting. Would it be possible, very soon, to introduce electronic voting in this House so that affairs that happened this afternoon, which meant that Scottish Members had no opportunity to speak against the devolution amendments, would have more time?
Mr Speaker
I hear what the hon. Lady has said. I hope that she will not take offence if I say that that point is not new. That is not an indictment of it. There are not that many new points made in this House. Repetition in the House of Commons is not a novel phenomenon. This is a matter for consideration by the Procedure Committee. I have expressed views myself in the past on the matter of electronic voting, but I have always done so taking care to make the point that the question of the means by which we vote in this place is a matter for the House of Commons. It is certainly something that can be strongly argued by the hon. Lady. I myself can see many arguments in favour of electronic voting, but it is not a matter for me—it is a matter for the House. She has made her own point in her own way, and it is on the record.
Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)
On a point of order, Mr Speaker. I seek your guidance. Many of my constituents asked me to raise points in the debate today but, like my colleagues in the Scottish National party, I was unable to do so, even though all 35 SNP Members stood to try to catch your eye during the short period allowed. Can you advise me how to put it on the record that all SNP MPs today tried to take part in the debate but, due to the self-interest of the UK Government, were unable to do so?
Mr Speaker
The hon. Gentleman has achieved his own salvation. He has put that on the record, and he can circulate it to media outlets in his constituency and elsewhere. Moreover, if he continues to be the eager beaver that he has always been thus far in his membership of the House, I dare say he will beetle into the Chamber for business questions on Thursday morning and leap to his feet to seek a debate or a governmental statement on that very matter. He is many things, but he is not lacking indefatigability, and he is not knowingly understated.
Douglas Ross (Moray) (Con)
Further to that point of order, Mr Speaker. The hon. Member for Inverness has just—
Douglas Ross
The hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) has just informed the House that all 35 SNP Members wanted to speak in the debate and were aware that there were 90 minutes available. What kind of debate do you think we would have procedurally if each Member had 30 seconds to speak, as the SNP was trying to impose on us?
Mr Speaker
It would be a debate characterised by extraordinarily short speeches—that is true, but that too, though an interesting reflection from the hon. Gentleman, is not a point of order.
Hannah Bardell (Livingston) (SNP)
On a point of order, Mr Speaker. While I have huge sympathy with him and with the defence of this place and its procedures, does he agree that the public in not just Scotland but across the UK and the world will be looking at our procedures and laughing, because it is clear that they are inadequate and that the devolution settlement in Scotland and other parts of the UK is being ridden roughshod over? Does he agree that the points about changing the procedures of this place are in grave danger of closing the gate after the horse has bolted?
Mr Speaker
I am mildly tickled by the hon. Lady’s use of words. I assume when she referred a number of times to “he” that she was in fact referring to me.
Mr Speaker
I believed that to be so. I am not sure that I can presume to judge what assessment people around the world will make of this matter. I rather suspect that it will not be a unanimous judgment. In my experience, it is a very common tendency—one that no doubt I share myself—to assume that views that we hold are views that most sensible people also hold. That may be so, and it may not be so. There may be people who think that these arrangements are deeply reprehensible and other people who are rather more relaxed about them.
I understand what the hon. Lady says—that any attempt to reform procedures would come after these events. I was just gently making the point, to go back to what the hon. Member for Perth and North Perthshire (Pete Wishart) was saying in reference to Royal Assent, that this Bill is unfinished business, and if it still has further consideration in this House, which remains to be seen, it may be that there will be a programme motion that will bring a smile to her face. I am not volunteering that with especial confidence, but it is possible.
Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)
On a point of order, Mr Speaker. Thank you for your patience in hearing this point of order. I seek your clarification on the programme motion. It was entirely in the gift of the Government to set the time according to their requirements. Indeed, it was negotiated with the Opposition as well and Labour voted against the programme motion, but, crucially, we faced a binary Division whereby we were voting on a Government amendment that is deficient in the eyes of the Labour party, but we then faced a situation where we reverted to the original Bill, which is doubly insufficient and deficient in our eyes. We are not able to give any expression to the position that we hold as parliamentarians in expressing the views of our constituents and of our party.
It is not only that. It has been grossly misrepresented that we are taking a position that is contrary to the views that we hold. In the position where we are not able to give expression to, and far less vote on, what we believe as parliamentarians, representing the Labour party and our constituents, how do we give expression to those views, in the absence of the opportunity to do so in this House?
Mr Speaker
I think the hon. Gentleman has just done so. I do not wish to be discourteous, but I have been in the Chair, and it is an enormous honour to have been in the Chair, without interruption, since 11.30 this morning—I have now been in the Chair for eight and a half hours, and it is my great privilege to be here and to sit through these debates and, for however long it takes, through all the points of order—but I genuinely do not think there is anything in what he said, with his usual eloquence, that requires a response from me. Forgive me, but I think he has said what he said, and I respect that.
Lady Hermon (North Down) (Ind)
On a point of order, Mr Speaker. I am very grateful to you for allowing me to raise a point of order reflecting the concern in Northern Ireland. You will know that we have not had a functioning Assembly since January 2017. In the absence of a functioning Assembly in Northern Ireland, it was critical that we had a full examination and discussion today of the key amendments relating to having no hard border and, curiously, to north-south co-operation.
The term “north-south co-operation” is specifically defined in the Belfast agreement, and I have no doubt that Ministers—all of them—will have read the Belfast agreement in its entirety. It was therefore important for us to have had time today to discuss whether the Government had in fact unilaterally amended the Belfast agreement. That is a really interesting point, but we had no time to discuss it. I therefore ask your advice about how we can encourage the Secretary of State for Northern Ireland or, indeed, the Brexit Secretary to come to the House and make a statement on critical constitutional points affecting Northern Ireland and the whole United Kingdom?
Mr Speaker
I am grateful to the hon. Lady. It is open to Ministers to come to the House and make a statement. The hon. Lady is an experienced Member of the House, and she will know that Ministers tend to preface the delivery of an oral statement with the courteous words, “With permission, Mr Speaker,” but it is in fact a prerogative of a Minister to come to the House and make an oral statement if he or she so wishes. I am sure that the point that the hon. Lady has made will be heard by the Cabinet Ministers to whom she referred, and it is open to them to do so tomorrow. Alternatively, it is open to Members to seek to procure their presence.
Equally, it is open to Members to air these matters at business questions on Thursday, if they so wish. If Members of different political parties, or of several political parties, want to air their discontent—to some extent, they have done so tonight, but they might wish to do so in a more formal way to try to influence a subsequent programme motion—it is absolutely open to them to do so, and it will then be for the House to decide how it wishes to proceed.
Patricia Gibson (North Ayrshire and Arran) (SNP)
On a point of order, Mr Speaker. Given that it was open to the Government to protect time properly to debate and vote on matters of importance to the devolved Governments, do you agree that what has happened today shows the utter contempt that the Government have for the democratically elected will of the Scottish Parliament, given the power grab that will now ensue?
Mr Speaker
The hon. Lady is seeking an opinion from me about support for the Government’s position or opposition to it, and I genuinely do not think it is proper for the Speaker to offer such an opinion. I have been quick to say that no procedural impropriety has occurred. I was completely sensitive to that before this array or flurry of points of order, but 43 minutes in, I am even more familiar with the extent of the irritation on this subject. I am not knocking it, but trying to be fair, as the Chair should be. No procedural impropriety has taken place.
I entirely understand the hon. Lady’s anger and that of the leader of her party, her Chief Whip and other Members. They have not stayed for the benefit of their health, but because they wish to make a point with force, and they have done so. I hope they will agree that I have been patient, as I should be, in listening to them doing so. As to whether things change in the days to come, wait to see, and bear in mind that Members can use the mechanisms open to them, as the leader of her party knows, to try to register a view more fully and to elicit a ministerial response.
Mr Speaker
Is it really necessary to add to the list? Oh, very well; I will come to the hon. Gentleman in due course.
Alison Thewliss
On a point of order, Mr Speaker. Perhaps you can advise. Government Members were suggesting that Opposition Members were wasting time by calling votes. More than 100 amendments were proposed; there were not 100 votes. Do you agree that this illustrates how poor the procedures of this House are, given that it is just not possible even for all the amendments on the amendment paper to be voted on and debated fully? Even covering the relatively small number we had today has taken quite a long time.
Mr Speaker
It is not for me to support the programme motion or oppose it, which in a sense is what I am being invited to do. I certainly would not accuse any Member of wasting time by having a vote. I would not do that. It is for Members to judge when they want a Division. The hon. Lady is right that there are a very large number of amendments on the paper and that there have been rather fewer votes. Her point is clearly registered. As to whether things should be done differently, that is another matter. It is a simple fact that there was not a lot of time today for all the issues to be aired in the way that Members wanted and for anything like the number of Members who wished to speak to have had the chance to do so. That is a matter of regret to a great many Members, and if it is a matter of sufficient regret to them that they wish to try to bring about a change next time, they must make their preparations sooner rather than later.
Stephen Gethins (North East Fife) (SNP)
On a point of order, Mr Speaker. It is 20 years since this place passed the Scotland Act 1998, which means that we have had less than one minute of debate per year to make the greatest changes to that Act since it was passed. The Secretary of State for Scotland, who is in the Chamber, made a commitment to bring changes to clause 11 to the House of Commons. Will he make a statement on whether 19 minutes of debate were adequate, and do you think that there are ways in which we can make the Secretary of State more accountable? How do you think that this compares with democracy in other European institutions?
Mr Speaker
I briefly studied comparative politics at the University of Essex a little over 30 years ago, but I did not study these particular matters. Of course, I could not possibly have studied matters relating to the Scottish Parliament for the simple reason that it did not exist at the time at which I was undertaking my undergraduate exertions. These matters will come to be considered in the days ahead, and there will be opportunities for Members to keep raising these issues. Whether a statement is offered or not is not a matter for me, but it is open to Members to seek to put questions of an urgent character if they see fit. There are many opportunities for that, and if matters are thought to be not just of urgency but of emergency, there is a procedure available for that purpose as well. The Speaker is not an obstacle. The Speaker seeks, as appropriate—I have to reserve the right to judge each case—to be a facilitator.
Mr Speaker
I am keeping the hon. Member for Coatbridge, Chryston and Bellshill (Hugh Gaffney) till last, because he was the last to stand. Do not worry, Mr Docherty-Hughes. You have an audience.
Martin Docherty-Hughes
On a point of order, Mr Speaker. First, may I congratulate you on staying in the Chair? It seems that we both studied comparative politics at the University of Essex. Perhaps I have as selective a memory as you about it.
Mr Speaker, can you set me straight about the constitutional position of this House and its relationship with the Parliament of Scotland and the historical narrative we are seeing played out here today in relation to the other place? There are Members of that other place, such as the archbishops and bishops of the Church of England, who are unelected and unrelated to the national Church of Scotland—we have no episcopacy in the governance of Scotland—who it seems have had greater time and ability to consider this, whereas the Parliament of Scotland’s will not to give a consent motion has been rejected and the majority of Scotland’s constitutionally elected constituency MPs have been unable to engage. I am sure that you will agree that that is the constitutional position of this House, and I must say that for Scotland it reflects very badly.
Mr Speaker
I understand the hon. Gentleman’s point. He and I have had an exchange of letters about the University of Essex—I think we are both immensely proud of our link with the University of Essex—and I hope he will not be offended if I say that his point of order had a kind of university essay quality about it. I felt that he was reverting to academic practice. I do not think that it is for me to attempt to compare and contrast the respective merits of the two Houses’ consideration of matters. The House of Lords operates on a different basis. We have procedures that have been adopted here that do not apply there. The other place must go about matters in the way it thinks fit. My concern is simply to try to do the right thing by the House. I will continue at all times to do so, wanting the maximum number of Back-Bench Members to have the chance to contribute to important debates that affect their constituents, present and future.
I think we come to what I hope—I do not mean this unkindly—is the last point of order.
Hugh Gaffney
On a point of order, Mr Speaker. We have just spent nearly an hour debating points of order. I admire your work, Mr Speaker, but as a union rep, I am always concerned about health and safety, and you have stood on your feet for eight and a half hours. That concerns me, Chair.
Mr Speaker
Well, that is very kind of the hon. Gentleman. I will let him into a secret: I was advised on a previous occasion by the good doctor, the hon. Member for Central Ayrshire (Dr Whitford), that it is not good for one’s health to sit in the Chair for very, very extended periods, as I did at the start of December 2015. The reason I do not think the hon. Gentleman should worry too much is that that was a genuinely long session for the Syria debate. I was in the Chair without interruption for 11 hours and 24 minutes; it was a very great privilege. Today, I have not notched up even nine hours yet, so I do not think the hon. Gentleman needs worry too much. [Interruption.] The Chairman of Ways and Means says that he could help. I am already 22 minutes late for a dinner engagement; that does not matter—the House is more important. I take all good wishes in the spirit with which they are volunteered. All I can say is that having spent as long in the Chair as I have, I probably ought to go for decent length’s swim in the morning, as I did this morning.
I understand people’s upset and irritation, but I thank them for the courtesy with which they have raised their points. We are now coming to the Adjournment debate. The House will probably be very relieved to know that it will be rid of me for tonight and that it will luxuriate in the lather of having its proceedings chaired by the Chairman of Ways and Means.
Sexual Exploitation: Newcastle
(5 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
All of us here will have tremendous sympathy with the victims of sexual exploitation and the challenges, barriers and burdens they face. I want to pay tribute to the bravery, strength and perseverance of the victims of sexual exploitation, who deserve not merely our sympathy but our concrete, committed and long-term support.
Last August, a jury returned guilty verdicts on 17 men and one woman who had committed abhorrent crimes in Newcastle. This was the culmination of Northumbria police’s Operation Sanctuary, a three-year investigation into the sexual exploitation of vulnerable women and girls. No convictions would have been secured without the bravery of the victims in testifying against their attackers, re-living their terrible experiences, in some cases more than once. To be subject to such abuse is more than anyone should have to bear. To then describe it to a court full of strangers shows the sort of courage that the rest of us can only hope to equal.
I feel personally ashamed that the city in which I grew up, and which I now have the privilege to represent, harboured men who groomed, exploited and raped women and young girls. They targeted women and girls because they were vulnerable, turning the vulnerable into victims, but I am also grateful to the victims for their courage, which has made Newcastle a safer city.
At the end of 2013, Northumbria police were contacted by a woman who informed them of sexual exploitation in the west end of Newcastle. Northumbria police responded rapidly. The national charity Changing Lives has worked extensively with the victims, and it told me that the police believed the victims immediately and maintained unconditional positive regard throughout the process, which has not always so in other sexual exploitation cases.
Jim Shannon (Strangford) (DUP)
I spoke to the hon. Lady beforehand just to tell her some things that we are doing in Northern Ireland. The Safeguarding Board for Northern Ireland said that people who have had up to six adverse childhood experiences—in this case, sexual exploitation—are not only traumatised but, it is estimated, could die some 20 years earlier as a result of their experiences. Does she agree that this clearly underlines the need for more support to be given at an earlier stage and that the police need to be more active for the victims of sexual exploitation, whose lives are shortened as a result of what they have experienced?
Chi Onwurah
I thank the hon. Gentleman for his intervention. I agree that the impact of such sexual exploitation on the lives, mental health and long-term opportunities of the victims is significant. That is why long-term support is required, and I will touch on that in more detail later.
The police acted upon 1,400 pieces of intelligence, identifying 278 victims and arresting 461 suspects. Eight crime gangs were identified, all of which are now subject to ongoing disruption, and 220 child abduction notices have been issued, warning suspects that they face arrest if they contact children. The professionalism with which Northumbria police conducted Operation Sanctuary has made Newcastle safer. As April’s police and crime panel report put it,
“it is difficult to overstate the positive impact of Sanctuary.”
That was not only because perpetrators were taken off the streets; there was also a recognition that victims would need long-term support provided by various agencies.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
I commend my hon. Friend for securing this really important and timely debate, and I join her in commending the actions of Northumbria police and other organisations in Newcastle that have tackled this head-on, but does she share my concern that there appears still to be a lack of understanding among statutory bodies, including Departments, about the national strategic response that we need to this horrific crime? More than half the victims in Newcastle were not children but vulnerable adults, and this must be recognised by the Government and at a local level.
Chi Onwurah
I thank my hon. Friend and neighbour for her intervention; that is exactly what I will come on to.
In April 2015, the police, Newcastle City Council, adult and child social care, and key voluntary sector groups, including Changing Lives, Barnardo’s and Bright Futures, came together to establish a multi-agency hub, providing person-centred support to 166 women and girls so far. Newcastle City Council referred to the hub as
“a return to true social work values and innovative practice”.
At the same time, the council commissioned a joint serious case review known as the Spicer report. This report emphasised that the needs of victims are different. Some are children, some are adults, and some experience as children sexual exploitation that continues into adulthood. It pointed out that all of the victims would need ongoing and, in some cases, lifelong support.
The experience of Changing Lives shows that without this support victims are more likely to have contact with homelessness services, domestic abuse services, community rehabilitation companies, the National Probation Service, the Prison Service, addiction treatment services, children’s social care and others. Basically, without long-term support, these victims of appalling abuse are more likely to have further negative experiences. This is unacceptable and why the hub is so important. The Spicer report praised the hub as an example of good practice and quoted victims as saying:
“The support I have had has been exceptional.”
“The support from the Hub is brilliant.”
“I could not have better support than Sanctuary.”
On 6 March, I asked the then Parliamentary Under-Secretary of State for Justice, the hon. Member for Bracknell (Dr Lee):
“Will the Minister be responding directly to the Spicer review’s recommendations?”
I was told:
“The Department is of course aware of that serious case review of the sexual exploitation of children… Like all the agencies involved, we are looking into ways to continuously improve our service.”—[Official Report, 6 March 2018; Vol. 637, c. 148.]
He appeared unaware, however, of the point my hon. Friend just made: that the report emphasised that Operation Sanctuary concerned the sexual exploitation of vulnerable females both under and over 18—women and girls—which is key to some of the issues raised.
Since then, I have asked a number of written questions without receiving any useful assurances. Will the current Minister now commit to an official response to the Spicer review, or explain why she is unable to do so? In answers to my questions on 7 March and 12 March, both the Home Office and the Office of the Attorney General said they had “taken significant action”, with £40 million having been allocated to tackle child sexual exploitation. Once again, does the Minister acknowledge that more than half the victims of the sexual exploitation uncovered by Operation Sanctuary were over 18, and will she commit the Government to providing support and funding for tackling the sexual exploitation of adults as well as children? Answers to my questions also referred to funding for sexual assault referral centres, which is welcome, but SARCs are established to provide immediate support for victims of sexual violence, not long-term support.
I have also written to the Government about the case of at least one victim denied compensation because of time spent in juvenile detention and have yet to receive a reply. Will the Minister commit to addressing this issue?
Catherine McKinnell
I fully support what my hon. Friend is saying. I too have tabled written questions to Ministers and have always been replied to in the context of child sexual exploitation, which completely ignores the fact that many of the victims were adults. Does she also share my concern that Changing Lives’ recent application for tampon tax funding to provide much needed support and adult support services for victims of exploitation has been turned down? Will the Minister commit to reconsidering that application and the work it does to support these very vulnerable victims?
Chi Onwurah
I thank my hon. Friend for her intervention.
The Spicer review’s recommendations require funding, but this has been difficult to secure. The sexual exploitation hub previously received £1.7 million through the police innovation fund, but this ran out in March 2017. Since then, funding has been drawn from local sources, with the police, the clinical commissioning group, Newcastle City Council and voluntary organisations enabling its work to continue. The council has provided temporary funding of £250,000, which should last until March 2019, and this includes staffing as well as the council’s contribution to the building and utilities, which is paid for from the social care precept.
It is difficult for the council to plan for the future of the hub when adult social care nationally is chronically underfunded, there is no clarity regarding the long-term funding of adult social care, and there is no information from the Government about what will happen at the end of the current rounds of the adult social care grant, the improved better care fund and the social care precept. Moreover, the council is under acute pressure because its central Government grant has been slashed in half since 2010. It told me:
“Clearly we are unable to adequately plan for the future when adult social care nationally is chronically underfunded and there is no clarity regarding the long term funding of adult social care”.
Does the Minister expect a council whose budget has already been decimated to fund the hub?
As there is no consensus on whether responsibility for the hub lies with the violence against women and girls agenda, with public health services, or with community safety, police, and police and crime commissioner victim services, there is a risk that it could fall between the cracks. That would be a tragedy, and the Government would rightly be blamed for abandoning vulnerable girls and women. Can the Minister clarify which Department is responsible, and can she commit that Department to working with Newcastle City Council to ensure the long-term survival of the hub? Will she also commit herself to making more funds available, so that the ground-breaking work of the hub can continue to support victims of sexual exploitation in Newcastle?
I always tell people that Newcastle is the best city in the world. For the young women and girls who were victims of terrible sexual exploitation there, it was clearly not the best city in the world, but in their bravery we can see the best of Newcastle, and in the work of the hub that supports them we can see a model that could be successfully transplanted to other cases in other towns and cities. So far in 2018, we have seen further cases of organised groups of men grooming women and girls for the purposes of sexual exploitation in Telford, Stockton and Sheffield. As the Spicer report says, if agencies
“do not recognise sexual exploitation…in their area, it is because they are not looking hard enough.”
However, to bring such support to other areas, and to secure its future in Newcastle, requires money, and it also requires leadership.
Our country can and must be a place of safety and security for girls and young women, and I am immensely saddened that, in my own city, so many did not receive the protection that is their due. We cannot go back in time, but we can change the course of their lives in the future. It would be a betrayal of hideous proportions if we were to fail to do so, given all that they have suffered. Let me ask the Minister my ninth and final question. Will she guarantee to the victims of Operation Sanctuary and to all my constituents that in 10 years’ time the same support will be available to them as is available to them today?
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I thank the hon. Member for Newcastle upon Tyne Central (Chi Onwurah) for securing the debate. She talked not only about the need for support, but about the long-term effects of such disgraceful and unacceptable behaviour to a fellow human being. She has represented her constituency this evening with passion and understanding, but also with a clear determination to ensure that her great city does not see a repetition of these terrible episodes.
I know that this subject is enormously important to Members in all parts of the House. I was glad that the hon. Member for Newcastle upon Tyne North (Catherine McKinnell) intervened on her hon. Friend’s speech, because I have received parliamentary questions from both Members. I will start with an observation that they made, quite properly, about the responses that they had received to questions about the Spicer review and the fact that answers had tended to focus on child sexual exploitation. I very much take that on board, and I apologise. They are right that, sadly, the abuse in Newcastle not only concerned children, which is appalling enough; these defendants appear to have targeted vulnerable people, some of them with learning disabilities. The ruthlessness of the exploitation is almost too much to comprehend. I am therefore grateful to both Members for speaking up tonight.
The details are shocking and we know that vulnerable people were let down by a range of services in Newcastle over many years. I am pleased that the serious case review concluded that local practice has improved tremendously since 2014, but of course the victims and survivors still bear the terrible scars of their abuse.
The Government welcome David Spicer’s comprehensive serious case review. Although it is clear that significant improvements have been made locally, it shows us that Government still have more to do. His recommendations are already informing the way Government work with local commissioners, and we will certainly look at how best to provide advice on supporting vulnerable adult victims of sexual exploitation in addition to child victims. His recommendation that further research be carried out into the perpetrators of this awful abuse will be taken forward through the work of our centre of expertise, which I will discuss in more detail later. It will assess UK and international impacts and evidence for both victims and perpetrators. The report makes many recommendations for central Government action, all of which will be considered as part of our ongoing work.
I will not be able to deal with all of the questions the hon. Member for Newcastle upon Tyne Central has raised, but I will respond in writing on those I do not respond to tonight. She wishes the Government to respond officially to the report, and I commit to writing to her covering the national recommendations in the review. As she knows, the Government do not usually respond to serious case reviews, but the details of this review are significant enough for me certainly to write to her about it. On the funding of Changing Lives, unfortunately I do not get to make funding decisions, but I will make inquiries about the application that charity made. I am pleased to hear of the work the hub is doing, and I understand that the police and crime commissioner has received £1.56 million plus £116,000 for victims of child sexual abuse. The Ministry of Justice is reviewing long-term funding not just for the hub but for all local and national provision, because we do take on board the point that the victims of these terrible crimes live with the consequences if not forever for very many years and decades.
The Government want to ensure that all victims of sexual exploitation feel that they can come forward to report abuse and that they can get the support they need. Whether a victim is a child or an adult, the same principle must apply.
This Government have empowered PCCs to deliver services for victims. So in the first instance PCCs must make an assessment of the support needs of all victims in their force area, including children and vulnerable adults alike, and commission services to meet those needs. We are allocating around £68 million to PCCs this year to provide emotional and practical support services for victims of crime, and we have increased the overall victims’ support services budget from around £50 million in 2012-13 to around £96 million in the current financial year.
As I have said, the PCC in Northumbria has been allocated more than £1.5 million of core victim grant to provide support to victims, and additional money to the tune of £116,000 has been allocated to services for victims of child sexual abuse. Of course, the PCC has her own budget from the main grant, and central Government say to PCCs, “You know the needs of your local area and we trust you to make these decisions.” We therefore hope is that if she feels that more funding needs to be allocated, she will be able to do that from the main grant.
We have also provided £250,000 this year to support four rape support centres in Northumbria, including the Grace Project in Newcastle. The Grace Project is one of 15 rape support centres that have opened since 2010 with Government funding. We now support 98 centres directly, helping women, men, boys and girls to begin to recover from the effect of these appalling crimes, and we have committed to maintaining funding for rape support services at the current level until at least 2020.
Our ambition is to support victims and survivors, whoever they are and wherever they are. That is why we have invested £100 million in this spending review period to support our commitment to tackling violence against women and girls, and it is why NHS England has now commissioned 47 sexual assault referral centres in England at a cost of £27 million, including the Teesside SARC, which provides support for victims of sexual violence across the north-east. It is also why we have recently launched the £13 million trusted relationships fund, protecting vulnerable people from sexual exploitation, gang exploitation and peer abuse.
We want to do more, so we are investing £7.5 million in the centre of expertise on child sexual abuse, which will tell us far more about what works, where gaps exist and what more support we can give to professionals and commissioners. It has already published research into local commissioning practice, which will form the basis for a framework for commissioners. The Home Office will publish that framework later this year. It will share good practice and help commissioners to assess need and provide support. We are also piloting the child house model, based on international best practice. In a child house, child victims can receive all the support they need in a single, comfortable environment. We have invested more than £4 million in the first house, which will open its doors in London in the autumn.
Despite all that has been achieved in recent years, we must continue to challenge ourselves to improve the support we provide for victims, not only because the needs of victims change over time but because the nature of crime itself is continually evolving. That is why we are developing a new cross-Government victims strategy, which will comprehensively review how crime has changed and ensure that our response still meets the needs of victims. The strategy will provide a framework for future work and national cross-Government direction. For example, as part of the strategy, we are developing a more sustainable funding model for sexual violence support services, so that victims can access the support they need immediately after the crime and throughout every stage of their recovery.
The strategy will consider how we might improve provision of the services that victims are entitled to receive under the victims code. It will also continue to drive improvement in victims’ experience of the criminal justice process. The hon. Lady’s description of the ordeal of victims having to give evidence at trial summed up the need for that very strongly. We must ensure that criminal justice agencies provide victims with a service that is appropriate to their needs and respectful of them as individuals. Victims want cases to be well managed and dealt with swiftly, so that they can deal with the experience and, hopefully, put it behind them. We will consider how the agencies responsible for delivery of those services might be better held to account.
I know the interest of the hon. Lady and the hon. Member for Newcastle upon Tyne North, so I would value a meeting with them and my officials to discuss any thoughts that they may have on how the victims strategy can be improved to cover the points raised in tonight’s debate.
Chi Onwurah
I thank the Minister for giving way, for the tone of her comments and for the way in which she recognises the importance of the issues that I have tried to raise on the behalf of my constituents. I have listened carefully to what she says, and I appreciate the offer of a meeting and the commitment to some sort of response to the Spicer review. However, I get the impression that funding for the hub and the multi-agency approach will come from the police and crime commissioner and potentially the sexual violence support grant as part of any future strategy, or is that something that we can discuss in detail in a meeting?
Victoria Atkins
Could we discuss that in the meeting? We have always tried to ensure that local commissioners are commissioning the services that they feel are needed in their area, but I am happy to hear the hon. Lady’s thoughts on that in the meeting that we will have with my officials.
In conclusion, I thank the hon. Lady once more for securing this important debate. Victims and survivors of the most appalling crimes rely on us, both in government and on both sides of this House, to represent their needs and to ensure that they receive the support to which they are entitled. It will be a privilege to continue to work with colleagues across the Government and across the House, and with representatives locally, to ensure that victims in Newcastle and in all areas of England and Wales are heard, are supported and are able to recover.
Question put and agreed to.
Draft Client Money Protection Schemes for Property Agents (Approval and Designation of Schemes) Regulations 2018
Draft Client Money Protection Schemes for Property Agents (Requirement to Belong to a Scheme etc.) Regulations 2018
(5 years, 10 months ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Mrs Heather Wheeler)
I beg to move,
That the Committee has considered the draft Client Money Protection Schemes for Property Agents (Approval and Designation of Schemes) Regulations 2018.
The Chair
With this it will be convenient to consider the draft Client Money Protection Schemes for Property Agents (Requirement to Belong to a Scheme etc.) Regulations 2018.
Mrs Wheeler
It is a pleasure to serve under your chairmanship, Mr Gray. The regulations were laid before the House on Thursday 3 May 2018. I will refer to them as the approval regulations and the requirements regulations respectively. The private rented sector is an important part of our housing market. It has doubled in size over the last decade, and letting agents now hold approximately £2.7 billion in client funds. The client money held by agents includes rent money and money provided by landlords for the purpose of making property repairs. At the moment, however, there is no legal requirement for agents to obtain client money protection. Tenant and landlord money is therefore at risk if an agent goes bankrupt or if client funds are misappropriated. The main letting agent representatives, ARLA Propertymark and the National Approved Letting Scheme—NALS—support making this protection mandatory. Indeed, it is estimated that around 60% of agents already hold such protection.
Michael Fabricant (Lichfield) (Con)
I am curious to understand the context. Can my hon. Friend give any indication of the approximate rate of failures and money lost? Basically, how big a problem is it?
Mrs Wheeler
I thank my hon. Friend for his interesting question. I will come to it in the rest of my speech.
Making client money protection mandatory will ensure that every tenant and landlord has the financial protection they need. It will bring the property agent sector into line with others where client money is held, such as the legal profession and travel operators.
Before I set out the detail of the regulations, I want to establish the legislative context. The Housing and Planning Act 2016 provided powers for the introduction of client money protection requirements. Following Royal Assent, the Government invited Baroness Hayter and Lord Palmer of Childs Hill to chair a client money protection working group. The working group reported in March 2017, and its recommendation to make client money protection mandatory was accepted by the Government. The Government consulted on implementing mandatory client money protection in November 2017, and there was broad support for our proposals.
I will now introduce the two sets of regulations. The first set—the approval regulations—establishes the procedure for Government to approve privately run client money protection schemes. The second set—the requirements regulations—requires agents in the private rented sector to belong to one of those approved schemes if they handle client money. These two sets of regulations, which together provide the framework for client money protection, are the subject matter for debate before the House today.
I turn first to the approval regulations, which require any client money protection scheme to be approved by the Secretary of State in order to operate. This is to ensure that all schemes meet minimum standards and offer sufficient financial protection. The Government do not intend to create their own scheme at this time. That would be unnecessary, given the number of schemes in the market already. However, the regulations allow the Government to do so in future, so that any protection can be maintained in the unlikely event that the market ceases to offer provision.
In order to obtain approval, client money protection schemes must meet certain conditions, including those that are designed to ensure that landlords and tenants can easily obtain compensation. The scheme administrator must ensure that it has procedures in place so that valid claims are paid as soon as reasonably practicable—I love that word. It cannot make deductions from those claims. The scheme administrator must also hold a level of insurance cover that is appropriate given the amount of client money held by its members. Schemes must put in place arrangements so that in the event of the scheme closing, their members would be notified and transferred to an alternative scheme.
The approval regulations also establish minimum standards that must be set in scheme rules. They include requirements for members to hold money in a separate client account; to have written, transparent procedures for handling client money; and to maintain adequate records.
John Healey (Wentworth and Dearne) (Lab)
I am grateful to the Minister for giving way in her explanation of what she describes as the approval regulations. What would be her success or failure criteria, which would trigger the Government’s re-thinking of the matter and their implementation of the provision in the regulations for setting up their own scheme?
Mrs Wheeler
I thank the right hon. Gentleman for that question. We do not anticipate any failure, particularly because the schemes are backed by insurance. It is, however, a matter of form that the Government always provide in regulations that they can react, should the need arise.
Scheme rules must also require members to hold an appropriate level of professional indemnity insurance cover, to ensure that client money protection schemes are not overwhelmed with claims. The first port of call for a consumer making a claim should be their agent and their agent’s insurers; I hope that that somewhat answers the right hon. Gentleman’s question. Finally, schemes must provide key information to the Department on a quarterly basis to enable us to monitor their performance. If a scheme’s standards are not maintained, its approval can be withdrawn.
John Healey
Before the Minister moves on, if the Department requires, and will receive, quarterly reports on the activity and the performance of each of the schemes, will she undertake to make that quarterly performance information public?
Mrs Wheeler
I will come to that in my closing remarks. I turn to the requirements regulations, which will require all property agents in the private sector to obtain membership of a Government-approved client money protection scheme by 1 April 2019. Those agents will need to meet increased transparency requirements, publish details of scheme membership and inform clients when they lose cover.
The Government recognise that robust and effective enforcement is essential to the implementation of mandatory client money protection. Agents that fail to get client money protection may be subject to a financial penalty of up to £30,000. Those that do not meet transparency requirements will face a penalty of up to £5,000. The regulations level the playing field by ensuring that it is not just reputable agents that offer protection.
For those agents that do not yet have client money protection, we anticipate that obtaining it will not be disproportionately burdensome. Indeed, the average annual fee for cover is only between £300 and £500. It is important to highlight that these requirements apply only where landlord and tenant money is held by a property agent, and so is at risk. Agents can instead choose to eliminate the risk by, for example, allowing tenants to pay their rent to the landlords directly. The new requirements should therefore not deter new entrants to the market.
Hon. Members may be aware that we have committed to introducing a new regulatory framework for letting and managing agents, and to prohibiting letting agents from charging fees directly to tenants. Mandatory client money protection will be an important part of this regulatory framework, which will give landlords and tenants assurance when using an agent. I will close there and answer the questions.
Sir Oliver Heald (North East Hertfordshire) (Con)
I want to follow up on the point that my hon. Friend the Member for Lichfield made about less successful agents. There are references in the notes to agents that are unable to obtain CMP cover and meet due diligence. What is the justification for allowing such agents to trade? If they are so bad that they cannot meet the diligence requirement, why would we want them trading?
Mrs Wheeler
My right hon. and learned Friend asks an extremely good question. We want to make sure that there is enough time for a firm to get its business plan in order, and we expect all letting agents that deal with client protection money to get CMP cover. Similarly, if there is any problem, they can alter their business plan so that matters such as rents go direct, and they are not in charge of those things. I hope that that helps. I will answer other questions in my round-up, after the right hon. Member for Wentworth and Dearne has said a few words.
John Healey
It is a pleasure to serve under your chairmanship, Mr Gray, and to have the Minister back in her place on the Front Bench.
If the hon. Member for Lichfield and the Minister look at the consultation document on client money protection schemes, they will see that the total funds held by what the draft regulations call “regulated property agents” are estimated to be around £2.7 billion at any one time. The consultation document states that only around 60% of those agents are members of voluntary schemes, and that suggests that around £700 million or £800 million is held by agents that are not part of a scheme. That helps to underline the case for the draft regulations.
Michael Fabricant
I am grateful to the right hon. Gentleman for his helpful comments. No doubt we will hear from the Minister about this, but does the right hon. Gentleman have any indication of how many actual failures there have been? Yes, that money is unprotected, but where are the examples—there must be some—of money not being passed on?
John Healey
If the hon. Gentleman reads Lords Hansard from 17 March 2016, he will see that my colleague Baroness Hayter of Kentish Town, who led for Labour on the Housing and Planning Bill—as the Minister mentioned, that contains the parental provisions for the draft regulations—in pressing the case for a compulsory scheme rather than the existing voluntary scheme, cited several examples of property agents pocketing money, from landlords as well as renters, and going missing. Baroness Hayter cited six or seven obvious, recent cases, but there is a track record of hundreds of such cases in recent years, which underlines the case for the draft regulations. I encourage him to look at that debate, although the Minister may well give him other examples.
I was diverted before I had started. The Minister has introduced two draft regulations, so will she confirm which four housing regulations she will repeal? It is important for the Committee, before it approves the draft regulations, to understand the consequences for provisions or protections in other fields. If she cannot do that, will she confirm whether the Government’s policy of two out, one in for regulations, which has been their policy for several years, is still in place or whether it has been dumped?
As the Minister said, the draft regulations derive from the Housing and Planning Act 2016, which was given Royal Assent in May 2016. I happen to have led from the Front Bench the opposition, inside and outside Parliament, to that Bill. The draft regulations are, in many ways, a ghost from the past. This debate reminds me of many of the debates we had during the long proceedings on that long Bill. I am reminded, too, of the 19 defeats the Government suffered on it—double the total number of defeats on all the Bills in the previous Session. Of course, that does not count the concessions that the Government made during proceedings on the Bill, which led us to withdraw amendments that we might otherwise have pressed to votes that we might well have won.
That is the background to the draft regulations. Pressed by Labour, both in the Public Bill Committee in this place and in Committee and on Report in the other place, the Government were prepared to talk and to consider this issue further, so, although it very well might have done, it did not register as defeat No. 20.
Catherine West (Hornsey and Wood Green) (Lab)
Does my right hon. Friend agree that the Bill was pretty poorly put together from the start? If the Government had discussed things in more detail from the start, it might have been improved.
The Chair
Order. We do not need the hon. Lady’s rereading of the original Bill. We are considering the statutory instruments in front of us today, not the Bill itself. Perhaps the shadow Minister will return to that subject.
John Healey
I am grateful for your instruction, Mr Gray. I think my hon. Friend is too generous in her description of that piece of legislation. Compulsory client money protection schemes were the subject of debate, and the case for them was pressed strongly by my hon. Friend the Member for Erith and Thamesmead (Teresa Pearce) in this House and by Baroness Hayter in the other place.
I welcome the fact that, after Royal Assent, the Government were prepared to set up the working party that the Minister mentioned, and to have it chaired jointly by Baroness Hayter and Lord Palmer. That marked a welcome move in the Government’s standpoint beyond the unthinking dogma of the Minister’s predecessor. Of the proposal to make these schemes mandatory, as these regulations do, he said that he was concerned that requiring letting agents to belong to a client protection scheme
“would be a step too far and would overburden a market that is perfectly capable of self-regulation”––[Official Report, Housing and Planning Public Bill Committee, 10 December 2015; c. 719.]
I am glad to say that, two and a half years on, the Minister has made it clear that the Government’s mind has changed. As she said, when the working group reported in March 2017, its first recommendation was that
“The Government uses its powers in the Housing and Planning Act 2016 to make Client Money Protection mandatory”.
That is very important background to the detail of this legislation. In some respects, the regulations represent the implementation of a welcome part of that Act. Flagship parts of the Act—starter homes, the forced sale of council housing and the extension of the right to buy to housing associations—
The Chair
Order. We really must stick to the two statutory instruments in front of us, not the rest of the Act.
John Healey
Of course, Mr Gray. I appreciate that, but I want to use those examples to make this point: in 2016, the Government won their legislation— although it was heavily amended—but we won the arguments. Those arguments underpin the case for the regulations.
The Chair
Order. The right hon. Gentleman says what he says in such an elegant, amusing and charming way that it is very difficult to interrupt him, but it is important that we keep this debate purely to the two statutory instruments that are before us. We have had some fun discussing the background to the Bill in general over the past couple of minutes, but we should now focus entirely on these two statutory instruments and nothing else.
Nic Dakin (Scunthorpe) (Lab)
My right hon. Friend is spelling things out really well. What we really want to say is, “We told you so.”
John Healey
I have never understood why my really talented hon. Friend hides himself away in the Whips Office. He has quite clearly demonstrated how effective he would be speaking from the Front Bench, rather than simply sitting on the Front Bench.
That was perhaps a rather long preamble. What I really want to say is that the Opposition welcome these regulations, because they cover the ground that we urged on the Government previously. In a way, they make good a gap. Solicitors, other professionals and even estate agents are required to have money protection schemes in place. We have a mandatory money protection scheme in place for renters’ tenancy deposits. The regulations are well overdue, and they are welcome because of that. Many of the better firms in the industry have backed this for some time. The Association of Residential Letting Agents, the British Property Federation, the Association of Residential Managing Agents, the ombudsman and the Housing, Communities and Local Government Committee have, for some time, all been of the view—as have the Opposition—that this is a necessary step.
In the end, the principled case for these regulations is surely that there is no real market in letting agents for renters. Renters cannot shop around for their letting agent, because they do not choose the letting agent who is responsible for the home that they rent and live in, or for the home that they want to rent; that decision is for the landlord. People have no choice about that, because they choose the property and not the letting agent. The draft regulations are a well overdue and welcome recognition of that fundamental point.
Catherine West
Does my right hon. Friend agree that we have a large number of cowboys in the industry? There is no other way of putting it.
John Healey
We do. I have been known to describe some parts of the private rented sector as the wild west, to pick up on her analogy. The draft regulations are narrow; they are a welcome but small step in a market that may leave the majority of renters satisfied at the moment, but that contains some significant rough or rogue practice. The measures will, in a small way, help to make the market fairer and better for landlords and tenants. One of the important secondary arguments in favour of these regulations is that they will clearly benefit landlords as well as tenants.
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
I want to reinforce the point just made by my hon. Friend the Member for Hornsey and Wood Green. It is good news that the Government are bringing forward the draft regulations. They are overdue. Good agents in the industry are given a bad name by the cowboys out there, and these measures will reinforce the efforts of local authorities that introduce licensing schemes to tidy up the whole sector.
John Healey
My hon. Friend is right. He knows—although I do not wish to try your patience, Mr Gray—that I am a strong advocate of licensing schemes for landlords, but those are for landlords and the measure we are discussing is for regulated property agents.
The real question is to what extent the draft regulations will work. Will the regulations do the job, and will they work well enough? I have a number of questions for the Minister—[Interruption.] She sighs, but I am afraid that is her job, as it is my job and that of the Committee to ensure that regulations we may accept or approve are up to the job that she says she wants done.
The Minister said in her opening remarks that the draft regulations must provide robust and effective enforcement. On the question of enforcement, how was the figure of £5,000 as the maximum fine for failing to display the details of scheme membership decided, and is it sufficient? How was the figure of £30,000 as the maximum fine for failing to register in a scheme decided, and is it sufficient?
As I said to the hon. Member for Lichfield, the Government’s consultation document makes clear the scale of funds held by agents that are not their money but are held on behalf of landlords and renters in different ways—£2.7 billion. Set that alongside some of the big companies in the field, such as Foxtons, which expects lettings income in 2017-18 of about £66 million—Countrywide expects total earnings of 10 times more than that—and that puts into some perspective the question of maximum, not automatic, fines of £30,000 and £5,000. There are real questions about whether that will be sufficient sanction, or deterrent, for companies in the field. After all, two out of five of them could already be doing something through voluntary schemes, but are not doing so. Is the level of fine sufficient to do the robust, effective enforcement job that the Minister talks about?
The Minister may say that landlords can be fined, for example, for overcrowding their houses up to a similar maximum level, but landlords can also be banned from being landlords in the worst cases. Those worst rogues may be the cowboys talked about by my hon. Friends. Why is there no similar provision in these regulations, and what consideration did the Minister give to a similar—let us use what seems to be the term of the moment this week—backstop power? Finally on fines, why write the figure into the draft order? That clearly means that it is then fixed, unless and until the House decides to legislate again to alter, and perhaps necessarily to raise, those fees.
On enforcement, who will enforce the draft regulations? I encourage the Minister to turn to regulation 5(1) in the requirement regulations—in her terminology—which says:
“It is the duty of every local authority in England…to enforce the requirements of regulations”.
Paragraph 7.18 of the draft explanatory memorandum says:
“Local authorities will be responsible for enforcing these requirements.”
Which part of local authorities will do the enforcement? Will it be trading standards? That is my assumption, because the transparency provisions in place at present under the voluntary CMP schemes are enforced by trading standards. If that is the case, not every local authority has a trading standards department. As the Minister will know from representing South Derbyshire, which is a two-tier area, not every authority has the powers of a weights and measures authority. What will be the enforcement capacity and role of, for instance, district councils in two-tier areas?
On enforcement, I will mention the costs. I looked carefully at the draft impact assessment—I do not know if the Minister signed it off—but I could not see any estimate of costs to the local authorities responsible for enforcement. Will she tell the Committee how much the Department has calculated that this will cost the local authorities that have effective and robust enforcement? Clearly, the draft regulations contain a provision for local authorities to retain any fines levied. Has she calculated how much she expects local authorities to be able to levy through these provisions on a stable annual basis? Finally, has the Department applied the new burdens principle to this new duty of enforcement, which, if the draft regulations are written correctly, will apply to every local authority? That seems clearly appropriate to me.
Finally, the experience of implementation—particularly of important measures over the last eight years—has reinforced the case that the Government are often very bad at doubling back and assessing whether what they have done has actually worked. I encourage the Minister to give the Committee an undertaking that, say, 12 months after the draft regulations come into effect, she will review the way they are working and will report to the House, so that we can see whether the case she put to the Committee in support of the draft regulations has been realised and the regulations are working as intended.
Mrs Wheeler
What a pleasure it was to hear those three extra questions, further to the three earlier questions. I thank you for chairing the debate, Mr Gray. I also thank the Committee Clerks and the Doorkeepers and everybody who has been involved in organising it, and I thank right hon. and hon. Members for their contributions.
To address some of the points raised, there have actually been only a small number of cases in which claims have been made against existing CMP schemes. The reason why we are going forward with the draft regulations is that this is a growing sector, and so claims may sadly increase in the future. The point of the draft regulations is to protect people involved in this area. We are finishing off the original legislation.
John Healey
Does the Minister accept that the measure of why the regulations are needed is not complaints against members of current schemes? The basis for the regulations is that those not in schemes are stealing money, keeping money and sometimes prosecuted for doing so when it is not their money. That is why it is so important to have mandatory schemes to fill the gap. The problem is not with schemes and members of them making complaints. The biggest case for the regulations is to fill the gap where no schemes exist and members are operating as regulated property agents without regulation.
Mrs Wheeler
Of course, the right hon. Gentleman is completely correct. We want a level playing field across this area of work. To answer his first three questions, the intention is to designate a governmental scheme only if market provision is insufficient. There is no indication at present that that is likely, but it is good and prudent practice to put that measure into legislation, should the need arise.
It would not be appropriate to publish quarterly, as the information would contain some commercially sensitive information. However, the Government will scrutinise and challenge if standards are not met. As regards the housing regulations and what might be repealed, to repeat myself, these statutory instruments finish off the 2016 legislation, so it is not a matter of deleting other areas of legislation.
John Healey
The Minister is right, but my question was whether the Government’s policy of two out, one in on regulations is still extant.
Mrs Wheeler
That is not a matter for today. This is a matter of closing the original 2016 legislation.
John Healey
I am sorry, but it must be a matter for the Committee. It must be relevant to the two regulations that the Minister is asking the Committee to approve. If Government policy requires that four regulations, probably in the housing field, must be repealed as a result of what we might approve, that is clearly a matter for the Committee. I am asking a simple question: does the Government still have a two out, one in policy on regulations? Yes or no is the only answer that is needed.
Mrs Wheeler
I repeat my answer from before: we are closing the legislation that came in in 2016, exactly as we said we would. I will give the right hon. Gentleman no other answer.
Mrs Wheeler
No, I will carry on. Who will enforce the regulations? Trading standards will be responsible. More importantly, the Secretary of State will nominate a lead authority in trading standards for areas that get into difficulty with existing trading standards. That is common practice, and that is what is happening in the Tenant Fees Bill that is going through the House.
Catherine West
The Minister is being generous with interventions. Will she clarify whether local authorities will have extra resources to carry out their trading standards duties?
Mrs Wheeler
As the hon. Lady knows—we have also made a great point of this in the Tenant Fees Bill—the £5,000 fine and the £30,000 fine will remain with councils, and we expect councils to be able to fund services because of such fines coming in.
John Healey
May I encourage the Minister to get her head together with her colleague, the Under-Secretary of State for Housing, Communities and Local Government, the hon. Member for Richmond (Yorks) (Rishi Sunak)? He dealt with that point, which she is right is relevant to the Bill that has been considered in Public Bill Committee today. He made it clear to that Committee this morning that every local authority will have an enforcement role, not that a lead authority would be appointed to do that job for them in some areas. I will not press her for a definitive answer now, but may I suggest that there may be a difference in the view we are getting on the same day from two Ministers from the same Department? Perhaps they could get their heads together and get it clear for both pieces of legislation and write to members of both Committees.
Mrs Wheeler
I would be delighted to answer the right hon. Gentleman now. This is a different piece of legislation under different law—the 2016 Act. This is consumer focused, which is why it is about trading standards. It is not a matter of housing, where we are worried about enforcement and environmental health issues, which is why district councils are getting involved in that Bill. This is completely different.
John Healey
As the Minister said, the discussion this morning was about client money protection. It was not about environmental or housing standards; it was about the very issue that is also relevant to the Tenant Fees Bill.
Mrs Wheeler
The right hon. Gentleman obviously had a very lenient Chair, who allowed Members to stray into that area on the Bill this morning. We are now talking about this Bill and this matter. As regards the figures of £5,000 and £30,000, we believe that those figures are high enough, particularly given that it is per individual case of failure, not over the course of a year, so we agree that that is the correct level. As it happens, it does also mirror the other Bill, which I will not mention again.
Sir Oliver Heald
Of course, the right hon. Member for Wentworth and Dearne suggested that some very large property agents—I think he mentioned Foxtons and Countrywide—have very substantial incomes. However, I thought that they were already in client money protection schemes. Is the Minister aware of any examples of a really large property agent that is not?
Mrs Wheeler
No, I am not. I thank my right hon. and learned Friend for that interesting question; he makes a very good point.
I will close my remarks there. The Government are determined to strike a better deal for tenants, landlords and their agents. All tenants and landlords should be comfortable in the knowledge that their money will be safe in the hands of the agents that they use. Making client money protection mandatory will ensure that that is the case. I therefore commend the regulations to the Committee.
Question put and agreed to.
Resolved.
That the Committee has considered the draft Client Money Protection Schemes for Property Agents (Approval and Designation of Schemes) Regulations 2018.
DRAFT CLIENT MONEY PROTECTION SCHEMES FOR PROPERTY AGENTS (REQUIREMENT TO BELONG TO A SCHEME ETC.) REGULATIONS 2018
Resolved,
That the Committee has considered the draft Client Money Protection Schemes for Property Agents (Requirement to Belong to a Scheme etc.) Regulations 2018.—(Mrs Heather Wheeler.)
Tenant Fees Bill (Fourth sitting)
Tuesday 12th June 2018
(5 years, 10 months ago)
Public Bill CommitteesRead Full debate Tenant Fees Act 2019 View all Tenant Fees Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 June 2018 - (12 Jun 2018)
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
Before we begin, will everyone ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed during sittings. We now resume line-by-line consideration of the Bill. We start with clause 5, which we debated as part of an earlier group of provisions. I therefore cannot allow a separate stand part debate, but will put the question on the clause forthwith.
Clause 5
Treatment of holding deposit
Question put, That the clause stand part of the Bill.
The Chair
We have also debated schedule 2 as part of an earlier group and therefore I cannot allow a separate debate on it.
Schedule 2 agreed to.
The Chair
For the sake of clarity, I point out that amendments 22 to 44 were all consequential on the proposal to remove schedule 2 from the Bill. As schedule 2 has been agreed to, those amendments automatically fall and cannot be moved.
Clause 6
Enforcement by local weights and measures authorities
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Rishi Sunak)
It is a pleasure to serve under your chairmanship, Mr Sharma. I look forward to our making speedy progress today.
The Bill proposes a number of enforcement measures that offer a strong deterrent to irresponsible agents and landlords and, in doing so, protects tenants from unfair letting fees. Clause 6 places a duty on local weights and measures authorities—that is, trading standards authorities—to enforce the ban on letting fees and requirements relating to holding deposits. Trading standards have an important role in enforcing existing legislation on letting agents—such as the requirement on agents to display their fees transparently. With their existing local knowledge of the industry, trading standards are the clear choice to enforce the ban on letting fees. Indeed, 69% of respondents to the Government consultation agreed that trading standards should enforce the provisions of the Bill. We have also spoken to trading standards officers, who agree that enforcement of the Bill aligns with their responsibilities to enforce other legislation relating to fair trading and consumer protection.
Trading standards authorities are responsible for enforcement in their own local areas. Where a breach occurs in the area of more than one trading standards authority, a breach is considered to have occurred in each of the relevant local areas. Trading standards must have regard to any guidance issued by the Secretary of State or lead enforcement authority. The investigatory powers available to a local trading standards authority for the purpose of enforcing the Bill are set out in schedule 5 to the Consumer Rights Act 2015.
Daniel Zeichner (Cambridge) (Lab)
Will the Minister explain to the Committee what assessment he has made of the capacity of trading standards departments to implement the measures that he is discussing, and what additional resources he intends to give them to make that possible?
Rishi Sunak
I am very happy to answer the hon. Gentleman’s question briefly now, as I am sure that we will come to it when we consider the various amendments and clauses that deal particularly with capacity and resources. In a nutshell, we believe that the Bill and the enforcement measures in it will be self-financing with the fees that can be charged by local enforcement authorities and trading standards authorities; on top of that, they will receive seed funding in the first year of up to £500,000.
As I was saying, the investigatory powers are set out in schedule 5 to the 2015 Act.
Melanie Onn (Great Grimsby) (Lab)
The Minister just mentioned charges. Is he referring to the fines?
Rishi Sunak
Yes; I meant the fines that will be charged of up to £30,000 for a second offence and £5,000 in the first instance.
To return to the investigatory powers, they are laid out and provide the ability for trading standards authorities to investigate, inspect and enforce the provisions; they enable them to carry out their enforcement activity.
I hope that the clause will stand part of the Bill.
Melanie Onn
It is a pleasure to serve under your chairmanship, Mr Sharma.
As we have heard and read in the evidence from the likes of the Local Government Association, the Chartered Trading Standards Institute and the Chartered Institute of Housing, there are significant concerns about the enforcement powers being conferred on the local weights and measures authorities around the country. For the avoidance of doubt, we are talking in this clause about local trading standards teams. As I have mentioned before, they have a wide and varied remit. They enforce laws on behalf of consumers on matters such as age-restricted products; agriculture; animal health and welfare; fair trading, which includes pricing, descriptions of goods, digital content and services, and terms and conditions; food standards and safety; intellectual property, including counterfeiting; product safety; and, of course, weights and measures.
Trading standards cover more than 250 statutory duties, including providing businesses with advice. The CTSI says that the service is already overstretched and underfunded, with just £1.99 per head being spent. The situation has been recognised by the National Audit Office, which has said that there is a direct threat to the consumer protection system’s viability as a whole, yet here the Government seek to add another layer of responsibilities, technicalities and duties to those of the service without giving due consideration to the implications of the request, and simply assuming that their assessment that the scheme will be fiscally neutral after two years will come to pass. That seems a rather carte blanch approach to me—a “close your eyes, cross your fingers and hope for the best” kind of plan. It is not robust and it is not a process modelled on the evidence of the experts who operate in the roles, day in and day out. There is time for the Minister to correct this.
Our constituents will mostly know trading standards for tackling rogue traders. My constituency being a port town, we have a very active trading standards department, which regularly discovers dodgy goods that people try to smuggle in, including recently some dangerous counterfeit cigarettes, filled with anything up to and including asbestos, for sale cheap on the black market, with a street value of around £8,500. Trading standards are often the first in a position of authority to come across goods linked to organised crime and criminal gangs, and they provide essential eyes and ears within local communities.
Is the Minister confident that the addition of these tenant fees enforcement powers to trading standards’ responsibilities, with only pin money for start-up and roll-out, will not impact on its already essential role protecting consumers? How can he be sure, and what steps will he take to ensure that that is the case going forward? We heard of cuts to trading standards departments of 40% to 50% at a local level.
Across the country, the Chartered Trading Standards Institute tells us that there has been a cut of more than 50% of skilled officers. Does the Minister seriously think that trading standards will be able to effectively implement these new powers? If so, how? What priorities should trading standards officers have? If faced with tracking down an influx of poisonous fake spirits, surveilling for evidence to prosecute the sale of knives to under-18s or taking action against a landlord requiring a £150 prohibited fee from a tenant, which would he suggest the officers pursue as urgent?
If the Minister concedes that the loss of money is likely to be less urgent in its nature than the matter of illegal spirits or the selling of knives to teenagers, at what point does he anticipate that an officer ought to get around to looking into the issue of the prohibited fee? Given the restrictions on time and staffing levels, is not a TSO, rather than acting in an individual case, far more likely to deal with a single landlord facing multiple allegations of charging prohibited fees? It will be dealing with the big fish, rather than the small fry, that will be a reasonable and proportionate use of staff time. Has the Minister thought about the practicalities of enforcement? Has he compared it with how enforcement of housing matters is currently dealt with, or even tried to plug some of those gaps?
In order for the London Borough of Newham’s landlord licensing scheme to be effective, it had to bring together several different agencies, including the police, the UK Border Agency and specialist housing officers, and had to invest in systems to accurately identify those properties that were incorrectly licensed. While it has drawn in significant revenue for the Treasury and the council, it took a laser-focused determination from the political leadership in Newham to get their processes up and running to tackle landlords operating outside the regulations. Can the Minister guarantee that the same will happen to trading standards departments around the country, when it could be said to be somewhat of a Cinderella service? How will he monitor that, and what will his measure of success be?
The Local Government Association said in its evidence that, given the reduction in capacity of trading standards across many authorities, there should be flexibility for local areas to determine whether the ban is enforced by local trading standards or private sector housing teams. Does the Minister agree? The LGA went on to say that the Government had ignored the findings of the working group, which concluded that there should be enforcement of mandatory client money protection by local authorities, rather than trading standards. Is the Minister content to ignore the working group’s findings?
Has the Minister listened to the CTSI when it says that a self-financing enforcement model would potentially create a disincentive to provide regulatory compliance? That certainly seems to be the case with the current system around the display of fees. The fine acts as neither a disincentive for the businesses nor an incentive for the enforcement teams. The LGA pointed out that the Government’s theory that funds generated by fines will increase when non-compliance increases does not add up if companies close themselves down, only to re-emerge under a different name or structure in order to avoid a fine.
The CTSI also says that the costs of providing advice and guidance to a company that is subsequently compliant are not factored into the Government’s calculations. Of course, there was the issue raised by CTSI in our evidence session regarding the differences in the burden of proof and the framework of enforcement. The enforcers, in this instance the trading standards officers, will be required to prove offences beyond all reasonable doubt. What does this mean in practice for people—for families—who are already likely to be afraid about not securing the property that they want to live in and perhaps are under pressure to secure it because they have given notice on a prior residence, or are being thrown out of a property that they already reside in? Will this substantial basis of evidence encourage people to come forward, to make a complaint and seek redress? Let us remember that they are already in a significantly less advantageous position than the landlord or the lettings agent. They are not the experts in renting and even less so are they experts in the most recent legislative changes.
It goes back to the point I made earlier: the reality is that enforcement officers are far more likely to try to build up a stronger case with multiple complainants than deal with breaches on a single case-by-case basis. Does the Minister consider that this is serving tenants’ best interests? The remedy would not be sufficient in financial terms for the local authority, nor will the legislation be seen as fit for purpose by those it is intended to protect. Is he really content to preside over this? The CTSI says that most consumer rights breaches and the Estate Agents Act 1979 are obtainable on a balance of probability test. Why does he not consider amending the Bill to reflect this modest yet effective change? If it is the case that the higher the evidential requirement, the more work is involved and the more risk there is for the local authority, and the less likely it is that the Act will be easily enforceable, should he not just do the right thing and make the amendment now? I say that because one of the biggest frustrations of my constituents is around laws that are not enforced. Whether it is parking restrictions, dog mess or fly-tipping, they expect the rules to be fully and fairly applied. Where they are not, the blame comes back on an unfairly overstretched local authority, trying to do its best against the financial odds—financial odds that I know the Minister has recognised in previous comments that he has made.
I do hope that the Minister will take my comments on board. These are the views of royally chartered organisations, which work within the current legislative framework and can anticipate the difficulties of seeing this legislation in operation. It is only through proper enforcement with enforceable regulations that we can hope to see this law do everything the Minister has set out for it to do; otherwise, I am confident that it will be left wanting.
Rishi Sunak
There are in general three broad questions or buckets of comments. First, whether trading standards are the right institution to take on this task; secondly, prioritisation of resources for the things that trading standards have to do; and thirdly, a specific question about the burden of proof required for the penalties that are in place in this legislation. I will try to answer each of those three questions directly.
First, regarding whether trading standards are indeed the right body, which the hon. Lady questioned, there is unanimous agreement among leading industry bodies that trading standards are the logical choice. Indeed, the Chartered Trading Standards Institute itself, which the hon. Lady referred to, said that trading standards
“are well placed to enforce the ban”,
thanks to their local knowledge of landlords and letting agents.
Melanie Onn
Would the Minister accept that in the evidence we heard there was a reference to trading standards working closely with housing officers in particular, to better inform their local knowledge in an area that they may not have information relating to, because the trading standards authority has said that in terms of tenants they currently receive a small number of complaints in this area.
Rishi Sunak
I am generous in giving way, but in this occasion I may have been too generous, because I was just about to make that point. It is exactly because we recognise that in different areas there are different situations that we do not want to mandate a top-down approach. We have encouraged close co-operation. I do not want to pre-empt our debate on the next clause, which talks specifically about the powers for district authorities to enforce the provisions in the Bill. Also, on the particular question raised about client money protection and who ought to be the body enforcing that, 74% of respondents to the consultation said that that enforcement should primarily be by trading standards. It is important to note that trading standards can, under this legislation, discharge their responsibilities to the local housing authority, should they feel that is most appropriate for their area. I hope that addresses concerns on that point.
Melanie Onn
I thank the Minister for his response. The suggestion that there has been unanimous agreement across professional bodies on TSOs does not stand up to the evidence we heard. In all the submissions we had in writing, concerns were raised about the level of training available for trading standards officers, the level of experience they have in this area and their expertise, and they may well be better assisted by other organisations.
Rishi Sunak
I would be grateful to know if the hon. Lady is aware of an industry body that does not believe that trading standards should be the enforcement agency for this legislation. If she could name that industry body, who else does it propose should be the enforcement body?
Melanie Onn
I am commenting based on the evidence we heard last week. We heard from the CTSI and the LGA, which both raised those concerns. It is not about not having trading standards involved, because they clearly have an area of expertise, but there were concerns about their level of expertise, experience, training and resources.
The issue of resources was repeatedly mentioned in the evidence we received in writing and verbally. I appreciate the points the Minister made about resources and about looking to Torbay as the standard bearer for all enforcement and revenue-raising operations. I presume that we will look to Torbay in the future as the arbiter of whether this legislation is working.
On the burden of proof, the Minister says that nobody raised issues about that in the Select Committee’s pre-legislative scrutiny. However, it has come to light more recently. The high level of the burden of proof is something that we have heard about and that industry bodies have raised as a concern, given what they are used to dealing with as trading standards officers. It would be an error for the Minister to dismiss those comments lightly.
Daniel Zeichner
My hon. Friend is giving a very good speech. I think we were all in the evidence session the other day when we heard from the CTSI, which made it very clear why it is so important that we get this right. My experience in this place in the last three years is that we have seen successive pieces of legislation that we are pretty sure are not going to get enforced. Does my hon. Friend agree that if they do not get enforced, there is no point in having them, and that undermines public trust in what we are doing? It is really important that this legislation is enforceable.
Melanie Onn
I thank my hon. Friend for making that point, which goes to the heart of this. There is no point in doing this if the legislation is not enforced or does not do what the Minister intends—namely, rebalance the relationship of power between tenants and landlords. Enforcement is key, because if rogue landlords do not fear that the fine or the potential banning order will reach them, why would they bother to worry about whether they are operating within the legislation?
Helen Hayes (Dulwich and West Norwood) (Lab)
On the Select Committee, we went to see the licensing scheme in Newham in action. One important feature of that scheme is that the council undertakes proactive enforcement work against properties it suspects are being let by landlords who have not yet registered. It is an important part of the resourcing requirement that councils need to make the scheme as effective as possible, but that has not yet been taken into consideration. Will my hon. Friend comment on that?
Melanie Onn
My hon. Friend makes an incredibly important point about being proactive and about the intention of trading standards officers or others to undertake that initial work, rather than just relying on the enforcement element of the legislation. I hope the Minister has heard those points, takes them seriously and receives them in the manner in which they are intended. We will not be pressing this matter to a vote, but we reserve the right to return to it on Report.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Enforcement by district councils
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
The clause places a duty on local trading standards authorities to enforce the ban on letting fees and the requirements relating to holding deposits. It gives district councils the power to enforce the provisions if they choose to do so.
Local housing authorities enforce other measures in private rented sector legislation, such as the provisions related to banning orders for rogue landlords and agents. We very much encourage close working between district and county councils in non-unitary authorities to ensure effective enforcement. That is why we are giving district councils that are not trading standards authorities the power to enforce this legislation. That will ensure that local housing authorities are able to take enforcement action should they become aware, while undertaking their other duties, of a landlord or agent breaching the provisions of the Bill.
District councils must have regard to any guidance issued by the Secretary of State or the lead enforcement authority. The investigatory powers available to a district council for the purposes of enforcing the Tenant Fees Bill are set out in schedule 5 to the Consumer Rights Act 2015, which the clause amends.
Melanie Onn
The Government included the clause following the Bill’s pre-legislative scrutiny. We understand that the devolution of powers between different tiers of local government is in the interest of promoting collaborative relationships with a range of stakeholders, but will the Minister explain how a district council will enable or access these powers?
The Bill provides district councils with the same powers as a weights and measures authority. The Government’s response to the Housing, Communities and Local Government Committee’s report on the Bill says that a district council may choose to be an enforcement authority, but the Committee’s recommendation refers to a weights and measures authority being able to delegate its powers to other tiers of local government where appropriate. Will the Minister explain what process he envisions district authorities having to go through order to be able to undertake enforcement roles in this context?
If weights and measures responsibilities are held at a county council level, and if additional funding for staffing or training has been directed there, but a district council wishes to undertake its own enforcement measures, will there be a requirement for that funding to be cascaded down? Or do the Government expect that funding bids will be made at the outset by those authorities that wish to be enforcers, and that there may then be overlap in the bidding and awarding of such funds?
The Committee’s report contained evidence that any system based purely on hypothecated funds would provide a challenging environment for councils, as it would not provide for up-front or proactive work. It is in the interests of local authorities, tenants, landlords and letting agents that fines are a last resort; it is the early work that will prove the most important.
Rishi Sunak
With regard to district councils enforcing the Bill, there is no special process that they need to go through; they have the same rights and powers as trading standards authorities, so they do not need any special permissions. They can get on and do that should they see fit.
With regard to the hon. Lady’s last point, just like trading standards authorities, an authority that enforces against the contravention of the Bill will of course keep any fines that are levied, which will help to fund that enforcement.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Financial penalties
Melanie Onn
I beg to move amendment 2, in clause 8, page 5, line 13, leave out “£5,000” and insert “£30,000”.
The Chair
With this it will be convenient to discuss amendment 3, in clause 8, page 5, line 16, leave out from “exceed” to the end of line 17 and insert “£30,000”.
Melanie Onn
We welcome the spirit of clause 8. We must seek to hit landlords and letting agents who act badly where it hurts if we are to change realities for tenants. However, the need to strengthen the financial penalties in the clause is twofold. First, we must always ensure that the penalty fits the seriousness of the breach and acts as a deterrent. Secondly, we need to recognise that, if the Government’s plan is for the regulation to become self-funding, fines need to be able to fund the enforcement of the legislation.
To make my point on this, I draw the Committee’s attention to the evidence given by the experts last week. Isobel Thomson from the National Approved Letting Scheme said:
“We carried out a survey of 42 local authorities in June last year, looking at the enforcement of the Consumer Rights Act 2015. Of those 42 local authorities, 93% had failed to issue a single financial penalty against a letting agent in the previous two years.
What are we going to be faced with with the fee ban? Enforcement really needs to come to the fore. The Government have mentioned that there will be a lead enforcement authority. We need to know who that is, how they are going to gear up and how they are going to be resourced. That is what I would like to see.”—[Official Report, Tenant Fees Public Bill Committee, 5 June 2018; c. 4, Q1.]
The NALS evidence is absolutely clear: without the resources for enforcement, there are concerns that the letting fees ban could have very little impact. That surely cannot be what the Government want to see.
There are others who fear that the lack of resources could prove a real impediment to the legislation functioning as intended. When I asked the LGA’s Councillor Blackburn what he felt could be done to strengthen the Bill so that it achieves its aims, he was quite clear. He detailed how the financing of the Bill was an issue:
“At the moment, £500,000 is promised to assist in the up-front costs of setting these schemes up. The average local authority trading standards budget is £671,000 a year, so that £500,000 spread across 340 local authorities is unlikely to fill the gap that exists. That is extremely important.”
There is also a capacity-building issue within the trading standards profession. As it is, 64% of trading standards authorities are reporting that they have difficulties in recruiting and retaining people, and that issue needs to be looked at nationally. The LGA stands ready to assist in that process and will work with the Chartered Trading Standards Institute, but there is a demographic time bomb in there as well, about the average age of trading standards officers…because of the overall financial pressures on local authorities, it is not seen as a long-term, safe career, if I can put it that way.”—[Official Report, Tenant Fees Public Bill Committee, 7 June 2018; c. 34-35, Q58.]
Rishi Sunak
After careful consideration of all the feedback received during the consultation and engagement process, the Government are of the view that the level of financial penalties provided in the Bill is the right one. Furthermore, the approach to financial penalties aligns with that in other housing legislation. Most would agree that a £30,000 fine for an initial breach of the ban, as the amendment suggests, is excessive and could cause significant devastation.
Melanie Onn
Can the Minister explain the circumstances in which he anticipates a £30,000 fine will be imposed against an initial offence?
Rishi Sunak
My understanding of the amendment tabled by the hon. Lady is that that is what it proposes—an initial breach of the ban would be £30,000.
Rishi Sunak
In the Government’s version, it would be £5,000, and that is what we are discussing. My understanding of the hon. Lady’s amendment is that the financial penalty for an initial breach would be £30,000 rather than £5,000. We propose to leave it at £5,000. I am happy to take an intervention if she wants to clarify.
Rishi Sunak
No—okay.
The Government’s aim has been to provide a sufficient deterrent for an initial breach of the ban that still allows landlords and letting agents who may inadvertently commit a breach not to be disproportionately penalised. We therefore resist amendments 2 and 3.
As hon. Members have noted, breaches of legislation related to letting agents, such as the requirements to belong to a redress scheme and to be transparent about letting fees, are subject to a fine of up to £5,000. However, we have listened to concerns that a £5,000 fine may not be enough of a deterrent for some agents and landlords, so clause 8 proposes a financial penalty of up to £30,000 for a further breach of the ban.
Importantly, that upper limit is consistent with the higher rate of civil penalties introduced in April 2017 under the Housing and Planning Act 2016. Given that the repeated charging of fees is a banning order offence, we firmly believe that the level of penalty needs to be consistent with the legislation under that Act, which brought banning orders into force.
It is too early to argue that the higher level of financial penalty at £30,000 has not been successful in offering a more significant deterrent to non-compliance. In the evidence that Alex McKeown of the Chartered Trading Standards Institute gave last week, she said that she believed that £30,000 would act as a “significant deterrent”.
Richard Graham (Gloucester) (Con)
There is a slight note in the debate of some who see landlords and agents as villains and enemies to be bashed at every conceivable opportunity. For many of us, however, the issue is about how we construct a partnership that gives tenants more rights and that provides a better sense of fairness in the relationship, but which ensures that there is a strong and functioning market and that we do not go back to the 1970s when the Opposition created a situation in which there was very little provision of private sector housing, of which we know that we will need a great deal more.
Rishi Sunak
I thank my hon. Friend for another thoughtful and measured comment. He is absolutely right: we are not in the business of demonising particular groups of people; we are interested in having a fair and functioning market. The balance that that requires has been a focus throughout all the deliberations on the Bill.
Melanie Onn
Would the Minister accept that the principle of the fines is not to demonise anybody, but to act as a successful deterrent?
Rishi Sunak
Indeed, I was quoting the evidence from the Chartered Trading Standards Institute that said that £30,000 was a significant deterrent.
Melanie Onn
If the CTSI says that £30,000 is a suitable deterrent, does the Minister think that that should be the minimum?
Rishi Sunak
Again, I fear that I have been too generous in giving way. I was about to make the point that it should not be forgotten that an agent or landlord convicted of an offence under the ban is liable for an unlimited fine, if that is the route of enforcement that the enforcement agency wants to go down; £30,000 is the alternative to a criminal prosecution where fines can be unlimited and people can be subject to banning orders, which I am sure all hon. Members agree are extremely serious and significant deterrents. The guidance that we will produce will support local authorities in determining the level of the penalty in any given case. I urge the hon. Lady to withdraw her amendment.
Melanie Onn
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
We have aimed to be ambitious and tough in our enforcement approach to provide a sufficient deterrent to the continued charging of fees. Clause 8 sets out the fact that a breach of the fees ban will be a civil offence with a financial penalty of up to £5,000. However, if a further breach is committed within five years, that will amount to a criminal offence. In such a case, local authorities will have discretion on whether to prosecute or impose a financial penalty. Clause 8 provides that enforcement authorities may impose a financial penalty of up to £30,000 as an alternative to prosecution, as we have discussed. The level of fine reflects the feedback that we received during the consultation period. I will not rehash the arguments for why we think that is an appropriate level.
A financial penalty cannot be imposed if the landlord or agent has failed to return the holding deposit because they have received incorrect information about the tenant’s right to rent property in the UK. That reflects a recommendation from the Select Committee on this particular point. Before imposing a financial penalty, enforcement authorities must be satisfied beyond reasonable doubt that the landlord or agent has breached the ban on charging tenant fees. Only one financial penalty may be imposed per breach and an enforcement authority can impose a penalty for a breach outside its area. This clause should be read with schedule 3, which sets out the procedure to be followed by an enforcement authority after it imposes a financial penalty. Financial penalties, I believe, will act as a serious deterrent to non-compliance.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Schedule 3
Financial Penalties Etc
Question proposed, That the schedule be the Third schedule to the Bill.
Rishi Sunak
It is important that there is consistency in the way in which local authorities impose financial penalties and that the process is fair. This schedule sets out the procedure to be followed.
Enforcement authorities must give the landlord or agent notice of their intention to service a financial penalty within six months of the breach occurring. This notice must contain relevant information about the reasons for imposing the penalty, the amount and the right to make representations. The landlord or agent then has 28 days to respond. If the enforcement authority decides to impose a penalty, it must provide a final notice setting out the amount of penalty, how much to pay, the rights of appeal and the consequences of failing to comply. An enforcement authority may at any time withdraw or amend a notice of intent or final notice. The landlord or agent must be notified of this in writing.
Landlords and agents have a right to appeal to the first-tier tribunal against a final notice. This appeal must be brought within 28 days of the final notice and is to be a re-hearing of the enforcement authority’s decision, but the tribunal may admit evidence that was not heard before the enforcement authority, if relevant. The final notice is suspended until the appeal is determined or withdrawn. The first-tier tribunal may confirm, vary or quash the final notice. It may impose a penalty up to the same maximum penalty as the enforcement authority could have imposed. If the landlord or agent fails to pay all or part of this financial penalty, the authority can seek repayment on the order of the county court. Similarly, if the authority requires the landlord or agent to repay the tenant any prohibited fees and they fail to do so, this can be recovered under an order of the county court.
I am aware that concerns have been raised about the resources of local authorities. I trust that the Committee welcomes the schedule, as it enables an enforcement authority to retain the proceeds of any financial penalty, as we have discussed, for future housing enforcement.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to serve under your chairmanship, Mr Sharma, for our second day in Committee. As the Minister has set out, schedule 3 provides some clarity over financial penalties, including notices of intent, recovery of penalties and proceeds of those penalties. The Opposition support the schedule as drafted. We are seeking clarity, however, from the Minister on certain aspects, before we give our support for its inclusion in the Bill. I would like to focus on paragraphs 6 and 7, which deal with the specifics of appeals and the recovery of penalties.
As with any piece of legislation such as this, the right to appeal is extremely important. It is correct that this is reflected in the Bill. It is also vital that the conditions of any appeal are presented with the utmost clarity to prevent abuse or a miscarriage of justice. Pre-legislative scrutiny by the Select Committee rightly raised concerns about how the Bill defined grounds for appeal, arguing that a first-tier tribunal should decide appeals as complete rehearings, which should take into account all matters, whether known to the local authority at the time of its decision or not. We are glad that the Government took that into account and amended the Bill accordingly. However, a number of questions about appeals remain, and I hope that the Minister can offer some clarity in his response.
Rishi Sunak
It is a pleasure to respond to the hon. Lady. I am cautious, as I wish to stay on point, with your direction, Mr Sharma. The hon. Lady raised some review periods, which we will no doubt discuss more specifically towards the end of this sitting when debating the new clauses tabled by Opposition Members, and with regard to phoenix companies, which are specifically covered by clause 13. I will leave discussion on those matters to the debates on the relevant clauses.
On the hon. Lady’s broad point about the level of fines, I thank her for recognising that the Government took on board the advice of the Housing, Communities and Local Government Committee’s on drafting these clauses, and we amended the draft legislation. I hope that she appreciates that. As I said, we took on board the Committee’s specific recommendations about the first-tier tribunal and the process that will be followed.
More specifically, on the hon. Lady’s point about the level of fines that can be varied, as with all judicial matters that will be a matter for the tribunal or the judicial processes of the county court—whichever avenue the enforcement mechanism finds itself in. Guidance will be published on the appropriate level of penalty, dependent on a broad range of situations, which will serve as a framework for how local authorities will enforce that penalty. The first-tier tribunal will subsequently have regard to that. It will not be for the Minister or the Government to direct in every circumstance what the level of fine should be.
As the hon. Lady rightly recognised, it is appropriate, as it is across our judicial system, that the courts have the flexibility to determine things on a case-by-case basis. I hope she welcomes that flexibility, which was added to the Bill at the request of the Select Committee. I look forward to debating phoenix companies and other such matters with her when we debate subsequent clauses.
Question put and agreed to.
Schedule 3 accordingly agreed to.
Clause 9
Power to amend maximum financial penalties
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
The clause is straightforward and contains a power for the Secretary of State to make regulations amending the amount of financial penalty that a local authority can change. This is purely to reflect changes in the value of money.
Permitting local authorities to levy financial penalties of up to £30,000 for breaches of the regulations on fees is intended to serve as a significant deterrent to agents and landlords. Including a power to amend the maximum penalty ensures that the Government can address any issue where the deterrent effect has not kept pace with inflation. We consider that regulations by negative procedure are appropriate in this case, since the changes are intended only to reflect the value of money, not to alter the intent or effect of the legislation.
Subsection (3) enables the Government to make transitional, transitory or saving provisions in relation to the uprating, in order to ensure that there is a smooth transition from one upper limit to another. In summary, the clause will enable the legislation to remain relevant over time.
Melanie Onn
It is crucial for this policy and for the hopes within it to be impactful that the fines are sufficient to act as a deterrent. Opposition Members have raised concerns throughout Committee stage that they might not be.
Any punishments for wrongdoing by rogue landlords and letting agencies must be sufficient to be seen as more than simply the cost of doing business. That is not simply my opinion but that of a landlord advocacy group. Indeed, Richard Lambert, chief executive of the National Landlords Association, said earlier this year:
“The NLA supports making the punishment fit the crime because too many of the criminals who operate in the private rented sector”—
it is somebody within that sector who said this—
“see the current level of fines as little more than a cost of doing business and we would welcome greater consistency between civil and criminal penalties.”
As is clear from the amendments we have tabled, we have concerns that the Bill will not go far enough in ensuring that its aims can be fulfilled. The fines are a clear example of where the tension between aims and the probable reality of any impact is at its greatest. If fines can be as little as £5,000, as with the penalties for the display of tenants’ fees, that seems to act as a minimal deterrent to landlords. Surely the best that we should hope for is that those fines encourage the sector to operate well within that framework, and that they do not have to be levied. In the more lucrative markets, that is a very small sum. For larger landlords, it is small fry.
To add to that hypothetical, trading standards and local government up and down the country have had their budgets decimated. As we heard at the evidence session last week from Councillor Blackburn of the Local Government Association, as I have mentioned, there has been a 56% drop in trading standards enforcement officers since 2009—more than half of them have been lost. It is a vital sector, which will enforce the Bill, but without good trading standards officers, there is a real risk that the legislation, for all its good intentions, could lack impact on the ground.
There is a lack of expertise and resources, and those problems seem likely to get worse. Rogue landlords and agencies are likely to factor the likelihood of any claims being made against them into their business calculations, as Richard Lambert of the NLA suggested. As things stand, their calculations might suggest that taking a risk is worth it, particularly in areas where tenants are not as clued up, or where local authority services and budgets have been really affected.
Any changes need to be made by means of new primary legislation, but perhaps that is not the ideal approach; perhaps the Minister or the Secretary of State should be able to look at the matter again in conjunction with evidence about how the enforcement process has been going, and whether the fines are sufficient sticks to encourage that good practice across the board. It is clear that the Government want the policy to be part of transforming letting to make the tenant’s life much fairer than it is under the status quo, but for that to be done, there needs to be some real, critical engagement with the facts on the ground from the Government in future. For the legislation to have its proposed impacts, it is key that the Minister has an open mind about how it is best put into practice. The punishments have to fit the crime, and they need to be responsive to the realities of the letting market, which means that there must be space for rethinking that which is required.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clause 10
Recovery by enforcement authority of amount paid
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
We want to ensure that when a tenant has paid an unlawful fee, they are repaid as soon as possible. Clause 10 enables an enforcement authority to require a landlord or letting agent to repay the tenant or other relevant person any outstanding prohibited payment or holding deposit. Similarly, if the landlord or agent required a relevant person to enter into a contract with a third party, they may be required to pay compensation. That may be ordered if the local authority imposes a financial penalty for a breach of the Bill. It does not apply if the tenant has made an application to the first-tier tribunal to recover the payment or if the amount has already been repaid.
Clause 11 enables the enforcement authority to require the landlord or agent to pay interest on any payment referred to in clause 10. That ensures that the agent or landlord does not receive any financial benefit from a prohibited payment.
Melanie Onn
For the Bill to have an impact, it has to be possible for prohibited payments to be recovered, and for those enforcing the legislation to fulfil their roles. We have already touched on our concerns about whether there are sufficient resources for local authorities and trading standards to function as the Government would like. These clauses highlight a particular potential issue in the legislation as it stands. The need for a criminal level and burden of proof for the civil financial penalties discussed in this Bill is a flaw that could well hamper its effectiveness. We all want to see legislation that is effective, that leaves tenants and landlords clear on what is permissible and what is not, that ensures that rogue traders are dealt with effectively, and that leaves tenants able to bring claims when things do go wrong.
Rishi Sunak
It is vital that strong action is taken against irresponsible agents and landlords who persist in charging unlawful and unfair fees to tenants. This will act as a strong deterrent and better protect tenants. Clause 12 provides that a landlord or letting agent who breaches the ban on fees commits an offence if they do so within five years of conviction or imposition of a financial penalty for an earlier breach. Agents and landlords who commit an offence are liable on conviction to an unlimited fine. An enforcement authority has, in each case, the discretion to decide whether to impose a financial penalty of up to £30,000 or to pursue prosecution. A financial penalty issued as an alternative to prosecution does not amount to a criminal conviction. Subsection (6) amends the Housing and Planning Act 2016 to provide that an offence under the clause is a banning order offence, which means that if a landlord or agent is convicted of an offence a local housing authority may apply to the court to ban them from letting housing and/or acting as a letting agent or property manager in England for at least a year.
In our consultation there was strong support for prosecuting and/or banning repeat offenders. We have listened, and the clause shows that we are serious about cracking down on rogue operators. If the court makes a banning order, the local housing authority must add the landlord or letting agent to the database of rogue landlords and property agents established under the 2016 Act. By giving local authorities the power to take robust action against the worst operators we better protect tenants and ensure that reputable agents and landlords are not undercut or tarnished by rogues.
Clause 13 provides that, as well as the business itself, an officer of a body corporate or a member with management functions can be prosecuted for a breach of the ban on letting fees. The clause addresses issues raised by the hon. Member for Croydon Central and is designed to ensure that individuals with responsibility for repeatedly breaching the ban on tenant fees can, along with their organisations, be prosecuted and banned from operating. That will help to prevent the establishment of so-called phoenix companies, whereby an individual moves from a firm that has been banned and opens up a new business only to continue disreputable practices.
Melanie Onn
I want to make a couple of points. On the rogue landlords database, have the Government conceded that they will open it up, making it far easier for tenants to assess whether their potential landlord is someone from whom they wish to rent a property?
The provision regarding phoenix companies is incredibly important and I am pleased that the Minister has taken the opportunity to include it in the Bill, but is he confident that it will work in practice? I have seen such companies operating in other industries, and I am concerned about whether individuals who are overseas can be prosecuted. Will it be easy to prevent such individuals from continuing to be landlords within phoenix companies? Although an individual may be named as part of a company in Companies House records, a phoenix company can arise in the name of someone else with whom that person has a close association. Parent companies and subsidiaries can be established and registered in other names, but an individual can have an association with each of the subsidiaries of a parent company that might not have direct influence on or knowledge of what those subsidiaries are doing. That might come about regularly, so on whom will justice be brought to bear for breaches of legislation?
Rishi Sunak
I am glad that the hon. Lady generally welcomes the approach to tackling something that I think we all want to see prohibited. We are confident that the provisions will work. Overseas landlords and letting agents are subject to all the existing requirements for being a member of a redress scheme, and we have consulted on those provisions and will extend them. It is mandatory for letting agents to be a member of a redress scheme. Without such membership they cannot function in the market and will be in breach of their legal obligations. Whether people are overseas or in the domestic realm, there are multiple levels of protection and they must comply with the regulations in order to let property.
Rishi Sunak
This clause, too, is relatively straightforward. It places a duty on enforcement authorities to notify other relevant authorities when taking action. That is necessary for a number of reasons, each of which the clause provides for. First, if a local trading standards authority takes action outside its local area, or a district council takes action, the relevant local trading standards authority is notified and work is not duplicated. The relevant local trading standards authority is then relieved of its enforcement duty, unless it is subsequently informed that the proposed enforcement has not taken place. Secondly, a record can be kept by the lead enforcement authority where a financial penalty has been imposed, withdrawn or quashed on appeal. That will inform whether any subsequent breach is dealt with as an offence. A trading standards authority must notify the local housing authority if it has imposed a financial penalty or made a conviction. That ensures that the relevant information is communicated to the right authorities at the appropriate time. As such, the clause has a key but simple role in ensuring that the enforcement of the legislation is carried out effectively and all relevant parties are aware of what is happening on the ground. I urge the Committee to support the clause.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Recovery by relevant person of amount paid
Melanie Onn
I beg to move amendment 13, in clause 15, page 10, line 36, after “that” insert
“, with the consent of the relevant person,”
This amendment provides that the consent of a tenant or the person acting on their behalf or who has guaranteed to pay their rent must consent to the use of a prohibited payment for rent payments or tenancy deposit payments.
Under amendment 13, the tenant would have to consent to their holding deposit or a prohibited payment being used to cover rent or deposit costs. We do not object to the principle of subsection (6), which the amendment seeks to change. The payment of a tenancy deposit or a prohibited payment into a deposit or as part of rent is entirely sensible and in many cases will be an optimal arrangement for both the tenant and the landlord. In the case of the holding deposit, this can be an important agreement between the tenant and the landlord that reduces the burden of paying a deposit, rent in advance and holding deposit all at the same time. Allowing a tenant to put that money towards a deposit can make it easier to pay what for many is a high fee and a significant amount, and prevent the holding deposit being held for as much as a week after an agreement has been made, when the tenant is likely to be short of money. We are therefore glad to see the principle in the Bill.
However, as the Bill stands, the landlord will have discretion as to whether to apply that payment. Although that does not seem to be a significant problem at first, and in many circumstances may not cause a problem, allowing landlords to do so indiscriminately could lead to difficulties for tenants in certain circumstances. The first problem arises from the fact that many people pay their rent on a monthly basis, through a fixed-sum standing order. Although standing orders are amendable, that can be a time-consuming process for the tenant. To deduct the prohibitive fee from a month’s rent, they must amend the standing order twice to account for the change. Government Members might feel that that is quite a trivial point, as making changes to bank payments is part of daily life, but we believe it will result in the tenant having to go out of their way for something that is not their fault. We must remember that when considering this amendment. It would be wrong for tenants to end up doing time-consuming work to receive their money in a timely and orderly fashion, given that they are not the ones who charged the fee.
A second problem that we seek to address with the amendment is how subsection (6) would apply to people with a joint tenancy. Taking the example of a joint tenancy in which the tenants pool the rent in one account and pay it to the landlord as a lump sum, if one tenant loses their key and is required to pay a default fee, which is later deemed to be prohibited, would the landlord be able to deduct that from the rent? In that scenario, taking the prohibited fee from the rent would not be a simple way of paying back the tenant. They paid the fee from their own pocket, but the rent deduction comes out of a pool for which all tenants are jointly responsible. Given that the deduction would not automatically be tied to the person who is entitled to it, the process could be abused by other people who are part of the pool. Although in most cases such agreements are set up by families or a close group of friends, it should not automatically be assumed that it is an easy or preferred way for the relevant person to receive their money.
It is their money. I have set out several scenarios, but a significant rationale for this amendment is the principle. Put simply, it is the tenant’s money, and they should have the final say about what happens with it. As it stands, subsection (6) allows landlords to do what they want with the tenant’s money that they have been required to give back and ought not to have had in the first place. I hope that Committee members will recognise that this is a practical and fair amendment. If someone has been wronged, it should be made as easy as possible for them to receive the repayment to which they are entitled.
Rishi Sunak
An important principle of the Bill is that any unlawful payment can be recovered in full by the tenant, as it is their money. Tenants can do that either by seeking direct recovery from the landlord or agent, or by going to the local authority or applying to the first-tier tribunal. It is important to note that they can also go to their agent’s redress scheme if they are seeking the recovery of a prohibited payment from an agent. Offsetting the prohibited payment against the rent or deposit will ensure the tenant is not left out of pocket. It is best practice for a landlord or agent to ask the tenant, or any person guaranteeing their rent, whether they are happy for any unlawfully paid fee to contribute towards a future rent or tenancy deposit payment. We are planning to encourage that through guidance, and we expect that most landlords and agents will do that. We do not currently see the need for specific provision to that effect in legislation.
That said, I have been considering this broad area for a while, and I want to ensure that what we have in place works. I hear what the hon. Lady said. The clause was designed to ensure that the repayment process is relatively automatic. We did not want to put extra steps, which might delay things, into the process. We are looking at some of the areas that she mentioned. With that in mind, if she will bear with me as I look through those things, I ask her to withdraw the amendment.
Melanie Onn
I am glad the Minister is listening. He said that the automatic expectation is that, to seek redress, tenants will go through a first-tier tribunal or go to a local authority just to get back what is theirs, which is in the hands of the landlords, despite the fact that the Minister clearly thinks it is best practice for landlords to have a good relationship with tenants. It is not inconceivable that the relationship has broken down if it is deemed that a prohibited payment has been made.
I was going to press the amendment to a vote, but given that the Minister has requested that we bear with him, I will not do so. I will hold him to his word. I will withdraw the amendment, but I reserve the right to table it again if we are not satisfied with what he comes back with. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Melanie Onn
I beg to move amendment 14, in clause 15, page 11, line 4, leave out
“all or any part of”,
and insert—
“a sum of money not less than and not more than three times”.
This amendment would enable tenants to claim back prohibited payments without assistance from the local authority, along with compensation from the landlord or letting agent worth up to three times the fee paid.
The amendment would entitle tenants who seek to claim back prohibited payments without assistance from the local authority to compensation from the landlord or letting agent worth up to three times the fee paid. During the evidence sessions, we heard often how the Bill needs more resources to enforce the new provisions that it will bring in and to fully achieve its aims. One thing necessary to improve the enforcement of the Bill is to provide further encouragement to tenants to self-report and to call out the use of prohibited fees by their landlords.
Trading standards will face practical difficulties in enforcing the Bill. They face a lack of resources across the country, which has meant their losing, as we have said, 56% of enforcement officers since 2009 and therefore lacking the expertise with letting agents that they would like. There is therefore a need to look at self-reporting as an addition to trading standards, and the addition of clause 15 to the Bill shows an acknowledgment of that by the Government. The amendment would strengthen that by providing tenants with compensation, when making a claim, for three times the initial sum charged.
A three times figure is already used to enforce deposit protection regulations, so both the three times figure and the idea of compensation for mistreated tenants has a basis in current property law. The amendment would act as an extra deterrent to landlords’ and letting agents’ breaking the law, by increasing the level of punishment, and would provide sufficient motivation and compensation for tenants to go through what could be a stressful and time-consuming tribunal process. As the amendment would help to enact the purpose of a Bill that both Government and Opposition want to be effective, I hope that both will accept it and thereby increase the enforcement power of the Bill.
Rishi Sunak
Tenants absolutely should get back any unlawful payments in full, whether direct from the landlord or agent, via the enforcement authority or through an order of the first-tier tribunal. However, we do not think it appropriate for the tenant to receive further compensation, given that the landlord or agent is liable for a significant financial penalty in addition to reimbursing the tenant.
It is also worth noting that the Bill provides further protection to tenants by preventing landlords from recovering their property, via the procedure set out in section 21 of the Housing Act 1988, until they have repaid any unlawfully charged fees. To add in compensation, as the amendment suggests, risks penalising agents and landlords multiple times for the same breach, which is not fair. We believe that our existing approach strikes the right balance and offers a serious deterrent to non-compliance. I ask the hon. Lady to withdraw the amendment.
Melanie Onn
Unfortunately, I will not withdraw the amendment. I do not feel entirely satisfied by the Minister’s comments on this and I do not think that he has addressed the issues around the negative position that tenants find themselves in compared with landlords, so I will press the amendment to a vote.
Question put, That the amendment be made.
Rishi Sunak
Clause 15 works with clause 10 to establish multiple routes for tenants to be able to recover any prohibited payments. It enables a tenant or other relevant person to apply to the first-tier tribunal for compensation where they have been required to make a prohibited payment or where a holding deposit has been unlawfully retained. We have listened to the Select Committee on this point and acknowledge that the first-tier tribunal is generally more accessible for tenants as it is less formal and costly than the county court. If a landlord or agent refuses to abide by an order of the first-tier tribunal, a tenant would be required to go to the county court to have the decision enforced and to recover their fees. We have made provision in clause 16 for a local authority to help the tenant with that. I ask hon. Members to agree that clause 15 stand part of the Bill.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
Assistance to recover amount paid
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
Clause 16 is another straightforward clause. It provides that an enforcement authority such as a local trading standards authority can help a tenant recover unlawfully charged fees or a holding deposit that has been unlawfully withheld. That is because we recognise that tenants might require or would like assistance to navigate the county court process. The enforcement authority would help a tenant or other relevant person to make an application to the first-tier tribunal: for example, by providing advice or by conducting proceedings.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Restriction on terminating tenancy
Melanie Onn
I beg to move amendment 15, in clause 17, page 12, line 3, at end insert—
“(5A) No section 21 notice may be given in relation to the tenancy until the end of a period six months from:
(a) the day after the day on which the final notice in respect of the penalty for the breach was served; or
(b) the day after the day on which any appeal against the final notice is determined or withdrawn.”
This amendment would protect tenants against the issue of a section 21 notice when a penalty has been applied in relation to a breach under Clauses 1 and 2 of this Bill.
I believe the amendment would strengthen the provisions in the clause. As the Bill stands, landlords are unable to serve section 21 notices while there is still an outstanding balance of a prohibited payment or holding deposit to be repaid to the relevant person. The principle behind the clause is welcome. It would be wrong for a tenant to be served a section 21 notice while a landlord has failed to serve their obligations in terms of repaying money that was taken incorrectly. The same principle guides the inability of landlords to serve section 21 notices if they do not properly protect a tenant’s deposit, and more recently if they do not carry out their obligation to undertake any necessary improvements.
Such extra protections should improve a tenant’s rights and mean that rogue landlords cannot get away with retaliatory evictions if a tenant challenges bad practice. However, too often the principle is not matched in practice. This can be seen in the enforcement of the Deregulation Act 2015, which led to the banning of revenge evictions if a landlord was ordered to carry out repairs by a local council. A 2014 study by Shelter estimated that 200,000 private renters had been served with an eviction notice after complaining to their landlord about a problem with their home. The legislation should have led to significant action, given how widespread the problem of retaliatory evictions is, yet more than half of councils in the UK did not use the new powers in the Act a single time within a year of enactment. There is clearly a disconnect between what leaves this place as law and the reality of what is actually enforced.
Protection against section 21 evictions is vital for tenants who fear that standing up to a landlord could lead them to be evicted. It is worth remembering what landlords have to do to be exempt from serving a section 21 notice. These are landlords who do not protect tenants’ deposits, do not provide repairs in a timely manner, and who will charge prohibited fees under this new Bill. So these landlords have, at best, already shown a lack of knowledge as to their rights and responsibilities, and at worst are rogue and exploitative to the point where they will cross legal lines to avoid their obligations. This comes to the heart of why enforcement in this area is so important and needs to be done far better under current housing regulations, and needs to be enhanced in the Bill as it stands.
We know that the vast majority of landlords comply with regulations and discharge their obligations in a timely and professional manner. Those landlords would never threaten retaliatory evictions and would ensure that they followed the rules regarding serving a section 21 notice if needs be, but there are too many rogue landlords who look to shirk their responsibilities and exploit tenants at every opportunity. If a rogue landlord is willing to take a chance on a tenant’s not picking up on and reporting a prohibited fee, or to threaten a tenant with eviction when they ask for repairs, why would they suddenly act in a fit and proper manner when it comes to serving a section 21 notice?
During the evidence sessions, the NUS representative made the point that students often do not know their rights. They are often first-time renters and many will not have the experience of looking over a contract or challenging actions that are unlawful, which means that they may not be comfortable taking action against activities such as charging a prohibited fee or serving a section 21 notice. That could be particularly true if the Act required a tenant to take a landlord to court to prove that a section 21 notice was invalid, so tenants may end up leaving under an invalid section 21 notice when there is no reason for them to do so.
Too many rogue landlords get away with outlawed acts because there is not enough enforcement of the current laws that prohibit bad practice. The Government should consider carefully the evidence we heard in last week’s evidence sessions. It is fair to say there was a general feeling that there is not enough enforcement power in the Bill for it to do all the good it could do.
Enforcement could come through several different channels, such as increasing fines to increase the deterrent that rule breakers face, reimbursing a lead enforcement authority or reducing the barriers that tenants face if they report a landlord. Amendment 15 would mean that tenants were safe from retaliatory evictions that could result from reporting a landlord who charged a prohibited fee, for six months after the final notice of the penalty for the breach is served or the appeal is determined or withdrawn.
The amendment arises from what should be a guiding principle of good law making: in introducing new laws and regulations, we should learn from the mistakes of similar legislation and build a Bill that counters those flaws and pitfalls. To ensure that this Bill hits the ground running, it is important to look at other pieces of legislation that govern landlords to see where they have failed in the past.
We must learn from the effect that a lack of protection from eviction had on the repair of properties that were not in a fit or liveable state. As a result of that, tenants ended up living in houses with no protection from draughts, large damp problems and faulty electrics. No one should live in those conditions in this country, but tenants feared that if they complained about those problems, their landlord would serve them with a section 21 notice rather than carry out the repairs. Tenants were left with a choice between putting up with uncomfortable, unsafe and uninhabitable conditions and pressing their landlord to fix those issues when the landlord held the power to kick them out. No one should have to make that choice, because no one should be penalised for wanting a house that is habitable. Similarly, no one should have to make the choice between flagging a prohibited payment and keeping their landlord happy so that they do not get served with a section 21 notice.
To prevent tenants from retaliatory evictions when repairs are necessary, the Deregulation Act 2015 prevents landlords from serving a section 21 notice for six months after the council orders repairs to be made. Although there are problems with the enforcement of that Act, the principle of it acts to prevent retaliatory evictions. In particular, it prevents the serving of a section 21 notice for six months after the serving of an improvement notice, which gives tenants the same protection as they would have at the start of any tenancy. That is an extremely important addition to tenants’ rights, which helps to remove a barrier to self-reporting. There is too little extra protection for self-reporting tenants if the law simply states that the landlord can serve a section 21 notice the second they have managed to fulfil the obligation that they were reported for. That also covers self-reporting tenants who could be subject to retaliatory evictions if they report a landlord.
Just as it was sensible to extend the provisions concerning revenge evictions for repairs in the 2015 Act, it is sensible to learn from the past situation around repairs now and get the Bill right at the first time of asking, by bringing it into line with the thinking of that previous legislation and adding a six-month period in which landlords cannot serve a section 21 notice after a breach of the Bill.
Rishi Sunak
The Bill already protects tenants by preventing landlords from recovering their property via section 21 of the Housing Act 1988 until they have repaid any unlawfully charged fees. This approach is in line with legislation that already applies where the “How to rent” guide has not been provided or a landlord has not secured the required licence for a house in multiple occupation, so there is good precedence for our approach.
Further, clause 4 ensures that any clause in a tenancy seeking to charge tenants a prohibited fee is not binding on the tenant, so we do not consider that further provision is needed. The wording of this amendment would specifically mean that if a landlord appealed against the imposition of a financial penalty and this was upheld, that landlord would be restricted from using the no-fault eviction process for six months after the appeal was determined. That clearly is not fair. I therefore ask the hon. Lady to withdraw the amendment.
Melanie Onn
I thank the Minister for that response. It is unfortunate that he is not prepared to accept the amendment. It may well be the case that landlords will happily give people back the money they owe them and then still decide that they are troublemakers and seek to serve an eviction notice against them. While I accept the Minister’s comments regarding a landlord’s appeal, I think this is something that he should look at. If the Bill is about increasing and protecting tenants’ rights, this is a prime opportunity to do so. Despite that, I am happy not to press the amendment, but I reserve the right to discuss this issue further on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
Clause 17 has been included following a recommendation specifically from the Select Committee during pre-legislative scrutiny of the draft Bill, and I therefore hope that it commands broad support. It ensures that a landlord cannot evict an assured shorthold tenant via the section 21 no-fault eviction procedure if the landlord has previously required a tenant to make a prohibited payment and failed to repay this payment or apply it to the rent or deposit. We agree with members of the Select Committee that this affords tenants additional protection and serves as a further deterrent to non-compliance for agents and landlords.
Similarly, a landlord cannot use a section 21 procedure if they have breached the requirement to repay a holding deposit. This clause is intended to establish a further layer of protection and security for tenants and to act as a deterrent to landlords. The approach mirrors that used to promote compliance with other housing legislation, such as licensing for houses in multiple occupation and the requirements to give tenants a copy of the “How to rent” guide and valid gas safety certificates. I beg to move that the clause stands part of the Bill.
Melanie Onn
We have made our concerns around this clause quite clear, and we reserve the right to come back and discuss it on Report. I sincerely hope that the Minister’s intention does work in practice. I think he is applying some of the principles to landlords who would never wish to be in breach of any of this legislation, and he is not considering fully the issue of rogue landlords, who are the ones we are trying to tackle.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clause 18
Duty to publicise fees on third party websites
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
Thank you, Mr Sharma, for permission to group these three clauses. I will discuss them briefly in turn. Clause 18 amends section 83 of the Consumer Rights Act 2015. Section 83 places a duty on letting agents to publicise their fees and information about redress under client money protection schemes in order to provide greater transparency for landlords and tenants.
In the Government consultation on banning tenant fees, concerns were raised that these transparency requirements do not apply in relation to property portals, such as Rightmove and Zoopla. These websites are often the first port of call for tenants when searching for a home to rent. To ensure that tenants and landlords have easy access to relevant information, this clause extends the transparency requirements to third-party websites. I am sure that will be warmly welcomed.
Rishi Sunak
Clause 21 amends section 135 of the Housing and Planning Act 2016. It makes enforcement of the requirement for letting agents to belong to a client money protection scheme the responsibility of trading standards authorities. That has the effect in non-unitary authorities of moving the enforcement responsibility from district councils to county councils. Trading standards are best placed to enforce this provision due to their role in enforcing other legislation relating to letting agents. The change will ensure better alignment between enforcement of the provisions of the Tenant Fees Bill and client money protection.
In November to December last year, the Government consulted on the implementation of client money protection. I am pleased to say that the majority of the respondents—74%—agreed that enforcement responsibility should sit with trading standards rather than district councils, given their skills and experience. To ensure joined-up enforcement of relevant letting agent legislation, I beg to move that clause 21 stands part of the Bill.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22
Lead enforcement authority
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 23 and 24 stand part.
New clause 1—Enforcement: costs—
“The Secretary of State shall reimburse—
(a) a lead enforcement authority, where this is not the Secretary of State, for any costs incurred by the authority in the exercise of its duties under section 23 or section 24 of this Act, and
(b) an enforcement authority for any additional costs incurred by that authority in the exercise of its duties under section 1 or section 2 of this Act.”
Rishi Sunak
Clause 22 establishes a lead enforcement authority in the lettings sector to oversee enforcement of the Bill and associated letting agent legislation, including the transparency requirements in the Consumer Rights Act 2015, the requirement for letting agents to belong to a redress scheme and the forthcoming requirement for letting agents to belong to a client money protection scheme. Although, in the first instance, this responsibility lies with the Secretary of State, the clause gives the Secretary of State the power to designate a local trading standards authority as the lead enforcement authority. The clause also enables the Secretary of State to make provision, via regulations, to smooth the transition if there is a change in the lead enforcement authority.
In the Government consultation, there was strong agreement from respondents across the sector to the introduction of a lead enforcement authority; 86% of respondents were in favour, stating that this would lead to more consistent operation of the regulatory framework. We consider that trading standards authorities are best placed to act as the enforcers, given their other responsibilities for enforcing requirements on letting agents and consumer protection laws.
We recognise the overlap between the lettings and estate agent sectors and will work with National Trading Standards to ensure that the new lead enforcement authority works effectively alongside the existing arrangements in the estate agent sector. We intend to provide funding to support the setting up and workings of a lead enforcement authority.
Clause 23 describes the duties of the lead enforcement authority. Broadly, those duties are to provide guidance and support to local authorities in England with regard to their enforcement responsibilities in respect of relevant letting agent legislation. The lead enforcement authority will help to develop best practice in enforcement and ensure consistent application of the legislation.
The clause also enables the lead enforcement authority to disclose information to a relevant local authority to enable that authority to determine whether there has been a breach of, or offence under, relevant letting agency legislation. That power will, in particular, enable the lead enforcement authority to disclose information as to whether a financial penalty has been issued against a landlord or agent and thus whether an offence has been committed under the Bill.
We have taken into account feedback from the Select Committee, so the clause now places a duty on the lead enforcement authority to issue guidance to enforcement authorities about the exercise of their functions under the Bill. As discussed earlier, enforcement authorities must have regard to that guidance.
Clause 23 also provides a power for the Secretary of State to direct the lead enforcement authority to produce guidance about the operation of other relevant letting agency legislation and about the content of such guidance. The lead enforcement authority will be able to provide information and advice to tenants, landlords and letting agents to help them to understand the impact of the Bill and other relevant legislation.
The lead enforcement authority’s position as a central point of contact for local authorities will facilitate its duty to monitor developments in the lettings sector and, as necessary, to advise the Secretary of State. That includes the effectiveness and operation of the Bill and associated relevant letting agency legislation and related social and commercial developments.
Clause 24 makes provision for the lead enforcement authority to enforce the provisions of the Bill and other relevant letting agent legislation. We want the lead enforcement authority to play a proactive role in enforcement and to exercise best practice and provide support when it is appropriate and necessary for it to do so.
Individual trading standards authorities will remain primarily responsible for enforcing breaches of the fee ban. However, they may want to ask the lead enforcement authority for support. Alternatively, a local trading standards authority may not be taking enforcement action in line with its duties under the Bill, leaving tenants at risk of unfair loss. The clause gives the lead enforcement authority the power to take enforcement action in such situations.
Where the lead enforcement authority steps in and proposes to take action in respect of a breach, it must provide notice to the relevant local authority. The latter is then relieved of its duty to take enforcement action in relation to the breach, but the lead enforcement authority may require it to provide assistance. Relevant enforcement authorities will be required to report on their enforcement of the legislation and other relevant lettings legislation.
The lead enforcement authority will have a number of investigatory powers at its disposal to enforce the relevant letting agency legislation. As we discussed previously, those powers are laid out in schedule 5 to the Consumer Rights Act 2015, which this clause amends. That includes the power to require information where it reasonably expects that a breach has been committed.
I hope that clauses 22 to 24 stand part of the Bill and, with your permission, Mr Sharma, I will reserve the right to respond after the hon. Member for Croydon Central speaks to new clause 1.
Sarah Jones
New clause 1 sets out that both the lead enforcement authority and local enforcement authorities will be reimbursed by the Government for costs incurred in enforcing the Bill. That is necessary because the Bill as it stands will simply not provide adequate resources for proper enforcement. That view is backed up by experts from across the sector. We have already talked about the scale of the challenge, and my hon. Friend the Member for Great Grimsby has talked about the cut in enforcement officers and the—
Tenant Fees Bill (Fifth sitting)
Tuesday 12th June 2018
(5 years, 10 months ago)
Public Bill CommitteesRead Full debate Tenant Fees Act 2019 View all Tenant Fees Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 June 2018 - (12 Jun 2018)
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are discussing the following:
Clause 23 and 24 stand part.
New clause 1—Enforcement: costs—
“The Secretary of State shall reimburse—
(a) a lead enforcement authority, where this is not the Secretary of State, for any costs incurred by the authority in the exercise of its duties under section 23 or section 24 of this Act, and
(b) an enforcement authority for any additional costs incurred by that authority in the exercise of its duties under section 1 or section 2 of this Act.”
Sarah Jones (Croydon Central) (Lab)
It is a relief to come back and see that the Minister has not resigned and followed the advice of his colleagues. I am reassured that he is still here.
As I was saying this morning, new clause 1 sets out that both the lead enforcement agency and local enforcement agencies will be reimbursed by the Government for costs incurred in enforcing the Bill. That is necessary because the Bill as it stands does not, in our view, provide adequate resource for enforcement.
We talked this morning about the scale of the challenge, with 56% of enforcement officers lost since 2009. In our evidence session, the Chartered Trading Standards Institute emphasised the scale of the problem that exists with enforcement, pointing out that more than 50% of the landlords and letting agents that it works with in London are still non-compliant with the rules. Shelter has highlighted the extreme difficulty in assessing the true number of rogue landlords, saying that the number is still underestimated. Another challenge for enforcement is collecting sufficient evidence to secure convictions. This morning, my hon. Friend the Member for Great Grimsby cited the Chartered Trading Standards Institute among others, which has worries about the burden of proof and said that it will scare people off, including trading standards.
The Minister might point to the provisions to stop retaliatory measures that were included in the Deregulation Act 2015, but the lack of progress on enforcing those provisions serves only to reinforce the point. Following scrutiny by the Housing, Communities and Local Government Committee, the Government were forced to admit that overstretched local authorities were not even collecting the data that would allow them to see whether the retaliatory eviction provisions in the 2015 Act have been used. The Government wrote:
“We are currently unable to provide this data as local authorities are not specifically obliged to provide it and the Department does not routinely collect it. However, we recognise that this is an area of concern and we are writing to request this information from local authorities to inform our understanding about the effectiveness of the provisions.”
On that topic, Shelter’s most recent survey of tenants found that a quarter of renters who had a problem serious enough to report failed to report it because they were worried about retaliatory measures from their landlord or letting agent. That clearly demonstrates a failure to give tenants confidence in the policy, and backs up the point that tenants may be too scared to engage properly with the enforcement process to build a strong enough case.
The challenges to enforcing the Bill will come from all directions. We know from evidence that was provided that local trading standards authorities may not have the capabilities or expertise. For example, Shelter has raised concerns about how effectively trading standards will be able to police the use of default payments. Shelter has asked the Committee to explore whether local authorities will have sufficient powers and resources to evaluate whether a default fee genuinely represents a landlord loss, and the kind of guidance that the Government propose to provide to assist authorities in making such determinations. The Residential Landlords Association has argued that trading standards should not enforce the Bill at all, and that the responsibility should rest with environmental health departments.
Three concerns have caused us to table the new clause. The first is about getting the numbers right. We have serious concerns about the numbers being thrown around by the Government about how much it will cost to enforce this at a local and national level, as well as the confusion over how financial penalties will be calculated by enforcement authorities.
We have significant doubts about the Government’s argument that the cost of enforcement will be fiscally neutral for local authorities by year 2. The Government have been forced to admit that that will not be the case for year one. The £500,000 allocated by the Government for enforcement in the first year feels as if it was plucked from the air, with similarly little thought. It is unclear whether that figure will change if authorities’ costs are higher than estimated.
The very thin detail on enforcement costs first provided to the Select Committee in November as part of an impact assessment argued that the cost to local enforcement authorities would be £150,000 per annum. The Government’s assumption that the enforcement would be self-funded from year one was rightly questioned by the Select Committee, and the Government duly committed to providing additional funding to local authorities. In the full impact assessment published last month, the Government amended their assessment of expected costs to local authorities in the first year to £300,000. That is a significant jump from their assessment in December. The impact assessment also states that the Government assume £200,000 in set-up costs for the court system, thus reaching the £500,000 figure. However, they appear to contradict themselves in the explanatory notes to the Bill:
“We estimate that local authorities will incur a new burden in respect of enforcement costs in year one of the policy only and we estimate this to be no more than £500,000.”
Assuming that the £200,000 earmarked for the courts in the impact assessment actually goes to the courts, will the Minister confirm whether local enforcement authorities will be getting £300,000 as indicated in the impact assessment, or £500,000, as indicated in the explanatory notes? There is also confusion over whether that money is the maximum authorities will receive or whether the Government will fund the actual costs, and we note the use of the word “estimate” in the explanatory notes.
We had concerns about how the Government arrived at the year one figure before the Committee sittings began. They increased during the evidence sessions last week, when the Minister asked outright for any analysis that the Local Government Association had done on how much funding should be allocated for year one. It then emerged that the LGA had been asked for that information, but had been given just one week to provide the figure. I have a great deal of respect for the ability of the LGA, so if it cannot turn that request around in a week, I doubt that many others could.
It seems astonishing that the Government could still be unclear as to how much this crucial part of the Bill is likely to cost, and I worry that they are pulling numbers out of the air. If the Minister will not accept our new clause, will he explain how the Government arrived at this figure—and, indeed, what the correct figure is? If he cannot share the evidence now, will he write to the Committee? The key point is that, whether it is £300,000 or £500,000, it is simply not enough. As the LGA has rightly pointed out, that amount split over 340 local authorities is a laughable sum of money when we consider that the average budget for one council trading standards team is more than £650,000.
The confusion over costs extends to what enforcement authorities can charge as penalties. As we discussed earlier, the Government have so far left that open, suggesting that local authorities can take into account the need to cover the costs of their enforcement functions when setting the level of the financial penalty. As the Select Committee pointed out, that is a departure from the usual principle that penalties should relate principally to the gravity of the wrongdoing. The decision to fund enforcement from year two solely by fines risks creating a bizarre situation where enforcement areas with a lower level of offences require higher fines to cover their authority’s costs. The same logic goes for areas where the most successful preventive enforcement is happening.
Our second concern is about the pressures on local trading standards authorities. The Chartered Trading Standards Institute rightly pointed out:
“Resource is, without question, the pervasive issue which will determine the efficacy of the Tenant Fees Bill.”
However, as we have already emphasised, the pressures on local enforcement authorities are increasing at a time when budgets are stretched to an unprecedented degree. Some of the new burdens taken on by trading standards include enforcement around, as my hon. Friend the Member for Great Grimsby mentioned, the sale of knives, as well as the use of wood burners, which is related to the Government’s clean air strategy. The effect of that pressure is being seen in the private rented sector. It was pointed out on Second Reading and since then by many organisations that there is already legislation that requires letting agents to advertise their fees, but it is simply not enforced.
The fact of the matter is that after the first year, and probably during that year too, the money recouped by fines will be completely insufficient to pay for any semblance of an effective enforcement system for the Bill. Trading standards authorities will be in a vicious circle, with an inability to enforce due to inadequate resources that then leads to the funding stream getting even worse that then leads to the enforcement getting thinner, and so on and so forth until nobody is bothering to enforce the measures at all.
There is much evidence from across the sector that that will be the case, and the Government are simply ignoring it. The London Borough of Newham says that it does not consider that moneys recovered through the civil penalties will adequately cover local authorities’ enforcement costs. The Chartered Institute of Housing points out the danger of a funding gap, as well as the risk that councils will need to invest in additional resources without being able to guarantee a particular level of financial return. The Association of Residential Letting Agents argues:
“Unless specific funding is set aside for the sole purpose of enforcing these new laws, we will see the same lack of effective enforcement of the ban on tenant fees as has been demonstrated on the transparency rules under the Consumer Rights Act 2015.”
Citizens Advice says:
“The legislation in its current form is reliant on Trading Standards, which we believe risks rogue agents continuing to charge fees. The lack of capacity facing local Trading Standards means many will struggle to take on additional enforcement duties without support.”
We ask the Minister the same thing on fiscal neutrality as we did on the figure for first-year costs: he must provide evidence, either today or in writing, on how the Government arrived at that assumption, or accept our new clause for the Government to reimburse the costs. To force local authorities to pick up the bill for something his Department has not costed properly would be unacceptable.
Thirdly, we are concerned about lead enforcement authority and the pressures around information. The Bill rightly allocates a lead enforcement authority to help streamline and co-ordinate enforcement work—something that has been pretty much universally supported. However, the same questions remain about the resourcing of that body. The Select Committee recommended that the lead enforcement authority should be tasked—and, importantly, given funding—to launch a nationwide awareness-raising campaign, to promote the legislation to tenants. In its oral evidence last week, the Local Government Association again pointed out the need for a high-profile, national campaign to remind tenants of their rights and remind the sector that fees are outlawed. The need for that is made much more pertinent by the fact that Shelter’s tenant survey, which I discussed earlier, found that more than 20% of renters who had a problem that was serious enough to report failed to do so because they were not aware that they could raise it with their local council.
Unlike their other financial estimates, the Government have at least been consistent in expecting the costs of the lead enforcement authority, in line with similar lead bodies, to be between £200,000 and £300,000 a year. It is unlikely, however, that that will be enough to ensure that any significant awareness campaign is run. There is a big question mark over the ability of the lead enforcement agency to do sufficient work to spread awareness of the changes made by the Bill—and awareness is crucial to its success. As with my previous points, I ask the Minister either to support our new clause or provide details about how such an awareness campaign would be funded, perhaps through his Department.
My final point is about the pervasive disincentive that the Bill as currently proposed would create. As I have set out in detail, experts from the Chartered Trading Standards Institute, the LGA and various local authorities agreed that funding through fines will not cover the cost of enforcement if it is done properly. One of the most frustrating aspects of the Bill is that that will ruin any chances of good preventive work being done. Initial fines of up to £5,000 will not give authorities the resources or incentive to do proper work to prevent breaches. As authorities themselves point out, if trading standards enforcement activities are effective, civil penalties will rarely be charged. That is because most intensive activities of council officers concern monitoring practices and working with letting agents to comply with the law. That creates what the Select Committee called a
“pervasive disincentive for authorities to engage proactively”.
I hope that the Minister can offer us something constructive on that point. He will admit that nobody wants this important piece of legislation not to deliver what we want it to deliver. If he will not support the new clause, will he agree to look at ways to finance activity where authorities can demonstrate that good preventive work is keeping convictions down, and come back to us with a proposal to that effect on Report?
I re-emphasise the scale of criticism about the provisions in the Bill for enforcement. The Chartered Trading Standards Institute said:
“The central concept that enforcement of the ban will be self-funded from the proceeds of civil penalties recovered by trading standards is completely erroneous.”
I urge the Minister to look again at this core part of the Bill and, if he will not support new clause 1, will he agree, at the very least, to provide the information we request and consider what else he could introduce on Report to improve the situation?
The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Rishi Sunak)
We believe that the new clause, which essentially provides a blank cheque to local authorities, is not the right approach. Given that my day job is Local Government Minister, of course I am minded to ensure that local authorities have the resources that they need to carry out their various functions adequately. That is what I spend most of my time doing. The provisions in the Bill are intended to be self-financing. Local authorities will be able to retain any moneys recovered through financial penalties for future housing enforcement. That ensures that they are better incentivised to undertake enforcement activity. We believe that that incentive impact and behavioural change is important and helpful.
I draw Committee members’ attention to the consultation, where it was generally agreed that ongoing costs would be met from enforcement. We heard from landlord and agent representatives last Tuesday that they, too, thought that would be sufficient, but that some initial funding as seed money is needed in year one for familiarisation and adjustment with the new regime. Indeed, the Government agree about that, which is why we intend to provide additional funding of up to £500,000 in year one of the policy, to support implementation and education. That figure has been arrived at through consultation and analysis together with several local authorities and officials in the Department to arrive at a bottom-up estimate of what overall costs might be. We are also committed to providing funding for the lead enforcement authority of up to £300,000 a year to support its important role of providing guidance and support to local enforcement authorities.
Sarah Jones
I have listened to the arguments and we will not press the new clause, although we reserve the right to return to this matter on Report.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clauses 23 and 24 ordered to stand part of the Bill.
Clause 25
Meaning of “letting agent” and related expressions
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
Clauses 25 and 26 are reasonably straightforward definitional clauses. Clause 25 defines “letting agent” as
“a person who engages in letting agency work”
and goes on to define such work as
“things done by a person in the course of a business in response to instructions received from…a landlord…or…a tenant…seeking”
to let or rent a property. The definition of a letting agent excludes a person who carries out letting agency work under their employment contract, as we would not want to capture such people under the Bill. It also excludes legal professionals who are under instruction in a similar capacity.
Clause 26 defines various expressions used in the Bill. For example, as we discussed in our first sitting, it defines “tenancy” as
“an assured shorthold tenancy…a tenancy which meets the conditions”
regarding letting to students, or “a licence to occupy”. I commend the clauses to the Committee.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26 ordered to stand part of the Bill.
Clause 27
Consequential amendments
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
The clause makes consequential amendments to the lead enforcement authority’s enforcement functions in respect of relevant letting agency legislation: section 87 of the Consumer Rights Act 2015; section 85 of the Enterprise and Regulatory Reform Act 2013; article 7 of the Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc.) (England) Order 2014; and section 135 of the Housing and Planning Act 2016. That legislation relates to transparency requirements, membership of a redress scheme and membership of client money protection schemes respectively. Its effect is to require the relevant enforcement authorities to have regard to any guidance issued by the lead enforcement authority. The duties of those authorities under the relevant letting agency legislation is to be subject to the provisions of clause 24, which provides for enforcement of the legislation by the lead enforcement authority.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clause 28
Transitional provision
Sarah Jones
I beg to move amendment 16, in clause 28, page 19, line 33, leave out “one year” and insert “six months”.
This amendment would reduce the period of transitional provision from a year to six months.
The Chair
With this it will be convenient to discuss the following:
Amendment 17, in clause 28, page 19, line 37, leave out “one year” and insert “six months”.
This amendment would reduce the period of transitional provision from a year to six months.
Amendment 18, in clause 28, page 20, line 10, leave out “one year” and insert “six months”.
This amendment would reduce the period of transitional provision from a year to six months.
Amendment 19, in clause 28, page 20, line 14, leave out “one year” and insert “six months”.
This amendment would reduce the period of transitional provision from a year to six months.
Sarah Jones
Amendment 16 would deliver an important and achievable result for more than 4 million households currently in a private rental contract. Along with its consequential amendments 17 to 19, the amendment seeks simply to speed up the pace of the changes that the Bill will deliver. As we draw towards the end of this Committee sitting and prepare to discuss the European Union (Withdrawal) Bill, it is fitting perhaps that that we set about talking about the transitional period.
We believe that the transitional period set out in clause 28 is correct. Landlords and agents will need time to come up to speed with new rules and to review the elements in their agreements with tenants that will subsequently cease to have effect. Labour Members, however, argue that a year is an unnecessarily lengthy period. Among other issues, a lengthy transition period may see unscrupulous landlords and agents charging excessive fees through loopholes, such as default fees, in a rush to extract money as quickly as possible before the law changes.
In opposing the amendment, the Government might cite concerns about the capacity of enforcement authorities to develop the requisite skills and learning properly to enforce the Bill. If they truly do have those concerns, they should look again at our proposals on enforcement. When the underlying issues with an overstretched trading standards system are so serious that the National Audit Office is warning of a direct threat to the consumer protection system’s viability, a six-month difference will not change much. I fully expect the Government to highlight the need for proper consultation with landlords and tenants to ensure that they are properly briefed, which is absolutely right, but there is no reason that work cannot start before clauses 1 and 2 come into force. The Government have been clear that a strong deterrent effect will be provided by the penalties and convictions described in the Bill. We have already set out in detail our concerns about enforcement, but we agree in principle that, if enforced effectively, the penalties will be a clear deterrent. If the Government are confident about their deterrent, surely the Minister will agree that landlords and agents will be motivated quickly to come to terms with the changes they will need to make. If not, will he tell us which specific measures he expects to take up to a year to put in place?
As we have previously pointed out, a Labour Government would have introduced the Bill years ago. The cumulative total of the money lost to tenants through the Government’s reluctance to do likewise has likely been millions. We owe it to all private renters to bring the Bill into force quickly.
We will shortly discuss the issues posed by the wording of clause 32 and the merits of our amendments 20 and 21. I will not go into too much detail here, beyond pointing out that clauses 1 and 2 are not currently included in the provisions that will come into force on the day on which the Act is passed. As we will hear, clause 32 is problematic, as it allows the Secretary of State to choose the day when the full Act, including clauses 1 and 2, will come into force, and it currently sets no limit on how long he or she might delay that decision. We believe that the combined uncertainty over the effective start date and the year’s delay proposed in clause 28 would be unacceptable to tenants. If the Minister does not support the amendments, will he set out a clear timetable, either now or in writing, for how that year will be used?
The amendment is not onerous. It would not cause disproportionate hardship to tenants, agents, enforcement authorities or the Government. What it would do is ensure that tenants get more quickly the fair deal they were promised which, I think we all agree, is something they deserve.
Rishi Sunak
Clause 28 deals with how the prohibitions described in clauses 1 and 2 will apply in relation to agreements that were entered into before the commencement of the relevant parts of the Bill. Upon commencement, the fees ban will apply to all new tenancies and agreements between agent and tenant. The transitional provisions in clause 28 mean that for a period of a year the ban will not apply to tenancies the terms of which were agreed prior to commencement. Similar transitional provision is made for agents’ agreements with tenants.
The amendments that we are considering seek to reduce that transitional period from a year to six months, and we do not believe that that would be fair on landlords and agents. Although most fees are charged at the outset of a tenancy, some landlords and agents will have agreed that tenants should pay other fees at a later stage. Tenants will have signed a contract accordingly, and we need to allow time for landlords and agents to renegotiate those contracts to ensure that they are not unfairly penalised.
Data from the English Housing Survey 2015-16 shows that 48% of tenants had an initial tenancy agreement of 12 months and 39% had an initial agreement of six months. Reducing the transitional provision would mean that more landlords and agents with pre-commencement tenancies—tenancies that were entered into before the legislation came into force—would be at risk of not being able to renegotiate their contracts, and would be responsible for fees that their tenant had previously contractually agreed to pay. That strikes me as retrospective and does not seem fair, and we do not seek in the Bill to unfairly penalise landlords and agents.
We recognise the importance of having a clear date when the ban on fees applies to all tenancies, and we know that tenants are eager for the ban to come into force. That is why the Government have revised their position from that reflected in the draft Bill, which had no end date for when fees could be charged in pre-commencement tenancies. The transitional provisions as drafted here mean that all tenants will see the benefit of the fees ban a year after it comes into force. Unlike the proposed amendments, they ensure that agents and landlords will not be significantly financially affected retrospectively, and will have an opportunity to review their contracts during that transitional period. I therefore ask the hon. Lady to withdraw the amendment.
Sarah Jones
I listened to the Minister, and I agree with him that tenants are eager for the clause to come into force, but I will not withdraw the amendment.
Question put, That the amendment be made.
Rishi Sunak
Clause 28 deals with how the prohibitions described in clauses 1 and 2 will apply in relation to tenancy agreements that were entered into before the commencement of the relevant parts of the Bill. As we have just discussed, the fees ban will apply to all tenancies, but the clause provides for a transitional period of one year during which the ban will not apply to what we call “pre-commencement tenancies”—tenancies the terms of which were agreed to prior to the commencement of the ban. After one year, any term of a tenancy agreement that breaches the fees ban will not be binding on the tenant, regardless of the date on which the tenancy agreement was entered into. Any payment accepted by the landlord and not returned within 28 days will then be a prohibited payment.
Rishi Sunak
Clause 29 deals with the financial provisions of the Bill, which we have already discussed at some length, so I shall be brief. The Government intend to provide funding of up to £500,000 in year one of the policy to support local authorities in implementation and up to £300,000 per year for the lead enforcement authority.
Clause 30 deals with the application of the Bill to the Crown. The Bill will apply in relation to the tenancies of those Crown interests that are capable of granting an assured shorthold tenancy but the Crown will not be criminally liable for any breach, as is customary. I am pleased to tell the Committee that the Queen’s consent has been granted.
Clause 31 sets out the territorial extent of the Bill, which is, in part, England and Wales, and in part, England and Wales, Scotland and Northern Ireland. As the Bill will apply in relation to housing in England only, and housing is a devolved matter in relation to Scotland, Wales and Northern Ireland, the latter perhaps requires some explanation. The amendments made by clauses 6(6), 7(4) and 24(10) apply the investigatory powers set out in schedule 5 of the Consumer Rights Act 2015 to authorities enforcing the provisions of this Bill. In line with that Act, they therefore have UK-wide extent, although the application of this Bill is England-only.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clauses 30 and 31 ordered to stand part of the Bill.
Clause 32
Commencement
Melanie Onn (Great Grimsby) (Lab)
I beg to move amendment 20, in clause 32, page 21, line 17, leave out from “force” to end of subsection (1) and insert
“on the day on which it is passed.”
This amendment would bring the Act into force on the day it is passed.
The Chair
With this it will be convenient to discuss the following:
Amendment 21, in clause 32, page 21, line 21, leave out subsection (3).
This amendment is consequential on Amendment 20.
Clause stand part.
Melanie Onn
The amendments would alter the Bill by making the provisions come into force on the day of enactment, rather than leaving them at the discretion of the Secretary of State and when he chooses to bring a statutory instrument forward. The Government’s rationale behind the Bill was that it would save tenants millions of pounds and make the market fairer and more transparent. That is a principle we have long supported. However, the potential for a delay in the enactment of legislation surely flies in the face of such an intention. Although we welcome the legislation, we cannot see it as the end of the road for measures to improve the situation that private renters all too regularly find themselves in. There are aims in the Bill that all of us in this room support, because we know how much this is costing tenants and how confusing the housing market can be, but we need the Bill to come forward and make a positive change as soon as possible.
Right now, we are in the middle of exam season across our schools, colleges and universities. That means that in around two to three months, hundreds of thousands of ex-students and graduates will be taking their first steps in their new career. For many of those new graduates, that will mean moving away from home and, potentially, facing the rental market for the first time while holding down a full-time job. People in this group are exactly the type that the Bill should do the most good for.
Unexpectedly high fees can cause huge problems for those who are moving for the first time to start a job. For many at the moment, that means finding large amounts of money before they can even start to find employment, as they will have to pay tenant fees on top of a significant deposit and the first month’s rent. That can easily run into thousands of pounds for people who might have had little income to call on to get that sort of money, or even no income at all. That might mean that people in such a scenario have to turn down dream jobs or graduate placements because they simply cannot afford to move close to work. That impacts on the country as a whole.
Those costs are highest in our capital, which is where many of those dream jobs and placements will be, but people from poorer backgrounds in our northern towns and cities, who are unable to call on family for help in affording their deposits, might find that hurdle too high to overcome. That means that some of our best and brightest will miss out on the jobs and opportunities that are afforded to people who are able more easily to commute to London from a relative’s home, or who can call on family to support start-up renting costs.
This process will happen again very shortly: many graduate jobs start in September, although others go straight on the back end of school, college or university and will start as early as next month, so we should ensure that the Bill is in place for that cohort of people to enable us to prevent yet another year of unfair tenant fees and high deposits, which present such an affordability problem for many first-time renters and graduates.
As well as providing a better deal for tenants, setting a fixed date now for the Bill to come into force would provide certainty for landlords and letting agents by giving a clear set date from which they would have to comply. I understand that the decision not to specify such a date in the Bill is not a usual one, so perhaps the Minister will explain. At the moment, that point is simply to be defined by way of a statutory instrument when the Secretary of State so chooses. That means that landlords and letting agents will have no idea when they will have to stop charging prohibitive fees and tenants will have no idea when they will be entitled to challenge a fee.
I cannot consider the reason for delay in implementing the legislation to be justified in any meaningful way. The Minister has said that work is already under way on guidance. Therefore, it must be possible to get the guidance produced, published and circulated in a speedy fashion, so that tenants would be protected at the earliest opportunity. If the Minister feels that that is not possible, he should explain exactly why tenants will continue to be penalised while the Government get their act together. Perhaps trailing an implementation date now—with Government-led advertising and awareness-raising ahead of the duties’ coming into force, a bit like with the general data protection regulation rules—would provide for readiness across the sector and local authorities.
Rishi Sunak
We, like many tenants, are keen for the legislation to come into force as soon as possible, but we have to strike a fair balance between protecting tenants and allowing landlords and letting agents adequate time to become compliant with the legislation. The ban is not about unfairly penalising landlords and letting agents or driving them deliberately out of business. Letting agents should be reimbursed for the services they provide, but that must be by the landlord rather than by the tenant.
If commencement began the day the Bill was passed, as the amendment suggests, letting agents would have no time to renegotiate their contracts with landlords, which would have an adverse effect on their business model. We propose that there should be a fair period—a few months—to allow for that renegotiation and adjustment to happen. We are also taking steps now to engage with landlord and agent groups to ensure that they are taking steps themselves to prepare for the legislation coming into force. I ask that the amendment be withdrawn.
Melanie Onn
The Minister says he is keen for the legislation to be brought into force, but he does not seem to be taking decisive action, other than offering us a few months, which is particularly imprecise. It is unrealistic to suggest that letting agents cannot start negotiations when they know that the Government’s stated intention is going through Parliament.
Rishi Sunak
I gently point out that the Government’s approach is to have a precise date, and allowing them a few months to decide enables them to do that. The amendment specifies that the Bill would come into force on Royal Assent—that parliamentary process could take place be on any particular day—whereas the Government’s approach is to allow some time after Royal Assent so that they can set a specific day for all communications and so on. That provides the sector and tenants with greater precision than having an indeterminate day that is out of the control of Ministers, Government or anyone else. The hon. Lady’s amendment would result in the parliamentary timetable deciding the date of enforcement.
Melanie Onn
I am confident the Minister will have the ear of the Leader of the House when it comes to enacting the Bill. He says that he is confident that the sector will be provided with certainty and that that will happen within a matter of months, but perhaps he could prescribe whether it will take six, eight or 10 months.
Melanie Onn
The Minister is ready to say a few months. I reserve the right to return to the issue, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 ordered to stand part of the Bill.
Clause 33
Short title
Question proposed, That the clause stand part of the Bill.
Rishi Sunak
Clause 33 sets out the short title of this legislation, which is to be the Tenant Fees Act, and as such I hope it will stand part of the Bill.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
New Clause 2
Transferable deposits
“The Secretary of State may by regulations made by statutory instrument amend paragraph 2 of Schedule 1 to make provision which enables a relevant person, at the conclusion of a tenancy, to transfer all or part of a tenancy deposit from the landlord or agent with whom that tenancy was held to a second landlord or agent”.—(Sarah Jones.)
This new clause would enable the Secretary of State to provide for a tenant to transfer their deposit from one landlord to the next when moving tenancy, rather than needing to find the money for a new deposit before the old one had been refunded.
Brought up, and read the First time.
Sarah Jones
I beg to move, That the clause be read a Second time.
The new clause seeks to build on the positive outcomes we all hope this Bill will have for tenants by allowing for much-needed changes to the tenancy deposits system. The new clause seeks to resolve the problem faced by large numbers of tenants whereby deposits are charged on new tenancies before the deposit from a previous tenancy is returned, costing significant sums of money every time a tenant moves. There is no need for such a situation to occur, and members on both sides of the Committee support looking at ways of solving it.
As we pointed out last week, it would fail tenants and be a waste of our time if we sat here and allowed through a Bill that simply reinforced the status quo. We have said repeatedly that we welcome the Bill’s ban on agency fees. We urge the Government to go further to resolve other significant up-front fees faced by private renters.
The most significant up-front fees are tenancy deposits, which I remind the Committee are significantly higher than agency fees, often running to several thousand pounds. We have already touched on the issue of the six-week cap for tenancy deposits, but I ask the Government one more time to look at that cap before Report and to think about what we could do. A lower cap would have a measurable benefit for tenants. There are options that the Minister could consider if he really wants to make provision for what he calls “high-risk tenants”.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
If I may briefly interject, the hon. Lady identifies a problem, which came through in the evidence sessions, that affects landlords as well as tenants. The frustration of having a deposit locked up with the current landlord that cannot be given to the new landlord is a problem. However, now is not the time to address it. Indeed, the hon. Lady said that we should look at ways of solving the problem. Were we to try to do that in this Bill, we could end up delaying the introduction of legislation that everyone agrees will be of great benefit to tenants, because a lot of consultation would need to be done. We would need to look at situations where, for example, the tenant misleads the new landlord that all the deposit will be released when in fact there might be some deductions.
I absolutely sympathise with the feelings expressed, but I hope the Minister will not allow this issue to delay the Bill. Although I sympathise with the hon. Lady, I am sure many on the Conservative Benches will not be able to support the new clause at this time.
Rishi Sunak
I am delighted to say that I agree with both the hon. Member for Croydon Central and my right hon. Friend the Member for Scarborough and Whitby. We fully support and encourage innovation in the tenancy deposit sector. We know that it can often be difficult for tenants to raise funds for a deposit at the outset of a tenancy, especially if they are moving from one property to another; indeed, that is partly the motivation for bringing forward the Bill.
In the Government’s response to the Housing, Communities and Local Government Committee following the pre-legislative scrutiny, we emphasised our commitment to assess the merits of alternatives to traditional security deposits and promised to report our findings to the Committee. The Government responded only in May, so I hope Members will forgive me when I say that the work is not quite completed, but it is in process.
We have been exploring this issue for a while, including in the 2017 consultation on banning letting fees. It may interest hon. Members to know that my Department, like many others, offers an employer-backed deposit scheme to civil servants living in the private rented sector. That works in the same way as a season ticket loan, allowing employees to borrow from their salary up front to pay for a rental deposit and repay it from salary payments over the course of their career. Many private businesses, such as Starbucks, take the same approach, and we definitely encourage more to do so.
I am pleased to say that in May the Minister for Housing and Homelessness held a roundtable with my hon. Friend the Member for Broxbourne (Mr Walker), who has been passionate about this issue, along with the three deposit protection schemes and Shelter, to explore further how existing tenant deposit protection was working and what further innovation was possible. I am pleased to say that, as a result of that preliminary work, the Minister has been working much harder to progress the issue and will convene a formal working group with the deposit schemes and key representatives from tenant and landlord groups to explore it further.
There are still many things that need to be considered, as was highlighted by my right hon. Friend the Member for Scarborough and Whitby. For example, the key concern with deposit passporting is ensuring that landlords are still able to recover any damages at the end of a tenancy. There is a great deal of technical complexity that needs to be examined. That would involve understanding the percentage of the deposit that could be passported, and when and how liability for providing a tenant with the relevant prescribed information about where their deposit is protected should be passed from one landlord to another.
We certainly need to consult the sector and get its input before implementation. We are also keen to explore other alternatives, aside from passporting, such as payment of deposits by instalment. I hope hon. Members can see that the Government are taking this issue very seriously. My hon. Friend the Minister has already convened groups and is continuing to convene working groups to examine this issue and figure out a way forward. With that in mind, rather than delay this legislation, I call on the hon. Lady to withdraw her new clause.
Sarah Jones
I have listened to the Minister’s response, and I am glad that there are working groups, roundtables and other such things looking at these issues. As a former senior civil servant, I know well the line that there are still many things that need to be considered, which can be used to push things into the long grass so that they never get completed.
I take the point from the right hon. Member for Scarborough and Whitby that we do not want to delay the Bill and that we need to look at these matters properly, but I urge the Minister to speed up the working groups and roundtables and to try to come forward with something. If he did, I am sure he would have the support of the Opposition. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 3
Report on operation of Tenant Fees Act
“The Secretary of State shall within a period of 12 months from the date of commencement of this Act and annually for the four years thereafter lay before Parliament a report on the operation of this Act, setting out the number of breaches of sections 1 and 2, the number and amounts of financial penalties levied by enforcement authorities, and the number of criminal prosecutions commenced and concluded in each 12-month period”. —(Melanie Onn.)
This new clause would require the Secretary of State to report annually for five years on the effect of the Act
Brought up, and read the First time.
Melanie Onn
I beg to move, That the clause be read a Second time.
The new clause is quite clear that it intends the Act to be reviewed and closely monitored by the Minister. There has not been a great deal of discussion around the monitoring of the implementation of this legislation so far. Assessing the effectiveness of the legislation is incredibly important, and I hope the Minister will be able to support it. We know from the experience in Scotland that legislation, even when well intended, may not be effective if the wording is not clear enough, the rights are not precisely defined, the impact is not fully, properly and regularly communicated to those who need it, and the enforcement mechanisms are inadequate. I do not want to let the Minister leave here without allowing for future Ministers and Governments to recognise early the elements of the Bill that are not quite working as intended. From the discussions we have had, it seems that the Bill will probably not come into force for 18 months, which is quite some time away. How it actually pans out in practice will perhaps be well out of our hands.
It is inevitable that there will be clauses of the Bill that, once in action, do not work quite as anticipated. To rectify that, the Government could accept this new clause, which would ensure regular assessments are undertaken of the number of breaches of sections 1 and 2, as well as providing details around the fines—how many have been issued, what revenue has been generated and whether there have been any prosecutions. It would enable the Government to show their demonstrable concern for tenants by making it clear that they were keeping a beady eye on the practicalities of the measures and not simply leaving matters to chance.
No doubt there would be a Select Committee inquiry without these changes. What do the Government anticipate that they might wish to hide? By being proactive, they would be ahead of the curve and would save the Select Committee a great deal of time that it might spend on other inquiries.
I anticipate that the Minister will say he is confident that local authorities will maintain such records. That might be suitable for him, but it would not compel him to collate such data to gain regional perspectives on the implementation. Given the failure on the display of tenants fees rules so far—so much so that they now have to be beefed up through the Bill’s enforcement powers—accepting the new clause would be an honest recognition that legislation does not always work well.
The new clause would provide for an ongoing evidence base from which future improvements could be made. It would show landlords, letting agents, councils and tenants that the Government were taking a responsible approach to a significant piece of new law and showing a keen interest in its future application.
Were it to be found that the funding for new burdens was insufficient, the Government could deal with that rapidly, rather than facing the worst-case scenario of the laws not being used and being completely useless. They could check where the laws were being best utilised, identify why and assist in the sharing of best practice around the country. They could check that the legislative process was quick and that the remedy was proportionate to the breach.
In housing, timing is often of the essence. Those who would be charged prohibited fees are most likely to be those who can ill afford them—those who are forced towards bad landlords or letting agents. Should resolution of the process take too long, a tenant may be two or three properties along since the original complaint was submitted. I urge the Minister to consider this sensible step.
Rishi Sunak
I rise for potentially the last time, to discuss new clause 3. I am pleased to tell the Committee that we do plan to monitor the implementation of the Tenant Fees Bill through continued engagement with key stakeholder groups representing landlords, agents and tenants, as well as through wider intelligence from agencies such as the lead enforcement authority and trading standards, which will enforce the requirements of the Bill. Unfortunately, however, we believe the new clause is unworkable.
We would not be able to identify all breaches of sections 1 and 2, as the new clause suggests, as we will be encouraging tenants to challenge their landlords and agents directly in the first instance if they have been charged prohibited fees. Indeed, we want landlords and agents to rectify breaches first, without the need for an enforcement authority, and it would of course not be possible or practical to record every time that that type of informal enforcement and rectification happened.
With regard to the number of financial penalties and criminal convictions under the ban, that information will, owing to the reporting requirement that already exists in the Bill, be captured by the lead enforcement authority anyway. Those agents and landlords who are banned from operating will also be captured on the rogue landlord database. Local housing authorities also have powers to include persons convicted of a breach of the fees ban on that database, as well as people who receive two or more financial penalties within a year for any banning order offence.
I hope that that reassures hon. Members that we will be tracking and reviewing the effectiveness and enforcement of the ban. We do not think it is necessary to prescribe further reporting requirements on the face of the Bill, but we will consider how to make the information available, especially regarding the lead enforcement authority. We will review the legislation within five years, in line with normal parliamentary and scrutiny practices.
Melanie Onn
The Minister says that the Department will monitor the process and the progress of the enforcement of this legislation. He also says it plans to review in five years. That raises the question of why that should not be included in the Bill. The Minister has diligently described to us all the varying places where that information is kept; the new clause simply seeks to ensure that it will be kept centrally by Ministers so that they do not have to go to various different organisations to retrieve it and will have it centrally, at their fingertips, so that reports and responses are full and accurate. Therefore, we will not withdraw the new clause.
Question put, That the clause be read a Second time.
Rishi Sunak
I gather that we are bringing proceedings to a conclusion, so if I may, Mr Sharma, I will briefly put on record my thanks to you and Mr Bone for your distinguished chairmanship of the Committee; to your team of Clerks for keeping us all on track and ensuring we followed due procedure; to the Whips for ensuring that we were all here on time and did what we were told; and to my fantastic team of officials, including those who are giving up valuable swimming and cocktail time to be with us today, which I very much appreciate. Indeed, I put on record my thanks to all hon. Members for their valuable and insightful contributions, and especially to Opposition Members for the constructive and good-natured way in which they have engaged with the topic. I look forward to continuing those debates in subsequent stages of the Bill. I make one final apology to the daughter of the hon. Member for Stockton South for depriving her party of her father’s presence.
Lastly, I put on the record my thanks to the Under-Secretary of State for Housing, Communities and Local Government, my hon. Friend the Member for South Derbyshire (Mrs Wheeler), who of course could not be with us to take the Bill through the Committee, but who put in an extraordinary amount of work in the months leading up to this point to ensure that we were discussing what I am sure we all agree—whatever our individual differences on certain points—is an important piece of legislation addressing a very important topic. She deserves enormous credit for her diligence and hard work in getting us to this point. I know we wish her well, not just at home but with all the other work she is doing to ensure that we bring fairness to the private rented sector, and we look forward to seeing her back soon.
Question put and agreed to.
Bill accordingly to be reported, without amendment.
Ivory Bill (First sitting)
Tuesday 12th June 2018
(5 years, 10 months ago)
Public Bill CommitteesRead Full debate Ivory Act 2018 View all Ivory Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 June 2018 - (12 Jun 2018)
The Chair
Before we begin, I have a few preliminary announcements. Will people ensure that they switch electronic devices to silent? I remind Members that teas and coffees are not allowed during sittings. Time Witness Until no later than 10.25 am World Wildlife Fund; Born Free; International Fund for Animal Welfare Until no later than 11.25 am Stop Ivory; Tusk Trust Until no later than 2.15 pm National Wildlife Crime Unit; CITES Border Force team, Heathrow Until no later than 3.00 pm British Art Market Federation; British Antique Dealers’ Association; Philip Mould & Company; Music Industries Association; Musicians’ Union Until no later than 3.45 pm British Museum; Victoria and Albert Museum
We will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, and a motion to allow us to deliberate in private about our questions before the oral evidence session. I hope that we can take those motions formally, because we are a bit pressed for time.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 12 June) meet—
(a) at 1.30 pm on Tuesday 12 June;
(b) at 11.30 am and 2.00 pm on Thursday 14 June;
(c) at 9.25 am and 2.00 pm on Tuesday 19 June;
(d) at 11.30 am and 2.00 pm on Thursday 21 June;
(2) the Committee shall hear oral evidence on Tuesday 12 June in accordance with the following Table:
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 13; Schedule 1; Clauses 14 to 19; Schedule 2; Clauses 20 to 42; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 21 June.—(David Rutley.)
The Chair
I have been advised that the witness schedule on the Order Paper is incorrect. For the avoidance of doubt, the schedule in the order just agreed by the Committee is the correct one. We changed it slightly because of other events today, to ensure that the witnesses are dealt with appropriately.
The deadline for amendments to be considered at the first line-by-line sitting of the Committee was the rise of the House yesterday. The next deadline will be the rise of the House on Thursday for the Committee’s sitting a week today.
Resolved,
That subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(David Rutley.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room.
Resolved,
That at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(David Rutley.)
The Chair
We will now hear evidence from the World Wide Fund for Nature, Born Free and the International Fund for Animal Welfare. Before I call the first Member to ask a question, I remind Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings of the programme motion. Could the witnesses introduce themselves for the record and to check the sound?
Cath Lawson: My name is Cath Lawson, I am the chief adviser on wildlife at WWF UK.
Will Travers: My name is Will Travers, I am the president of the Born Free Foundation.
David Cowdrey: My name is David Cowdrey, I am the head of policy and campaigns at the International Fund for Animal Welfare.
Sue Hayman (Workington) (Lab)
Q
Will Travers: That is an important question. Context is important; we all feel that it is important that whatever other considerations there are for non-elephant ivory-bearing species, they do not blow this legislation off course or delay it significantly. We all share the view that it would be a tragedy, to put it in informal terms, if we worked really hard to save elephants and other species were collateral damage in the process. But we need to consider a number of species.
We suggest that the Government commit to a rapid consultation after the Bill, to look at hippos, narwhal, hornbill—which are also facing extinction because their bills are a surrogate for ivory—walrus and not just CITES-listed species but non-CITES-listed species. We recognise that the trade—particularly the legal one—is entrepreneurial and will move to wherever there is an opportunity. Species such as warthog could come into the frame very rapidly as interest in ivory shifts from elephants, which are getting a huge amount of attention, to other ivory-bearing species.
In summary, we would like real attention to be paid to the issue, but we want to make sure that that does not in any way delay this process. That would be detrimental to what is under way.
Cath Lawson: We endorse that opinion. We are happy that the Bill as it stands, which allows for consideration of other ivory-bearing species at a later date, is sufficient. We would be comfortable with Will’s suggestion of expansion to non-CITES-listed species, too, but our concern would be that to include other non-ivory-bearing species at this point would cause delays to the Bill. With the illegal wildlife trade conference in October, we are keen that the Bill moves quickly through the legislative process.
David Cowdrey: Again, I endorse what WWF and Born Free just said. There should be flexibility in the Bill to include other species in future, but at this time the focus should be on delivering for elephant ivory, which the consultation was about and where a lot of the research was. That flexibility should enable the inclusion of further species should they be exploited and should there be a need to add them.
Mrs Pauline Latham (Mid Derbyshire) (Con)
Q
David Cowdrey: I totally agree with that. We have all worked so hard to get to this point to deliver one of the strongest ivory bans in the world. The initiative that has been taken by all parties and the cross-party support shown on Second Reading have been superb, and there is an opportunity to provide that protection. As we said, as long as there is that flexibility, and consideration for other species, which can be applied in future, and as long as further consultations can be held and we can have those discussions, I would agree totally with that.
Cath Lawson: Yes, WWF would be happy to engage in that consultation process, but for it to be separate to passing the Bill.
Will Travers: Just for the Committee’s interest and information, we are talking about huge volumes of trade in non-elephant ivory. I have four figures that might be helpful. From 2007 to 2016—just under a decade—78,000 hippos and hippo products were exported by CITES parties. Hong Kong imported 60 tonnes of hippo ivory between 2004 and 2014. Between 2007 and 2016—those dates again—7,000 narwhal products were exported and more than 172,000 walrus specimens were reported to have been exported on the CITES trade database. Those are not insignificant by any measure—they are enormously significant. With that kind of volume now, as we have just mentioned, the shift away from elephant ivory could put insupportable pressure on these other species, which is why we would like to see an accelerated process for that after this process has been undertaken. That is a very helpful suggestion.
Kerry McCarthy (Bristol East) (Lab)
Q
Cath Lawson: From WWF’s point of view, I cannot comment on the legislative process but we would certainly want to see a consultation process around those species before inclusion in a Bill. That is why it needs to be a separate process.
Kerry McCarthy
Q
Cath Lawson: Similar to the process we have gone through for the Ivory Bill, looking at the impact of UK trade on those species, and implications further down the line in terms of limiting that trade.
Kerry McCarthy
Q
Cath Lawson: Yes.
Kerry McCarthy
Q
Will Travers: In trade.
Kerry McCarthy
Q
Will Travers: My understanding is that it is genuinely an alternative ivory that is used in decorative materials. It is used in inlays and in almost exactly the same way as elephant ivory is used except less so on the whole. Less so in a large carved tusk in the shape of little elephants, for example.
Kerry McCarthy
Q
Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)
Q
Cath Lawson: We certainly recognise the risk, and that is why we are comfortable with there being the option in the Bill as it currently stands for consideration. Our concern is about including them in the body of the Bill now and the delay that a consultation process on that would cause for the passing of the Bill.
Henry Smith (Crawley) (Con)
Q
David Cowdrey: For me, in relation to the legislation and its global impact, introducing one of the toughest ivory bans in the world will establish us firmly as a global leader. In Europe at the moment there are discussions about an ivory ban; on Second Reading there was a discussion about how our ban should act as a template for the European one. It gives us a good opportunity to push for a European ivory ban equal to, if not stronger than, the one we are introducing in the UK. Globally, that will have a massive impact on closing down those markets and the trade that is currently going from Europe to south-east Asia.
Concerning the United States and China, China is implementing its ivory ban very strongly at the moment and doing a very good job. It still has further to go; Hong Kong will be closing down in 2022, and we look forward to that because there is still trade going on legally there. The United States also has its ban, which is doing very well, but it has a federal law and state law, so it is much more complex to interpret. The UK could provide the template for the rest of the world.
Will Travers: I agree with everything that has just been said. I will point out that the UK does not have anybody whose livelihood depends on ivory, whereas in China there were individuals whose livelihoods depended on the ivory trade. China has taken that resolute decision, notwithstanding the fact that people’s livelihoods to a degree depended on it, to move out of it. That is important. It is complex in the US, as has been said, because of the federal and state situation, but the US has also taken resolute actions. The UK, having proclaimed that it would take action quite some time ago, is now in a position to reassert itself as a leader on this issue, not only on our own domestic front, but in the investment we make in supporting African countries in their efforts to tackle illegal trade. Just this morning, there was notification of another seizure by the Kenyan authorities in Mombasa.
It will be one of the toughest. It might not be the toughest—I believe that Taiwan, for example, has a full ban, which is coming in in very short order, with no exemptions and no compensation—but we will certainly be up there.
Cath Lawson: I very much endorse what has already been said and reiterate the point that with the October meeting of the illegal wildlife trade conference, the passing of this Bill would put the UK in an incredibly strong position to advocate to those countries that have yet to make commitments, particularly the neighbouring countries around China, where we risk seeing a knock-on effect of China’s ban.
Alex Sobel (Leeds North West) (Lab/Co-op)
Q
Will Travers: As far as I am aware, they cover only elephant ivory.
Simon Hoare (North Dorset) (Con)
Q
David Cowdrey: For the October illegal wildlife trade conference we have a global stage. Senior politicians and Heads of State will come to the UK, and announcing that we have on the statute book an ivory ban that is one of the toughest in the world will be critical as part of that global leadership. As for acting as a deterrent, we know that closing down markets alone will not stop the illegal ivory trade—it is an illegal trade and we need good enforcement measures to go alongside it. We have opportunities with the illegal wildlife trade conference regarding our own law enforcement. The National Wildlife Crime Unit is funded only until 2020, and that funding must be renewed and become permanent if we are to show global leadership in acting as a deterrent and having the correct law enforcement. The CITES Border Force team is our frontline of defence at Heathrow, and they are conducting training all over the world. When staff leave or posts become vacant they must be renewed because we must maintain that capacity to act as a deterrent.
As organisations, we invest—as do the UK Government —in anti-poaching work on the ground. This is not just about closing down markets or legislation; this is about enforcement and feet on the ground doing that anti-poaching work. It is a mixture of measures, but with this Bill the UK can show that global leadership of taking the right steps in the right direction. We know that the Government are also investing in a lot of work overseas by having troops going to Malawi, training rangers, and other overseas investments.
Cath Lawson: We very much endorse that. To ensure that the impact of the Bill is realised there must be sufficient effort to raise awareness of it, and sufficient support resource going to the implementation of enforcement. We must particularly seek long-term funding for the National Wildlife Crime Unit.
Will Travers: Yes, I would agree with all that, and I want to show the Committee something that may help understanding. The question was about what the Bill’s impact on poaching will be, and it is hard to make a direct correlation. However, we can have a direct impact on other aspects that relate to poaching. I am holding a piece of ivory and it looks antique to me. It obviously looked antique to half a dozen ivory dealers who looked at it and said, “Yep, that is pre-1947. We would be happy to sell it”. We had it DNA tested, and it is from about 2000. It is a modern piece of ivory—well, the ivory is from 2000 but the carving was done later. This must have come from an elephant that was poached in the past 20 years. The Bill will help to deal with that, and that is a direct link to poaching. It is very important.
Investment in wildlife law enforcement in Africa is really important. It is about boots on the ground, but also about agencies that prosecute people. It is about legal systems and ensuring that deterrent sentences are indeed just that and are effective, and that people do not get off with a slap on the wrist. It is about ensuring that law enforcement officers are properly trained and can carry out their duties effectively. The African Elephant Coalition includes 30 countries with African elephants that have worked together, united, to try to deal with this issue across international borders. I am sure future speakers will talk about the countries of the Elephant Protection Initiative, which are coming together under a common agenda.
My final point is that we need to step up and think about investment in a slightly different way. In my view, there is a common linkage with our clear objectives in overseas development, which are to deal with poverty and to provide opportunity. Those are also based on healthy and secure environments, including wildlife environments. Many of the ecosystem services that the poorest people in Africa depend on come from protected areas. If we are not investing in the protected areas where elephants and other species live, we are not doing a great service either to the species we wish to protect or to the people who live literally downstream from those protected areas.
David Cowdrey: One of the points that has been mentioned is that the Bill is about not only law enforcement but deterrence. There is an opportunity here to introduce a set of sentencing guidance for courts in the United Kingdom, to provide that information to magistrates and judges when prosecuting cases. We need appropriate sentences to be given for the crimes at the end of the day. Having the Bill on its own and having law enforcement is one thing, but we need good sentencing guidance to ensure that appropriate sentences are given.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
Q
David Cowdrey: I attended the Partnership for Action against Wildlife Crime conference at Kew last week, and one of the questions I asked was about the growing issue of cyber-crime. Does the National Wildlife Crime Unit have sufficient resources to tackle the illegal wildlife trade online? Quite clearly that is something it would like additional resource for.
As Will said, these criminals are working in an environment where they can adapt and change very swiftly. The online market provides anonymity, as they can create false identities, so trying to prosecute them becomes much more difficult. Only yesterday we had the introduction of new guidelines on the control of trade in endangered species from the Department for Environment, Food and Rural Affairs, which was fantastic. They include a new crime if someone is advertising an endangered species on annexe A and does not have an article 10 certificate.
Steps are being taken, but we are always playing catch-up with these criminals. We need the resources to be able to prosecute them. That goes not only at the UK level but at international level, with Interpol and within the countries where these crimes are taking place on the ground with poaching.
Will Travers: One of the tools at our disposal is to make sure that the charges for the exemption certificates are sufficiently high. I know that it is meant to be a cost-recovery process, but they should be sufficiently high to make sure that the very limited number of exemption certificates that are applied for are not applied for in a frivolous way, so people are not applying for lots of exemption certificates, which would defeat the object. We need to come back to the core principles of what we are trying to do here and ensure that these exemptions are extremely limited. One way of doing that is to say that if you want an exemption certificate, it will cost—I will make up the figure—£1,000. I think people will think twice when they have to go through that process and fork out £1,000 but might not get the certificate at the end of the day. That is another mechanism that we should look at.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (David Rutley)
Q
There has been some concern that the ban might lead to displacement to other countries, for example in the far east. You have addressed that to some extent in your comments. Can you reconfirm for the Committee that you believe that the ban will help and that the October conference could be an opportunity to start tackling concerns about displacement?
Cath Lawson: Yes, very much. We feel that we have had the opportunity to input into this process, and we are grateful for that—the consultation process has been very inclusive. If the Bill can be passed in time for the October conference, we can show that we have one of the world’s strongest pieces of legislation on ivory. We feel that it would put the UK in a strong position to work with other countries, particularly those neighbouring China: Laos, Thailand, Bhutan. There is certainly a risk of displacement from China to those sorts of countries, and this would help them move forward with their ivory legislation as well.
Will Travers: I totally agree. With regard to the voice, it was one of the biggest responses in the public consultation, showing the depth of public concern. It was generated not just by advocacy organisations such as those represented here and others; the public in general wanted to have their say. With regard to displacement, the fact that the Foreign Secretary is so invested in the issue—as was his predecessor—bodes well, because the FCO has a really important role to play in making sure that our position on this issue is well understood in the countries that were just mentioned. Although the Bill is about the domestic ivory trade, it is important that it does not become a domestic issue; it is an influencer far and wide, particularly in those countries that have yet to make their position as clear as they could.
David Cowdrey: I agree. We have been listened to and consulted well. The consultation run by the Ivory Bill team at DEFRA should be congratulated on doing a superb job. They have consulted far and wide, with a range of organisations, and constructed a carefully crafted Bill.
There is always a risk of displacement to other countries. The investment that is being made and the training that the UK can provide—not only through our armed forces but through our police services—is excellent. The Metropolitan police in the UK have developed an ivory fingerprinting kit, which is now being rolled out to over 18 countries globally. The British high commission in Mozambique has invited me back to do some training with rangers and ANAC, which is the national parks authority. That is a piece of frontline equipment that can help catch ivory poachers on the ground, and it will also be appearing at the IWT conference in October. Team GB have a huge amount to contribute to law enforcement on the ground, and can provide expertise, training and resources where displacement is happening. Those are good strategic opportunities for tackling some of these real hotspots around the world.
Will an ivory ban help? Yes it will. This is a really good piece of legislation that will provide that global leadership and that position. The opportunities you have within the European Union to get a strong ivory ban in Europe and use this as a template are critical. Every available opportunity should be used to push this across Europe via colleagues, so that we can roll out this ivory ban and get a global ban. This is what we really need in order to start tackling the trade. You have a great opportunity and I wish you well.
Liz Twist (Blaydon) (Lab)
Q
David Cowdrey: Additional measures have just been introduced in the Control of Trade in Endangered Species (Enforcement) Regulations. Anybody offering an annexe A specimen will need to display their article 10 certificate. That is a new requirement that we welcome. Enforcement is an issue. There has just been a major conference with Interpol in Lyon with law enforcement agencies from across Europe and the world, which was co-partnered with IFAW. It was looking at how we can tackle cyber-crime and where it is moving—again, it is the impact of Facebook closed groups, which are very difficult to penetrate, and also the dark web. An awful lot of further work and investigation is needed by global enforcement agencies, but also by our own enforcement agencies. We have to remember that this is a criminal activity, undertaken by organised criminal gangs using the same routes they use for other commodities, such as guns, people and drugs. It is the fourth largest illegal activity in the world. It is undermining communities and Governments and therefore needs to be a priority. Tackling this in any way we can, and especially online, is going to be critical.
As Will said earlier, these are criminal groups that will adapt and change at the flick of a switch. When one market closes, another one will open. They will use technology to the fore. Now, with our tenBoma scheme in Kenya, we are creating a network to defeat a network, which is critical. We are using the same intelligence software used to tackle poachers before they shoot the elephant, so we can anticipate where they are going to be and make sure the resources from the enforcement agencies are deployed. Enforcement online and on the ground, and using technology, is vital if we are to defeat the poachers.
Cath Lawson: We certainly agree that the online trade is very much a concern, but we feel that the Bill as it stands, and the exemption for what is specified—with some tweaks that I hope we will have an opportunity to talk about later—is pragmatic and sufficient to not pose a significant risk.
Robert Courts (Witney) (Con)
Q
David Cowdrey: Yes, I agree. With 20,000 elephants being killed every single year—around 55 elephants a day—this is poaching at an incredibly high, industrialised level. We saw in a three-year period between 2010 and 2012 approximately 100,000 elephants being poached. This is genocide for elephants on a vast scale. It is industrialised poaching to go to the markets. Something absolutely critical on enforcement is therefore needed. We need to acknowledge the scale of what is going on and the legislation needs to deal with elephant poaching urgently. Over the past two years, the work that the Government has done in preparing the Bill—gathering evidence about ivory markets and ivory poaching, and listening to people—has been absolutely critical in developing what we have in front of us today. So yes, we agree.
Cath Lawson: The urgency is because of the detrimental impact on elephants, but also because of the leverage value that the October conference offers. Having the legislation in place by then means we can maximise that leverage value.
Will Travers: I agree with both colleagues. I do not want to bombard the Committee with statistics, but one that always sticks in my mind is that Tanzania was regarded, for many years, as an elephant stronghold—it had the second largest elephant population on the continent. Yet between 2009 and 2014—in five short years—its elephant population fell from more than 100,000 to just over 40,000. That is 1,000 elephants poached every month for 60 months. That just gives you a sense of how once it reaches that kind of critical mass, once law enforcement has broken down to the level that the poachers are winning, the situation can go from hero to zero extremely quickly.
Robert Courts
Q
Cath Lawson: That is my understanding, yes.
Will Travers: I am not at all technical on this, and you know it far better than I do, but it seems to me that if we can get this through, with the provision that the Secretary of State can look at other non-ivory-bearing species and bring forward whatever measures he or she wishes in short order, then the consultation may be very short and serve only to verify the situation, rather than to do a long exploratory digging into it—in other words, just to verify the kinds of figures I gave you earlier. The Secretary of State can then come forward with secondary measures, which will hopefully address the issue very quickly. I hope that would be the sort of commitment we could count on.
Robert Courts
Yes, clause 35(2) would clearly allow the Secretary of State to bring forward delegated legislation. Can I focus on one other thing you said? That is to include ivory from an animal or species not, for the time being, covered by that subsection. You mentioned non-ivory-bearing species. Did you mean non-elephant?
Will Travers: I am sorry; I meant non-elephant ivory. I have mentioned warthog. At the risk of upsetting people who are concerned about a very small amount of Aboriginal use of walrus, that is really important, but so is mammoth ivory. We should at least be aware of the volume of mammoth ivory in trade. Recall that this is in trade. I have the import figures for the United States. They keep a close record of all mammoth ivory in trade, and I will just give you three years. This is only mammoth ivory carvings—there are lots of different categories— but in 2013 there were 5,049 mammoth ivory carvings and 773 tusks. In 2014 there were 19,335 carvings and 338 tusks. In 2015 there were 7,822 ivory carvings and 120 tusks. That is a not inconsiderable amount of trade in an ivory product that, in marketplaces in the far east, is definitely a surrogate for modern elephant ivory.
Anna Turley (Redcar) (Lab/Co-op)
Q
David Cowdrey: Those are all excellent points. The Bill will clearly close down markets in the UK. The more markets we close down, the more we deprive people of money and income. The price of raw ivory that was publicly for sale was $2,200 per kilo. After China introduced its ban, it went down to $1,100 and then down to $600. It is now about $450. There has been a massive devaluation in the price of raw ivory, making it a less viable option. Such things are incredibly useful.
With regard to help for communities, on Second Reading there was an interesting discussion in which Members talked about how some of the Department for International Development’s budget might be used. We have to consider a holistic approach. The communities are not isolated from poaching, and the impact of poaching on communities is not isolated from the illegal wildlife trade; they are joined up and hand in hand. There are good opportunities that exist with our overseas development budget to take a more integrated approach to delivering holistic aid and support and anti-poaching measures, to help build communities and tackle corruption.
The support with efforts through the DEFRA challenge fund grant, through DFID and the FCO’s interaction with other communities is also important. It needs to go hand in glove. This is a complex situation that you cannot just wave a wand or a Bill at. It is all part of a jigsaw that really helps, but our overseas aid is another part that we could potentially re-examine and look at, to provide better integrated aid.
Cath Lawson: The WWF would very much endorse that position. I do not think we need additions to the Bill, but we are supportive of wider conversations about looking at overseas aid for ecosystem-based funding, and looking at bigger-picture landscape approaches to some of the critical habitats where the illegal wildlife trade impacts on the survival of certain species.
Will Travers: I endorse everything that has just been said, and I totally understand that when it comes to spending the £13 billion or so a year in our DFID budget, in most cases we must be risk averse. However, for this sort of issue—I used this term before when I talked about it with Justine Greening three years ago—we need a sort of adventure capital fund. We need a modest amount of money with which we try innovative, new things on the ground or with partners, and try to deliver something that will change the game on the ground and speak to all the issues that have been raised, such as secure ecosystems, secure livelihoods, alternative livelihoods and food security at landscape level. Sitting right in the middle of that can be conservation. If the brief is whether we can make conservation work for communities and people, I think the answer is yes, but it needs not insignificant—although not huge—pump-priming to really get it going. That is where DFID, which is a completely different entity from the one we are talking about right now, could have a major role.
David Cowdrey: I agree about some of the technical developments and initiatives that the UK can take. I mentioned fingerprinting earlier, and across Africa most countries do not even have an electronic fingerprinting database. When we are dealing with international criminal syndicates and gangs, countries are not capturing the information, and they do not have the capability to share it with neighbouring countries. These are transnational crimes. We must consider how we can develop these countries in a way that provides practical enforcement and really helps them to develop.
We can help to defeat these international criminal syndicates, and simple investments that can be done through development grants or a challenge fund are really important. A national fingerprinting database for a country could cost as little as £60,000. Look at that as an investment and a way to help tackle corruption and crime, including not just wildlife crime but crime and terrorism. That has a massive impact across the world. In tackling the illegal wildlife trade, we must consider some of those simple enforcement measures that can make a game-changing difference on the ground for those countries.
Mrs Latham
Q
Cath Lawson: It is certainly something that we would be comfortable with. I mentioned an amendment earlier. At the moment the Bill includes CITES-listed species, but mammoth, as an extinct species, are not a CITES-listed species and never will be. One option would be to remove that caveat in the existing legislation, but that could be part of a later consultation process.
Sue Hayman
Q
Cath Lawson: During the consultation process, we did not advocate for additional species to be added. Our advice in the consultation response was to focus on elephant ivory.
Will Travers: We did comment on other species, and we did advocate that there should be consideration, which is what I believe clause 35 refers to. The definition of ivory in the Bill is ivory from elephant species. I understand why it is important to make sure there is consideration of other species, for which there has been no full consultation. We want to understand what is going on with hippo ivory, with narwhal ivory, with walrus ivory, with warthog ivory—non-CITES listed—and with extinct, non-CITES-listed mammoth ivory. There may be—I am just trying to think of the right way of expressing this—specific exemptions that would have been considered for inclusion specific to, for example, mammoth ivory that we would be discussing now had that been part of the overall process to start with.
Sue Hayman
Q
Will Travers: No, but we are rather hopeful that we don’t restrict ourselves to CITES species.
Sue Hayman
Q
David Cowdrey: The built-in flexibility under clause 35(3), and the opportunity for the Secretary of State to add, means you would not need to go through a consultation process. If we were informing the Secretary of State of a shift that has taken place in conservation terms with species that are coming under threat, there should be an ability to provide that evidence for action to be taken swiftly to add those species immediately within the Bill. That flexibility currently exists under clause 35(3).
In relation to the speed of the Bill, I hand it back to you as hon. Members. That is in your remit—your court. As an NGO, we would like to see this Bill completed and into legislation by October, prior to the IWT conference, so we can have a global stage to announce this fantastic piece of legislation. So I hand the ball back to you.
Simon Hoare
Q
The other thing, very briefly, is whether you have had a look at the enforcement regulations, as set out in later clauses of the Bill. Do you think they are about right, too lenient or top-heavy?
The Chair
May I ask you to be quite brief with your answers? I might be able to squeeze in one more question if we are quite rapid.
Cath Lawson: On the point about the definition of ivory, I am not certain whether mammoth would be included. One of the points we would be keen to raise is that there should be a very clear definition of ivory within the Bill. At the moment, it is referenced in a number of places, and one clear definition would be useful.
In terms of enforcement, we feel it is appropriate, but as mentioned previously there is a need for sufficient resourcing to ensure enforcement is carried out in full.
David Cowdrey: On definitions, I would look at other ones within the Bill. There is one in the explanatory notes, where it currently talks about “outstandingly valuable” and outstandingly high artistic and cultural value. When the document was originally published, and the Bill was announced on 3 April, it referred to
“the rarest and most important items of their type”.
It seems to me that there has been a change in some of the wording that was announced by the Government in terms of what has appeared in the Bill. We would strongly advocate that, when it comes to definitions, the words
“the rarest and most important items of their type”
are reinstated in the Bill to make sure that, if an exemption is given, it is only for these extraordinary items, rather than creating something which allows trade in something which is just of outstandingly high value, rather than
“the rarest and most important”.
We believe there should be tighter control under the definition of the Bill.
Cath Lawson: That is something WWF would also endorse. Similarly, around the portrait miniatures, we feel very much that, within the body of the Bill, there should be a definition of what constitutes a portrait miniature—a specification of a size and the fact that it is painted on ivory.
Will Travers: Briefly on the enforcement issue, I think the provisions are okay, but it depends how frequently they are applied at the most severe level. Our judicial system should be encouraged to take the strongest possible measures provided for under the Bill—hopefully, the Act—in order to serve as a deterrent.
David Cowdrey: On the enforcement measures for portrait miniatures, having a size definition would be really important. One that has been put forward is something having a height of less than eight inches and a width of less than six inches. I believe you are speaking to a representative from Philip Mould later today. Getting that definition of a portrait miniature, which they have been working on with the Victoria and Albert Museum, is really important to help with enforcement, because if you have not got some widths, dimensions and a description, how can you enforce the legislation? Having that clarity of enforcement is really important.
Luke Pollard
Q
David Cowdrey: Absolutely. It is absolutely critical, where you have an exemption—especially for these items where I am challenging the definition and it should be “the rarest and most important”—that we should be publicly accountable for what is being listed. We have been told that this is only for exceptional items—we are anticipating 75 to 150 a year. Having a public register and seeing what has been sold for what amount is critical. Having that posted as an annual report on the website, publicly available to everybody, gives scrutiny to the legislation and to the processes involved, so I would fully endorse that.
Will Travers: I couldn’t have put it better.
Robert Courts
Q
Cath Lawson: Yes. Mammoth and warthog are not CITES appendix-listed.
Robert Courts
Q
Will Travers: Yes, the casqued hornbill has been on appendix 1 since 1975, and it is facing extinction right now.
Robert Courts
Q
Will Travers: It is appendix 1, so there should be no trade.
Robert Courts
Q
Will Travers: Yes, that is CITES appendix 1.
Robert Courts
Q
Will Travers: No, it is traded as if it is ivory. It is an ivory surrogate, whereas rhino horn is not traded as an ivory surrogate— it is traded as rhino horn.
Robert Courts
Q
Will Travers: It is not dentine. It is not made of the same material, but it is traded as if it is ivory. It is regarded by consumers and treated as if it is an ivory product, although it is not technically an ivory product.
Robert Courts
Q
Will Travers: It should do. Of course, because it is appendix 1 on CITES, there should be no legal trade anyway. It should all be illegal trade. I guess one could argue that there might be some historical antique going back to whenever, but that should be covered.
The Chair
I am afraid that brings us to the end of the allotted time. I thank the witnesses for their evidence.
Examination of Witnesses
Alexander Rhodes and Charlie Mayhew gave evidence.
The Chair
We will now hear oral evidence from Stop Ivory and the Tusk Trust. We have until 11.25 am for this panel. May I ask the witnesses to introduce themselves for the record?
Charlie Mayhew: My name is Charlie Mayhew. I am the chief executive of Tusk Trust.
Alexander Rhodes: My name is Alexander Rhodes. I am from Stop Ivory.
Sue Hayman
Q
Charlie Mayhew: The short answer is yes. There must be a concern that the criminal syndicates that operate in this space might well be inclined to move to trade greater figures in hippo, mammoth, walrus and other ivory-carrying species. There certainly is that concern.
Alexander Rhodes: Of course, there is the risk that that will be a result of tightening controls on elephant ivory in this way. I feel strongly, however, that sending a clear message, as this does, on elephant ivory is critical at this time. Our colleagues have given the numbers beforehand. Particularly looking at the conference in October, the focus on elephants is very important. We are talking about trying to achieve a decrease in the killing of elephants by stopping ivory being traded. We must continue to focus strongly on the elephant ivory.
Sue Hayman
Q
Alexander Rhodes: Without a shadow of a doubt.
Charlie Mayhew: Absolutely. The public, in whichever part of the world, who ultimately buy ivory do not necessarily differentiate where that ivory has emanated from. We have an opportunity here, in introducing this legislation, which as people have previously said is one of the toughest bans in the world, to send a message that ivory should now be socially unacceptable. If we can try to use this legislation, particularly with the upcoming illegal wildlife trade conference and attendees coming from all over the world, the rest of the world should follow suit.
Mrs Latham
Q
Alexander Rhodes: Yes. Perhaps as a bit of context around that, it is interesting to note that the crisis that was recognised just before the last London conference came about because of the professionalisation of poaching. Illegal organised crime stepped in and added elephant ivory to its inventory because there was no legal international trade and there was an opportunity. That took place in circumstances where, internationally, there was confusion, and there was no common position on whether elephant ivory should or should not be traded—that rift had been in place since 1989.
Over the four years since the London conference, strong consensus has been built internationally that the ivory market should be closed. Importantly, that has taken the form of two international resolutions, one at CITES and one at the IUCN, that domestic markets for ivory—that is what we are talking about—should close, as should some of the other leading markets for elephant ivory, such as those in China and the US, and we are looking forward, beyond there, into Europe. That certainty about the illegality of ivory has significantly changed in the price of ivory.
When we started looking at this issue at the time of the first London conference, many people said that closing markets for ivory was a stupid thing to do, because all it would do is drive up the price. They said that destroying stockpiles of ivory, or locking them up so that they could not be traded into the market, was a stupid thing to do, because it would just drive up the price, and that the more scarce you make things, the higher the price becomes. Interestingly, David mentioned prices earlier, and the change that we have seen during this period, and the effect of the measure, has been that, in China, the price of a kilo of ivory between the time of the last London conference and now has gone from $2,500 to $450. In some African countries there has been a similar collapse in the price of ivory paid to gunmen. That wider context goes to the point about clarity on the legality, or illegality, of ivory.
I tend to agree with what Charlie said, which is that if you say, “Ivory is banned”—this is called the Ivory Bill, and the basis on which it was built was a commitment to close ivory market—that is pretty clear, and it falls within the international consensus that has been built on elephant ivory. My personal view is that, yes, it would make great sense to expand the Bill to cover mammoth ivory and other types of ivory for species that are threatened as a result of this trade. Such a measure would disincentivise people from going and killing those animals, whether they are doing it cynically for their own profit or because it is the only choice they have on the table—that is possibly something else we may discuss.
The real question in my mind, however, is whether, if we start trying to expand the Bill now, we will lose the effect that we can get, and the UK’s role in that momentum, which is already making a massive change. I return to what David said, which is that this is perhaps more your area of expertise than ours, but I think that is the balance to strike.
Mrs Latham
Q
Alexander Rhodes: I am not.
Mrs Latham
So us doing something like that would set a further example to the world.
Alexander Rhodes: Without a doubt.
Anna Turley
Q
Charlie Mayhew: I am certainly not an expert in parliamentary process and the legalities of this, but if there was a way of extending the reach of the Bill to include those species without delaying the process, and without there being a threat of judicial challenge from any area, then we would all love to see that happen. Perhaps the issue really is where that challenge would come from if you were to extend the Bill to the other species. Representatives from the antiques trade will be coming in later today, and although I am not an expert in the area of antiques, I am not sure that they would object to hippo or walrus being included, because I suspect that their interest is in antique elephant ivory. I might be wrong on that, but it would be worth investigating. The point here is that we do not want to see anything that delays the progress of the Bill. The international momentum on the issue is very real, and we do not want to do anything to slow the process down, not least because we are losing 55 elephants a day to this illegal activity.
Simon Hoare
Q
Charlie Mayhew: Yes, I think that is broadly right. It is quite clear that the Secretary of State and, indeed, the Foreign Secretary, who has taken a very keen interest in the issue, are anxious to have the Bill on the statute book—or very close to being there—when they host the international leaders here for the conference. Otherwise, we would find ourselves in a potentially embarrassing situation in which China will have stolen a march on us—thankfully, actually. It would put us in a rather weak position as the host of the conference if we say that we have not got our own house in order prior to the conference.
That is the balancing act here. As I have said, I do not know whether legally you have to have a consultation period in order to expand the remit of the Bill, but after listening to what has been said, that might or might not be the case. As I said earlier, where would the challenge come from if you were to expand it? We need to find that out.
Alexander Rhodes: I agree with that position. However one expanded it, it is important to leave clause 35(3) in, in order to be able to add further species over time, if necessary, even if the initial list was expanded in the Bill itself.
Simon Hoare
Q
“an animal or species not for the time being covered by that subsection only if the animal or species is currently listed in an Appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.”
Would you prefer to see that caveat deleted, given that there may very well be some species that we may wish to take out but because they are large in number—a warthog has been cited—are therefore not covered by CITES?
Alexander Rhodes: Yes—I think the words from “only” onwards.
Luke Pollard
Q
You talked a lot about the October conference and just how important that is for the overall global effort against this activity. How powerful would it be for the UK to have introduced by that point a ban not only on elephant ivory trade but on other ivory trade? If banning elephant ivory is going to be such a big moment, would it not be an even bigger and better moment—an even larger cause of celebration—if we were also able to show in October that we have banned the trade in hippo, walrus and whale ivory?
Charlie Mayhew: Without a doubt it would send a very clear message to the world. It would also continue to show the UK in the lead on the issue; the UK was in the lead back in 2014, when it first instigated that conference. It would really help to focus minds at the conference on the need to put in place enforcement right across the world.
In addition, we hope to see at the conference further efforts to improve enforcement on the ground—we heard a little about that earlier this morning—and investment in tackling poaching. Since 2014 there has been considerable success in places such as Kenya, where poaching is probably down by about 80%, because they invested heavily in tackling the issue on the ground. It can be done, if there is the international will to get behind it and invest in the work.
Luke Pollard
Q
Charlie Mayhew: Potentially. It must have an influence when other countries see what we have done. Hopefully it would also influence our European colleagues, which is the next big prize for us. We want to see a similarly strong ban put in place across Europe.
Alexander Rhodes: My short answer to your first and second questions is yes, I think so. The second point I wanted to make about the impact of the London conference is just to re-emphasise the importance of closing the domestic market here in the UK for elephant ivory. The elephant protection initiative, which Will mentioned, was launched by five African leaders at the first London conference. We fostered and supported that initiative. The Government then supported the birth of that African-led initiative with funding through the challenge fund.
The elephant protection initiative is in two parts. The first part is to deal with the product, close domestic markets and put ivory stockpiles that have accumulated over time beyond economic use. The second part is then to deal with the animal. The proposal to deal with the animal is to implement the African elephant action plan. That is a plan agreed between all African states that have elephants. It addresses all the issues to do with the management of elephants alongside people. It deals with law enforcement and protected areas on one side, and human-elephant conflict and sustainable livelihoods on the other.
One of the great things that has happened since the first conference, and as we begin to look to the second conference, is the building of this international consensus to close domestic elephant ivory markets, as well as the collapse in ivory prices that we have seen alongside that. What that does in practice is relieve the pressure slightly on countries that have elephants and are trying to manage those elephants. It allows them then to focus more on some of the other issues, as well as dealing with illegal poaching and the interference of criminal gangs. It also allows them to focus on problem management, sustainable livelihoods and so on. Those things are obviously something that we would all come in behind on.
As we look to this next conference in October, the elephant protection initiative will form part of it. It is now 18 African countries strong, having started with five at the first London conference and having been supported by the British Government the whole way through. The focus at the conference will not only be on celebrating the push to close domestic markets, but very much on raising funding and applying funding under common national plans under the African elephant action plan. That is development funding as much as anything. Focusing on that as much as on what we were talking about earlier with elephant ivory more broadly will be critical in demonstrating the success of closing domestic markets in terms of the survival of the species.
Trudy Harrison (Copeland) (Con)
Q
Charlie Mayhew: I do not have that information, but I anticipate that that figure would be across most ivory, and you would see something similar reflected.
Trudy Harrison
Q
Charlie Mayhew: To the lay person, it is very difficult. If you walk into a market in Portobello Road or in Hong Kong, it is virtually impossible to tell the difference. It is certainly impossible to tell the age of it, as Will demonstrated with the piece he had.
Trudy Harrison
Q
Charlie Mayhew: Absolutely. That happens regularly. In fact, you only have to go to online markets to see people trying to pass off ivory described as “ivory-coloured bone” to get around the legislation. That is one of our big concerns, with regard to the Bill hopefully having a real impact in closing down online sales. That really needs to be looked at.
Trudy Harrison
Q
Charlie Mayhew: We have concerns about whether it will have the teeth to stop the online markets. That possibly needs to be looked at.
David Rutley
Q
The other point I raised earlier, which has not been so fully examined with this panel, was displacement, and what more you think we could do to stop it as the focus on ivory moves to the far east—whether the October conference will help, or whether anything else could be done.
Charlie Mayhew: First, I echo the comments of the previous representative of the NGOs. I think that DEFRA and the British Government have been extremely good at consulting with us all. We certainly feel that we have been very involved—as involved as we could be expected to be. That has been fantastic.
The 2014 conference saw the launch of the British Government’s illegal wildlife trade challenge fund. Tusk has been a beneficiary and has managed two very major grants under that programme that have had a significant impact on the ground. I urge the Government to continue to support that funding—if possible, to expand that funding. Only yesterday I had a report of a poaching syndicate that had been arrested as a result of some of the training that we had implemented under that challenge fund grant. We have also been working with the Ministry of Defence on the deployment of soldiers out in Malawi, which has been hugely successful and very welcomed by that Government.
The British Government have a significant role to play in using our expertise in various areas to help those countries—not only in Africa but, as was said earlier, in helping to clamp down on the trade in the far east. We should continue to provide as much support and funding as we can to eradicate this illegal trade, not least because it is known that the trade has been exploited not only by criminal syndicates but by armed militias, rebels and terrorists. This goes much further than just being a criminal activity; it really impacts on the security of many of these countries.
Alexander Rhodes: I would like to add my thanks to the Government, and to DEFRA staff in particular. The consultation has been run extremely carefully and we certainly feel that we have been well consulted. It seems that everybody has had an opportunity to put things in, as I think the public response demonstrates. The electronic means by which people could engage were heavily used by the public, in order to be involved in the consultation, so thank you very much for that. I endorse what Charlie said.
Dr Cameron
Q
Alexander Rhodes: Yes, I think so. There are a couple of parts of how the Bill works internally and we have put in submissions on that in writing.
Dr Cameron
What would you like to see?
Alexander Rhodes: First, it seems that the exemption certificates process needs to work hand in glove with the registration process. It would make sense, when one is looking at clause 10 on registration, for the Secretary of State to have to register an item under that clause if an application is made in the way envisaged in clause 10(1), and also on the issuance of an exemption certificate. That means that when an exemption certificate is issued, it is automatically put on to the register. Then I think the system ties up. Replacement certificates can be checked against the register much more closely because it is automatically part of the register in the first place. Everybody understands that things get lost from time to time, so I think it makes sense for there to be a provision for replacements, but if the exemption certificates automatically form part of the registration system, that will help.
Secondly, while accounting for data protection requirements, the register should be public, not least because if it is not, the Government are going to find themselves swamped with freedom of information requests, which we all know take up valuable time, money and resources. I actually wonder whether in the implementation, the technology may become more streamlined and efficient for the Government Departments that have to operate it. There was a question in the previous session about whether there were enough resources. Patently, one reason why the current system does not work is that the Government resources are too limited to operate it fully. If there was an electronic register and it was publicly available, that would help.
I will make one final point on this. As I said, these points are supplementary to the ones we have submitted in writing. There is some wording, if I can find it, that seems to envisage—if you have it, Charlie, maybe you will take the point?
Charlie Mayhew: In clause 4(5), we feel that more safeguards are needed for replacement certificates. As it stands, an item could have several replacement certificates, which could be used to sell similar items illegally. We are concerned that under clause 4(5)(b), someone could legally acquire an item but not obtain the certificate. A buyer should not be able to buy an item relying solely on the seller’s assurance that the item had a certificate but they do not have it any more. We suggest, as a minimum, the deletion of clause 4(5)(b), to avoid suggesting that dealing can take place without a certificate.
Alex Chalk
Q
Charlie Mayhew: If anyone had suggested back in 2014 that China would implement a ban there would have been disbelief around the table. The fact that they have gone to the extent of doing what they have done must be recognised and applauded. A great deal of credit goes to the Duke of Cambridge for the work he did on his visit to China and the conversations he had with President Xi on this subject. In that sense, the UK had significant influence in bringing about China’s ban.
We know that China is watching what the UK is doing; there has been plenty of evidence of that. By going ahead with the legislation we are proposing, we are at least backing up and endorsing China, which is the world’s biggest market for ivory. As was said earlier, we want to do everything we can to help China influence its neighbours; there is already evidence of the market displacing to some countries on China’s borders. It is good news that, although Hong Kong is working to a slightly longer timeline, it has indicated that it will impose a ban. Taiwan has done so as well, which is good. We need the other countries in the Asian bloc to follow suit; the UK taking this position now can only help to encourage that.
Alexander Rhodes: In terms of process, at a sub-governmental level we operate on the international stage in the same forums that Governments do at a governmental level—particularly, in this circumstance, through the CITES convention and IUCN. In terms of building international consensus, two international resolutions under the two international agreements stating that domestic ivory markets should be closed have been really important. The NGO community has been working closely, both together and with Governments, to try to build on and achieve those agreements, but ultimately, they are agreements between Governments.
As we look forward, although the market may close in China, there is real concern about some of its neighbouring countries. Those neighbouring countries need to come on board—first they need to agree that the domestic market should close, and secondly they need to do something about it. The UK Government will be in a much stronger position at the next CITES standing committee, and the run-up to it, if we stand shoulder to shoulder with other countries and tell them that that is what we think they should do, having ourselves passed this Bill .
Liz Twist
Q
Charlie Mayhew: This is not my area of expertise, but some of our statistics suggest that through the auction houses, 91% of ivory lots sell for £400 or less. That market in trinkets and small stuff is the sort of thing you see all the time on the internet, and often the descriptions will not say “ivory”—or if they do they will say that the ivory is pre-1947. You have to do a test on ivory at quite considerable cost if you really want to know whether it is pre-1947. There is undoubtedly a big online market, and it should be covered by this Bill. Such sales tend to be items that are 100% ivory and they will not fall under the de minimis exemption. The question is to what extent the Government and enforcement agencies can realistically enforce the ban for online trading—I am sorry; that is beyond my paygrade.
Alexander Rhodes: The UK domestic trade in ivory impacts on elephants because we are the largest exporter of ivory pieces to China. From 2010 to 2015, 36,000 pieces of ivory were exported from the UK to China. The next country by volume after us was the US, with just over 9,000 pieces. We play a big role in this, and almost all of that is mediated over the internet. To my mind, if it were possible the Bill should say that ivory may not be bought and sold over the internet because that would make it so much simpler for the enforcement guys. It makes it cheaper and easier. If someone is selling ivory online, that should be the wrong side of the line so that they can be chased down.
Liz Twist
Q
Alexander Rhodes: Yes. I agree with previous comments that the wording in the Bill does not quite reflect what was discussed in the consultation about the rarest and most important pieces of ivory. However, if a museum wants to buy a piece of ivory, which will necessarily fall in that category, it will not be buying it online. If a private collector is buying a piece that is of the rarest and most important type of its kind, they will not be buying it online. If you are buying a bit of inlaid furniture, you are unlikely to be buying it just online. You may see it online, but you are unlikely to be buying it online. The category of ivory that is traded online is the low-value Victorian stuff, which is being shipped overseas, where it contributes directly to consumer markets that are principally fed by modern, current ivory from elephants that are being killed as we sit in this room.
Under the current Bill, we can look at the provisions and enforce it for online trade. Fine. Why not just say you cannot deal in ivory online, which will make enforcement so much simpler? If one could achieve that, it would be the first prize.
Sue Hayman
Q
Charlie Mayhew: Absolutely. As part of this Bill—I believe DEFRA is planning to do this anyway—we need a significant awareness programme, not only for the judiciary but for the general public. That is essential. Educating the public, the judiciary and the enforcement officers is absolutely essential.
We very much hope that, in the same vein that DEFRA has consulted us to date, it will be willing to consult us on the guidance notes. I fully endorse that. There is a desperately increasing need to educate the judiciary in African countries on enforcing the legislation against the illegal wildlife trade, poaching and so on. In some countries, they are more advanced than others. We see how important it is that the judiciary fully understands the scope of this Bill and how it is going to be enforced.
Alexander Rhodes: It is interesting that a number of the African countries that are members of the elephant protection initiative and others have been working hard with support from colleagues to develop prosecution and sentencing guidelines for wildlife crime, in particular in relation to the ivory trade.
Sue Hayman
Q
Alexander Rhodes: Really importantly, it is something we can learn from and it is quite good that we can learn from what African countries have been doing in relation to that. Interestingly, we paid for it anyway. In the context of Angola, for example, where we are working at the moment, a challenge fund grant is paying for a programme of legislative reform review and prosecutor and judicial training.
Kerry McCarthy
Q
Alexander Rhodes: The purpose of this is clarity and certainty, so my preference would be for it to be straightforward. If it is ivory, you cannot sell it, and you cannot deal in it, online. To add a little context, you are right, of course. Not only are musical instruments with bits of ivory in them bought and sold online but some inlay furniture is also sometimes bought and sold online. However, it is the overwhelming minority of musical instruments or pieces of furniture that contain ivory of that kind.
My personal preference, for clarity and therefore for certainty, would be for it to apply across the piece. Of course, if it applied only to part of the piece, that would still be better certainty than its not applying at all.
Kerry McCarthy
Q
Alexander Rhodes: That is the opportunity of the Bill and of October. It is also the opportunity coming out of the broad consultation with musicians. We have had great conversations with them.
Kerry McCarthy
Q
Even in the future, I do not think that he would realise that there was a ban on him putting his guitar on eBay. I would not want people criminalised for doing something like that. You are not talking about people making huge amounts of money in the ivory trade; you are talking about somebody who just happens to have a product that has a bit of ivory in it. We will ask the Musicians’ Union what they think.
Alexander Rhodes: It is a balance.
The Chair
Are there any further questions? Okay. If there are no further questions, I thank our witnesses for their evidence.
Ordered, That further consideration be now adjourned. —(Mims Davies.)
Ivory Bill (Second sitting)
Tuesday 12th June 2018
(5 years, 10 months ago)
Public Bill CommitteesRead Full debate Ivory Act 2018 View all Ivory Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 June 2018 - (12 Jun 2018)
The Chair
We will now hear oral evidence from the National Wildlife Crime Unit and the CITES Border Force team at Heathrow. We have until 2.15 pm for this third panel. The air conditioning does not appear to be working so well today, so if people want to take their jackets off, feel free to do so. For the record, will the witnesses introduce themselves?
Grant Miller: I am Grant Miller, senior officer with the Border Force based at Heathrow, leading the CITES team that enforces the UK’s obligation to the convention.
Chief Inspector Hubble: I am Chief Inspector Lou Hubble, head of the UK National Wildlife Crime Unit. We work with police forces throughout the UK, supporting them in enforcement. We also collate and disseminate intelligence throughout the UK and internationally in relation to wildlife trade.
Sue Hayman (Workington) (Lab)
Q
Grant Miller: Our roles are quite distinct, which allows us to work hand in glove. The Border Force role is to disrupt the illegal trade—import/export—and trans-shipment of ivory through the UK. Our focus is largely on the export of our historically held ivory, which is traded over online auction houses and is then shipped predominantly to China and Hong Kong, but there is an emerging market in Vietnam for those goods as well. Border Force no longer has an investigation function; we hand all our intelligence from investigations to the National Wildlife Crime Unit with a view to it investigating those offences. So they are very much clear roles that allow us to work in partnership.
With regard to resources in Border Force, we have a dedicated unit that has been established for 30 years now and a team that is regarded as probably one of the best in the world at enforcing controls against the illegal wildlife trade. It is a team of 10 staff with national responsibility. We are, however, supported by every other uniformed Border Force officer, who has a basic level of skill in being able to identify animal and plant products.
Like every law enforcement manager, we could always use more resources and could always deliver more. However, what a small, highly focused team with clear objectives gives us is an easily moveable unit to actually address the changing risk. It allows us to be a lot more dynamic in addressing the risk and very flexible in moving from postal to air to maritime environments. At the moment, against the Border Force control strategy, our resourcing is adequate to control the threat.
Chief Inspector Hubble: When Border Force makes seizures of items being exported from the UK, it passes that intelligence to us. We collate that intelligence, develop it and research it to look at the number of items that people might be buying, selling or trading. We look at their associates. We try to map a network of people that they are linked in with, and ultimately we produce an intelligence package that goes out to a police force in the area where the person is committing the offences.
We have four officers who provide an investigative function to support police forces on the ground, and they work with police officers throughout the investigation: taking statements from witnesses, linking in with experts, compiling prosecution files, assisting with search warrants, and attending court to provide evidence. Due to our limited resource, we have to be really selective in what we deal with, so the number of investigations that we get where people are trading at a lower level would generally be sent to local policing to deal with. As a national unit, our focus has to be on those who are trading more and more products. Ultimately, that is where we can make a difference, linking in with the bigger players and those trading internationally.
One seizure by Border Force can result in months and months of investigation for us, and we can compile hundreds of intelligence logs from that one investigation. At the moment, we struggle to disseminate all that intelligence back out to Border Force, to close that loop, because we just do not have the resource to develop that. We have to be selective in what we deal with, but we certainly support Border Force in the work we all do on a day-to-day basis, and we welcome the introduction of the Bill.
Henry Smith (Crawley) (Con)
Q
Grant Miller: Chief Inspector Hubble and I were fortunate last year to do a training mission in South Africa for seven sub-Saharan Africans, in conjunction with the Chinese CITES management authority. During that workshop, the Chinese presented their comparative interpretation of the US ban and the Chinese ban and of the impact of these. It became evident that their view was that the Chinese ban was far more robust and had delivered closure of the trade. They felt that the US ban had left so many exemptions that the trade was allowed to continue despite there being a ban. If you accept their argument, we would like to see enforcement having to allow as few exemptions as possible so that the ban is, in reality, a ban on the ivory.
Henry Smith
Q
Grant Miller: From a Border Force point of view, we have two issues: establishing that it is ivory and then whether it is permitted. If those are identified, an offence has been committed. The more exemptions you have, the harder it becomes for the police to enforce.
Chief Inspector Hubble: I echo Grant’s comments. From an enforcement perspective, any Bill has to be enforceable; if not, it is just guidance. It is not legislation if it cannot be enforced. Within the Bill, we would welcome the minimum number of exemptions.
We also have some concerns that, as the Bill stands, we have to prove that it is ivory and that the person dealing in it knew, or ought to have known, that it was ivory. If you look on eBay at any given moment, you will find a number of items being offered for sale that are not labelled as ivory. From an enforcement perspective, if someone is buying something that is not labelled as ivory, and they are selling it as something not labelled as ivory, how do I prove they knew it was ivory? With the Bill as it stands, that, for me, is a real concern from an enforcement perspective. The onus should be on them to prove that they did not know, not on me to prove that they did.
Liz Twist (Blaydon) (Lab)
Q
Grant Miller: I do not think that a ban on trade is ever a good thing. The internet for me is cyber-enabled crime. It is merely a means to communicate better. The goods still have to cross borders. Canalisation is a customs tactic. Routing goods through set points is still a robust means to control the trade.
The online auction houses could do more to self-police. I think they avoid the issue. For instance, on the ivory listings we often see photographs of the ivory clearly showing Schreger lines, and questions have to be asked as to why someone is posting a photograph of Schreger lines. The other thing that has come up on listings on online auction houses is the weight of the goods. Again, when the trade first started to emerge, the weight was never shown. That now features on almost every single item. In effect, the ivory is sold per kilo. There should be better controls, but I do not think banning it completely is ever a good thing to do.
Liz Twist
Q
Grant Miller: It is misdescribed online. It is not sold as ivory; it is sold as ox bone. eBay has taken steps to say that ivory cannot be listed, but when individuals do not list it as ivory—“Chinese artefact” is another term that is used—how do you establish that it is ivory, and where do you stop controlling the trade and saying it is not allowed?
Liz Twist
Q
Grant Miller: From an enforcement point of view, our default position will be to go to the Customs and Excise Management Act 1979. The Bill establishes a prohibition on dealing ivory. That Act gives us far stronger enforcement powers and greater potential sentences—up to seven years and an unlimited fine. The Bill defines the offence, and I think it will give the police additional powers, but we would go for the “knowingly concerned” provision under the management Act. The Bill widens that slightly by referring to what a person should reasonably be expected to know. There may be some room for the Bill there, but from a Border Force perspective, the management Act provides us with all the powers we need to police any prohibition.
Chief Inspector Hubble: From a police perspective, as we have seen on eBay, if you ban the trade in ivory, people will not call it ivory. At the weekend, there were more than 1,400 items offered for sale on eBay as “bovine bone”. From the photographs of those items, I can see that a significant number of them are actually ivory, but it would not be practicable to issue a warrant for every single one of those 1,400 people selling ivory—we cannot achieve that. Some of them will be one-offs, where they have sold only one or two items; some of them sell it time and again as bovine bone. If they buy it as ivory and sell it as bovine bone, clearly they know it is ivory. If they buy it as bovine bone because somebody else has misdescribed it and they sell it as bovine bone, how do I prove that they knew it was ivory? I cannot.
Liz Twist
Q
Chief Inspector Hubble: I would love to have a dedicated cyber-team looking at this day in, day out, with real training and a focused effort. Lots of people in the NGOs we work with are doing work around cyber-related crime. We are in the process of setting up a cyber-working group to try to pull some of that effort and interaction together and to have that group as a priority delivery group alongside the priority delivery groups we have for the other six UK wildlife priorities. That is going to be a significant resource. I am not sure whether it is too big to manage, but we felt we had to do something to try to get people sitting around the table and working together.
Trudy Harrison (Copeland) (Con)
Q
Grant Miller: Yes, they have. Most recently, we and the National Wildlife Crime Unit did three training missions to Malawi. We first brought Malawian enforcement to the UK and then delivered three workshops out there, and they have adopted the UK model of having a wildlife crime unit to handle all the intelligence, with clearly defined roles. Our environmental security taskforce meets every six months to plan operational activity. The Border Force has trained in more than 50 countries globally—most recently in South Africa, as I said. We are doing work in Hanoi, Mongolia and Cambodia, where we hope to deliver in the next year. So yes, exporting our knowledge and working practices does go on and is proving successful.
The Border Force has also deployed 28 officers into Africa, and it is expanding a similar sized team in Asia to build general customs capability. Illegal wildlife trade will be one strand that is focused on. On World Environment Day a couple of weeks ago, an operation into illegal wildlife trade was run in Nigeria by UK Border Force officers. It identified eight dirty suitcases full of ivory that the Nigerian authorities had forgotten about.
Trudy Harrison
Q
Grant Miller: Elephant and mammoth ivory has distinctive markings called Schreger lines, and the angle of those lines will identify whether it is elephant or mammoth. Other ivory forms have very distinctive shapes or formations. For instance, hippo teeth tend to be quite triangular in shape, which affects the styles of carving and so on that can be done. We also deliver training, and all our officers have modules that teach them the techniques of identifying the five main types of ivory that we encounter at the border.
Trudy Harrison
Q
Grant Miller: If ivory is highly polished, the Schreger lines can become more difficult to identify, but again we generally have the skills within the team to do it. If we do not, we reach out to experts. We will predominantly go to the National Museum of Scotland and Andrew Kitchener, who will always provide expert advice, from an academic, about what we are looking for.
Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)
Q
Chief Inspector Hubble: Our funding is committed until 2020, but beyond that we have had no formal indication that we will continue to be funded. That does cause concern. It is difficult for us to plan and commit to long-term strategies, and difficult for us to form business plans when in 20 months’ time we may not exist. It is difficult for me to keep my staff motivated when they have no job security—a whole raft of concerns are caused by funding.
Dr Cameron
Q
Chief Inspector Hubble: We act as a centralised hub throughout the UK to collate intelligence, and we work with all 43 police forces on that. I am sure you are all aware of the strains on modern-day policing at the moment, and dealing with ivory is probably not at the top of the list when they are looking at terrorism, child sexual exploitation, human trafficking, drugs and firearms. Ivory will not be up there with that, but as a national unit we can drive the issue and make sure that things are investigated as they should be with police forces. Without that central resource, it would very much be down to individual forces to decide what they do or do not deal with, and I fear that ivory may drop off the radar with some of them.
Dr Cameron
Q
Grant Miller: The Border Force is centrally funded through the Home Office, and CITES enforcement sits as a medium priority for Border Force. Because we are mandated to enforce the CITES regulations and the convention, we must exist to authorise and endorse the permits. There is no indication that the team is under any threat from Border Force management.
Dr Cameron
Q
Grant Miller: Certainly with the unit, and it is about the added value of our relationship with them. Border Force could exist and we would go out, detect and disrupt the trade. If we were to lose the unit, the capacity to then investigate and prosecute would be lost, but our key function would still continue, and we would detect and disrupt.
Mrs Pauline Latham (Mid Derbyshire) (Con)
Q
Chief Inspector Hubble: Would you like to ask Grant his question, while I ponder my response to that one?
Mrs Latham
Q
Chief Inspector Hubble: If we find somebody who is selling a few items, we would probably work with local police to go and educate that person rather than go for a full prosecution, because part of our work is about prevention. Ultimately, it is not about locking up the bad guys; it is about there not being any bad guys in the first place. If we can work with people and prevent them from committing crime, that has to be a good starting point. If we have low-level criminality, we would approach and deal with it that way.
We have an ongoing investigation at the moment, which I cannot talk too much about. We did a warrant earlier this year where we recovered a significant number of CITES specimens, including ivory, and we are continuing to push that forward. Watch this space for the outcome of that one. Our workload and work remit are significant across the whole spectrum of wildlife crime, from the really low-level individual to the significant traders making lots of money from the illegal wildlife trade.
Mrs Latham
Q
Grant Miller: No, we are not. The Bill, as it is scheduled at the moment, would list those items as prohibitions, and Border Force’s role is to secure the border against all prohibitions. So that would naturally fall into our remit, and we would be in a position to police that, if that was Parliament’s wish.
Mrs Latham
Q
Grant Miller: No, it would not be a problem.
Kerry McCarthy (Bristol East) (Lab)
Q
Chief Inspector Hubble: Yes, we would still have to prove that they knew it was ivory and that they had then mislabelled it, knowing that it was ivory.
Kerry McCarthy
Q
Chief Inspector Hubble: All the time that the burden of proof is on us to prove that they knew, that is difficult from an enforcement perspective. If the burden of proof was on them to prove that they did not know it was ivory, that would make enforcement much easier.
Kerry McCarthy
Q
Chief Inspector Hubble: Absolutely.
Kerry McCarthy
Q
Chief Inspector Hubble: That is because eBay banned ivory as a listing two or three years ago: eBay was openly selling ivory and an approach was made to it to say, “This is illegal, you cannot do this.” It took the ivory category down, so now people call it bovine bone or ox bone, but clearly it is still ivory.
Kerry McCarthy
Q
Chief Inspector Hubble: Absolutely. In general, we do not deal with the people who will apply for exemption certificates and who will register their items and apply for permits, because they are the responsible, law-abiding people. We deal with the ones who have a complete disregard for policy protocol legislation. We deal with the ones who are deceptive, who lie and who want to make money out of this. The burden of proof has to be manageable and has to be able to be enforced, otherwise it is not enforceable legislation.
Kerry McCarthy
Q
Chief Inspector Hubble: We have to apply a proportionate response to any investigation that we undertake, based on what they are doing, what they have done before and whether they are willing to engage through an education process or a preventive measure. All those factors determine the outcome and the sanction.
Kerry McCarthy
Q
Chief Inspector Hubble: Absolutely, yes.
Alex Sobel (Leeds North West) (Lab/Co-op)
Q
Grant Miller: Our ability to take cases and offenders before the courts would be impacted on greatly. We would be pushed into going out to each constabulary, looking for a supportive senior manager to take on an investigation on our behalf. If we were not able to find that, our activity would be just to disrupt and seize, and the threat would just continue. We share intelligence—we are very much a data-driven organisation—to get our targets and to know where we are working. If we do not get that feedback, ultimately we will become a self-fulfilling prophecy.
Anna Turley (Redcar) (Lab/Co-op)
Q
Grant Miller: We work very closely with Interpol, the World Customs Organisation, the United Nations Office on Drugs and Crime and the CITES Secretariat. In October last year, I took the chair of the Interpol wildlife crime working group, a global executive that co-ordinates and provides advice to the Interpol environment directorate on our activity. We are very well connected.
I am delighted to say that during the London conference on 10 and 11 October, we will host the Interpol wildlife crime annual conference, from 8 to 12 October. It will probably bring together in the region of 90 countries, to work through a five-day workshop along with civil society and academia, to develop intersessional projects that Interpol can work on to tackle the illegal wildlife trade. We are well connected.
We deliver training on behalf of the World Customs Organisation, in Operation INAMA, which is an African-based operation that assesses an organisation’s capacity to enforce the controls against the illegal wildlife trade. Border Force contributed heavily to its design and it is now moving on to the fifth country where the assessments will be delivered. Last month, 90 countries took part in a global operation called Operation Thunderstorm. Its results are embargoed until 20 June, but I can share with you that ivory exports from the UK were targeted, and we had some great successes. Those investigations are still ongoing with the National Wildlife Crime Unit.
Anna Turley
Q
Chief Inspector Hubble: Our role is to collate intelligence for people who are living outside the UK, and to disseminate it through appropriate channels to relevant countries. The National Wildlife Crime Unit sits on a number of working groups with Europol and Interpol to target the illegal wildlife trade. Last month, I went out to Vienna to speak at a United Nations Office on Drugs and Crime conference on how corruption facilitates the illegal wildlife trade. We work very closely with Border Force in delivering training in other countries to try to get that message across.
The Chair
Order. The microphones seem a little low today, and some colleagues are saying it is difficult to hear. May I encourage everybody to project and to articulate clearly? I am sure that will not be a problem for colleagues. A little louder, please.
Anna Turley
Q
Grant Miller: Border Force has a team of 10, and last year was our best seizing year. It was not good for civil society. In excess of 1,000 seizures were delivered during the year, across all commodities.
Chief Inspector Hubble: I have a team of 12. I have four investigative support officers working on the ground, supporting police forces, two analysts, three intelligence officers, one indexer and an office manager. I do not have the figures to hand for how many investigations we have been involved in, but every seizure that comes from Border Force will come to us. We also work across six of the UK wildlife crime priority areas. CITES is one of those priority areas, but we have a significant remit outside CITES, looking at domestic wildlife. Bats, badgers, bird of prey persecution, freshwater pearl mussels and poaching all sit within UK strategic priorities at the moment, and our work is split between all those areas.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
Q
The Government have said that the Office for Product Safety and Standards will be the responsible regulator. How do you see your respective organisations interacting with that new regulator in this respect?
Grant Miller: We would look to engage with it very early on. In the UK, we have a body called the CITES priority delivery group, which brings together all the actors involved in this, and we would certainly look to invite it to sit on that. The contribution it can make is through intelligence. If it identifies goods that may be imported or exported, it must get that intelligence to us to enable us to target better at the border. Having another organisation involved in the fight adds more strength. We are looking at developing our productive relationship with it.
Chief Inspector Hubble: We would be keen to establish protocols very early on. The Bill gives it the authority to inspect premises and apply for search warrants. We are keen to ensure its activities do not jeopardise ongoing enforcement operations, so it is key that we all link together to ensure that, if we are looking at the same people, we have a targeted, focused approach to dealing with them.
Luke Pollard
Q
Grant Miller: I do not think there would be a great expansion for us. Many of the species that you could be looking at, for example, hippopotamus, etc., are already listed on CITES. If we were to see them on import or export and there were no permits, our action would still be the same to seize and refer.
If mammoth ivory or warthog, that have been mentioned, are brought in, we have the ability to detect them, but we are not taking any seizure action. We are almost doing half of it. We are detecting it, but we are not then building the case and making the referral. I think the increase in work would be marginal for us at the border.
Chief Inspector Hubble: The role of policing throughout the UK is to uphold and enforce the law and deal with those who break it and we will continue to do that. From an intelligence perspective, we currently do not have any evidence to suggest that the trade around those other species is of significant number to warrant anything. We have to look at priority species that we deal with. In CITES, we have a number of priority species that we look at that have been raised there either from a conservation perspective or from a volume crime perspective. We would have to be intelligence-led and guided by scientific authorities before we would be able to put them on the Bill, because we have to be intelligence-led as a police unit.
Sue Hayman
Q
I do not know how we tackle this. This may sound naïve, but I do not know the answers. Do you have the ability to do “stop and search” random checks on items being sold from eBay, for example? Is that something that the police can do? If you looked at something and thought it was ivory, would you have the power to go in and check it?
Chief Inspector Hubble: If the information is in the public domain and the item is being openly sold on eBay, we can take screenshots, get details of the seller of these items and our intelligence function would do some research with eBay to look at other items that they have bought and sold. We would start to build that intelligence package with a view to going out to police forces to get some enforcement action taken.
Sue Hayman
Q
Chief Inspector Hubble: The Bill provides for an offence of facilitating.
Sue Hayman
Q
Chief Inspector Hubble: The approach to eBay initially got ivory removed as a category. People are now selling it as all the things that you have just looked at, and eBay will argue that it has too many items to police each one of them. It has a legal framework in place and anybody who tries to take eBay to court for facilitating an offence under the Bill is a braver person than I am.
Sue Hayman
Q
Chief Inspector Hubble: I do not know.
Sue Hayman
Q
Chief Inspector Hubble: We would certainly welcome better self-policing and self-regulating by online auction houses with some responsibility on them for the items that they are making money from the sale of. I do not know how we do that.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (David Rutley)
Q
To go back to the regulator for a minute though, do you both agree that having the regulator in place will help you with your work, because it will help to raise awareness of the new regime that will come into place, and because it will work with the antiques sector and musicians to help to improve compliance and assess compliance in future? Would that help you with your work?
Grant Miller: It would certainly help us. We have found the antiques trade to be very receptive. We have delivered training sessions to it on the rules and regulations, and generally, the larger auction houses have been keen to work with us and to drive the illegal trade out of their supply chain. An increased resource—another body—actually going round and delivering a prevention message, and helping and enabling an understanding of the controls, will assist us, but an awful lot of the illegal trade at the moment sits outwith the regular auction houses. It is private individuals who are sourcing ivory from car boots, house clearances and so on, and that illegal trade will continue. They have no intention of complying with any rules or regulations, so that market will continue for us to police.
Chief Inspector Hubble: From an enforcement perspective, we echo those thoughts about working with auction houses. We are regularly contacted by people within the industry for advice—for them to satisfy themselves that they are complying. Although it is good to raise awareness of an issue, ultimately that may result in increased reporting of it. Once the Bill comes into force, if a member of the public sees something on sale that they think is ivory, inevitably they will report it, which comes back to the issue of resourcing and how we deal with the potential increase in the volume of crimes that we will have coming in to us.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence and we will move on to the next panel.
Examination of Witnesses
Anthony Browne, Mark Dodgson, Emma Rutherford, Paul McManus and David Webster gave evidence.
The Chair
We will now hear oral evidence from the British Art Market Federation, the British Antique Dealers Association, Philip Mould and Company, the Music Industries Association and the Musicians Union. We have until 3 pm for this fourth panel. I invite the witnesses to introduce themselves for the record. I call David Webster first.
David Webster: Thank you very much. I am David Webster, the national organiser for live performance for the Musicians Union. We represent 30,000 musicians across the UK in collective bargaining and general representation.
Paul McManus: My name is Paul McManus. I represent the Music Industries Association, which is the trade body for the musical instrument industry that has been around since 1882 when it started as the Piano Manufacturers Association. We represent the shops that sell the musical instruments, the luthiers who make them, the manufacturers, the distributors and the music educators.
Emma Rutherford: I am Emma Rutherford. I am a consultant in portrait miniatures for Philip Mould and Company.
Mark Dodgson: I am Mark Dodgson. I am the secretary general of the British Antique Dealers Association, otherwise known as BADA. Our association is itself an antique this year—we are celebrating our 100th anniversary—and we represent about 320 of the UK’s leading fine art and antique dealers.
Anthony Browne: I am Anthony Browne. I am chairman of the British Art Market Federation, which is an organisation that was brought into being about 20 years ago to represent all the elements of the UK art market, whether it be principal auction houses, smaller auction houses or dealer organisations such as the British Antique Dealers Association.
The Chair
Thank you very much indeed, and congratulations to Mr Dodgson’s organisation. May I ask any Members who have a declaration of interest to make to do so now publicly, please?
Thangam Debbonaire (Bristol West) (Lab)
I received a donation from the Musicians Union at the last general election and the previous one. I want to put that on the record—it has been declared in the Register of Members’ Financial Interests.
Kerry McCarthy (Bristol East) (Lab)
I also received a donation from the Musicians Union at the last election.
Mrs Pauline Latham (Mid Derbyshire) (Con)
Q
Emma Rutherford: The suggestion of 6 inches by 8 inches for portrait miniatures—I have some with me, because it is always easier to show an object—is very sensible. I have three very typical portrait miniatures here, painted watercolour on ivory, which represent 80% of 18th-century portrait miniatures painted on ivory—this is the kind of size we are talking about. Six inches by 8 inches will cover 90% or 95% of portrait miniatures.
Mrs Latham
Q
Emma Rutherford: It is sometimes difficult to measure the actual miniatures because most of them are framed or cased, and we cannot get them out easily without damaging them. I would probably do it by sight of the ivory itself and not the frame, because the latter is probably unfair, given the differences in the scale of frames.
Mrs Latham
Q
Paul McManus: Correct.
Mrs Latham
There would be no new instruments with any ivory content, would there? When did that stop?
Paul McManus: We ceased in two real tranches: 1975 and 1989, when the two different types of element were made mandatory. That means that hundreds and hundreds of what we would class as vintage musical instruments are out there, belonging to musicians, and indeed representing their livelihood in many cases. But we ceased in modern manufacturing as the legislation came in. As an industry, we like to think that we have been very compliant with the right rules. We abhor the trade itself and have nothing but support for everything being done here, but equally passionately we support the exemption for these antique musical instruments that keep musicians in their livelihood.
David Webster: Absolutely. I cannot add to that. As we understand it, since ’89 there has been no use of ivory in the manufacture of accessories for instruments or of parts of musical instruments.
Mrs Latham
Q
David Webster: A musical instrument is a very personal item. For our members—musicians—it is probably the biggest investment they are ever going to make. In some cases, that investment needs to be of some value to them, for example if they need to retire due to ill health or they get to the end of their playing days and they wish to retire with some kind of dignity, which it is everybody’s right to do. The investment in that instrument is the most important thing they have. The ability to trade that instrument is the key to their being able to retire with some dignity and comfort, which is the right thing to do.
Mrs Latham
Q
David Webster: In terms of—
Mrs Latham
In terms of what they would pay.
David Webster: There is no one figure, but it is hundreds of thousands in some cases, tens of thousands in other cases and thousands in others. It all depends on the instrument, when it was made, who made it, its tonal qualities and who has played it before the current owner. You cannot pin it down to one particular price.
Mrs Latham
Q
David Webster: A Stradivarius. Some old and ancient cellos.
Mrs Latham
Q
David Webster: They might do. It might be in the bow. The very small amount of ivory in a violin or a stringed instrument would generally be in the tip or the frog of the bow, and it is a very small amount. There may be a little on the tuning peg. It could be an antique guitar.
Paul McManus: It can be pianos, too. In the 1960s, we had 40 companies manufacturing pianos in the United Kingdom. There are hundreds of old ivory-keyed pianos in circulation around the United Kingdom. They were made when other materials were not readily available. That all stopped back in 1975, but to take a good example, the largest piano auction house in the world is in the United Kingdom. It is called Piano Auctions Ltd. It sold nearly 500 pianos at auction last year, some 60% of which had old ivory keys. Frankly, it would not be in business if it was not selling them. The only alternative to the exemption—I know this would happen—is for piano shops to strip off those ivory keys, throw them in a bin and replace them with plastic ones. To me that would almost seem a double tragedy for the poor animal that gave up the ivory in the first place. Right down in the hundreds of pounds range, there will be an old piano that someone’s grandmother used to own that they are trying to move on to a school or whatever.
Mrs Latham
Q
Paul McManus: They can gift it, but lots of people are still trying to make some money from these products. There are hundreds of them around the United Kingdom. These are all one-on-one transactions. There is no trade here. These are just individual transactions between a musician and another musician. That is the way our industry works.
The Chair
Before I call Liz Twist, I want to say that members of the panel should contribute, even if you are not addressed by name, if you wish to. We can make this more interactive. If your contribution is relevant to the organisation you represent, feel free to make it.
Liz Twist
Q
David Webster: That is a concern, obviously, if the ivory was legitimately sourced and worked. So far as I understand it, for bagpipes it is the rings that go into the bit that comes out of the bag—I am not sure what you call it, but that is the part that has ivory. They could be affected, but if the ivory is old ivory—ancient ivory—and it has been worked legitimately since 1975, they might be caught up within the Bill. We are very happy with the Bill as it stands, and we would not like it to be changed unless there was a move to extend it to cover the instruments that you are talking about.
Henry Smith
Q
Mark Dodgson: We have looked at some of the figures from CITES; they have a database of exports of ivory. For example, in 2015 there were 1,200 CITES licences issued for items containing antique ivory going to China and Hong Kong.
Now, you need to bear in mind that the United Kingdom has—well, it was the second, and it is now possibly the third largest art and antiques market in the world. So, in the context of such a large entrepôt market and also in the context of so many cultural objects being repatriated to the Chinese—their ceramics obviously being the key one there—that number is actually not particularly surprising. I do not know specific figures for other countries.
Anthony Browne: What has happened generally in the art market in recent years is the rise of China as a major buyer for all sorts of works of art, so it is not particularly surprising that Chinese buying has had more of an impact in recent years than it had in the past. To some extent, it reflects that. It also reflects the fact that our history has meant that an awful lot of these objects that originated from China and Japan, and that came here, are finding their way back again.
Paul McManus: For our sector, it is practically negligible. I mean, we have nothing organised in collecting this to then sell it on anywhere. This is just individual musicians, as we said earlier, or the odd music shop here or there, but it is all sold within the UK—nearly all of it—because it is just a consumer-driven thing over here.
Emma Rutherford: For portrait miniatures, there is no market at all in the far east; there are no collectors there.
Mark Dodgson: Actually, that is quite an interesting point, because we find that there are a lot of western cultural items that contain ivory, or that are made entirely of ivory, that are of no interest to the Asian market. They are predominantly interested in their own cultural items.
Anna Turley
Q
Mark Dodgson: I think it is slightly difficult to give a quick answer to that one; we would probably want to speak internally about it. However, I have worked at the British Antique Dealers’ Association for more than 20 years, and my own experience is that I have not seen those materials—those items from those animals—incorporated in many objects. There is the concept of scrimshaw, but generally speaking—when I was watching the online broadcast of the earlier sessions, I heard someone suggest that ivory inlay from, I think, hippos was used in antiques. I have to say that in my experience, I have not come across that. I have asked a few people about that, and they are not aware of it.
Anthony Browne: I have nothing to add to that. No, I think I would concur with that. Ivory is the ubiquitous substance in the arts of the past, definitely, rather than these other substances.
Emma Rutherford: In portrait miniatures, it is elephant ivory and no other type.
Paul McManus: From our point of view, since synthetic materials came in, pianos have been coated with synthetic materials. The most another type of bone might be used for is repairing an old ivory key that had broken, but if that became banned—well, we would use something else.
Alex Chalk (Cheltenham) (Con)
Q
Anthony Browne: Yes, there are concerns, and I am glad you have mentioned this. The legal advice that was given to one of our members—I am very happy to make it available to the Committee—is that giving these powers to civilians is most unusual indeed, if not unprecedented, except where public safety considerations are in prospect.
The representative from the police who gave evidence earlier referred to their usefulness in making people aware of the legislation. We do not have an issue with that. The police and customs officers’ powers of entry, search and seizure are entirely in line with the Police and Criminal Evidence Act 1984, so again, we have no issue at all with that. We do have very serious reservations about the powers of seizure and so on, both in clause 17 and in schedule 1. I am not a lawyer, so I am somewhat out of my depth if I get into a detailed conversation about this. However, we have a memorandum that I am very happy to submit for consideration, if the Chair would find it helpful.
Alex Chalk
Q
Anthony Browne: That is one consideration, and we are not clear about that. Also, they have got these really quite draconian powers, which are not normally made available except in the case of dealing with public health, where there is a real public need to intervene.
The Chair
For the record, anyone, including distinguished members of the panel, can continue to submit written evidence through the parliamentary website with a reference to this Bill.
Kerry McCarthy
Q
Paul McManus: Let me be very honest: we are extraordinarily grateful that this exemption has been considered at all. The vast majority of instrument manufacture involving ivory ceased around 1975. There was some continued use of ivory, with the other ivory that was not brought into enforcement until 1989. While it would be tempting to say “Can we have a bit more, please?”, if I am totally honest, we were so delighted with the proposal as it stood that, considering it would catch the vast majority of instruments, we did not want to appear over-zealous in our presentation to you.
Kerry McCarthy
Q
Paul McManus: It is a challenge. As an industry, we have been dealing with the rosewood legislation that CITES brought in last year. Nearly every guitar is made with rosewood, so we have had to try to educate an entire industry that makes guitars—both here and overseas—and every musician buying or selling a guitar, about the fact that rosewood is now a protected product. It is tough; I will be honest with you.
I suspect that ivory will rise to the top in awareness quicker than rosewood did. We have had to use every communication channel we can. We have gone to special Department for Environment, Food and Rural Affairs meetings in Bristol to educate the whole industry and take our members to it. Back to the online platform debate—to be fair, some of the online platforms have now been putting up information saying, “If your guitar is rosewood, you need to be aware of x, y and z,” as they have done with ivory. It is a challenge, but we just have to do everything we can to communicate this. There are so many platforms that people can buy and sell through.
Kerry McCarthy
Q
Paul McManus: Every instrument will come to less than 20%. A piano is 3%, because of the total volume of the product the ivory keys are 3%. There are a few instruments, such as accordions, that will get into the double digits, but nearly 99.99% will come under 20%. It will not be a problem in the percentage; it will be the article 10 provisions that you have to—
Kerry McCarthy
You would think a light would go on in the head with a piano, because everyone knows that the keys are made of ivory. As David mentioned, if you have a smaller instrument in which a tiny bit of the bow is made of ivory, the issue is how that is even flagged up.
David Webster: It is difficult. You might find that on a banjo, for example, the fret board has a bit of ivory on it, or the tuning peg. As far as registration is concerned, the Bill refers to a fee for registering the instrument, to be set by the Secretary of State. We would ask that the fee be waived for professional musicians, who generally do not earn a large amount of money. They might spend many years doing various jobs, but they do not earn a huge pot. Their major investment is their instrument, and we would not want to see them pay a large fee to register it in order to be able to trade it.
Kerry McCarthy
Q
David Webster: It is not in the Bill. It is “as prescribed” by the Secretary of State.
Kerry McCarthy
No ballpark fee?
Paul McManus: A CITES article 10 is normally about £30, but the registration might be separate from that.
David Webster: These are working musicians and the instruments are the tools of their trade. It is an important distinction. This exemption is welcome because it really does recognise that these are working instruments, tools of the trade, and a cultural heritage as well as what the musician needs in order to do their job on the world-class platforms we have in the UK.
Kerry McCarthy
Q
David Webster: I think it would cause a problem for musicians, yes. If there was a total ban on selling instruments online, you would have to travel in order to have face-to-face consultations. Musicians generally know what they are selling when they sell their instruments. An online sale facilitates musician-to-musician instrument selling, and an online ban would not help at all as far as our members are concerned.
Kerry McCarthy
Q
Paul McManus: Yes, and the problem is that the minute you say something cannot be done online, people get around it. You can buy a gun bag on eBay with a free gift inside it, because you cannot sell guns on eBay. People will get around it. David is right; a lot of musicians need to talk to other musicians around the world about their products. If it has been promised to a guy in America for 10 years, it will be done online.
David Webster: If it is a serious sale, they will be able to see it online and pay for it online, but they might want to actually try it out. When you buy an instrument, it is not just the instrument; it is also the ergonomic feel within the body and the tonal quality. Collectors might want to buy online and that would affect them, but the professional musician will always play the instrument before purchasing it.
Trudy Harrison
Q
Paul McManus: There are a few, and they come under antiques. We saw a lute that had nearly solid ivory plating over the whole thing, but that was pre-1947. It dated back to the 1800s.
Trudy Harrison
What about post-1947 musical instruments with more than 20% ivory?
Paul McManus: There are virtually none. The most we could find was an accordion that was laden with ivory, but it still did not make 20%. We have some parity here across the ocean with the Americans, which is always a good thing. As far as we can see, the 20% de minimis would catch everything.
David Webster: When we went to our members and asked what they had, generally speaking they were things like bagpipes with ivory mouths, bassoons with an ivory ring at the top, cello bows and other stringed instrument bows, flutes with ivory caps, ivory screws and so on—very small amounts when you consider the entire instrument. Nothing really jumped out at us.
Trudy Harrison
Q
David Webster: But then you would destroy the instrument.
Paul McManus: You would also destroy the ivory by taking it off, frankly.
David Webster: You would pretty much have to destroy the instrument to carbon date the ivory, which is why we welcome the self-declaration part of the registration. We think that is a very sensible move, and we welcome that. Sometimes you have to destroy the instrument in order to carbon date, and that would be a great shame.
Trudy Harrison
Q
Paul McManus: You would nearly always break the ivory when taking it off the product.
Mark Dodgson: Most inlay that features on anything, such as the thin slither on a piano key, is very unlikely to be capable of being reused or exported. We have had this discussion previously. Objects with small, thin slithers are of no use to anyone who wants to use them further.
Dr Cameron
Q
Anthony Browne: The proposals on certification are very sensible. They deal with all the eventualities quite well. I have to say that this whole certification system grew out of discussions that we have had for a very long time with DEFRA officials and with NGOs, and it is very robust as it is. It will apply to a small number of very recognisable and unique objects, which is really why it will be effective. It is analogous to all sorts of licensing systems in that respect. The proposals for replacement, re-registration in the event of a transfer and so on, seem to me to be eminently sensible.
Mark Dodgson: The only thing I would add to that—I agree with everything that has been said—is that there should be some facility for someone to check whether a certificate is genuine, perhaps online. Likewise, in the case of registration, I wonder about online purchasers. It is not clear to me from the Bill whether a buyer will have the opportunity to check through DEFRA whether a particular registration has been made.
Dr Cameron
In terms of the documentation?
Mark Dodgson: Yes, I am talking about the items that are registered under clause 10.
Dr Cameron
We heard concerns about duplicate certificates. Is that not something that—
Anthony Browne: I would not have thought that would necessarily be a problem. You get a duplicate certificate if you lose one, I think—there is a provision for getting a replacement one.
Dr Cameron
Q
Anthony Browne: One would have to ask the people who administered that, but I do not think the provisions in the Bill are weak. They should be workable, just like issuing any paperwork.
Mark Dodgson: The certificates are in respect of the most distinguished objects. They are all unique, and they are not likely to be easily muddled up with something else. If the concern is that they could be mixed up with other objects and used for other objects, I think that is unlikely.
Anthony Browne: If I may, I will add something to this. Certification is straightforward, because you are dealing with objects that are unique, rare and important, so there are not likely to be lots of them. I do have some concerns with the registration requirement for the de minimis objects. There is a sort of Catch-22 built into the de minimis. The Government have opted for 10% by volume. We argued for a higher percentage, in common with other countries, but the Government took that decision—so be it.
What the registration of objects will mean is this. There are quite a number of common or garden, utilitarian objects—many of your constituents probably own them if there has been a death and the house has been cleared—with minute amounts of ivory in them. They are by no means unique objects: they are Victorian or Georgian chests of drawers with tiny ivory lock holes and that sort of thing. There is no indication as yet what the cost of registration will be—one of you asked about that—but it could make selling such things completely uneconomical. The managing director of Lyon & Turnbull in Edinburgh sent me an email making that point. They are frequently asked to clear out estates when people are downsizing or moving house.
In the future, families who want to sell such things will be faced with two options. If there is something that looks like a small bit of ivory, it falls within this Bill, although it is well under the de minimis. If the cost of registration is more than negligible, the family is very unlikely to want to do that as it will simply not be economical, particularly as they do not know whether the object will sell. It could lead to an awful lot of objects with small amounts of ivory, which are reusable and recyclable and can be used again instead of buying new furniture, ending up in landfill because people cannot register them because the cost is too great. Even if they do register them, they are by no means unique, so what will the register do to help? I do not see how the register helps with a chest of drawers that looks identical to thousands of its cousins. Our concept was always that if an object is below the de minimis, it should be saleable—straightforward. If you sell something above the de minimis because you get it wrong, you are liable to criminal or civil prosecution, which is as it should be.
The registration of de minimis will do two things. You will simply deter people from registering, and then these objects will be destroyed or mutilated, as people try to hack the bits of ivory off—what is the point of that?—or they will just end up in landfill. I do not think this is a sensible aim. I wonder whether the Committee could look at this again. I do not think it would weaken the Bill in any shape or form. It would still be very easy to police, as it is a very low de minimis, and it will be completely apparent whether an object contains more or less than 10%. The penalties exist, and so on and so forth. It will prevent a lot of things that can usefully be used again or bought by the next generation from being used in that way. I do not think doing this will undermine the objective of the Bill at all. I just suggest that as a point that has been made to me.
Sue Hayman
Q
Anthony Browne: Yes, I quite agree. I think the 10% means that it is pretty straightforward, but because of the penalties people will always err on the side of caution. We were very pleased that the Government chose volume, rather than weight, which is notoriously impossible to judge—volume is a sensible way of approaching it. As I said at the beginning, we think 10% is rather low, but we live in the real world. I do not think 10% by volume will be impossible, but people will err on the side of caution, so I would have thought that you will probably not get people rubbing up against the maximum and risking criminal penalties.
Mark Dodgson: Members of the British Antique Dealers’ Association were quite surprised at the 10% and the way it was set. We could not quite see from the documentation in the consultation why 10% had been chosen, versus perhaps 30% or 40%. Just so that you are aware, because the 10% is proposed to be set in that way, items such as a silver teapot—this is a Georgian silver teapot with an original ivory handle—
The Chair
Order. Although this sitting is being televised, it is not particularly regular for Hansard to have to describe artefacts. Given that this is perhaps a unique circumstance, could you briefly describe it for the record?
Mark Dodgson: Yes, I am showing an image of a silver teapot with an ivory handle. Sorry, Chairman. The point is to make it clear that this is the type of object that, set at 10%, would fall above the de minimis. It would be fairly straightforward to identify that as being more than 10%. My members are very concerned that the only other exemption that the teapot could attempt to meet would be the clause 2 exemption. The query among our membership is whether objects of that nature would actually meet the clause 2 requirements.
On the point about estimating the proportion of ivory, 10% for some items is all right. For inlaid objects it falls right in the middle of a series of smaller objects with ivory inlay, such as Indian Vizagapatam boxes and so on. It would be quite difficult for dealers to work out which side of the 10% they are on.
David Rutley
Q
Anthony Browne: The sense I get, having talked to EU colleagues, is that they are arguing for a much less stringent ban than the Bill adopts. If that happens, there is no doubt that, as far as the decorative arts are concerned, markets in Europe will inevitably be more attractive. That is the inevitable consequence of legislating in this way. With regard to whether the UK’s lead will be followed by the European Union, you probably have a better idea than I do. I think there is no doubt, as the preamble and explanatory notes to the Bill say, that what is proposed is one of the most stringent restrictions anywhere in the world.
Mark Dodgson: From my experience, I too think that continental people in the trade would resist the level of restrictions suggested in the Bill. People need to be aware that on the continent, until recently, ivory tusks have been exported. Germany still has ivory workshops. We are already a long way ahead of those countries anyway.
David Webster: I was talking to some musician colleagues at a social dialogue in Brussels yesterday and shared with them the content of the Bill, and they seemed very impressed by it. Yes, we would hope that the UK’s lead would be followed. I spoke at the consultation conference last December on behalf of musical instruments, along with our colleagues from the International Federation of Musicians.
Paul McManus: Similarly, we have communicated with all the equivalent trade bodies around the world about where we are. Everyone in the musical instrument industry has been rather impressed by what the UK is proposing, as being pragmatic, sensible and proportional. We have nothing but praise for what has been done so far.
Emma Rutherford: For portrait miniatures, my colleagues in Europe just hope that they follow the UK’s lead and grant portrait miniatures an exemption.
The Chair
As there are no further questions, I thank the witnesses for their evidence. We will now move on to the next panel.
Examination of Witnesses
Hartwig Fischer, Dr Antonia Boström and Anthony Misquitta gave evidence.
The Chair
We will now hear evidence from the British Museum and the Victoria and Albert Museum. We have until 3.45 pm for this session. Could the witnesses please introduce themselves, for the record?
Dr Boström: I am Dr Antonia Boström, director of collections at the Victoria and Albert Museum.
Hartwig Fischer: I am Hartwig Fischer, director of the British Museum.
Anthony Misquitta: I am Anthony Misquitta, general counsel and secretary to the board at the Victoria and Albert Museum.
Mrs Latham
Q
Hartwig Fischer: I am confident that museums in Great Britain and universities have enough experts to be able to deal with these questions and to come up with very sound judgments on the aesthetic or historical cultural significance of any object.
Dr Boström: I concur with that. We have world-renowned experts at the Victoria and Albert Museum in the history of ivory sculpture and objects.
Mrs Latham
Q
Dr Boström: We already have an opinions service, which is a public-facing service. Each curatorial department, on the first Tuesday of the month, has a public opinion session. We would certainly be able to offer the service through that. Whether a more robust service beyond that is needed, and what that might be, is one of the discussions that is on the table, I think.
Hartwig Fischer: In view of the importance of what the Bill addresses, I think provision should be made for those experts to give expert advice. There is an investment of time and expertise that should be covered, because it is during working hours.
Kerry McCarthy
Q
Anthony Misquitta: As museums, we are not in the business of selling. We are not really entitled to sell. Once an item enters the collection of a museum, that is normally it. The term we use is de-accession and we have very narrow powers to de-accede. Certainly, once it is in the collection, we are not in the market to then sell it back into private ownership. Normally—99.9% of the time, and probably more than that—when it enters a museum’s collection, that is it forever.
Kerry McCarthy
What about acquisition?
Anthony Misquitta: An example could be a musical instrument with more than 20% ivory content, of which we have some. We have some that are almost 100% ivory.
Dr Boström: Or a piece of furniture.
Anthony Misquitta: Or potentially a piece of post-1918 art deco furniture, for example, that is of significant cultural value.
Sue Hayman
Q
Hartwig Fischer: I would be very surprised if any of those institutions breached the law. We have extremely strict procedures in place for due diligence on provenance. Before any object enters our collection, it goes through many filters and is closely monitored. My understanding is that it would be exceedingly difficult for any of these institutions to do this. It is unlikely that something like this would happen inadvertently. It would be most exceptional for something like this to happen. I am very confident that these institutions are extremely conscientious when it comes to acquiring objects.
Anthony Misquitta: There is a very strict accreditation regime for museums in this country. Accreditation is by Arts Council England. Where a museum falls foul of those very strict rules, it loses its accreditation and that is catastrophic. It loses its Government indemnity scheme, it is unable to loan to or receive loans from other museums, and its charitable status is thrown into jeopardy. There are a number of checks and balances in the accreditation regime.
I will not say that museums never break the rules, because it is a very tough climate for museums—not the likes of the museums before you, but it is a difficult period for regional museums. Sometimes they are faced with the stark option of selling an item or closing, for example. They might sell an item and run the risk of losing their accreditation, but it is not something that they would do lightly and it is devastating if they do.
It may be necessary for the Arts Council to think about adding reference to this legislation to its accreditation tests.
Sue Hayman
Q
Anthony Misquitta: I think so. I am talking off the top of my head, but that is a possible answer.
Sue Hayman
Q
Trudy Harrison
Q
Dr Boström: According to the criteria that are set out here?
Trudy Harrison
Yes.
Dr Boström: It had not occurred to me. I assumed that we all speak as one. I imagine that there would have to be a quorum.
Trudy Harrison
Q
Dr Boström: Absolutely. I think the basis from which we all begin is as one on criteria. There might be a difference of date—1540 or 1545, for example. Some scholars like to get into the details, but I think difference would be more on that basis than on the general principles that we would abide by.
Anthony Misquitta: The Waverley Committee decides on whether an item qualifies for an export licence. I am not aware of the extent to which they differ in their views when they consider whether to allow a licence, but I think their procedures are robust. I envisage that, whatever committee is chosen for the purposes of ivory, it would adopt a similar framework and governance to the Waverley Committee, which I understand is effective.
Dr Boström: It is very effective in its checks and balances and decision making by committee on the advice of an expert.
Anna Turley
Q
Dr Boström: Yes, I am. I believe that, as Anthony has outlined, it would be rather like the way we act as expert advisers to the export licence committee through the Department for Digital, Culture, Media and Sport, based on the expertise we have among all the national museums. These export licences are shared across museums according to the expertise in place, so it would be absolutely directed to those experts in ivory—ivory carving or musical instruments—and the expert would pronounce on that. I have no doubt that the expertise would be in place.
Hartwig Fischer: Museums are responsible for collecting only what is really significant to deliver their mission, and we all have limited space. I think the criteria are robust and we can work with them because we have worked with them all along. It would be the ambition of any curator or museum person to get just what is really significant for the collection—that is to say for the public in the end, and for future generations to learn about the past.
Liz Twist
Q
Dr Boström: I would say that that ties in exactly with the way that the export licence procedures have prescribed institutions, experts and advisers. I imagine it would be largely along the same lines, so that seems perfectly reasonable.
Anthony Misquitta: As Antonia has mentioned, there needs to be a degree of flexibility in the definition, because depending on the nature of the object—musical instruments would be different from furniture—a different set of experts will be required. I would therefore welcome a degree of flexibility, and some guidance—I hesitate to say further secondary legislation—from DEFRA as to how the prescribed institutions shall be constituted on a case-by-case basis would definitely be helpful.
Alex Sobel
Q
Hartwig Fischer: It is a numerical question, basically, because we are talking about proportions and percentages, and I assume that can be measured. Conservation departments of all museums have specialists for all materials, and I am confident that they would have the means to establish the ratio when they look at an object.
Alex Sobel
Q
Dr Boström: Yes, it will be like any object analysis report. When any object comes in as a new acquisition or there is a proposal for treatment, very detailed reports are put together and detailed empirical and scientific analysis is done of the object. A lot can be established about materials with very sophisticated microscopes and other technical things. It is material science, and that is what we do very well, as does the British Museum.
Mrs Latham
Q
Anthony Misquitta: No museum will be selling to anyone, least of all an overseas institution. Speaking for the V&A, and I have seen the British Museum’s governing statute, I do not think we have the power—I know we do not, and I do not think that the British Museum does—to sell an item to an overseas institution, so I do not think that that would ever happen.
Mrs Latham
Q
Anthony Misquitta: They are loans. I have concerns about loans, which I would like to raise at some point, but no, once an item is in a museum, that is it.
Mrs Latham
Q
Dr Boström: In the rare cases that an object is de-accessioned, which is very rare and has so many strictures around it, it would always be through a third party. It would never be a direct sale to another museum; it would always go through an auction house or a dealer; it could never be directly to another institution.
Mrs Latham
Q
Dr Boström: To protect against inappropriate de-accession and sale. It is checks and balances.
Mrs Latham
Q
Dr Boström: Yes.
Mrs Latham
Q
Anthony Misquitta: Yes. The V&A, like the British Museum, has thousands of items on loan throughout the world at any given time. We also loan in items as long and short-term loans. As the Bill is drafted, on my reading a loan is “dealing”. That means is that we can loan a work—in the United Kingdom, for example, I do not think it will be a problem because we would loan a work only to another accredited museum; we would never loan it to a private individual.
On the international stage, we often loan our works overseas. ICOM is a dominant force in the international museum world, but it is not everywhere. For example, we have a very close relationship with an institution called the Design Society in Shekou, Shenzhen, in China. We have a long-term relationship and have loaned a number of items to that institution, but it is not ICOM-registered, so we have to worry about our commitment—these items are out on a medium-term loan of a couple of years. I have an anxiety that when the Bill is enacted, suddenly we will be acting unlawfully, because overnight such loans will become unlawful. It is fixable with some transitional provisions, but that is one of the anxieties that I have.
The other anxiety concerns loans from private individuals. At any given time, we have a number of very valuable loans from individuals—amazing works, amazing individuals who lend us their works, often for decades at a time—but those are loans in from individuals who are not accredited museums. So we have a large job on our hands, which is to identify all those works, to attempt to get certificates for them and to deal with a great deal of logistics in relation to such activity—that is achievable but will involve quite a lot of work on the museums’ part. Again, some generous transitional provisions may help ease that pain.
Mrs Latham
Q
Anthony Misquitta: The terminology used in the Bill is “dealing”, and the definition of dealing includes the word “hiring”. I am sure the intention is not to capture these loans, but as it is currently drafted the Bill does capture them.
Mrs Latham
Q
Hartwig Fischer: I would like to corroborate that. Lending is part of our key mission. We hold these collections for the public and share them as widely as possible. It is also part of our mission as national museums to project British values across the globe by engaging with other institutions by sharing knowledge and heritage. All our museums—ICOM museums included—are bound by an extremely strict code of ethics. Any museum dealing with another institution is bound to check the ethical validity of the other institution. To the best of my knowledge, all museums do that. Again, you have a number of codes and procedures in place to make sure that there is no breach. The fact that museums rank among those public institutions that enjoy the highest trust is evidence that this has worked and is reliable.
Luke Pollard
Q
“‘ivory item’ means—
(a) an item made of ivory, or
(b) an item that has ivory in it,
but does not include an item consisting only of unworked ivory”.
Can you help me understand how many of your collections include unworked ivory in this respect? Do you think that exemption is appropriate, or does it actually cover a much larger section of items in museum collections?
Anthony Misquitta: I do not think we are concerned by that. As a museum of art and design, we are not interested in unworked ivory; we are interested in worked ivory.
Dr Boström: That does not really pertain to us, no.
Anthony Misquitta: We are not worried by that distinction, because we work only in highly crafted art and design.
Hartwig Fischer: However, among the national museums is the Natural History Museum, which is one of the grandest and most important of its kind in the world, and it might have—it probably does—unworked ivory as part of its documentation of natural history. So yes, it is likely that our museums have only ivory that has been worked—carved, incised or what have you—but it might very well be that the Natural History Museum, in living up to its purpose and mission, has unworked ivory in its collections.
Luke Pollard
Q
Hartwig Fischer: My hunch is that since 1975 there have been no purchases of unworked ivory, so I do not see any museum—any natural history museum or any museum of this kind—engaging in anything like this. These are historical holdings.
Dr Boström: Further to that, because they are historical holdings—as in the Pitt Rivers Museum or any of the famous university museums with natural and artistic objects—I imagine that there is enough in the existing public collections, across all museums, that, should it be necessary to display or interpret unworked ivory for an educational purpose, we do not have to go anywhere else for unworked ivory.
David Rutley
Q
Dr Boström: Are you talking about the volume of acquisitions, or the objects that might come to us?
David Rutley
Q
Hartwig Fischer: I am personally not in a position to answer that question, I am afraid, because I do not have a sufficiently deep and detailed overview of what is happening in the trade. We see from the museum side that a very small quantity of objects qualify to enter the museum. When it comes to museums and what we see generally, even following what is happening in auctions, we are talking about small quantities. We are not talking about thousands of objects. The material that is historically relevant and significant is very limited.
Dr Boström: If one were to talk about taste in ivory carving and collecting, we always associate the working of it more with the 17th and 18th centuries, and the collectors with the end of the 19th century. It is not foremost in collecting practices or trends.
Hartwig Fischer: It remains to be seen what will actually come up for certification. One will have to react to the volume to see how best to deal and cope with it efficiently.
Sue Hayman
Q
Dr Boström: I imagine that, in parallel with the export licensing, even if objects were to come to a small museum or be associated with it, it will be devolved back to the major national museums—where many of the experts reside, because of a reduction of curatorial staff in our regional museums—to help them, in the way we do in other cases.
Hartwig Fischer: We have wide-ranging national partnership programmes in place. We work with 150 small and bigger institutions across the country. There is a well-established network of exchange, skill sharing and trust. We are confident that we will find a solution. We are engaged in helping museums that do not have the expertise to cope with these questions.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence today.
Ordered, That further consideration be now adjourned.—(Mims Davies.)
Westminster Hall
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Coastal Erosion
(5 years, 10 months ago)
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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.
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Kirstene Hair (Angus) (Con)
I beg to move,
That this House has considered coastal erosion.
It is a pleasure to serve under your chairmanship, Sir David. The future of Britain’s coastline, and of our coastal communities, is finally getting the political attention that it deserves—not a moment too soon. From the need to curb plastic waste to prevent environmental damage to our shores to the opportunities that Brexit presents for reviving our long-struggling fishing communities, Britain’s coasts are coming to the forefront of the political agenda. I am glad, because if our coastal communities are to benefit from this renewed focus on their future, we need to act now to ensure that they have a future.
Coastal erosion threatens large parts of Britain’s coasts and puts houses, businesses and entire communities at risk of flooding or, in some cases, total destruction. Many hon. Members will be familiar with this issue, as coastal erosion threatens about 17% of the UK’s coastline, specifically along the east coast. The Environment Agency estimates that more than 700 properties in England could be lost to coastal erosion by the 2030s, while in Scotland, erosion is believed to pose a risk to a fifth of the coastline and the erosion rate has doubled since the 1970s. In 2013 and 2014, storms and extreme tides caused erosion that experts believed would never happen, but it has happened, and even quicker than they thought as it occurred almost overnight. Businesses and individuals are increasingly concerned about the impact of the increasingly rapid degradation of our coastline.
Our coasts are vital areas and hubs of economic activity. As well as the obvious tourism draws, they are home to much of our crucial infrastructure. In Scotland, the soft coastline, which is about 19% of the total, and which is most at risk, includes roads, railways and Scotland’s water network. There are 30,000 buildings, 100 km of railway lines, 1,300 km of our roads and a large amount of cultural and natural heritage located near to potentially erodible stretches of the Scottish coast. They could come under threat if erosion rates continued to increase in the near future.
Sir Henry Bellingham (North West Norfolk) (Con)
I congratulate my hon. Friend on securing the debate. She will be aware that East Anglia suffered serious floods as the result of surge tides in 2013. The private sector has financed a lot of the recharging of the beaches through a community interest company in my constituency, but does she agree that that will not be enough in future and that there will have to be some form of ring-fenced funding?
Kirstene Hair
I am sure my hon. Friend will be pleased to hear what I am calling for the Minister to provide for my community and his.
It is time that Government at all levels took the issue more seriously. In the past, they have been guilty of putting too much emphasis on study and not enough on preventive action. If ever there was a time for urgent action, my constituents would say that it is now.
David Duguid (Banff and Buchan) (Con)
I congratulate my hon. Friend on securing the debate, which is important to communities in my constituency such as Pennan, Crovie, Gardenstown and Rosehearty, which to some extent have all suffered coastal erosion or flooding recently. In England, there is a dedicated scheme that local authorities can bid into for funding to combat coastal erosion. In Scotland, there is no such dedicated fund, and local authorities must decide how to fund such works from the overall funding they receive from the Scottish Government. Does she agree that it would be better if Scottish local authorities also had access to such dedicated funding?
Kirstene Hair
I absolutely agree with my hon. Friend. The Scottish Government have put such scathing cuts on all our local authorities—indeed, Angus has taken one of the biggest hits—that there is no way they can expect them to fund millions of pounds to secure our coastlines. I agree that they need to take further action.
Erosion is a pressing issue in my constituency, as in many other areas of the United Kingdom. Like most of Scotland’s east coast, Angus has experienced a large increase in erosion since the 1970s. Hon. Members know that they have a big rural issue when “Countryfile” pitches up in their constituency. The BBC recently covered the incredible acceleration of Montrose’s erosion in a piece that alarmed viewers across the United Kingdom.
Montrose is one of the largest towns in my constituency, with a population of about 13,000, and it is particularly threatened. The Montrose golf links, one of the oldest golf courses in the world, is literally being washed away hole by hole, green by green. That vital part of Montrose’s local economy—a piece of history that has survived for 456 years—is slipping away before our eyes.
The course loses 1.5 metres of land to sea every year. The second, third and sixth holes have already had to move since last summer. That cannot go on forever—it probably cannot even go on for another decade. At this rate, the links will run out of space at some point and will have to relocate entirely. Action is needed to save this historic and beautiful course, which is economically important and a valuable piece of Angus’ cultural and sporting history, for future generations. In 1999, GlaxoSmithKline invested in rock armour for a stretch of the coastline, for which the local area was incredibly grateful, but we cannot continue to lean on private businesses for that type of infrastructure, which costs millions of pounds.
In Montrose, we also have the booming port authority along the shoreline, which is already feeling the financial strain of coastal erosion. It was previously dredging 60,000 tonnes of sand per annum, which has now reached 150,000 tonnes—a marked change in five years.
The flooding aspect of erosion can often be overlooked, but it remains a real threat in Angus. We know the economic, cultural and personal damage that flooding can do to a community, if we think back to the flooding that we saw wreak havoc across Scotland in early 2016. The disruption, the clean-up operation, the rebuilding of infrastructure, the reconstruction of defences and the insurance claims all came at huge cost to the local and wider economies. Failure to act and invest in proper defences for coastal communities is not only wrong; it is a false economy.
I am glad that, since 2010, the UK Government have spent £3.2 billion on flood and coastal erosion risk management, as opposed to £2.7 billion in the five years before that, which is a real-terms increase of 8%. Those figures show that there is action from the Government, not just words. That is the sort of long-term, real-terms increase that we need if we are successfully to tackle coastal erosion. I hope that the UK Government will not only maintain but redouble their commitment in this area, and that the Minister will provide more clarity on that.
The Government also need to work with local authorities, the Environment Agency and others to ensure that the approach to erosion is well funded, proactive and, most importantly, ambitious. We need constantly to look 10, 20 or 30 years ahead with a long-term strategy, as opposed to short-term fixes that do not serve our communities.
Sadly, I have found the Scottish Government lacking in ambition in this area. Their enthusiasm for centralisation is renowned, but in this instance, it has left the local authority, Angus Council, with fewer resources and more responsibility. Unlike England, the funding model means that Scottish local authorities receive no dedicated funding, and coastal defences must come at local authorities’ expense. At a time when Angus Council has been forced to find budget savings of a staggering £40 million by 2021—one of the largest cuts to any local authority across Scotland—it simply cannot take any more financial strain from the Scottish Government, if we want to ensure that our frontline services remain in place.
Hannah Bardell (Livingston) (SNP)
I congratulate the hon. Lady on securing this important debate, but I have to take issue with some of what she says. The council in her constituency is Tory run and it has not used the full amount of money allocated to it for coastal erosion by the Scottish Government. Billions of pounds are being cut from the Scottish Government’s budget by her Tory colleagues. Perhaps she will address those issues.
Kirstene Hair
The Scottish Government funding—I will come on to that in a little more detail later—goes nowhere near far enough towards trying to address the problem in Angus. In fact, there have been numerous letters to the Cabinet Secretary, who is the hon. Lady’s colleague, to suggest that we need more funding in Angus, but the responses have been filled with empty words.
The fund that the Cabinet Secretary announced was the same old Scottish National party announcement—an all-singing, all-dancing fund—but the Scottish Government have not detailed the amount of money in the fund, nor have they detailed how Angus can benefit from it. However, I will indeed go into that matter in more detail later.
Significant dedicated erosion funding must be put in place, such as the UK Government’s flood and coastal erosion risk management schemes in England. The issue is important and specific enough not to have been put under the umbrella of flood risk management. At a time when the Scottish Government should be looking at ways to boost Scotland’s poor economic growth rate—I say that on the basis of their appalling current record—they should be doing all they can to protect the economic potential of coastal Scotland from slipping beneath the waves.
Mr Bob Seely (Isle of Wight) (Con)
I am so grateful to my hon. Friend for giving way and for securing this debate. Does she realise that I fully support her call for erosion funding and I will be seeking a meeting with the Minister on this issue? The most significant ground instability problem and the largest occupied landslip in the United Kingdom is the undercliff on the Isle of Wight. Part of the road there gave way, and it has done so many times, lastly in 2014. My problem is that the council is unwilling to invest in rebuilding that road unless we can understand better and at reasonable cost the water flows underneath that part of our coastline. Therefore, we need projects such as the coastal erosion fund to give us the funding to understand some of these more geologically sensitive parts of the United Kingdom.
Kirstene Hair
I thank my hon. Friend for his intervention and I absolutely agree. There are huge studies going on in my constituency as well, because we need to do the groundwork, but we also need to have the funding ready for when those studies complete, so that we can go ahead with the work that needs to be done.
Of course, when it comes to coastal erosion, the waves do not respect local authority boundaries. Erosion affects areas up and down the coastline and different local authorities face common and related problems. This is not something that should be left to local authorities alone; there is space for a much more joined-up approach to erosion at all levels of Government. However, such action must also be timely. I do not want to see Montrose ending up as a cautionary tale for other parts of the coastline.
Unfortunately, the Scottish Government are risking that happening by leaving the implementation of further solutions to the 2022 to 2028 six-year plan for flood risk management. Angus cannot wait until 2022, or until any time between 2022 and 2028. Even by 2022, swathes of the Angus coastline will have been lost. The risk of flooding and erosion to Montrose, Arbroath and other coastal communities in Angus will be even more serious than it is today, and existing defences are being put under increasing and unbearable strain.
It is the responsibility of local authorities, the devolved Administrations and the UK Government alike to start working together on the issue as a matter of urgency, so that we can quite literally hold back the tide that threatens so many of our coastal communities. The Government are due to publish their updated national flood and coastal erosion risk management strategy next year, and within that I ask the Minister to consider ways to make that work happen, ensuring that everyone involved in protecting our coasts around the whole UK is working effectively together.
Will the Minister ensure that the dedicated funding is available from Montrose to Margate? If the Scottish Government cannot support my constituency, can Scotland’s other Government step in, once again, to help?
Coastal erosion and the associated issues warrant their own fund, and such a fund must not work as slowly as the flood risk management strategies. In Angus and across Scotland, erosion is happening fast and we need a scheme that operates more quickly than on a six-year cycle.
I hope that the Scottish Government will take these suggestions seriously and give communities fighting erosion the renewed and dedicated support that they need, but what about the individuals and businesses who cannot be helped, or who do not get the help they need in time? They deserve our support too, and I ask the Minister to consider a form of compensation scheme for those who lose their property or land to erosion. It is only right that those affected by erosion get help to rebuild or relocate, and such a scheme would help to cancel out the deterrent effect of the threat of erosion if people considering moving to or investing in a coastal community had that reassurance.
No such scheme exists anywhere in the United Kingdom and it is my hope that sooner rather than later we get such support in place—not only in Scotland, but in all parts of the United Kingdom.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
My hon. Friend is speaking passionately about this important issue. Is she aware of the economic impact that flooding can have? A number of businesses in my constituency have been affected by flooding and have then been unable to get insurance for their premises, so they now face relocating to another part of Scotland just to allow them to continue doing business—not because they have been directly affected by flooding, but because insurance companies are no longer able to provide them with insurance on competitive terms.
Kirstene Hair
I absolutely agree with my hon. Friend and hope that the Minister will take seriously my call for this kind of compensation scheme, which would help constituents in the borders, in Angus and indeed across our United Kingdom in areas that are prone to flooding.
Kirstene Hair
I am running out of time. I have just a little of my speech left and we have a huge number of Members who want to speak.
Our coastal communities are thriving areas and we must do everything we can to support them. To do that, we must act on erosion and act quickly to secure their future not only to protect our coastline from erosion, but to eliminate, as far as possible, the looming threat that erosion poses. So let this be a call for ambition, co-operation and urgency—from the Scottish Government in particular, but also from the UK Government, the other devolved Administrations and our local authorities. We should all be invested in the bright future of our coastal economy. Let us not allow erosion to spoil it.
Several hon. Members rose—
Sir David Crausby (in the Chair)
Order. I intend to call the three Front-Bench speakers at 10.30, but a number of Members wish to speak, so, if Members keep their contributions to about four minutes, we will have a chance of getting everybody in.
Jim Shannon (Strangford) (DUP)
Thank you for that, Sir David. Four minutes? What a challenge.
I thank the hon. Member for Angus (Kirstene Hair) for bringing this matter to Westminster Hall for consideration. I am very happy to support her, as she knows. I am glad to say that I come from what I believe to be one of the most beautiful constituencies in the whole of the United Kingdom of Great Britain and Northern Ireland—Strangford. I am privileged to live in the heart of the Ards peninsula, on the family farm. Every morning, I wake up and look over at Strangford lough, and I am very aware of the beauty of the area. I see the sun glinting off the water, I see the mountains of Mourne in the distance and I am always very conscious of the wonder of God’s creation.
At the same time, the sun glinting off the water alerts me to the issue of coastal erosion. The water may seem somewhat pretty at times, but the fact is that our coastline is crumbling away under our feet, under the foundations of our homes and under our coastal roads. Our foundation is crumbling and we must do something to address that. The issue is not a new one. I will give a Northern Ireland perspective, to show where I am on it. When I wore my former hat as an Assembly Member, I spoke about it in the Northern Ireland Assembly and things have naturally worsened since then.
Most recently, I read an article that referred to a report by the National Trust that had been commissioned on the issue of coastal erosion, which stated the shocking view that:
“Northern Ireland faces major risks from coastal erosion and marine flooding but ‘lacks basic information’”—
those are the very things that the hon. Member for Angus referred to—
“to deal with them.”
The article went on to say that the National Trust
“manages 108 miles of coast in the north, reveals that 46,000 properties are at risk from river or marine flooding, while recent stormy winters have had ‘major impacts on coastal residents’.
Climate change and rising sea-levels are leading to flooding and coastal erosion, the report found. The charity has called for ‘a strategic approach to shoreline management’ to address the challenges of marine flooding and erosion…saying at present it is ‘reactive and poorly structured’”.
That is exactly the problem that our region, like other regions, faces and it is something we are concerned about.
Sir Henry Bellingham
The hon. Gentleman talked about shoreline management. Does he agree that there is a major role for the private sector to contribute, working in partnership with local authorities?
Jim Shannon
I thank the hon. Gentleman for his intervention and I totally agree with what he has said. Northern Ireland has a lack of information about how its coast works—the rates of change, the sources of coastal material, patterns of sand movement, the impact of storms and post-storm recovery—along most of the coastline. Those are the issues for us when it comes to coastal erosion.
Mr Gregory Campbell (East Londonderry) (DUP)
Does my hon. Friend agree that some parts of our Northern Ireland coastline are not only very scenic and beautiful, as is the case in parts of Scotland, England and Wales, but are most majestic and historic? Does he agree that those parts of it that are at risk really need to be safeguarded and that we need both private sector and Government action to do that?
Jim Shannon
I thank my hon. Friend and colleague for his intervention, and I wholeheartedly support the things that he has put forward.
The National Trust’s report called for a “strategic approach” and it also
“predicts that rising sea-levels will re-shape the north’s coastline.”
It states that:
“These changes will affect existing and new infrastructure and will result in more frequent flooding and a general tendency for shorelines to move landwards that will be experienced as erosion.”
That was also made clear by the hon. Member for Angus. The report goes on to state that the length of the “strategic road network” that is at risk will increase by 28%—a significant figure.
The storms in Northern Ireland have meant that Transport NI has seen its costs rise by some £800,000. In my constituency, the road replacement at Whitechurch Road in Ballywalter cost £280,000, the damage to Shore Road in Ballyhalbert cost £36,000, and to Roddens Road £86,000, and there were road repairs at Portaferry Road in Ards, Greyabbey and Kircubbin. The total came to £800,000, which is almost the full budget of the local Transport NI section in Newtownards. What was a once-in-18-years or once-in-20-years occurrence is now a once-in-three-years occurrence. Frustration reigns when Transport NI, the Department of the Environment, the Northern Ireland Environment Agency, the Rivers Agency and the Department of Agriculture, Environment and Rural Affairs either cannot or will not accept responsibility for damage to property and take preventive measures to prevent flooding.
I accept that the matter is a devolved one, but I want to illustrate the problems, which the hon. Member for Angus put forward clearly. At Saltwater Brig in my constituency, many houses and businesses have been damaged by high tides, with insurance claims in excess of £100,000. As the regularity of flooding due to coastal erosion becomes commonplace, we can no longer use sticking plasters to address the issue. The impact on the local community includes accessibility to the road network, the effect on community life and the tourist potential that is yet to be realised—a potential that could deliver more jobs if the road structure and coastal erosion issue were addressed. The House must establish a strategy for the coastlines of the UK. The hon. Member for Angus knows that the matters are devolved, but she looks to the Minister for a response, as do I.
We have a duty to protect people’s homes and livelihoods, their connectivity to urban areas and, most importantly, our incredibly beautiful coastlines that are unparalleled anywhere in the world. We must work now to preserve them for the future. A joined-up approach is necessary. We look to the Minister, as always, to give us the help we need in Northern Ireland and, in particular, in my constituency.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
It is always a pleasure to serve under your chairmanship, Sir David.
I commend my hon. Friend the Member for Angus (Kirstene Hair) on securing this important debate. She is a tireless champion for Angus on a number of local issues and this morning she has again demonstrated what a strong voice she is for her constituents. In Berwickshire in my constituency, we do not have the same coastal erosion problems as in Montrose and other parts of Angus. However, the coastline remains vulnerable and I want briefly to mention some of the challenges we face.
I would argue that Berwickshire has some of the finest coastline in the United Kingdom. Anyone who has taken the east coast main line will have been impressed by the Berwickshire coastline north of the border. The communities of St Abbs, Coldingham and Eyemouth, and Cove all have spectacular views of sea cliffs, fantastic beaches and the wide-open North sea. The 28-mile-long Berwickshire coastal path from Cockburnspath in my constituency to Berwick-upon-Tweed has, at Tun Law, the second highest cliffs on Britain’s east coast and some internationally important habitats for sea birds, coastal flora and marine life. We also have one of the world’s most famous geological sites, that of Siccar point. It is an example of a Hutton’s unconformity, which led the founder of modern geology, James Hutton, to conclude that the Earth was much older than was widely believed in the 18th century. From the beautiful Pease bay to the spectacular St Abb’s Head and Coldingham bay, this stretch of coastline deserves to be looked after and cherished, in the same way as those in other parts of the United Kingdom.
We are lucky in Berwickshire that, because the cliffs are mainly of hard rock, they are more resistant to weathering. However, the softer cliffs at Lower Burnmouth and Cove are under threat. Local erosion through the use of the coastal paths, as well as residential and recreational development, may threaten maritime cliff and slope habitats as well as coastline stability. Parts of the coastline are also vulnerable to flooding, particularly around Eyemouth, where damage to properties has occurred four times since 2012—just last March, a flood warning was issued. The town is lucky to have an extremely well organised community group, the Eyemouth response team, who respond efficiently and professionally to emergencies such as flooding. They were in action at the beginning of the year and, astonishingly, were able to put up flood barriers at the end of the harbour in just 20 minutes.
The Scottish Borders Council manages the Berwickshire coastline well, including maintaining and protecting the coastal path and working alongside Edinburgh Council on the Forth estuary local flood risk management plan. However, I agree that the Scottish Government must step in. In recent years, the choice of the Scottish National party’s Administration in Holyrood has been to slash local authority budgets across Scotland. Since 2013, the Scottish Government’s revenue budget has fallen by 1.8%, but the SNP Administration have chosen to pass on a much larger cut of 7.1%—£744 million—to local councils, including those in my constituency in the Scottish borders and that of my hon. Friend the Member for Angus. Councils simply cannot be expected properly to protect their coastline without additional support from the Scottish Government, and I commend my hon. Friend for her efforts to put pressure on them. I hope that the UK Government will be able to assist too, in doing more to protect our beautiful coastlines.
John Woodcock (Barrow and Furness) (Ind)
It is a pleasure to see you in the Chair, Sir David. I, too, congratulate the hon. Member for Angus (Kirstene Hair) on securing the debate.
I want briefly to talk about the serious issue of erosion on the island of Walney, which is just opposite Barrow-in-Furness. That strip of land is connected to the mainland by a bridge. We have wanted a second bridge for many generations, but Walney could need one in a way that we had never anticipated, because it is quite possible that unless action is taken, the island will be split in two by the serious erosion that is taking place—similarly to in other areas across the country—far faster than any study has predicted.
There are two main issues, one in the north of the island and one in the south. In the north, there is what is officially known as West Shore caravan park. The name might suggest that it is a transient part of the visitor economy, but people have bought static caravans there and live in a community. They have seen the erosion getting closer and closer to their homes, threatening several hundred properties. For many years, we have beseeched the Government and looked to the local authority, and potentially to private investment, but the issue remains critical. In the main, the park provides homes for low-income and often elderly, retired people. They are afraid of what nature is doing and fear for the homes they had always dreamed of having on the coast.
On the south of the island is South Walney nature reserve, which is home to Cumbria’s only grey seal colony and to the Walney geranium, which is unique to the island. There is a rare vegetated shingle patch, and the yellow horned poppy, which I am reliably told is hard to find, is grown there. The reserve is an invaluable resource for Barrow’s schoolchildren. Teachers in some of the schools tell me that many children have never seen the natural environment until they are taken to such places. The reserve is connected by a road that is in desperate need of rock armouring. Without such flood and coastal erosion protection, there is the potential for the island to be cut in two and for the nature reserve to be rendered impassable.
As if all that were not enough, it is not simply about saving the yellow horned poppy; the nation’s continuous at-sea deterrent may be at stake for the want of a single road that could be rock armoured for, the landowner tells me, only £200,000. We are in the process of spending about £30 billion on renewing the nation’s deterrent—I know everyone in this room will be thoroughly behind that; it is great value to protect the nation from the threat of nuclear destruction—but for the want of £200,000 and a few rocks, we could render the exit passage from Barrow shipyard impassable. At the moment, the boats come out of the dock and sail down Walney channel and away to start their sea trials. They then come back to Faslane. The amount of silt that flows into the channel from the erosion on Walney could make the narrow passage impassable. Often, submarines can pass through it only once a month.
Bob Stewart (Beckenham) (Con)
My back is hurting so it takes me a while to get up. Is that channel dredged to ensure that it works all the time?
John Woodcock
The hon. Gentleman asks a very good question. The channel has been dredged in the past, and it could be in the future, but that would probably only be at the cost of many hundreds of millions of pounds—certainly if the nature of it were to change. A preventive measure would be simply to put in the rock-armoured road, which would protect the nature reserve and the caravan site to the south, and keep our nation safe from the potential for nuclear blackmail. That has to be good value. As a first step, I urge the Minister to consult his colleagues at the Ministry of Defence to see whether we can get an official study into the nature of the threat to the channel and the potential blocking of submarine access.
Gillian Keegan (Chichester) (Con)
It is a pleasure to serve under your chairmanship, Sir David. I congratulate my hon. Friend the Member for Angus (Kirstene Hair) on securing this important debate and highlighting the risk to all our coastal communities.
Many of my constituents are lucky enough to live by the sea, with beautiful views and a vibrant tourism economy. The Chichester constituency is home to some of the UK’s most beautiful beaches and diverse marine ecosystems, but with those privileges comes a great deal of risk. Coastal erosion and flooding are a constant threat to many areas. Over the past century, we have observed a global mean sea level rise of 20 cm and that trend is set to continue over the coming years, according to the Intergovernmental Panel on Climate Change. To contextualise that, just a 50 cm rise in local sea levels would make 200 km of our current defences vulnerable to failure. Under the IPCC’s modelling, that is within the range of likely outcomes by the end of this century.
In my area, Chichester District Council is doing well to tackle the symptoms, if not the cause. It maintains the majority of the populated open coastline that stretches from Emsworth to Pagham. The council has shoreline management plans in place for each stretch of its coastline. Its work is highly collaborative and transparent, and by working with local stakeholders and the Environment Agency, it ensures that its work benefits the area’s economy, community and ecosystems.
Sir Henry Bellingham
My local council has similar policies in place, but there is a real problem coming down the track with the disappearance of the revenue support grant. When that goes, there will surely have to be some form of top-slicing or maybe a ring-fenced precept for local authorities such as my hon. Friend’s and mine.
Gillian Keegan
I agree. My local authority is very concerned by negative RSG, not just the disappearance of RSG. Negative RSG would mean having to pay more to support other areas.
The council’s collaborative work has achieved high levels of third-party investment and led to better coastal protection. My hon. Friend is right that we need to properly fund our coastal areas. At East Head and at Pagham harbour, coastal advisory groups run the UK’s only two active management sites. Both sites have a highly dynamic coastline, so predicting erosive and flood patterns can be very challenging. Active management involves long-term monitoring and observation to ensure interventions are effective and in tune with the natural processes.
The regional coastal monitoring programme, based in Southampton, is key to that process, providing data on waves, tides and the changing nature of the coastline. Armed with that data, the group can make decisions on interventions such as replacing or removing failing structures or replenishing beach sediments. Such is the success of the programme that natural changes at Pagham since 2016 have removed the threat to residents in the short term and introduced an intertidal wetland habitat that is now a Royal Society for the Protection of Birds nature reserve.
The council receives a grant of £250,000 a year. That funding allows it to protect people, business and habitats. Over recent years, the Environment Agency has invested a further £30 million as part of its flood and coastal erosion risk management at Medmerry, where the UK’s first managed realignment site is ongoing. West Wittering, where erosive processes are mitigated to maintain the beach, attracted around 800,000 visitors last year, driving the local economy and simultaneously helping protect the internationally important saltmarsh environment sheltered by East Head spit.
There is still significant concern in my area, however. In the long term, the council has warned that highly populated areas such as Selsey, Bracklesham and East Wittering will eventually require significant investment.
Bob Stewart
I know West Wittering; it is a fabulous beach. Knowing it quite well, I wonder how the heck it and the saltmarshes can be protected. The area is so big, and the whole of my hon. Friend’s constituency is quite low lying. With rising sea levels, I do not see how we can do much about it.
Gillian Keegan
That is the point of the debate; we have to do something about it, because no one would want to see the disappearance of such an important stretch of coastline or the nature reserves we have in the area. My hon. Friend is right that we have to focus on low-lying areas, but protecting the Chichester constituency coastline and the south coast will be increasingly important.
As an area, we must continue to invest in our coastal infrastructure. We look forward to the larger investment that will be required alongside our innovative approaches, such as managed realignment and active management. It is true that we cannot do it alone. We require further investment from the Department.
Hannah Bardell (Livingston) (SNP)
It is a pleasure to serve under your chairmanship, Sir David. I congratulate the hon. Member for Angus (Kirstene Hair) on securing this debate, despite her tone at times and some of the substance, with which I did not agree.
Members may question why the Member for Livingston is taking part in a debate on coastal erosion. I do not have any coastline in my constituency, but I spent six years of my professional life in the north-east of Scotland in Aberdeenshire and Aberdeen, and I saw the impact of coastal erosion on that area. I worked for Alex Salmond, the former Member for Gordon and for Banff and Buchan. One of the first things I dealt with in my time as his office manager was the flooding in Pennan and the impact it had on that community. I spent most of the three years working for him in the community, working with the families there.
I will never forget the experience of going into the house of an elderly gentleman who lived there—many of the homes in Pennan are second homes; only a small number live in that very important community—and convincing him to leave because the back windows had dirt coming in and he was at risk of being crushed if he stayed in his own home. As the hon. Member for Angus mentioned, there are challenges in dealing with insurance companies.
There is no doubt that we have significant challenges in coastal erosion the length and breadth of Scotland and beyond, and it is vital that all the Governments of the UK work together. I want to set the record straight on what the Scottish Government have done. I hope the hon. Lady will be aware of the £42 million a year that the Scottish Government have made available via the capital settlement since 2008—that is, £420 million—to enable local authorities to invest in flood prevention and coastal erosion works. That is backed up by some of the things that my hon. Friend the Member for Aberdeen North (Kirsty Blackman) will mention, such as the marine protection monitoring and Scotland’s “Dynamic Coast” national coastal change assessments, which are being taken forward with various academic institutes across Scotland. As the hon. Member for Angus rightly said, we have to ensure the academic community are included.
I am a surfer. I took it up when I spent time in the north-east of Scotland, and having surfed various coasts in Scotland and around the UK, I have seen the impact that coastal erosion has on those communities and the surfing environment. The mudslides that I saw in Pennan during my time working in the north-east of Scotland showed me how complex and difficult some of the issues are; in many cases, there are no simple fixes, or indeed fast fixes. The hon. Member for Angus talked about the speed at which some of these issues need to be dealt with. I agree with her in many respects, but, given the geography of her constituency and the impact that it has had, she will appreciate that sometimes the issues are not dealt with as quickly as we would like. They can be very complex. I remember various discussions with Aberdeenshire Council about whether it was going to put the rocks in casings or pin them back. A significant geological survey often needs to take place, and that can be complex and difficult.
The hon. Lady is a great champion of her own constituency, and I have no doubt she will take her case to the Scottish Government as well. I hope that we can work together and not get ourselves into an overtly party political, partisan debate. As we go through the Brexit process, environment policy and the funding that will be available for our Government and for the UK Government will be significantly impacted. We have yet to know the real impact.
I want to draw attention to the marine protected area monitoring strategy, which allows fishermen to support the monitoring and surveying of some of Scotland’s most vulnerable marine habitats and ensure that detailed information is collected from the MPA network to create a more accurate picture of the health of marine environments. The Scottish Government ensured that we engaged as broadly as we possibly could and that those at the forefront of the issues of coastal erosion are those who are monitoring it and reporting back.
Of the areas around Scotland that have been eroded, 40 metres to 60 metres of beach have eroded since the 1980s, and that rate will continue over the next 30 years. That is a significant challenge to a country that has one of the biggest coastal areas in Europe. Our SNP Government in Scotland are committed to taking on those challenges. I hope that the UK Government will work with our colleagues in Scotland and that, as we go through the process of Brexit, issues such as coastal erosion and protecting the environment will not be lost in the noise coming from that debate.
Sir Hugo Swire (East Devon) (Con)
In following the hon. Lady’s speech just now, I am not certain as to which is eroding more quickly: the coastline of Scotland or support for the increasingly incompetent SNP Administration in Edinburgh.
I want to confine my remarks to a particular part of my constituency, one of the jewels in the crown of East Devon: Sidmouth, a regency seaside town well known to my hon. Friend the Minister. Sidmouth is at the gateway to the Jurassic coast world heritage site, and a large part of the town is in a conservation area. For years now, I have been working with various bodies and individuals in the town—not least the local councillors, Councillor Stuart Hughes and now Councillor Tom Wright—to try to resolve what has become an increasingly difficult problem, particularly for the residents of Cliff Road, overlooking Pennington Point, which has seen erosion year on year. Indeed, earlier in 2018 it was widely reported in the national press that Cliff Road was one of the most endangered roads in the UK, owing to coastal erosion.
We are very dependent on the south-west coastal path in Sidmouth. We have replaced the Alma bridge, but the various different schemes have gone on for too long. Over the years I have had Sir James Bevan, the chief executive of the Environment Agency, down to see the erosion. Andrew Sells, who is in charge of Natural England, has been down. I even had my right hon. Friend the Member for North Shropshire (Mr Paterson), who was then the Secretary of State for Environment, Food and Rural Affairs, come and look at it.
There are two issues at stake. One is the complexity of trying to get a satisfactory solution. It is a complicated engineering issue. Many different bodies are involved in the steering group: East Devon District Council, Sidmouth Town Council, local fishermen, the Environment Agency, Devon County Council, the National Trust and the Cliff Road Action Group. All of those groups have a rightful interest, but that has delayed the implementation of a scheme that can arrest the erosion that we see year on year.
The new scheme, the preferred scheme, for the Sidmouth beach management plan would see a new groyne wall installed on East Beach and a plan to raise the splash wall along the promenade. I am extremely nervous about the prospect of raising the wall along the promenade because we have seen what happened in the neighbouring constituency of Tiverton and Honiton: one can drive down the esplanade in Seaton and not actually see the sea. We would not want that replicated in Sidmouth. This part of the £9 million project would last around 100 years.
We now have a funding issue. East Devon District Council needs to raise £3.3 million, with the rest hopefully being secured from the Environment Agency. Work would begin in 2019 and be completed in 2020. When we look at the areas we can raise the money from, we see that we are left with either a local levy, the district council, Sidmouth Town Council, South West Water, local charities, visitors, East Devon housing, and residents. I humbly submit to the Minister that it is not satisfactory to try to leave a small local authority with a funding gap that will prevent the scheme from being realised.
Sir Henry Bellingham
My hon. Friend is being incredibly generous in giving way. My local authority has similar problems, but it faces a structural funding deficit. The Minister’s Department and the Ministry of Housing, Communities and Local Government must consider making some form of ring-fenced precept available to local councils, and perhaps there should be more contributions from town and parish councils inland.
Sir Hugo Swire
I agree with my hon. Friend that it is almost impossible to ask local authorities for large amounts of money to fill the gap because they all operate under very strict financial constraints now. Such schemes should not be held back by relying on the local authority to make up the difference, so I ask the Minister whether Bellwin can be extended. Can my residents of Cliff Road, who have found it impossible to get mortgages and increasingly difficult to get insurance as they see their gardens disappear, get a compensation package?
I hope that the whole area can be dealt with quickly. We need a masterplan for the whole Port Royal area along the esplanade, but there is no point in doing that until we have secured the Pennington Point and rock revetment scheme, because that would threaten the sewage works in the area, which could in due course flood the entire town.
I do not want to delay the debate unduly. The Minister is welcome to come to Sidmouth at any time to see the situation for himself. We are almost there now. This has gone on for so long. The scheme must be implemented. We cannot wait any longer. We have got people onside. We have got everything lined up now. I pay tribute to all those who have got this far, but we have a funding deficit and I ask the Minister to be creative in looking at the compensation issue for the residents of Cliff Road and also in helping with the funding that we need to get the scheme under way.
Several hon. Members rose—
Sir David Crausby (in the Chair)
Order. If Members keep their contributions to three minutes, we will get everyone in.
Steve Double (St Austell and Newquay) (Con)
It is a pleasure to serve under your chairmanship, Sir David.
I am honoured to represent one of only three constituencies in the country that has two separate coasts: the beautiful, rugged north coast of Cornwall with its surf beaches and the south coast with its coves and ports. The Minister’s constituency also has that type of coastline.
I want to address the issue of planning. We are seeing more frequent and more severe cliff falls in Cornwall as a result of the weather. People’s gardens are being eroded and houses built on the cliff tops are threatened. There is an increasing trend in Cornwall for people to buy old properties and then apply for planning permission to build larger properties that invariably encroach nearer to the cliff edge. That is causing great concern, particularly in Newquay in my constituency. I pay tribute to Protect Newquay Clifftops, which has been campaigning for some time to try to stop that trend, which is not only spoiling the view of our clifftops, but putting those properties, I believe, at future risk as the erosion continues.
The national planning policy framework provides protection for coastal areas and clifftops, saying that plans should
“reduce risk from coastal change by avoiding inappropriate development”.
I am delighted that our local authority, Cornwall Council, often refuses planning applications where properties would encroach on the cliff edge. However, all too often those applications go to appeal, and the planning inspector, who does not seem to have any local knowledge or appreciation of the situation that we face in Cornwall, allows the building to go ahead.
I know this does not come under the Minister’s portfolio, but I am aware that the Marine Management Organisation plays a particular role in, and is often consulted on, such planning issues. Perhaps there could be an increased role for the MMO in the planning process to ensure that cliff erosion and cliff falls, which take place much more frequently in Cornwall, are a significant factor in policy when planning applications are considered for construction on clifftops, particularly in such places as Cornwall. I am concerned that we are storing up trouble for future generations by allowing such developments to take place. If the cliff continues to erode, properties will be put at risk. I ask the Minister to look into whether there could be an increased role for the MMO in the planning process in our coastal regions.
Peter Aldous (Waveney) (Con)
It is a pleasure to serve under your chairmanship, Sir David, and I congratulate my hon. Friend the Member for Angus (Kirstene Hair) on securing the debate. I welcome the Minister to his place, though I highlight the sterling work done by the Parliamentary Under-Secretary of State, my hon. Friend the Member for Suffolk Coastal (Dr Coffey), on the protection of the coast, both locally and nationally. I wish her well, and hope to see her back in her place very shortly.
It is vital that we have an effective coastal and flood erosion policy in place, as the challenge that we face is going to increase over the coming years as sea levels rise. The management of the coast takes place within a legislative framework that was set down in 1949. Although it has been adapted, that framework has drawbacks. Local authorities are fragmented and coastal defence is only one of a multitude of demands that they face. At a national level, there is a need for a more cross-Government approach. The Environment Agency’s focus is very much on the short term, but we need to look at the longer-term needs of coastal communities as well.
There is good news. Many innovative schemes are taking place around the coast. In East Anglia, in recognition of the impact of coastal change, all six coastal planning authorities in Suffolk and Norfolk are drafting a statement of common ground, and are taking a common approach to managing the coast in revising their local plans. Three schemes are taking place in my constituency. The Lowestoft flood risk management project is at its detailed planning stage and will be completed in 2020-21 at Corton and Kessingland.
To promote more cost-effective long-term strategic coastal management the Government need to address three specific issues. First, there needs to be better reporting on schemes from around the country, so we can learn from those projects. Secondly, we need to promote long-term adaptation of vulnerable coastlines, and make the planning system simpler to do that. Thirdly, as we have heard, the Bellwin scheme needs to be looked at more fully. If we do that, we can move away from a crisis management approach to more of a long-term, strategic, collaborative approach.
Scott Mann (North Cornwall) (Con)
I, too, congratulate my hon. Friend the Member for Angus (Kirstene Hair) on securing today’s debate. Coastal erosion is an important issue, threatening livelihoods, homes, environments and economies. In North Cornwall, we have a great number of assets along our Cornish coastline that make up our heritage and our economy. The coast itself is the reason people visit Cornwall and the wider south-west. They come for our beaches, fishing villages and fantastic food, and, importantly, our coast paths. It is important that we include in that the south-west coast path. That huge asset is a big economic driver for the south-west tourism industry as a whole, as well as North Cornwall’s. It is great to see the fantastic “Poldark” back on our TV screens regularly on Sunday evenings, showcasing the great south-west, with Poldark parading around on our beaches and our coastal footpaths.
The south-west coast path is 630 miles long. It is the longest national trail in the country, stretching from Minehead across the north coasts of Somerset, Cornwall and Devon, and heading back along the south coast all the way to Poole in Dorset. With breath-taking views and leisurely walks, the coast path is popular with locals, tourists, hikers and charity walkers alike. If coastal erosion progresses in Cornwall, the south-west coast path will be one of the first things to fall into the sea, threatening numerous local economies.
In 2012, the South West Coast Path Association and Visit Cornwall released figures showing that walkers who used the path spent £436 million in the local economy. That was an increase of 15% on the previous three years, and I have no doubt that those figures will have increased since 2012. It is therefore essential that we protect the coast path and this beautiful asset for generations to come.
Tintagel castle in my constituency is another asset that could be vulnerable to coastal erosion, and which contributes hugely to the North Cornwall economy. Situated on Tintagel Island, the castle dates back to the 13th century and is linked to the legend of King Arthur. According to recent statistics, the castle was visited by a quarter of a million people in 2017—up by 70,000 over the past 10 years. That obviously creates huge tourism benefits for Tintagel and surrounding communities, and is an example of why we should take coastal erosion seriously.
Research shows that sea levels are rising, creating all sorts of challenges in coastal communities that we need to address robustly. That is why today’s debate is vital not only for Cornwall, but for other parts of the UK. I know mine has been only a small contribution, but the coast paths are vital to our economy. I know that the Minister cares about the issue because he has some beautiful coastline in his constituency. I hope that he will do all that he can to ensure that we protect this heritage asset for the future.
Douglas Ross (Moray) (Con)
I congratulate my hon. Friend the Member for Angus (Kirstene Hair) on securing this extremely important debate. Moray has suffered from significant flooding over several decades. Millions of pounds have been invested in flood alleviation schemes in Forres, Elgin, Dallas, Newmill, Keith, Rothes and Lhanbryde, but none of those is a coastal community. Coastal communities, which suffer just as much as inland communities, feel neglected in our area. Portknockie, for example, suffered landslips just last year, and although I welcome yesterday’s announcement from Sustrans and Moray Council—in response to my correspondence— that work is being done to reopen a path between Portknokie and Cullen, I still have constituents living in homes at the top of a landslip, precariously close to the edge, who fear every day for their properties.
For 10 years before being elected to Parliament, I was a councillor on Moray Council. Part of my Fochabers Lhanbryde ward was the communities of Garmouth and Kingston. They have suffered more than most. Ross House, which 10 years ago was 150 yards from the River Spey, now has the river lapping against its walls. That shows how much coastal erosion there has been. Garmouth and Kingston golf course, like Montrose golf links in the constituency of my hon. Friend the Member for Angus, has suffered considerably. We have had a par 5 go to a par 4, and it is now a par 3 because so much of it has been washed away.
I welcome the fact that Garmouth and Kingston could be designated as potentially vulnerable areas under the new Scottish Environment Protection Agency scheme, but I was struck by the words of my hon. Friend, who said that too much time is spent on studies and not enough on action. I endorse that wholeheartedly.
Many studies, at my request, have looked at dredging, for example. Every time that I, as an elected representative, and communities say we should dredge the River Spey, people come back to us to say, “Well, no—you’ve got to worry about the flora and the fauna.” I am sorry, but I do not worry about the flora and the fauna; I worry about my constituents, who are living in fear every day that their house might be flooded, that they might be moved away or that they could lose property altogether. Some of the studies have to look at the real personal impacts of flooding and coastal erosion in their area.
I would finish with a quote from a lady from Garmouth who said, “We want action, not sympathy.” They are fed up with warm words from politicians of all Governments. What they want now is action from their Governments, whether that be the Scottish Government, the UK Government or local authorities, because they are living in fear of coastal erosion. It is only right that we as politicians stand up for them to get the changes they need and deserve.
Sir David Crausby (in the Chair)
I ask the two Opposition Front-Bench spokespeople to divide up their time to give the Minister enough opportunity to wind up the debate and to allow the mover of the motion time for a brief response at the end. I call Kirsty Blackman.
Kirsty Blackman (Aberdeen North) (SNP)
Thank you, Sir David. I will do my best not to take too long. I am grateful to you for chairing the debate, and I thank the hon. Member for Angus (Kirstene Hair) for securing it and the Backbench Business Committee for scheduling it.
This is a useful debate; it is clear that this is a serious and worrying issue with the potential for long-lasting devastating effects. The other point made clear today is that the issue is not the same in all areas. Just like the varied coastline throughout Scotland, England, Northern Ireland and Wales, the issues that each part of that coastline faces are different.
As my hon. Friend the Member for Livingston (Hannah Bardell) mentioned, the Scottish Government fund such issues on a recurring basis, with £42 million of capital funding per year since 2008. That is really important in relation to flood prevention and coastal erosion, which are linked.
Douglas Ross
I welcome the hon. Lady’s point, but the figure from the Scottish Government that she cites pales into insignificance when we take into consideration that the Elgin flood alleviation scheme alone cost £86 million. The funding coming from her Government in a year does not even fund half of that scheme.
Kirsty Blackman
The Scottish Government would have more money to spend on issues such as flood prevention and coastal erosion—
Kirsty Blackman
The Scottish Government would have more money if Scotland was an independent country and we had the ability to raise our own taxes and, for example, support immigration and grow our population in the way that we would like it to grow. Immigration is important for coastal communities, particularly because of the people who have moved out of those communities. As my hon. Friend the Member for Livingston mentioned, many of the houses in Pennan are owned by second-home owners, not people who live there. We need to grow Scotland’s population so that people are living there and standing up for and protecting those areas.
The hon. Member for Moray (Douglas Ross) was very clear about how important it is that his constituents are protected, which I completely agree with, but I was concerned about his disregard for the flora and fauna that we also need to protect. A huge number of people have raised concerns about the effect of plastics in our oceans, for example, and I think many of our constituents would be hugely concerned about the impact on marine wildlife of any changes that are sought. That is why it is important that any decisions on protecting areas from coastal erosion are made with the best information, and why the Scottish Government have funded the national coastal change assessment. Phase 1 is completed and they are on to phase 2. Given the dramatic effects of climate change, and that coastal erosion is speeding up, it is incredibly important that any decisions are taken while looking at the current effects of climate change. It is an ever-moving feast and we need to have the best possible information before taking any decisions.
It was interesting to hear some of the issues hon. Members have with studies taking place. Angus Council’s study will not be finished until July 2019; the hon. Member for Angus is pushing for action right now, when the council has not completed its study. The other point that bugs me about what that council is doing is that it has not committed to use the full funding it has been given for the purpose of protecting against coastal erosion. It takes a special kind of hypocrisy for a council to say, “We are not spending all of the money we have been given for this purpose, but we would like some more.” I do not think that is a sensible position to take. The case made by the hon. Member for Angus would be much stronger if the local authority could evidence that it had spent all the money it had been allocated in the correct way to protect against coastal erosion.
Further on funding, the Scottish Government have committed to putting their Crown Estates money towards the betterment of coastal communities, which will be a recurring amount of money provided to councils such as Angus. It would be useful if that council would commit to using the money for preventing coastal erosion, particularly in relation to the concerns around the golf links that the hon. Lady mentioned and the erosion that is happening at some speed in that area.
I represent Aberdeen, with its beautiful beach that was immortalised in the mid-20th century railway posters as “the Silver City with the Golden Sands”. In 2006, action was taken in Aberdeen to protect our coastline from erosion and we now have what are called T-groins—large defences that ensure our beach is not washed away. It was good that that action was taken, but it did not receive universal buy-in when it was first put forward. People, not least the surfing community, raised a number of concerns. It has taken time for that to bed in and for us to be able to prove that it has not had the negative effects suggested.
One of the important things going forward with action on coastal erosion is to ensure that communities buy into it and that we are doing whatever we can to protect housing, properties and tourism, but also marine life. In Scotland, the marine litter strategy was introduced a number of years ago—it is not a new thing. It is about tackling the issues that damage the most vulnerable marine wildlife.
It is very important that we come together. We absolutely must look at making sure that studies are done so that the best possible, futureproofed, action can be taken, but we must get the communities on board, including those in the wider community—perhaps those who do not live near the coast but are particularly concerned about the impact on wildlife. As I have said in Westminster Hall a number of times, we need to work together and we can all learn from each other. Action taken in some places in Scotland could be replicated in some places in England, and vice versa. We need to make sure that with any action we take to protect any of our coastlines, we are learning from the experiences of others and ensuring that those coastlines are protected for future generations.
Holly Lynch (Halifax) (Lab)
It is a pleasure to serve under your chairmanship, Sir David. I join colleagues in paying tribute to the hon. Member for Angus (Kirstene Hair) on securing this debate and I thank her for a detailed and engaging speech, in which she outlined that 17% of our coastline is at risk of erosion, along with the infrastructure that is inseparable from those seaside communities. She told us that the second, third and sixth holes have already been relocated on the iconic golf course in her Angus constituency and she has done her constituents proud in making sure that their voices are heard in this debate today.
As the shadow Minister with responsibility for coastal communities, I agree that this debate is incredibly important. With rising sea levels and increasingly extreme weather, our coastlines are particularly vulnerable to the impact of climate change. Hon. Members will be aware that my own constituency, while entirely land-locked, experienced devastating flooding in 2015, and so I am all too aware of how increasingly extreme weather can impact on all of our lives.
We have heard some compelling speeches. The hon. Member for Berwickshire, Roxburgh and Selkirk (John Lamont) made a very important point about Flood Re and the Government’s failure to really get to grips with an insurance offer for flood-affected businesses. While Flood Re is working very well for domestic properties, we really do not have an offer together for flood-affected businesses. I hope the Minister will be able to offer some help to businesses and that this is not a problem put on the “too difficult to solve” pile.
My hon. Friend the Member for Barrow and Furness (John Woodcock) told us of the risks to Walney island in his area and talked of the risk of the unique biodiversity on the island being lost to the elements forever without intervention to protect it. The hon. Member for Chichester (Gillian Keegan) made a similar point about the nature reserves in her constituency. The hon. Member for North Cornwall (Scott Mann) spoke with passion about the coastline in his area, which has been showcased by the BBC drama “Poldark”—I confess, I am not sure everybody watches “Poldark” to admire the scenery in the background. We have heard about the challenges in Scotland, and we have heard from hon. Members representing coastlines all over the country.
It is always a pleasure to see the Minister in his place, but I join the hon. Member for Waveney (Peter Aldous) in wishing the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Suffolk Coastal (Dr Coffey), a speedy recovery. She has a great deal of experience in this area, and will no doubt be watching this debate with great interest.
For a country of our size, the UK has an exceptional length of coastline, totalling more than 17,000 km. In contrast, the Netherlands has about 500 km. Although historically it has created opportunities for fishing, tourism and a variety of other economic interests, a significant proportion of our coastal landscapes are at risk of coastal erosion. About one third of the English coastline, and more than half of the coastline in my home region of Yorkshire and the Humber, is subject to erosion. Across the country, incredibly tough decisions are being taken about whether to hold the line or surrender it.
There is nothing new about coastal erosion; it has been taking place for millions of years. Waves and winds erode some areas, but can deposit matter elsewhere. The haunting story of what happened at Hallsands in Devon in 1917—the entire village of 29 homes was lost to the sea within 48 hours—is a reminder of the power of the sea, and coastal erosion can be accelerated by storms.
Although coastal erosion is not a new problem, changing weather patterns and rising sea levels are creating new challenges. It is increasingly clear that what was once termed “exceptional weather” is occurring with worrying regularity. Although it is difficult to link any particular extreme weather event directly to climate change, the trend is clear. Last month’s unusually warm weather was officially classified as the hottest May since records began, and December 2015—just over two years ago—was the wettest month on record, and there was extensive flooding. Speaking after those floods, Professor Myles Allen, of the University of Oxford, summed up the new reality well:
“Normal weather, unchanged over generations, is a thing of the past. You are not meant to beat records by those margins and if you do so, just like in athletics, it is a sign something has changed.”
Current UK annual damages from coastal flooding are estimated to be £540 million per year, which will almost certainly increases with future sea level rises. According to the Parliamentary Office of Science and Technology, the global mean sea level has already risen 20 cm since the 1900s. POST also notes that the rate of the rise was 1.5 mm per year between 1901 and 1990. However, from 1993 to 2014, it rose an average of 3.2 mm per year.
It often feels as if we are only reluctantly facing up to the devastation that could result from sea level rises. The Committee on Climate Change warned that
“for levels of sea level rise beyond one metre, which could occur this century, 200 km of coastal defences in England are projected to become vulnerable to failure in storm conditions”.
It is clear that we are facing a challenge of the most serious kind, which requires big thinking and effective action. We know that there is a very human cost for those in affected areas. It is hard to imagine how difficult it must be for a person to give up their family home because it has simply become too dangerous to live there.
We also know about the threat to our sporting heritage. As we have heard, the Montrose Golf Links faces many problems. It is estimated that one sixth of Scotland’s golf courses are vulnerable, due to their coastal location. Ironically, Donald Trump’s Aberdeenshire golf course is also at risk of severe flooding, according to Ordnance Survey research, which predicts that the coastline next to the Trump International Golf Links resort will recede by tens of metres over the next 20 to 30 years. We look forward to seeing him still refuse to take action on climate change when his own golf course is underwater.
I hope the Minister can address a number of concerns shared by those living in coastal areas. I will be interested to hear his response to the Committee on Climate Change’s adaptation sub-committee report, published last June, which said:
“Sea level rise of more than one metre by the end of this century cannot be ruled out, and this would mean some communities in the UK would no longer be viable…Shoreline Management Plans identify areas where existing defences will become unsustainable or not cost-effective to maintain by the 2030s and beyond. This will have significant implications for some stretches of coastline, but the affected communities have not yet been seriously engaged in adaptation planning and need to, long before coastal defences become unsustainable.”
Given that the committee’s advice is so clear, what steps are the Government taking to ensure people living in those areas are aware of the risks and are planning for the future? Such conversations will always be difficult, but given the severity of the predictions and the actions set out in the management plans, people need to be clear about what is likely to happen.
Further to the point made by the hon. Member for St Austell and Newquay (Steve Double), according to the national planning policy framework, it is not appropriate to allocate permanent new residential development within an area susceptible to coastal change. Local plans identify that coastal change management areas as likely to be affected by erosion. The Minister may be aware that a National Trust survey found that in 2015, only 29 of England’s 94 coastal planning authorities had defined coastal change management areas. One third of the coastal planning authorities did not have such policies. Can the Minister update the House about the situation? Has he been assured that all planning authorities in coastal areas are incorporating long-terms coastal erosion projections into their planning policies?
Further to the point made by the hon. Member for Angus, I am keen to see the next national flood and coastal erosion risk management strategy. Although flooding is the most common consequence of coastal erosion, the Minister will appreciate the very different challenges in addressing coastal erosion and inland flooding. I hope that is reflected in the funding and resources dedicated to those different but not unconnected challenges.
More broadly, we cannot ignore the relationship between extreme weather, climate change and coastal erosion, so I must probe the Government further on what they are doing to tackle carbon emissions. In recent years, the Government have sold off the Green Investment Bank and scrapped the Department of Energy and Climate Change, and new low-carbon investment is now lower than it was when they took office. It is therefore not surprising that the UK is now on course to miss its carbon reduction targets and its legally binding 15% renewable target by 2020.
I appreciate that energy policy is not directly within the Minister’s remit, but I am afraid to say that, since the demise of the Department of Energy and Climate Change, it look like climate change has not been mainstreamed across Government, but has fallen through the cracks. I hope the Minister will urge others in Government to treat this issue with the seriousness and urgency it deserves.
Coastal erosion is a huge concern along significant lengths of our coastline. With rising sea levels, significant parts of our coastline face being literally swept off the map. I am inclined to agree with the hon. Member for Angus that now is the time for long-term, joined-up thinking. I hope the Minister will respond to the points raised in this debate and assure us that the Government are serious about tackling climate change, defending our coastlines and, crucially, taking communities with them in facing up to these challenges.
The Minister for Agriculture, Fisheries and Food (George Eustice)
It is a pleasure to serve under your chairmanship, Sir David. Like a number of other hon. Members, I congratulate my hon. Friend the Member for Angus (Kirstene Hair) on securing the debate. She articulated the problems facing her constituents in Montrose with passion, and was characteristically robust in the points she made. I am conscious that this issue affects many parts of the country, including my own, as my hon. Friends from various Cornish constituencies pointed out. It is good that so many Members turned up at 9.30 am to raise this important issue in the first debate of the morning when we might face a lateish night in this place.
As the shadow Minister pointed out, the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Suffolk Coastal (Dr Coffey), would normally lead on this part of the portfolio. I am covering this debate because, as a number of hon. Members know, she is recuperating from a recent illness. However, she will be following the debate closely, as coastal erosion is an ongoing challenge for her constituency of Suffolk Coastal. I very much look forward to receiving a text from her later this morning, as often happens after such debates, giving me an update on how I did.
As everybody is aware, responsibility for the management of coastal erosion is devolved to the Governments of the four nations of the UK. I will return later to some of what they are doing.
Coastal erosion is a natural process that always has and always will change the shape of our coastline, but change can be distressing for those living nearby. In March this year, we all saw the dramatic pictures from Hemsby when the “beast from the east” struck the coast of Norfolk. That county has a dynamic coastline, which has been retreating progressively over past centuries, but on that occasion the concentrated power of wind and sea eroded nearly 5 metres of shore along a 700-metre frontage, leaving 13 homes balanced precariously above the sea. Proactive management by the Environment Agency and the local council led to residents being evacuated by Great Yarmouth Borough Council. After the storm, 11 properties were demolished and, of the remainder, one property was saved by the owner rolling it back, and another needed only part of it to be demolished as it too was rolled back.
The key difference between fluvial flooding and coastal erosion is that, while still distressing, the impact of fluvial—river—and surface flooding tends to be temporary, while the impact of coastal flooding is terminal and carries much greater risk to human life. Of the £2.5 billion to be invested in flood defences between 2015 and 2021, nearly £1 billion is dedicated to coastal areas, reflecting how seriously we take that challenge.
Given my constituency, I understand people’s concerns. Cornwall has the longest coastline in England, at more than 1,000 kilometres, and the occurrence of coastal flooding is likely to increase threefold over the next 100 years. My constituency has both a north-facing and a south-facing coastline, and some of the exposed cliffs along the north coast have historical rates of coastal erosion of up to 40 metres in the past 100 years. They are likely to experience at least a further 40 metres of erosion in the next 100 years.
Sustainable coastal management needs to embrace change. I recognise that this debate was called on the back of a particular Scottish concern, in the constituency of my hon. Friend the Member for Angus, but this is a UK-wide matter and I feel that I should consider how we approach things in each nation, starting of course with England, where the Government set the overall policy and local councils lead on management of coastal erosion risk in their areas.
Earlier this decade, a significant decision was taken by the Government to recognise formally that we would not defend every part of our coastline from erosion. We devolved decision making to a local level, confirming what had already been happening in practice. That made the process for councils designing a shoreline management plan more meaningful. Such plans set out at a high level the policy framework to manage the risk of change.
Covering three time horizons—20, 50 and 100 years—the plans recommend four approaches to management: first, advancing the line, or moving defences out beyond the coast, which is used in some circumstances; secondly, holding the line, which means using either soft or hard defences to reduce or eliminate erosion; thirdly, managed realignment, where we accept the inevitable but manage the process, taking account of local geology and wildlife; and, finally, an approach of no active intervention, which allows nature to take its course.
Much of the debate has focused on whether the devolved Administrations are doing enough to support their councils. I shall say a little about what we do in England. To support our councils, the Environment Agency provides a national picture of what is happening on the coast. It has established national coastal erosion risk maps that provide a consistent assessment of coastal erosion risk around the country and set out a best-practice method for calculating that risk. The agency is also supporting a national refresh of shoreline management plans to ensure that they remain based on accurate information. There is also investment, which, inevitably, was a big feature of this debate.
We put significant investment into coastal erosion prevention. In England, between 2015 and 2021, our plans will see £885 million invested in projects to manage coastal erosion and better to protect communities against flooding from the sea. At the same time as the Government made the decision specifically not to defend the entire coastline, they also made the important decision that any scheme with a positive benefit-cost ratio could still receive some Government funding to support partnership funding locally. We also established corporation tax relief for businesses to contribute to such projects.
Our partnership approach means that schemes that would not have progressed in the past can go ahead if local funding can be found through the partnership model. Our £2.6 billion capital investment programme is expected to attract more than £600 million in partnership funding contributions on top of that.
In Norfolk, an innovative public-private project will provide protection for nationally important gas infra- structure and enhance protection for local communities.
Sir Hugo Swire
I hear what the Minister says about local businesses helping, but in a town such as Sidmouth, where the average local business is a small retailer already suffering under business rates and with lack of footfall on the high street, is it realistic to expect such smaller companies to contribute?
George Eustice
There will always be challenges in raising funding, but we are committed to the partnership model and projects that would not have been able to take place before we introduced those measures can now do so. I visited Sidmouth last year, so I am familiar with what my right hon. Friend highlights—his constituency has a beautiful, albeit quite hilly, footpath along the coastal road—but I am happy to visit his constituency again to look at those issues at first hand.
To complete my point about the innovative approach in Norfolk, we are seeing a technique called sandscaping, whereby 1.8 million tonnes of sand and gravel are deposited near the shore. That provides direct protection from storms and acts as a source for material to nourish beaches.
My hon. Friend the Member for Angus highlighted a comparison between the approaches to funding taken in Scotland and in England. The difference is that every year, despite budgetary pressures, we have increased funding on flooding, which is up from £399 million in 2010-11 to £502 million now. We have ring-fenced money specifically for coastal erosion, as she acknowledged.
This issue is devolved, so it is for each part of the UK to decide how to operate such matters, but it is complex and difficult, as hon. Members have pointed out, and we can all learn from each other, from the success or failure of the different approaches that we take. I am sure that the point she has made today will be heard by those in her constituency and, indeed, by the Scottish Government.
In those areas where defence from coastal erosion is neither practical nor economic, it is important that affected communities are supported and helped to adapt. That means anticipating the changes. Local authorities need sustainable approaches that reduce future burdens on communities, encourage a more positive approach and promote economic growth in a viable manner.
Finally, I want to touch briefly on the approach taken by the devolved Administrations. My hon. Friend raised the specific issue of Montrose, where up to 80 metres of coast could wear away in the next 50 years. In Scotland, the Scottish Government have concluded a piece of evidence called “Dynamic Coast: Scotland’s Coastal Change Assessment”, which was launched in August 2017 and identified some of the challenges ahead. I understand that Scotland has allocated a budget of £42 million a year to help local authorities with flooding and coastal erosion. In Northern Ireland, a gap has been recognised. The approach taken has been on the principles of the Bateman report, but, in the last Assembly, Ministers recognised the need for a more strategic approach to coastal management. They committed to work together on a baseline study, which is now under way. Last but by no means least, in Wales, I am aware that the Welsh Government have also made significant investments to improve coastal defence infrastructure over the past few years through new schemes.
To conclude, we have had a comprehensive debate covering many different issues and areas, with hon. Members raising issues relating to particular constituencies. It has been a pleasure to respond to the debate.
Kirstene Hair
I thank the Minister and all Members who have participated in the debate. I am delighted to have cross-party support on an important issue for our constituents and for our beautiful coastlines throughout the United Kingdom. Clearly, the UK Government and the devolved Administrations are called on to do more.
I want to clear up one point about Angus. The studies finish next year, so we need the funding to be ready and, indeed, we need enough funding—the funding promised has a question mark over it and is not enough to put my constituents out of fear. I shall continue to campaign for the Scottish Government to confirm and release the funding sooner, and I shall continue to campaign for the UK Government to see whether we can implement a compensation scheme, so that our constituents need not continue to live in fear if they live in a coastal community.
Question put and agreed to.
Resolved,
That this House has considered coastal erosion.
Care of Prisoners’ Children
(5 years, 10 months ago)
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Fiona Bruce (Congleton) (Con)
I beg to move,
That this House has considered care of prisoners’ children.
I will be considering the care of prisoners’ children following the sentencing of their parent. Are we doing all we can to support the wellbeing of children with a parent in prison, bearing in mind the traumatic impact that the detention of a parent can have on a child? It is estimated that more than 200,000 children a year are separated from a parent by parental imprisonment. About 17,000 of those children experience their mother’s imprisonment. Because women are more likely than men to be the primary carer, often children are suddenly separated from the closest relationship they have known in their lives. In up to 95% of cases, the children are suddenly without a parent or a home. I understand that there is no systematic recording or monitoring to support those children, so in many ways they are a hidden population.
The arrangements for the care of such children are often very informal, with the children being suddenly left with a relation, for example, whose life circumstances mean that they are ill prepared for the additional responsibility, with all the consequences that ensue for them and, importantly, for the children. One of the worst examples I heard was of a woman who was arrested in the middle of the night, but who was still nursing a baby. On the way to the police station, the police asked her, “Where shall we drop the baby off?”. She had to tell them a house where the baby was to be dropped off. That mother did not have the care of that child again for well over a year. That is a startling situation.
Before going into further detail about the impact on children and their carers, I thank Justice Ministers for their very positive response to Lord Farmer’s review, which was published last August, “The Importance of Strengthening Prisoners’ Family Ties to Prevent Reoffending and Reduce Intergenerational Crime”. The acceptance of the importance of maintaining family ties to the successful rehabilitation and reintegration of prisoners, which was implicit in the Government’s response to the review, was most welcome.
At the same time, it is important that we recognise that prisoners’ families, particularly their children, can experience severe difficulties following the imprisonment of a parent. Greater consideration of their circumstances and wellbeing would help to improve the likelihood of their parents’ better reintegration and rehabilitation. Importantly, it would reduce the risk of those children being imprisoned in later life. The statistics are devastating: some 60% of boys with a father in prison will end up in prison themselves. Staggeringly, I am informed that if they also have a brother in prison, that figure can rise to 90%.
We should take care of prisoners’ children not just to keep them out of prison, but to give them the best chance to make something of their lives when they have been placed in an extremely vulnerable situation at a young age. Research shows that prisoners’ children face significantly reduced life chances. They are less likely to be in education, training or employment in later life. They have an increased risk of mental health problems and substance abuse. The imprisonment of a parent can compound any pre-existing family problems that the child may have experienced or witnessed, such as domestic abuse, mental health issues or substance abuse.
Children who witness their mother’s arrest often experience nightmares and flashbacks. Separation from parents, particularly mothers, can be deeply traumatic for children and can result in the development of attachment disorders in young children. Children with a parent in prison may experience stigmatisation, isolation and discrimination, as well as confounding grief that is expressed in angry and aggressive behaviours. They may have no one at school with whom they can share their situation.
The emotional and physical stress after separation often requires intensive parenting, for which professional help and support ideally would be available, but often it is not. Family members who step in as carers at short notice are often unprepared for what their role involves. Often, they have to give up work to provide care. One grandmother explained:
“emotionally, it’s terrible. It’s like they’ve changed so much, they’ve got behavioural problems. They weren’t like that before. Especially the little one who cries for his mum all the time.”
Understandably, those who take on such caring roles do not always do so willingly. The subsequent breakdowns of family placements cause further harm to children. Families who do so willingly still often have to adjust their living arrangements, creating further difficulty for both the carer and the child. I thank Dr Shona Minson at Oxford University for drawing my attention to the gravity and scale of the situation. In her research, one grandmother’s experience exemplifies that perfectly:
“It’s cramped. What was my bedroom, I’ve now got two lots of bunk beds and four boys in there. The middle room is my daughter’s room and the baby sleeps in there and I sleep on the settee in the front room.”
Another grandmother explained the serious financial problems she encountered, having to go back to work to support her enlarged family and getting into debt at the same time.
Because of the difficult living arrangements and frequent relationship breakdowns in what can be very temporary homes, often there is accompanying schooling disruption. Children have four different carers on average during a mother’s sentence. Many encounter other significant changes, such as separation from siblings.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
I congratulate my hon. Friend on securing this debate and on powerfully speaking out for some of the most vulnerable in our society. She has raised some powerful examples. She mentioned Justice Ministers earlier, it is excellent to see the Education Minister in his place and she also mentioned housing. Does she agree that this is a cross-departmental issue? It is important that the Minister works together with Ministers from other Departments to help some of the most vulnerable in our society.
Fiona Bruce
I thank my hon. Friend for, as ever, making a highly pertinent point.
What I am speaking about forms part of a much larger piece of work that is encompassed in “A Manifesto to Strengthen Families”. It was launched last September and has the support of 60 Conservative Back-Bench colleagues. It contains a range of policies that aim to strengthen family relationships. As my hon. Friend says, they straddle many Departments, from Health to Education, Defence, Justice, Work and Pensions, and Housing, Communities and Local Government. As part of the work on strengthening families, it is important that Departments across Government pull together and that the machinery of government works holistically.
Many Departments are doing good work to strengthen family life, such as through the recent announcement of £6 million for the children of alcoholics, and a much larger sum provided for children with mental health problems, many of which stem from their family backgrounds. However, a key ask in the manifesto is for a Cabinet-level Minister for the family. I am delighted to see the Minister with responsibility for children here. I would be even more delighted if he were promoted to the Cabinet and had the role of drawing together all the various strands for supporting family life, many of which could appropriately be channelled into family hubs in local communities.
I am delighted that there will be a roundtable this afternoon at No. 10, at which people from across the country will give examples of best practice for creating family hubs in local communities. Those are places people can go for support to strengthen their families—not just people with children from nought to five, but those with children aged up to 19, sandwich generation people who are struggling to support an elderly parent, and people whose marriage is at an early stage of breakdown and want light-touch early intervention to ensure that it does not fall apart completely and end up in the divorce courts. Family hubs may also be places for prisoners’ children and their wider families to get help.
There is often no official recognition of the plight of prisoners’ children, and they often have inadequate support, if any. Care givers are often not assessed, and they receive little, if any, financial assistance or other support. In the light of that, there appears to be a big difference in treatment between those children and children who are separated from their parents and go through care proceedings. The impact on prisoners’ children can be lifelong. They encounter multiple disadvantages, which often match those of children who are put before the court in care proceedings.
Children who are separated from their parents due to parental abuse or neglect are represented by lawyers and may be appointed a guardian ad litem, and a real focus is placed on their interests. If such a child is left without a parent, they are found a new home. Support is provided to those who care for them. Foster carers are assessed and receive training and financial support. The child is also likely to be classed as a looked-after child or a child in need, both of which open doors to additional funding in health and education, such as the pupil premium. That can ensure that the child is given more support and a more understanding environment at school. If the child moves to a new area, a school place is arranged for them.
However, in criminal proceedings involving parents of dependent children, the court may be completely unaware that the person it is sentencing has children. Even when the court is made aware, the impacts on those children often are not appropriately considered. For example, in a recent piece of research, the Prison Reform Trust reported that one mother explained that the jury
“didn’t ask me anything, didn’t even ask me if I had a child. I had to stand up and say ‘I’ve got a daughter at home who needs looking after.’ Thankfully, I’ve got a very supportive mother and she took the role of carer. I was not asked if she had a carer, it was just me they were focused on, just getting me to where I need to be.”
I called this short debate, in the light of that, to draw attention to the impact of parental imprisonment on those most vulnerable children. I ask the Minister what can be done more systematically and empathetically to identify and support the needs of prisoners’ children and their care givers, so that we avoid giving them a hidden sentence, which may be lifelong, when their parents are sentenced by the courts.
As time permits, let me touch on one or two other points before the Minister responds. The relationship between a parent and a child is often damaged by the child’s inability to visit their parent. Many families would welcome more being done to facilitate visits, perhaps through the provision of travel funding that is not means-tested. Shona Minson of Oxford University found in a recent study that a number of factors influence the possibility of a child being unable to attend visits, including restricted visiting hours; unaffordable travel, which I mentioned; the frightening environment for children; traumatic endings; and indirect contact by telephone or letter, which children do not particularly favour. The Farmer review confirmed that face-to-face contact was the best way to develop family ties, and that family members found security checks frightening and stigmatising.
It would be helpful if prisons identified that family visits improve outcomes for prisoners and should be viewed as an intervention, not just to help reduce offending but to improve the quality of life of prisoners’ children. Family ties may also be strengthened through one-to-one mentoring support for prisoners’ children, parenting classes and courses to strengthen prisoners’ relationships with their families. There is plenty of evidence of good practice by faith-based and non-voluntary organisations, which are working together to strengthen prisoners’ family ties.
Let me give the example of a young girl and her family. During a family day visit at HMP Wandsworth, a charity worker from Spurgeons noticed that 14-year-old Jade, who was visiting her father, was sitting with him in floods of tears. When staff asked Jade’s mother why she was distressed, her mother confided that the family was having a difficult time. Jade was upset and struggling to cope with being separated from her father. Her school work was suffering as a result. Her mother had asked the school for help, but it seemed unable to offer any. Spurgeons staff sent a link worker to visit Jade’s school and put in an appropriate plan. Her mother thanked Spurgeons for that intervention and explained that, although she had been asking for help since the moment her husband was taken to prison, that was the first time anyone had actually offered the family any support.
Charities such as Spurgeons certainly have an impact on families such as Jade’s, but their reach and resources are limited. Diane Curry, chief executive of Partners of Prisoners, argues that that
“is one reason why provision is so patchy and a lot better developed in some geographical areas…than others.”
In the light of that, I ask the Government to look at improving services to support children such as Jade and their families. As I said, the strengthening families manifesto outlines that the Government need to focus on supporting families to ensure that policies for children are prioritised and co-ordinated across Departments. Ideally, they should also ensure that every local authority has a family hub, which can act as an important site for prisoners’ families to receive support services, and that prisons put families at the heart of efforts to reduce reoffending and improve the lives of prisoners’ children.
The Parliamentary Under-Secretary of State for Education (Nadhim Zahawi)
It is a pleasure to serve under your chairmanship, Sir David. I congratulate my hon. Friend the Member for Congleton (Fiona Bruce) on securing the debate.
As Minister for Children and Families, I have listened and spoken to many people about the issues concerning some of the most vulnerable children in our society. I have been inspired by the commitment of our frontline practitioners, such as social workers, teachers and others in the sector—including charities, which my hon. Friend spoke about so convincingly. I commend her on bringing concerns to life through the voices of children and their families. Those practitioners work tirelessly to achieve better outcomes for children in challenging circumstances.
I am aware of my hon. Friend’s concerns about the support that children who are affected by having a parent in prison receive, both to maintain a relationship with that parent and to deal with the long-term challenges they might face in relation to their own outcomes. I share those concerns, and I reassure her that I will continue to do all I can, in my capacity as Minister for Children and Families, to ensure that all children get the help and support they need from across Government to live fulfilled and happy lives.
A parent going to prison can be hugely traumatic for the child—it can make them vulnerable or even put them at risk of harm. Effective multi-agency working is vital to ensuring that vulnerable children are identified and known to all relevant authorities from justice, which my hon. Friend mentioned, to social care and schools. Reforms introduced by the Children and Social Work Act 2017 underpin a stronger but more flexible statutory framework for local multi-agency arrangements that will support local partners to work together more effectively to protect and safeguard children and young people, and ensure the effectiveness of those processes.
We are also taking significant steps to improve information sharing on safeguarding children, which is vital to ensuring that an offender’s caring responsibilities are disclosed and services are alerted to changes in a family’s circumstances. Under the Children Act 1989, local authorities have overarching responsibly for safeguarding and promoting the welfare of all children in their area, which applies regardless of what care arrangements are in place for a child. Where concerns have been raised about a child in need, the “Working together to safeguard children” statutory guidance sets out the principles of what good assessment looks like. Assessments should be child centred, involving children and families, and building on strengths as well as identifying weaknesses, and addressing the child’s needs within their family and, of course, the wider community.
Michael Tomlinson
I am listening with interest to the Minister, who will have heard my intervention about working across Departments. Will he be able in due course to explain to the House what work he can do across Departments—perhaps with the Prisons Minister, my hon. friend Member for Penrith and The Border (Rory Stewart)—in addition to the multi-agency work he is rightly highlighting?
Nadhim Zahawi
I did hear my hon. Friend clearly. We already work across Departments, and I hope that in the rest of my speech I will be able to convince him that we are doing some really good work in this area.
There should be a clear focus on actions and outcomes for children, with plans for how assessment and support provided will be reviewed. All decisions regarding formal care placements will also be child focused to ensure that arrangements meet the needs of that child and promote their safety and welfare. That process is the same for each child, including in cases where a child’s primary carer goes to prison.
My hon. Friend the Member for Congleton rightly said that in many cases care arrangements might be with wider family or friends, often recognised as kinship care. We recognise the vital importance of those placements, which are likely to provide more continuity than a placement with previously unknown carers and can help to preserve a child’s sense of belonging to a wider family network. For most children, there is huge benefit from being brought up by a family member whom they trust and already have an established relationship with, rather than by a stranger.
The law requires local authorities to support the upbringing of looked-after children and those on the edge of care by their families whenever possible. That option should always be fully explored by the local authority before making an application for a care order, provided that it does not jeopardise the child’s safety or welfare.
Local authorities are under a statutory duty to publish a policy that sets out the authority’s approach to promoting and supporting the needs of all children living with carers who are family and friends, regardless of their legal status. The policy should be clear, regularly updated, and made freely and widely available. Approved family and friends foster carers receive the same support as other foster carers, including financial support. Family and friends carers in informal arrangements are treated equally with birth parents in the benefits system in relation to child benefit, child tax credits and other means-tested benefits.
Local authorities also have a statutory role where children are being cared for by friends, neighbours or certain other relatives under a private fostering arrangement. The local authority must visit such an arrangement within seven days of being notified of it and should speak to the parents and provide support and advice where necessary. Local authorities must also carry out follow-up visits to ensure that the arrangements remain in the best interests of the child.
I turn briefly to education. It is not only children’s social care that has an important role to play; school and college staff are particularly important as they are in a position to identify concerns early, provide help for children and prevent concerns from escalating. We recently published revised “Keeping children safe in education” guidance, which will commence on 3 September. Having worked closely with the Ministry of Justice, we have reflected on the importance of school staff considering the additional needs of children with parents in prison, so the guidance now highlights the fact that such children are at risk of achieving poor outcomes—including poverty, stigma, isolation and poor mental health—and signposts staff to the National Information Centre on Children of Offenders website, which provides specialist advice and resources for professionals who work with offenders’ children and their families.
All school staff should be aware of the systems within their school or college that support safeguarding, as well as being able to identify children who might be in need of extra help and protection, such as children of offenders. That is vital to avoiding children’s needs going unidentified and so that any trauma a child has experienced can be taken into account in responding to any behavioural issues.
The Department’s advice on behaviour says that schools should consider whether disruptive behaviour might be the result of a child’s needs, such as any arising from the trauma of a family member or parent going to prison. School staff should also be prepared to identify children who might benefit from early help. To be clear, if a child is in danger, has been harmed or is at risk of harm, a referral should be made to local authority children’s social care and, where appropriate, the police.
It is important that all children get the support they need. Her Majesty’s Prison and Probation Service is working in partnership with Barnardo’s to deliver the National Information Centre on Children of Offenders, which is an online resource to provide support for children affected by having a parent in prison. We are also supporting cross-Government programmes for prevention and diversion work, including the troubled families programme and those focusing on school inclusion.
Good mental health is another particular priority. We recognise the emotional upheaval that a parent going to prison can cause a child, and when children are struggling with poor mental health, that can have a profound impact on the whole of a child’s life. That is why the Government are investing an additional £1.4 billion nationally to transform children and young people’s mental health services. On top of that, the measures proposed in the Government’s Green Paper on children and young people’s mental health will provide £300 million of additional funding to introduce a new mental health workforce to work with mental health leads in schools and colleges and reduce waiting times for those with the most serious conditions.
The Ministry of Justice is working with the Department of Health and Social Care to develop a series of trailblazers that will test such teams outside of mainstream schools, including with youth offending teams.
Where a parent is involved in the justice system, it is vital that families receive support from the outset and that courts are aware that a defendant has children before they are sentenced. That is critical to avoiding those children being unseen or unaccounted for, so we are ensuring that the National Probation Service’s pre-sentence reports, which assist the court in making sentencing decisions, highlight whether an offender has dependent children and the potential impact on those children of a sentence so that that can be considered. We are also working to encourage defendants to tell the court about children, overcoming reluctance or fear if there are concerns that their children will be immediately taken into care. That includes supporting the roll-out of training material developed by the academic expert, Dr Shona Minson, which raises awareness of the diverse implications of maternal imprisonment for children.
Families can play a significant role in supporting an offender. Positive family relationships have been identified as a protective factor in desistance, or ceasing to commit crime. For that reason, the Government are promoting strong family and significant other ties as an important plank of our prison reforms, alongside education and employment.
Lord Farmer’s report on the importance of strengthening prisoners’ family ties, which my hon. Friend referred to, was published last year. It made several recommendations to strengthen family or significant other ties to help offenders to turn their lives around and protect public safety. Across Government, and through the Ministry of Justice in particular, we have taken forward key recommendations, including giving prison governors the budget and the flexibility to spend their resources appropriately—such as on family-friendly visiting areas—to help prisoners to keep important family or significant other ties.
The Ministry of Justice is developing new performance measures that we will pilot this year for future full implementation. That will provide crucial guidance to deliver more consistent services to improve relationships between prisoners and their families or significant others, such as flexible visitations and family days across the entire prison estate.
A new family and significant other policy framework will be published this year, which will set out requirements for governors in that area. To support that new approach, from April this year all prison governors have been required to produce local strategies that set out how they will support prisoners to improve their engagement with friends and family. We know that maintaining relationships with loved ones is crucial for prisoners and for their families. In England and Wales last year, we spent—
Sir David Crausby (in the Chair)
Order.
Motion lapsed (Standing Order No. 10(6)).
Hepatitis C
(5 years, 10 months ago)
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Sir David Amess (Southend West) (Con)
I beg to move,
That this House has considered elimination of hepatitis C.
I should tell the House at the outset that I am not really the instigator of this opportunity to debate hepatitis. The colleague who had succeeded in securing the motion is not able to be here, but I am delighted to share my thoughts with the House.
I was a member of the Health Committee from 1998 to 2007, and during that time we certainly spent a lot of time considering hepatitis. I am also the co-chairman of the all-party parliamentary group on liver health. I have been the chairman now for some 13 years—simply because I do not think anyone else wants to take on the mantle, to be frank. When we set up our all-party parliamentary group, we looked for a celebrity to head it all, as one does, and we chose George Best. The House might feel that George Best was an unlikely person to head up the charity, but at that time he was a reformed character, and he did a lot of good in those early years. Unfortunately, as we all know, a great toll was taken on his health and, sadly, he died.
We then looked for another celebrity, and—what a joy—Anita Roddick of The Body Shop, who was a wonderful and remarkable lady, became our patron. She died in 2007. The House may know that she contracted hepatitis C from a blood transfusion in 1971 and was unaware that she was living with the disease until 2004. A routine blood test revealed the diagnosis. She was a tireless campaigner, and we owe her a great debt of gratitude, but since 2007 we have struggled to find a patron to head up the organisation as president. If colleagues have any ideas, I know our APPG would be glad to hear from them.
The APPG recently conducted an inquiry into the elimination of hepatitis, and in March it launched a report entitled “Eliminating Hepatitis C in England”. It is my intention to refer to the report’s recommendations throughout my speech. We have an excellent Minister here, and I hope that both he and the shadow spokesperson have had sight of the report. If not, we will ensure that they get it in full; perhaps they could come back with their suggestions on how we might take the recommendations forward.
In our report, we suggest raising awareness, prevention, testing and diagnosis, care and treatment, funding and monitoring progress, so we have covered every single aspect. I take this opportunity to pay tribute to Charles Gore, the former head of the World Hepatitis Alliance, and to the secretariat of the APPG, the Hepatitis C Trust, for all their assistance. They have been wonderful in all the work they do for us, ensuring that our group is effective.
On 14 December, I visited Her Majesty’s Prison Wandsworth—not because I had been sent to prison but, ironically, to accompany the Minister who has resigned from the Government today, my hon. Friend the Member for Bracknell (Dr Lee), although I do not think his resignation was the result of our visit. It was a very good visit indeed, and of course it is in the constituency of the hon. Member for Tooting (Dr Allin-Khan).
The visit allowed us to tour the secondary screening and healthcare facilities in the prison and to participate in a roundtable on the subject of the hep C virus and the importance of testing and of attending appointments. It was a wonderful visit; I pay tribute to the governor, and I know the Government are focused on the excellent work that is being done there. We talked to inmates and the governor, and the Ministry of Justice, NHS England, the Department of Health and Social Care and Public Health England were represented.
Perhaps the Minister and I should have compared notes, but I will say a little bit about what hepatitis C is. As I am sure that most hon. Members are aware, it is a blood-borne disease that affects the liver. It can subsequently lead to liver cirrhosis and cancer, and it has been linked to cardiovascular disease, musculoskeletal pain, kidney issues and mental health problems. I see we have two practitioners present in the Chamber; they might want to contradict me if they think I have got the cause of hepatitis C wrong.
The virus is said to chronically infect some 71 million people globally. Sadly, 214,000 of them reside in the United Kingdom. That is why I welcome the United Kingdom’s decision to join 193 other states in signing the World Health Organisation’s global health sector strategy on viral hepatitis in 2016. It has the principal aim of eliminating hepatitis C as a major public health threat by 2030—and I believe that if we are serious about that, we can do it. At least one Member of the House of Lords, who regularly attends our APPGs, has the illness himself. He speaks with great passion in the other House about the challenges he faces.
I say to my hon. Friend the Minister that I also welcome the target announced by NHS England in January of eliminating hepatitis C by 2025, five years ahead of the WHO. However, many problems surround the virus and its elimination, and confusion persists over how the virus is spread. Many people do not appreciate that it is spread by blood-to-blood contact. Instead, some still believe it can be spread by sneezing, coughing, spitting or other forms of physical contact. I am advised that that is not the case and it is only blood-to-blood.
Furthermore, it is estimated that between 40% and 50% of the approximate number of people chronically infected with the virus in England do not know they have it. At the start of the debate, I pointed out that Anita Roddick did not know she had it until she was tested in 2004. Between 64,000 and 80,000 people are living in England without the knowledge that they have the virus. Even more worrying is the Polaris Observatory’s prediction that the UK is set to miss the WHO target of eliminating hepatitis C by 2030.
Mr Jim Cunningham (Coventry South) (Lab)
I welcome the efforts the Government are making to tackle this problem. I do not want to digress too much, but there is still the outstanding problem of contaminated blood. The hon. Gentleman knows that as well as I do, because we have had many debates on this in the House of Commons. Even the previous Prime Minister said he was going to do something, but nothing has really happened yet, and there have also been allegations that some of the records—for want of a better term—have disappeared somewhere. We asked for an inquiry into that in the last Parliament.
Sir David Amess
The hon. Gentleman makes an excellent point. The hon. Member for Kingston upon Hull North (Diana Johnson) has done a fantastic job in bringing this issue to the attention of the whole House, but we must not take our eye off the ball. The hon. Gentleman is certainly right to remind me how important that issue is.
This country unfortunately lags behind Australia, Brazil, Georgia, Egypt, Germany, Iceland, Japan, the Netherlands and Qatar, which are all predicted to eliminate the virus within the proposed timeframe. I have said to my hon. Friend the Minister that we cannot really compare those countries with the UK, but it would be good if we could perhaps make even more progress on eliminating hepatitis C in this country. In the words of Polaris Observatory, the UK is “working towards elimination” of hepatitis C.
The APPG’s report highlighted awareness. First of all, it noted that awareness of hepatitis C has gradually improved in recent years, which we celebrate. However, awareness is still relatively low, and the stigma of having the virus remains a hurdle to people actually getting tested, diagnosed and treated in the first place. The report also found that there is low awareness of transmission risks among at-risk groups, with many people underestimating the seriousness of the condition and the urgency of accessing treatment. Even so, there are still misgivings among those with greater knowledge of the condition. Within that group, there is still a lack of awareness of new treatments that are available, and many still have worries regarding the side effects of former treatments.
The same is true of the stigma attached to the virus. Although it has decreased over time, the report found that progress still needs to be made in this area, as that stigma often acts as a barrier to people presenting themselves for testing or seeking treatment. The APPG therefore recommended initiating local and national publicity campaigns in an attempt to increase awareness. That is why I mentioned celebrities. Although I am not big on celebrities, I suppose that people do not listen so easily to us politicians—they tend to switch off. However, a so-called celebrity who is prepared to speak out publicly attracts more attention.
The report suggests two ways to increase awareness. One is among primary care professionals, through targeted testing initiatives in primary care, together with additional resources—it is always about securing more money—and support for primary care workers. The second is to raise awareness among at-risk groups through peer-to-peer messaging programmes. During my visit to HMP Wandsworth, I witnessed a peer-led group operated within the prison by inmates. It was wonderful what they had achieved.
However, it should be said that raising awareness of hepatitis C is in fact a short-term goal. Our long-term goal of eradicating the infection should see a switch to the offensive—to preventing the disease in the first place. That is what we are really aiming for.
Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)
I congratulate my hon. Friend on securing the debate and more generally on all his work on this issue and on promoting effective liver health during the many years he has been an MP.
On prevention, given that intravenous drug use is one of the primary causes of the transmission of hepatitis C, does he agree that at the moment a lot of drugs policy is seen far too much through the prism of the criminal justice system? We need to bring that much more into the health domain. Effective working with prisons and with the Ministry of Justice is vital if we are to get on top of this issue, reduce infection rates and provide proper treatment for people who are infected.
Sir David Amess
My hon. Friend was a Health Minister and has real expertise in this area. I shall use the expression “joined-up government”. He is absolutely right that we need Departments to work together. That is why it was so good that we visited the prison.
The Parliamentary Under-Secretary of State for Health and Social Care (Steve Brine)
I may be able to help my hon. Friend here. As he knows, the drug strategy board is a cross-government committee. It met yesterday, chaired by the Home Secretary, and its members include the Justice Secretary, Health Ministers, Home Office Ministers, Housing, Communities and Local Government Ministers and representatives from the Department for Work and Pensions, as well as senior police officers, representatives from the National Crime Agency and a representative of the police and crime commissioners. That board takes that cross-government look, and hepatitis C is certainly an issue I would like to see it look at.
Sir David Amess
That is excellent news. I thank my hon. Friend for that positive response to looking at this issue.
The testing and treatments initiatives in place will lead to a decline in the prevalence of the disease. However, prevention will come from identifying and educating at-risk groups. To do that, we need the help of substance misuse services, sexual health clinics and peer programmes that can educate those most vulnerable sections of society on the transmission of the virus. I am advised that these services are at risk of closure without sufficient increases in their funding. Perhaps the Minister will have some news on that when he replies.
Harm reduction is another paramount mode of prevention. If we can reduce the harm to at-risk groups, we can combat one way in which the disease is transmitted. That can be achieved by providing clean and sterilised injecting equipment. Our report also emphasises the treatment-as-prevention approach towards tackling newer infections. That approach has been successful in treating drug users and other users engaging in riskier behaviours to prevent the spread of hepatitis C.
As I said earlier, between 40% and 50% of people living with hepatitis C in England are undiagnosed, which is shocking. It is therefore vital that we continue to increase testing and diagnosis levels. It is generally believed that the vast majority of those who have been diagnosed and put in touch with support services have now been treated, which I welcome. The challenge is therefore to locate those people who remain undiagnosed. That is a tricky one; it will be a real challenge.
Dr Philippa Whitford (Central Ayrshire) (SNP)
The hon. Gentleman talks about all of those people who have hepatitis C who have been diagnosed being treated, but my understanding is that these new antivirals are given to those with the most severe disease and have cirrhosis, rather than to everyone who is diagnosed with hepatitis C on a preventive basis. Can he clarify that?
Sir David Amess
I am concerned by what the hon. Lady says. No doubt the Minister will eventually be passed a note from his officials and will advise us on the situation. That does not seem right if it is what is happening, and I hope that the Minister will correct me if that information is wrong. It is also vital to re-engage those who have been diagnosed and have slipped through the net to the point where they are no longer in touch with those services.
The APPG thinks that the way to combat these issues is to change how we test for the virus. We recommend routine testing in substance misuse services, sexual health clinics and prisons. We also advocate increasing testing in primary care and in settings such as hostels, day centres and police custody. I know that that will not be cheap, but if it could be done it would be wonderful. Another solution is to test for hepatitis C on occasions when people are already having blood tests, which seems like common sense to me. For example, should we not consider testing people for hepatitis C while they are being tested for HIV, or when taking blood in accident and emergency centres?
Diagnosis is one thing, but accessing care is another. It is therefore essential that people who are diagnosed are referred for treatment as soon as possible, without delay. There should be a direct link between diagnosis and care. The time between diagnosis and the commencement of treatment should be minimised, to prevent patients from dropping out of the care pathway altogether. One way to achieve that would be to make treatment available immediately following diagnosis. That may be ambitious, but it is, ideally, what our APPG wants. Another way would be to streamline the referrals process. As it stands, some secondary care services will only accept referrals for treatments from general practitioners. Allowing referrals from any service at which someone might be tested and diagnosed, as the APPG recommends, would go some way to solving the problem.
Dr Poulter
I agree entirely with my hon. Friend. One challenge that we face is the fragmentation of the commissioning of substance misuse services and sexual health services. Those are commissioned by local authorities under the Health and Social Care Act 2012, which I think we have to reflect on as a mistake in this context, as opposed to many secondary care services, which are commissioned by the NHS through clinical commissioning groups. Until we sort out that fundamental issue of commissioning, we will not be able to put in place the improvements that he suggests.
Sir David Amess
Oh dear! I say to my hon. Friend—I and, indeed, you, Mr Streeter, were in this place when we were dealing with all these issues—that the fragmentation is very worrying. My hon. Friend is right to point out that more work needs to be done on the issue.
Dr Whitford
I am not sure whether the hon. Gentleman is aware that there is a cap on the number of patients who are allowed to receive drugs such as sofosbuvir; certainly, hepatologists I have met in recent years report having to ration it to the most severe cases. The limit was set at about 10,000 patients a year. This year, it has been increased to 15,000, but that is not a target; it is a cap. It means that despite it having been stated that 160,000 patients in England suffer from hepatitis C, it would literally take 10 to 16 years to treat them all, so this is a matter not of referral but of access to the drugs.
Sir David Amess
I said at the start that I was totally the wrong person to lead this debate. I put my hands up: I was not aware of the cap. It, too, is a little worrying, but perhaps the Minister will have an answer. I am the first to admit that money is not always available for these things, but it is worrying that we are talking about another 16 years. That is not what our all-party group wants.
If services share data more effectively, the number of patients lost to follow-up will certainly be reduced. That will minimise cases such as prisoners who have been diagnosed being released before being referred to a service that provides the treatment that they so desperately need. Another example is where general practitioners have records of people who have been diagnosed but never received treatment.
On the subject of treatment, pioneering treatments have been in place since 2014. I am advised that they are shorter in duration and have higher cure rates and fewer side effects. They have thus been instrumental in making progress in the way we treat hepatitis C, and many people have been cured thanks to the drugs available since 2014. Notwithstanding that, we should continue to maintain targets for the number of people treated and to maintain universal access to treatment for those who have been reinfected. Those targets should be local, regional and national.
There is even an argument for making the targets more aspirational. Currently, there is a target to treat 12,500 people in England per year, and the all-party group would like that to increase to 20,000 new treatment initiations. If the target is not raised, there is little chance of achieving NHS England’s target of eradicating hepatitis C by 2025. It might be more pragmatic to have initially an even greater target, which would progressively be lowered in the future. That approach would reflect the assumption that, as overall prevalence falls and approaches minimal levels, those still living with the virus will be harder to locate within the population.
Treatment should be focused in the community. That will ensure that access is not hindered for those who have difficulty accessing secondary care services. The all-party group recommends making treatment more readily available in GP clinics and pharmacies, homeless shelters, substance misuse centres, sexual health clinics and prisons.
Funding is where the crunch comes, and we have quite a bit to say on it in our report. Although new curative treatments have considerably decreased in cost, pioneering new treatments for hepatitis C are not immune to concerns. The way in which the new treatments were initially rolled out by NHS England drew criticism at the time. For example, restrictions were placed on the number of patients able to access them each year in England. Of course, the hon. Member for Central Ayrshire (Dr Whitford) has reminded the House of that. I am sure that the Minister is aware of recent negotiations between NHS England and the industry to develop a new funding model in this area and one that does not restrict access for patients. Without such dialogue, elimination in England would be severely compromised.
The all-party group has gone further, however. We recommend that any future deal should prioritise equitable availability throughout the country—I suppose we are thinking here of the postcode lottery—that does not discriminate against patient populations. On the subject of the all-party group’s recommendations, we believe that we should continue to monitor elimination progress with reference to progressive targets. The report calls for more diverse data on the virus to be collected and shared. It is the group’s belief that that would additionally allow for improved allocation of testing and treatment resources.
As the all-party group’s report makes clear, we believe that the eradication of hepatitis C in the foreseeable future is an extremely achievable goal—we really think we can do this. It is a goal to which our international partners are committed, which is very good. Some of them are making greater progress towards achieving it than we are, for whatever reason. For the target to be met, we must change our approach to hepatitis. It is my belief that the recommendations that I have summarised today must be implemented, and as soon as possible. Failure to do so will only prolong the existence of hepatitis C in this country. We have at our disposal the means to eliminate it. Let us do that.
Jim Shannon (Strangford) (DUP)
Let me express special thanks to the hon. Member for Southend West (Sir David Amess) for setting the scene. He said that he was not the master of the debate, but he was certainly the master of delivery. He told us about all the important issues, with the help of the two learned doctors in Westminster Hall today: the hon. Members for Central Suffolk and North Ipswich (Dr Poulter) and for Central Ayrshire (Dr Whitford).
As my party’s spokesperson on health, I take an interest in all health matters in the House. Some people would say, “He takes an interest in just about everything in the House,” but that is by the bye. Health matters are my specific interest, so I am here to make a contribution in that capacity and will make a comment from a Northern Ireland perspective. Obviously, that will come into the debate.
First, I commend the all-party parliamentary group on liver health for the report that it has put forward. The hon. Member for Southend West is absolutely right: if people listen and read its recommendations, they will realise that the APPG has a really firm and dedicated interest in this matter. I am most impressed by the APPG’s recommendations and report; I am sincerely impressed by the work carried out by it. In my research for my contribution to the debate, I learned a lot from its recommendations and from the work that it does. The contents of the report are informative in the extreme. It provides lots of detail and information, which I hope will help us to contribute to the debate in a positive fashion.
I sincerely hope, too, that there will be such an opportunity for the Minister, who is always responsive and helpful. We are pleased to have a Minister who clearly has an interest in the subject matter. When he speaks, we will understand just how important that is. However, we need to implement the recommendations for so many people throughout the UK. I am also pleased to see in her place the shadow Minister, the hon. Member for Washington and Sunderland West (Mrs Hodgson). I know that she will be equally positive.
The hon. Member for Southend West referred to George Best. He was the greatest footballer this world has ever known, according to Pelé, and what better person to say that than a man who many think was the best footballer in the world, even though whenever he has been asked he has said that it was George Best.
Unfortunately, George Best had problems; that was just the fact of it. With his talent and expertise came a problem, and the problem was alcohol. For a time, he and his wife lived in my constituency, just outside Portavogie, and he was very much someone who everyone wanted to associate with and spend time with. We well remember the day that he died and his funeral at Stormont. It was unusual for someone to be given the accolade of being buried from Stormont. I remember that it was a rainy day, but the crowds came from all over the Province just to be there and be part of what was a very poignant occasion as we laid to rest one of Northern Ireland’s greatest and, indeed, one of the world’s greatest when it came to playing football. I just wanted to say that, as the hon. Member for Southend West introduced it in his comments.
My parliamentary aide first went to Africa on a humanitarian aid project. She is a member of the Elim Church in my constituency. Elim Missions Ireland does some fantastic work out in Swaziland and Zimbabwe when it comes to helping with medical and education projects, as well as general all-round giving. It takes out a number of containers every year to help with that. When she told me about the list of vaccinations she had to get, one of which was for hepatitis A and another for hepatitis B, she said, “All I am really missing is hepatitis C.” Little did we understand in the office that the hepatitis C vaccine is greatly needed not simply on the plains of Africa, but in our own country. The hon. Gentleman referred to that.
The Northern Ireland Hepatitis B & C Managed Clinical Network is a website with great information that helps us to construct our speeches. Hepatitis C is an infection of the liver caused by the hepatitis C virus, which is carried in the blood stream to the liver. We know that it can cause inflammation and swelling. It can cause fibrosis and the scarring of the liver tissue, and sometimes liver damage. It may subsequently lead to cancer of the liver and possible death. Over the years as an elected representative, I have represented quite a few people who have died of liver cancer, although that is a separate debate. I remember only one person in that time who survived liver cancer to live for a longer period.
In Northern Ireland, there are more than 2,500 people known to be infected. A large proportion of people, however, remain unaware that they have the virus. That is one of the key issues on which we look to the Minister for a response. How do we raise that awareness to address those who do not know they have it, but need to know today? We all know that we need early diagnosis. If we find out early that something is wrong, we can do something about it, but if people are carrying the virus in their system and do not know, that is a real problem.
Like so many unseen diseases, the problem lies in the fact that many people do not realise they have been infected with the virus, because they have not had any symptoms or they may have flu-like symptoms that can easily be mistaken for another illness. I declare an interest as a type 2 diabetic, which is a chronic disease. Every year, I get that flu jab to try to stop flu and colds. By and large it works—it has for the last few years, anyway. People who get colds and flu regularly might wonder whether it is just a cold or flu, or something more. That is the question we are all asking.
With the pressure the NHS is under, as we all know, there are few of us who would not struggle through the winter with a perpetual cold or flu, thinking we were simply run down. Few people would bother their doctor with a cold, yet for some that prevents treatment from being started when it would be most effective.
This is Men’s Health Week. Those of us who fit into that category know that we need to look at our health more seriously. In Men’s Health Week, we need to say, “If you have a problem, go to your doctor.” People say that man flu is one of the worst things to have, but us men, unfortunately, do not respond to our health issues as strongly as we should. We should be going to our GP.
I have learned that there are six types of hepatitis C virus, which all have different genes, which are called genotypes and numbered 1 to 6. Almost all people in the UK who have hepatitis C have genotype 1, 2 or 3. It is important to know which type a patient has, as different types respond differently to treatment. It is possible to be infected with more than one type of hepatitis C at the same time. I remember an awareness event in the House of Commons not too long ago—it may have been last year—on hepatitis C. That day aimed to highlight the issue and make us more informed of the problems.
Hepatitis C is a blood-borne virus and there is some stigma attached, because it can be transmitted sexually or through sharing needles. That is certainly true, but it needs to be publicised that the virus can also be shared through an unsterilized needle in a tattoo parlour or something as innocuous as sharing a toothbrush, a razor or other personal items, because the blood can survive outside the body. An old toothbrush, therefore, can bring about a whole mess of issues. One person in four will clear the virus, but it is possible to catch it more than once.
The APPG’s positive recommendations on how hepatitis C could be eradicated should be central to our thoughts on where we go. All the issues I have mentioned are reasons we are not finding it easy to meet our own target of eradication by 2025 and the World Health Organisation target of world eradication by 2030. People may not be fully aware. Will the Minister confirm what has been done to meet those targets? Can the targets be met? What is new in the way that we address or respond to these things?
We need to ensure that those who present symptoms are tested and those with a history are re-tested. Someone who has had the virus before can have it again, and they might not know. With new drug combinations, it is anticipated that it will be possible to cure approximately 90% of persons with the HCV infection. Those new combinations are effective against the infection in patient groups that were previously described as difficult to treat. We need to focus on those difficult-to-treat areas.
I agree in totality with the recommendation of the APPG on liver health regarding the fact that NHS England has recently entered negotiations with industry to develop a new funding model for hepatitis C, which is expected to guarantee access to treatment without restriction. That is good news. I agree that the resulting deal should include effective mechanisms to ensure that funds are distributed equitably across different geographies and patient populations, so that no one is left behind. I will go further: Northern Ireland must be a key part of the distribution list, not simply the mainland of England, if we are to eradicate hepatitis C and address the issues, whatever they may be.
The hon. Member for Central Ayrshire, who is the Scottish National party spokesperson, will give us not only a Scotland perspective, but a United Kingdom of Great Britain and Northern Ireland perspective. We need to look at how we can do this with the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly, despite the limbo land that it is in, through the permanent secretary. Any new funding must be accompanied by a comprehensive and strategic plan to ensure that it is implemented effectively.
To conclude, there is a way forward with hepatitis C. It is treatable. Let us put this in perspective: it can be done. All we need is the will and the strategy to make it happen. People need to be aware that they have hepatitis C in the first place, but other work needs to be done too.
Dr Philippa Whitford (Central Ayrshire) (SNP)
It is a pleasure to serve under your chairmanship, Mr Streeter. Hepatitis C was identified about 25 years ago. When I was a young doctor, it was simply known as non-A, non-B hepatitis, because no one had any idea what it was. As the hon. Member for Southend West (Sir David Amess) said, we are talking about something that many people simply do not know they have. That is a key, underlying problem. Patients may only be aware that they have hepatitis C when they start to have liver symptoms, which is the start of cirrhosis or malignancy.
With any condition, we first want to prevent it. As was mentioned, at needle exchanges we already have blood screening to ensure that it is not coming from transfusion. We have to remember those in this country who previously suffered from contaminated blood that was iatrogenic—caused by doctors and the health service.
I agree with the hon. Member for Central Suffolk and North Ipswich (Dr Poulter) that we need a more medical approach to the issue of drugs. If we drive problems underground, there is no possibility of detecting and treating people, to achieve the elimination that the World Health Organisation is aspiring to.
In Scotland we are recognised as world leaders, in the sense that we had a strategy in 2005, 2008, 2011 and then our elimination strategy, which was introduced in 2015. The 2011 strategy fed into what became the World Health Organisation strategy, as one of our senior leaders was seconded to it. The big change is sofosbuvir and ledipasvir—the new antivirals that are well tolerated and able to clear the viral load in 90% of all patients. Of course we would prefer a vaccine, as the hon. Member for Strangford (Jim Shannon) mentioned; that is how we eliminated smallpox and how we are trying to eliminate polio. However, the problem with hepatitis C is that, as he said, there are six genotypes, but 50 subtypes, and it mutates regularly. It is one of those viruses with a coating that is very hard to get a handle on with the immune system and therefore to develop a vaccine for, so we need to use the drugs until a vaccine is available.
The Scottish Medicines Consortium passed sofosbuvir in 2014 and NICE passed it in 2015. Unfortunately, NHS England took the approach of trying to slow things down because the drugs are very expensive. However, dealing with liver failure and having to consider liver transplantation is even more expensive. A cap of 10,000 patients with cirrhosis and the most severe conditions from hepatitis C was set.
In Scotland in 2015, we took the opposite approach—a public health approach—to try to reduce the virus in the community and prevent it from occurring.
Dr Poulter
The hon. Lady is making very good points. I am sure she will correct me if I am wrong, but the other point to make is that in Scotland there has been a much more joined-up approach in tackling heroin addiction. Scotland is much further forward than England in addressing such issues, in having a co-ordinated strategy and in recognising how addiction leads to prisons and the criminal justice system. Indeed, there is not the fragmented commissioning of services that we see in this country. Does she agree with me that that is something that England can learn from in addressing the lack of joined-up working and commissioning?
Dr Whitford
I thank the hon. Gentleman for his comments. As NHS Scotland is still a single public body, we do not have the issue around commissioning. We are also trying to take a much more health-based approach to addiction. As happens in England as well, we have multiple needle exchange programmes. This place has held us back from trying to introduce safe injection in Glasgow, which has one of our highest drug-addicted populations and highest incidence of drug-related deaths. However, that initiative comes under the Home Office and we have not been granted permission to try to take it forward. Always taking a criminal justice approach gets in the way of achieving the medical outcomes that we want.
It is really important to recognise the breakthrough of the drugs. With an eight or 12-week course, expensive as it is, more than 90% of patients will achieve a sustained virological response. That means they remain with undetectable levels of virus 12 to 24 weeks after the end of their treatment. The problem with rationing treatment to those who are actually ill is that it is the people who are not ill with hepatitis who spread it to other people, because they are out and active. If they are drug users, they are still using drugs. Someone who is so ill that they are confined to bed is not spreading it. That is why we took a public health approach to eliminating hepatitis C over the coming years. We certainly aim to achieve that before the World Health Organisation target date.
As the hon. Member for Southend West said, one of the key issues is people not knowing that they have the virus, so, in Scotland, part of our approach has been to create opt-out screening at various points of blood being taken. That will be from general practice in areas of high prevalence. It already includes bloods taken in accident and emergency. It includes screening at other times such as when we screen for HIV. Obviously, we screen for HIV when a woman has her booking appointment at the time of her pregnancy. We need to use all the opportunities that we can. Of course a patient always has a right to opt out, but when we make something the norm it becomes easier for people to agree.
The prison population obviously has a big problem with drugs, including IV drugs—either in the present or the past, before the prisoners were incarcerated. It is important that we get the tests taken up by such populations.
We also offer testing in more social settings, where there have been education events around hepatitis and HIV and where peer-to-peer work has been done. It is important that we raise awareness and try to reduce the stigma. There is a problem with always talking about HIV drug users, as opposed to recognising that someone might have been contaminated by blood in this country, while undergoing maternity care or surgery overseas, or, as was mentioned, in a tattoo parlour: it means that people do not care. We end up with, “Well, it’s their own fault”, which maintains the risk to everyone else and hampers elimination. As well as raising awareness, we absolutely have to reduce the stigma.
It is important to take a public health approach, as we have done in Scotland. I commend that to NHS England, which should remove the cap and do as we are doing: try to set a minimum target for new people to be found and treated as soon as possible. We have seen the new cases reduce from 1,500 in 2007 to 700 in 2013, but it is the chronic cases that have been out there for years that we have to find because they still carry the virus and can spread it to other people.
Of course, NHS England should try to get the price down. There is no right for drug companies to profiteer as opposed to having a fair return, but the issue must be taken in the round. We must recognise that eliminating the virus by using drug treatments while we wait for a vaccine will overall be an huge benefit to society.
Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)
It is a pleasure to serve under your chairmanship, Mr Streeter. I thank the hon. Member for Southend West (Sir David Amess) for securing this important debate and for the work that he has done as co-chair of the all-party group on liver health for many years, as well as for his excellent opening speech today. My hon. Friend the Member for Ealing, Southall (Mr Sharma), a vice-chair of the all-party group, is not in his place today, but I pay tribute to him for the work that he has done to raise awareness of this issue. I thank the hon. Members for Strangford (Jim Shannon) and for Central Ayrshire (Dr Whitford) for their excellent contributions and I thank the hon. Member for Central Suffolk and North Ipswich (Dr Poulter) for his interventions.
Finally, I thank Professor Steve Ryder, whom I met earlier this year, for his expert briefing and for the obvious passion that he has for eradicating hepatitis C in this country as soon as possible. I also pay tribute to the Hepatitis C Trust and the Hepatitis C Coalition for the work that they do.
I welcome NHS England’s ambitious commitment earlier this year to eliminate hepatitis C by 2025, five years ahead of the World Health Organisation’s target. Healthcare professionals and experts are confident that hepatitis C can be eliminated, notwithstanding everything we have heard today about the cap on the treatment. Today is the first time I have heard about that, but I am sure the Minister will respond to the issue in his remarks soon. I remain concerned about some of the challenges that need to be faced by 2025 if the target is to be achieved.
Hepatitis C, as we have heard, is a hidden disease with patients experiencing few or no obvious symptoms for many years, but its long-term effects can cause severe liver damage if it goes untreated. Across the UK, around 214,000 people are infected with hepatitis C, but I understand that 40% to 50% remain undiagnosed. That huge percentage of people going undiagnosed is one of the biggest challenges to eliminating this virus—we cannot treat people if we do not know who they are. As Professor Paul Klapper and Pam Vallely of Manchester University ask in an article published this year,
“how do we identify those who are infected so that they can be guided into treatment and care?”
As I, and many others, have mentioned today, hepatitis C is a hidden disease. People may be completely unaware that they are living with the virus, and at risk of unknowingly passing it on to those around them. Although awareness of hepatitis C is gradually improving, low awareness and stigma remain a challenge to ensuring that as many people as possible are tested, diagnosed and treated.
Levels of stigma and poor awareness are particularly high among at-risk groups, such as former or current drug users, or those who do not access conventional healthcare facilities, possibly because of fear of being challenged or stigmatised. How will the Government ensure that those at-risk groups are reached—not only for testing but for continued treatment? Again, this is where the cap will come into things; as more people come forward and are diagnosed, we must be able to treat them.
People need continued support throughout their treatment to ensure that they complete the course of medicine—if they do not, it is just a waste of time and money. Will the Government provide extra support to at-risk groups to ensure that that happens? An effective way of raising awareness and breaking down the stigma of hepatitis C is to introduce peer-to-peer messaging programmes for at-risk groups. Such a provision could be increased in settings such as drug services and prisons, and would mean that there will already be an understanding and relationship between the two parties. Has the Minister made any assessment of the role that a peer-to-peer programme might have in achieving the goal of eliminating hepatitis C by 2025?
Although at-risk groups make up a huge proportion of those living with hepatitis C, people who do not consider themselves to be at risk also pose a challenge to the 2025 target. As we have heard, Anita Roddick from The Body Shop was one of those who would not have been in an at-risk group, and she would have had no way of knowing that she was infected with hepatitis C. The excellent all-party group on liver health stated that
“A high-profile, Government-backed awareness campaign should be considered, and awareness messaging should be targeted through novel channels at those who may not consider themselves to be ‘at risk’.”
Do the Government have any plans to support Public Health England in raising awareness of hepatitis C among the wider general public, and what format might that campaign take?
Crucially, awareness among primary care professionals should be increased through targeted testing initiatives in primary care, with additional resources and support for primary care workers. If we are to eliminate hepatitis C, we must seize the opportunity when people are already having blood taken—tests for HIV for example, or when bloods are taken in A&E—and test them for hepatitis C. Testing should become routine in substance misuse services, sexual health clinics and prisons, and it must also increase in primary care and community settings, such as hostels, daycentres and police custody. The prevalence of hepatitis C among the prison population is four times that of the population as a whole. If the amount of people tested increases, we will be closer to identifying the 40% to 50% of infected people who are living with it unknowingly, and we will be one step closer to eliminating the virus.
A big step in recent years has been the development of a new class of drugs—direct-acting antivirals or DAAs—that has revolutionised the treatment of hepatitis C. The drugs no longer carry the toxicity or side effects of previous treatments, and the short treatment courses effectively cure the infection in a high percentage of cases. Once patients are diagnosed, however, it is crucial that they are treated immediately, because the time between diagnosis and starting treatment poses the greatest risk of patients dropping out of the care pathway.
For example, a prisoner who is diagnosed and treated while in prison but who is then released might not continue with the treatment and could be at risk of infecting others, as well as of not being cured. What mechanisms will the Government put in place to ensure that those who begin their treatment can finish it, regardless of any change in circumstances? Quicker referrals are also needed to simplify the process of linking people into care. Currently, some secondary care services will only accept referrals for treatment from GPs. The all-party group on liver health recommends that referrals for hepatitis C treatment should be accepted from any service where someone might receive a test and be diagnosed. Has the Minister made any assessment of that recommendation?
Finally, I move on to prevention. If we are to eliminate hepatitis C—we all want that to happen—we must ensure that the number of new infections falls. Substance misuse services and sexual health clinics have a crucial role in that, but their funding has consistently been cut by the Government. The King’s Fund estimates that spending on tackling drug misuse in adults has been cut by more than £22 million compared with last year, and funding for sexual health services has been cut by £30 million compared with last year. What role do the Government expect such services to play in the elimination of hepatitis C, given such finite funding and resources? Those services provide not only a testing service, but an educational one that could help reduce reinfection rates—a further challenge to the elimination of this virus.
I am sure the Minister will agree that serious challenges lie ahead in meeting our ambition to eradicate hepatitis C by 2025. All those challenges need to be addressed—not only to meet NHS England’s target, but to ensure that this potential public health crisis is averted. I look forward to hearing the Minister’s response on how the Government plan to tackle those challenges in the months and years ahead.
The Parliamentary Under-Secretary of State for Health and Social Care (Steve Brine)
It is genuinely a pleasure to serve under your chairmanship, Mr Streeter, and to be back in Westminster Hall on such a quiet day in Westminster. The hon. Member for Ealing, Southall (Mr Sharma) is sadly not in his place today, but I thank my hon. Friend the Member for Southend West (Sir David Amess) for securing and leading this debate. Although he said that he was not the best person to introduce the debate, he could have fooled us because he did it very well.
Hepatitis C is a significant health issue in our country, and for too long it has been overshadowed by other public health concerns that, despite the superstars involved, have had higher public profiles. I pay tribute to the Hepatitis C Trust and the wonderful Charles Gore, whom I have got to know in this job. He is a colossus in this area, and has become a friend. I also thank the Hepatitis C Coalition—this issue has been central to both those organisations.
My hon. Friend mentioned lots of local services for Southend residents, and a lot is going on in his constituency. Few MPs champion their constituency more than he does, so for his press release I will mention that screening and onward referral services are provided by the Southend Treatment and Recovery Service, known as STARS. For primary care, GP practices refer people to the specialist treatment services in my hon. Friend’s much-loved Southend Hospital. Local drug and alcohol treatment services in Southend hold outreach screening sessions for hepatitis, and all positive cases are referred for onward treatment. Big local successes that I noted in my papers included last year’s hepatitis C roadshow, which took place in my hon. Friend’s area, and there is the hepatitis C operational delivery network educational event 2018—he can see me after class for more details if he would like.
It is always good to see the hon. Member for Strangford (Jim Shannon) in his place, speaking so knowledgably and passionately about this issue, as well as the hon. Member for Central Ayrshire (Dr Whitford), and my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter).
The World Health Organisation has set ambitious targets to reduce the burden of chronic hepatitis C over the coming years, with a pledge to eliminate it as a major public health threat by 2030. The UK Government are committed to meeting and beating that target, as has rightly been said.
A few years ago, hepatitis C-related mortality was predicted to increase in our country, but through the measures that we have in place and the hard work and dedication of so many unsung heroes in the field, 9,440 treatments were delivered nationally against a target of 10,000 in 2016-17; the number of deaths fell for the first time in more than a decade, and that has been sustained for another year; and between 2014 and 2016, there was a 3% fall in deaths from hepatitis C-related end-stage liver disease. That is good news.
However, hepatitis C continues to make a significant contribution to current rates of end-stage liver disease. I welcomed the recommendations to tackle that in the report, “Eliminating Hepatitis C in England”, which was published in March by the all-party parliamentary group on liver health, of which my hon. Friend the Member for Southend West is co-chair. I often produce a recommendation-by-recommendation response to Select Committee reports in my area, but when I checked with my officials during the debate, I found that I did not do it for that report—I was not asked to by the group—but I offer to do so. In fact, I will go further than that—I will go crazy and do it. The group will get that from me as a written response to its report.
This is a timely debate, because NHS England recently launched its procurement exercise for the new generation of hepatitis C antivirals. If that exercise delivers successfully, the ambition is to eliminate hepatitis C as a public health threat earlier than the WHO goal of 2030, and to get to 2025.
Dr Poulter
Given the experience that we had with NHS England on HIV PrEP medication and its argument that that was a public health responsibility, which I believe was wrong and which was legally found wanting, will the Minister ensure that he holds its feet to the fire on hepatitis C so it recognises that although it is a public health issue, it has a responsibility for the effective procurement of antivirals and for making them available to all people with hepatitis C?
Steve Brine
Point taken; feet will be held to said fire. I do not think that NHS England is found wanting in this area, and I will go on to say why, but I take my hon. Friend’s point and will follow it through, because I want this to work.
The new industry deal may allow for longer contract terms that cover a number of years, but whether a long-term deal can be reached and what its duration is will be contingent on the quality and value of the bids submitted by industry. I expect the outcome of that in the autumn.
On local delivery networks, NHS England has established 22 operational delivery networks across our country to ensure national access to the antiviral therapy. I will touch on the issue of the cap in a minute. Those clinically led operational networks are given a share of the national annual treatment run rates based on estimated local need.
That local operational delivery network model ensures better equity of access. Many patients with chronic hepatitis C infections come from marginalised groups that do not engage well with healthcare, as has already been said. Through the development of networks, it has been possible to deliver outreach and engagement with patients outside traditional healthcare settings, such as offering testing through drug and alcohol services and community pharmacies.
As hon. Members know, I have a great soft spot for community pharmacies, and I think that they can and do play an important role in this space. In April, I hopped along to Portmans Pharmacy, which is just up the road in Pimlico, to see the pharmacy testing pilot of the London joint working group on substance use and hepatitis C that is going on there. I saw the testing and the referral to treatment that takes place in pharmacies that offer needle and syringe programmes across six boroughs in London.
Portmans Pharmacy has provided a needle and syringe programme and the supervised consumption of methadone for a number of years. Those points of contact with people who inject, or previously injected—a key distinction—drugs provide an ideal opportunity for us to make every contact count and to test for hepatitis C, as we think that about half of people who inject drugs in London have the virus.
The approach of Portmans Pharmacy and the London joint working group is innovative. It aims to provide quick and easy access to testing and a clear pathway into assessment and treatment in specialist care, which is obviously critical. I pay great tribute to the work that the group has done. It has rightly received a lot of coverage and a lot of plaudits. I am anxious and impatient—as my officials know, I am impatient about everything—to see the peer-reviewed results of that work and where we can scale it out more.
The hon. Member for Central Ayrshire mentioned treatment in respect of the cap. It is different north of the border, but NHS England offers treatment as per the NICE recommendations. The drugs that she mentioned are expensive, which limits the number of people who can be treated each year, but treatment has been prioritised for those most severely affected. The NHS then provides treatment to others who are less severely affected. So far, 25,000 people in England have been treated with the new drugs and a further 13,000 will be treated this year. The NHS procurement exercise should allow for even larger numbers to be treated each year. Of course, nothing is perfect in life. Resources in a publicly funded health system are finite, which is why we have to target them at the most challenged group. That is one of the reasons why making every contact count through primary care and pre-primary care, as I call community pharmacies, is so important.
Dr Whitford
Does the Minister accept, though, that the people who are likely to continue to spread the condition are those who are less ill? The old concoctions tend not to be so effective or well tolerated. That is a big difference from the new antivirals, which are very effective and very well tolerated. It strikes me that in England, we may be letting more people become more ill before they qualify for the better drug.
Steve Brine
Of course, the hon. Lady states a fact not an opinion, and I accept that, which is why I speak of the importance of primary care and of making every contact count. The people who Portmans Pharmacy interacts with are not all sick. People who have a hepatitis C infection or a drug-use issue have other issues—they get flu too—so they interact with that pharmacy, and the pharmacy makes every contact count by grabbing people earlier. That is one reason why I am so passionate about the way that that underused network can help us to reach the ambitious targets that we have set.
Everyone has rightly talked about prevention—in many ways, I am the Minister with responsibility for prevention and it is the thing that I am most passionate about in our health service. As well as testing and treating those already infected, an essential part of tackling hepatitis C must be the prevention of infection in the first place, or the prevention of reinfection of those successfully treated, which would not be a smart use of public resources.
NHS England and Public Health England, which I have direct ministerial responsibility for, are actively engaged in programmes at a local level to prevent the spread of infection. As people who inject drugs or share needles are at the greatest risk of acquiring hepatitis C, prevention services, particularly those provided by drug treatment centres, are key components of hepatitis C control strategies. Clearly, the key to breaking the cycle of hepatitis C is to prevent infection happening in the first place.
Dr Poulter
The fundamental issue is that there is no greater evidence of fragmentation—I speak from my own clinical experience—and failure of joined-up working than the fact that local authorities commission substance misuse services but that the NHS commissions mental health services for the same patients and secondary care services for hepatitis C patients. People are falling through the gaps. Many people who have hepatitis C do not present to GPs, and are not even routinely on their lists, so the issue has to be looked at in a much more effective way if we are to make a difference.
Steve Brine
I hear my hon. Friend’s experience of the frontline and I would not disagree that in some areas there is unhelpful fragmentation. If I remember rightly back to those happy early days of the election of my hon. Friend and I to this place, we sat on the Health and Social Care Bill Committee. That piece of legislation, controversial as it was, enacted the decision to pass that responsibility to local authorities and, of course, all local authorities are now, in effect, public health bodies. All of them—well, top-tier authorities in England—have directors of public health.
Just because there are challenges and fragmentation, that is not a reason to redraw the system. I do not think there is any desire within the system for a top-down or bottom-up reorganisation—I suspect that, as a doctor, my hon. Friend would agree with that—but there is a challenge to the system to come up with a much better whole-system approach, to make sure that people do not fall between those cracks.
My hon. Friend and I could debate at length—I am sure we will—whether those cracks can ever be filled, and whether there will ever be Polyfilla that is big enough or strong enough to fill those holes, but I do not think that it is a reason to break open the system.
Dr Poulter
This fragmentation of commissioning is a really important point and it comes up in so many debates in Westminster Hall and, indeed, in the main Chamber. I urge my hon. Friend and indeed the rest of the health team—we have got to put right the things that we got wrong. If we want to get this issue right, and get it right for people with hepatitis C, and for people with mental health conditions who are not getting access to services because of this fragmentation, then we have to revisit it.
I urge my hon. Friend to go and spend some time out on the frontline with some professionals and to get them to talk to him candidly—not on a ministerial visit. He should get them to talk to him candidly about these problems, because we have to recognise that this situation needs to change for the benefit of the people we care about, who are the patients.
Steve Brine
I will not prolong this discussion, Mr Streeter, but I take my hon. Friend’s point and I think it is a subject that will receive further airing, to put it mildly.
Steve Brine
One last time and then I must conclude, because I want to touch on prisons.
Dr Whitford
Obviously, this debate has emphasised the importance of diagnosing people and getting people to undergo testing. However, does the Minister see that it is much easier to encourage people to undergo a test when they can be promised that they will get effective, tolerable treatment that will be successful, as opposed to their perhaps being left languishing on what is now relatively old-fashioned treatment that is full of side effects?
Steve Brine
Yes, of course, and that is why I have talked about the local networks, and about early detection and prevention. What the hon. Lady says is self-evident.
The Hepatitis C Trust, which has rightly received many plaudits today, has played an important role for us in recent years in piloting pretty innovative ways of increasing testing rates, through mobile testing vans—for example, in the constituency of my hon. Friend the Member for Southend West—and the pharmacy-based testing work that I mentioned, as well as the introduction of peer educators in prisons, which a number of people have mentioned today. My hon. Friend mentioned his visit to Wandsworth Prison, which he was right to say is a very good example of peer educators working.
The subject of prisons is one the House knows is of great interest to me. Given the number of people who, sadly, actively inject drugs across the criminal justice system and the custodial system today, it is obviously likely that a significant proportion of those in the infected but undiagnosed population will have spent some period at Her Majesty’s pleasure.
As part of the health services commissioned for those in detained settings, an opt-out testing programme for blood-borne viruses, including hepatitis C, in adult prisoners was fully implemented across the English secure estate last year, 2017-18. Because of the expected higher rates of prevalence, opt-out testing for blood-borne viruses is offered in 100% of the prison estate in England, as part of the healthcare reception process, although, it has to be said, with differential success and outcomes. We are currently addressing that through a range of initiatives that have been put in place to improve the delivery of testing and the provision of successful treatment in prisons. So, in some areas the whole-system changes are being piloted.
My shadow, the hon. Member for Washington and Sunderland West (Mrs Hodgson), made the very good point that we’ve started, so we must finish. Absolutely; as I said earlier, it would be a very inefficient use of public resources to start treatment inside the secure estate. That is why, when we talk about through-the-gate treatment, that treatment must include health treatment. That is something—I cannot believe that my hon. Friend the Member for Bracknell (Dr Lee) is getting a second mention in this debate; I see that he is on his feet in the main Chamber—that I look forward to talking to the new Minister with responsibility for prison healthcare about, whenever he or she takes up that lucky role in future hours or days.
Let me take the opportunity once again to congratulate the all-party parliamentary group on liver health. It is not the first time that I have said this and it will not be the last: so much good work in this place goes on in all-party parliamentary groups, including so much informed debate. As a Minister—I am sure that others in the Chamber who have been Ministers would concur—I think that those groups are incredibly valuable to us and to the work that we do.
That is why I spend so much time listening to all-party parliamentary groups, helping them, including helping them to launch their reports, and then writing back with line-by-line responses to their reports, because their work is so vital to us. It is critical on a public health issue such as this, which, as I said at the start, is often overlooked and sometimes brushed under the carpet as being a little bit, “We don’t want to discuss this.” That is because, exactly as the hon. Member for Central Ayrshire said, there may even—God forbid—be an unspoken feeling that, “Well, with their behaviour they had it coming.” She is very brave to say it and I have no qualms in repeating it, but I think that feeling does exist.
The measures that I have spoken about today are not a panacea; the target is an incredibly challenging one for us. However, the Government, Lord O’Shaughnessy—who speaks for us in the other place on this subject and shares an office with me—and I are all passionate about this issue. We passionately believe that it is something that we can and will beat. We are taking it seriously, and we are in a good position to push forward and significantly reduce the burden of hepatitis C, in line with our commitment on it.
This debate shows us that improvement in hepatitis C testing and delivery of treatment are best delivered where there have been whole-system improvements. The Government, together with the wider health and social care system, have got to take all the opportunities available to us to address this key, but sometimes overlooked, public health challenge.
Sir David Amess
I am really happy with what my hon. Friend the Minister has said about all-party parliamentary groups because, sadly, the recommendations of the all-party parliamentary group on fire safety and rescue were not listened to over a number of years, and of course we had the Grenfell disaster. However, I get the distinct impression from my hon. Friend that he is listening to the recommendations of this report by the all-party parliamentary group on liver health.
It has been a great privilege to learn one or two things from other colleagues with more expertise in this field than I have. In every sense, this debate has been time well spent, and I am very, very optimistic about the future progress towards eliminating hepatitis C. I thank all colleagues for the time that they have spent here in Westminster Hall, participating in this debate, and I very much look forward to celebrating with my hon. Friend the Minister within a few years the elimination of hepatitis C.
Question put and agreed to.
Resolved,
That this House has considered elimination of hepatitis C.
Logbook Loans
(5 years, 10 months ago)
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Yvonne Fovargue (Makerfield) (Lab)
I beg to move,
That this House has considered protection from logbook loans.
It is a pleasure to serve under your chairmanship, Sir Edward. I really did not expect to have to bring forward this debate, and it is with regret that I do so.
Until about four weeks ago, a Bill to reform logbook loans was expected in this parliamentary session. It was included in the Queen’s Speech, the Law Commission was tasked with drafting the text and the draft Goods Mortgages Bill was duly published last December. In effect, that was it—we were ready to go. And then the Government pulled the plug. On 14 May, we were told that there would no longer be a Bill and that the matter was to be referred to the Financial Conduct Authority—the FCA—in what looked like a kick into the long grass.
Many of us are nonplussed by the Government’s U-turn. The Bill is largely uncontroversial and will have all-party support. It is undeniable that in their present form logbook loans cause great consumer harm. To say that reform of the loans is long overdue is pretty much an understatement. The case for reform is absolutely overwhelming. Bills of sale—their official title—are governed by two statutes that are dated 1878 and 1882. They were designed in a different age to be used in a different age. They are antiquated and have no part to play in the consumer credit marketplace of the 21st century.
Andrew Bailey, the FCA’s chief executive, recently called them “quaint”. They are a lot more than that: they are downright dangerous. Although they are not a huge part of the high-cost credit market, they affect a really vulnerable group. Citizens Advice, for instance, found that clients with logbook loans had twice as many debts as those without.
Logbook loans are a way for borrowers to use their car or van as security for a loan. The problem for the borrower is that the vehicle becomes the property of the lender until the loan is repaid. If any payments are missed at any time during the agreement, the vehicle can be repossessed without a court order—and that routinely happens, not least because the interest rates are so high. One example from logbookloans.com is that if a customer borrows £850 over 18 months, they will pay flat-rate interest of 132%, with an annual percentage rate, or APR, of 450%. That equates to 18 monthly payments of £140.70, and a total cost of £2,533.
I will give a case study of someone who took out a logbook loan. Sophie lives in Greater Manchester—that is around my area—and she needs her car to get to work. Two years ago, she took out a logbook loan for £2,700, with payments of £688 a month. She kept up with them until recently, when she had to pay a large council tax bill and she fell into arrears. The logbook loan company repossessed her car. She tried to negotiate with the company, but it would not listen. It demanded the total cost of the loan—£7,000—in full and is threatening to add charges. She cannot get to work, as she has no car, and she has a loss of income and the risk of losing her job.
I do not think borrowers always realise what they are letting themselves in for. Many borrowers are desperate. Logbook loans are aimed at people who cannot borrow from anywhere else. They do not fully engage with details of the loan agreement. Frankly, the tone of the advertising is irresponsible. I quote from an online lender, Mobile Money Ltd:
“You could get a same day loan without leaving the house. Try out a loan from the UK’s longest running logbook loan lender. Click ‘Apply Now’.”
To suggest that someone should “Try out a loan” makes it sound more like pizza delivery than a serious lender. Those words are not appropriate.
The other key fact is that logbook loans do not just disadvantage the original lender; unlike any other kind of lending, they can also harm people who are not party to the loan. Someone who buys a car that, unbeknownst to them, is subject to a logbook loan can have it repossessed because the original owner did not keep up repayments. There is nothing they can do about that, even though they bought the car in good faith. It is not even as though they can do a hire purchase investigation check, which can be done with cars bought on hire purchase. That is a real legal loophole.
The Law Commission measure—the Goods Mortgages Bill—would have given borrowers protections similar to those offered by hire purchase law. They would have gained a new right to hand back their car to the lender without being responsible for the remainder of the loan, and there would have been a new requirement for lenders to obtain a court order before seizing goods, provided that the borrower had paid off a third of the loan and had opted in.
Crucially—and this is one of the issues on which the Financial Conduct Authority cannot help—a private individual who bought a vehicle in good faith and without knowing it was subject to a logbook loan would become the owner of the vehicle and not be made liable for the loan. What protection can the FCA offer to an innocent third-party purchaser?
We all agree that it is not a perfect Bill. Some have questioned whether vulnerable customers should have to opt into protection, instead of it being by default. We might ask why protection does not extend to those who have paid off less than one third of the loan, but, taken in the round, the Bill would have been a huge step forward. StepChange, Citizens Advice, the Money Advice Trust—all the agencies said, “It may not be perfect, but it is a huge step forward.”
That brings me to the obvious question: why on earth is the Bill being dropped? Some say it is because of a lack of parliamentary time, but that cannot possibly be the case. Only last week, I spoke on Second Reading of the Non-Domestic Rating (Nursery Grounds) Bill, which irons out an anomaly in the business rate system as it applies to agricultural land. The Minister confirmed in that debate that the anomaly has applied to just a handful of people since it came to light in 2015, yet we had a Government Bill on the Floor of the House to deal with that handful of people.
Logbook loans affect 50,000 people a year, yet we cannot find time for a Bill? What is more, a Law Commission Bill, as the Minister knows, is able to use a special parliamentary procedure that minimises time on the Floor of the House. The procedure is designed to save parliamentary time, so it would be ironic if a lack of it was cited as an excuse not to bring it in.
There must be some other reason. Is the legislation more controversial than expected? If so, how? Could the issues not be dealt with by the parliamentary process? It could be argued, of course, that since the FCA has been undertaking a review of high-cost credit, the matter of logbook loans should sit with the regulator. However, the FCA explicitly declined to include the matter in the recent review, despite the fact that it took on responsibility for regulating logbook loans in 2014. Of course, the FCA knew that the Law Commission was taking on the task of looking at the issue and that many of us have had meetings with the Law Commission about it, and that may have prompted the FCA to shelve the issue. That could be seen as quite reasonable in the circumstances.
Even so, it means that the regulator is on the back foot and that wholesale reform, which is what we need, is years away. I have questioned before and I question again whether the FCA has the powers to deliver the protections that would be enacted by the Goods Mortgages Bill. The consensus is that we need a new statute, and the FCA cannot deliver that. Clearly, the FCA has not prioritised logbook loans, and it needs to do so now.
The FCA could do a number of things. For example, it could impose an interest rate cap and ban top-ups or roll-overs, as it did for payday loans. It could enforce more stringent affordability checks. It could do something about the kind of irresponsible advertising that abounds in the industry, or it could prohibit completely any products that allow for summary repossession. If it plans to do any of those things, it needs to do so quickly.
Frankly, anything the FCA brings forward can only be a sticking plaster—a temporary cover that will not heal the wounds. Outdated legislation, designed for the purchase of hansom cabs and distorted to fit a modern world by unscrupulous lenders, is causing misery for tens of thousands of the most vulnerable consumers every year. I urge the Minister to reconsider and allow the Law Commission Bill to make the progress that was promised in the Queen’s Speech.
The Exchequer Secretary to the Treasury (Robert Jenrick)
I am grateful to the hon. Member for Makerfield (Yvonne Fovargue) for raising this issue and for the leadership she has shown on it. She has been following it for some time. The constituents and cases that she has raised are very serious. I am grateful for her involvement in the matter.
Like the hon. Lady, we believe that consumer credit plays an important role in society. It helps individuals spread income and costs over time and cope with unexpected financial shocks. However, it is vital that consumers are treated fairly and that we ensure that their interests are protected, particularly in the case of high-cost products, of which logbook loans are an important example. The hon. Lady set out a number of instances where the costs incurred in some logbook loans are egregious. One would have to question whether individuals should take out such loans.
It is worth pointing out that the number of logbook loans has fallen substantially in recent years. They now make up a very small percentage of the wider high-cost credit market. The total value of outstanding logbook loan debt was less than £100 million in 2016, compared with £2.7 billion of debt from payday loans, doorstep lending, and rent-to-own.
Yvonne Fovargue
Does the Minister agree with me and Citizens Advice, who fear that the message being sent by not putting the Bill forward will increase and mainstream logbook lending?
Robert Jenrick
I hope I can give some explanation over the course of my remarks as to why we have chosen not to proceed with the Bill at the moment. My opening remarks that the market has shrunk considerably is not to diminish the concerns that the hon. Lady has raised about some of those logbook loans. It is important context to the debate, though, that the market appears to be shrinking, at least for the moment.
The number of bills of sale registered at the High Court has fallen from 52,000 in 2014 to around 35,000 in 2016. That compares with 760,000 people taking out a total of 3.6 million payday loans in 2015 alone. Logbook loans remain an important, if small, part of the loan market and are worthy of attention.
In September 2014, the Government asked the Law Commission to examine the Bills of Sale Acts—the legislation that underpins logbook loans. As the hon. Lady set out, those Acts hark back to a long-distant era. There were concerns over stories of consumer exploitation and high levels of interest, and she has given further examples. Those stories include vehicles being seized too readily on default and unwitting third parties buying a vehicle subject to a logbook loan. All of those things are cause for concern. The Law Commission concluded that the Bills of Sale Acts were out of date and recommended that they should be replaced with a new Goods Mortgages Bill. The Government were sympathetic and agreed that the Law Commission should prepare a draft Bill, which it did, consulting on the draft clauses in the summer of 2017.
Separately, in September 2017, the Government, again showing our good faith and desire to progress the matter, consulted on the aims of the Bill and published the consultation response in May 2018. Although the consultation responses undoubtedly showed a degree of concern about the logbook loan market and broad support for the proposed approach set out in the draft Bill, many stakeholders raised significant concerns, which I will discuss in a moment. Overall, there was less agreement on the detail of the draft Bill than we would normally expect following the Law Commission process, and less than we would wish to see before being ready to proceed with it.
Let me set out a few of the concerns from different stakeholders. Consultees suggested that the draft Bill did not do enough to provide clarity for courts, and expressed concern about its requirement for consumers to opt in to the court process, rather than its being the default. Some consultees also said there needed to be more clarity about the circumstances in which a lender could repossess a secured good without requiring a court order—an important issue, to which the hon. Lady alluded. Other consultees highlighted the risk of borrowers exploiting the protections in the draft Bill for fraudulent purposes.
In addition, a number of consultees argued that the draft Bill could encourage lending to vulnerable consumers by making it easier for consumers to grant security over their goods. Access to credit is obviously an important issue to Members on both sides of the House. The Government are determined to ensure that any legislative changes lead to better outcomes for consumers and do not have unintended consequences.
Having given careful thought to the concerns raised in the consultation, we decided that it was not the right moment to take forward the Bill as currently constituted, and that we wanted to give the matter further consideration. In the light of that decision, the Financial Conduct Authority has decided to look more closely at the logbook loan market, and we welcome that. The FCA will use its supervisory and policy tools to assess whether further action is required, including new rules that are necessary to protect consumers.
The hon. Lady has already set out examples of some of the actions that the FCA could choose to consider, at its discretion. The Government believe that at the moment that is a more proportionate approach, given the declining numbers in the logbook loan market and the concerns that were raised in the consultation about the Bill as currently drafted.
Yvonne Fovargue
Could the Minister explicitly say what powers the FCA has to protect innocent consumers who buy cars in good faith, who cannot check anywhere whether they are subject to a logbook loan, and yet who can still have them repossessed?
Robert Jenrick
That is one of the matters to which the FCA will need to give careful consideration. We hope that it will take that forward. It is also considering, as the hon. Lady suggested, a number of measures with respect to the high-cost credit market. It published an update on 31 May announcing a package of initial measures to tackle problems in the high-cost credit market, including a proposal to cap the cost of rent- to-own.
Those measures show the seriousness with which the FCA is taking the wider issue, and I hope that it will give this issue the consideration that it deserves. The hon. Lady has raised one of a range of issues to which the FCA will need to give careful thought. This is an example of the FCA using the powers that it has been given by the Government to protect consumers. We will continue to work closely with the FCA as it undertakes its review of, more generally, the high-cost credit market and, in particular, the logbook loan market. We will consider whether the Government should take any further action in the light of its findings. This is not the end of the story. We want to give the matter a great deal more thought.
Alongside that, the Government are taking further action to protect borrowers. We are supporting families to build their financial literacy through the Money Advice Service, and £27 million is provided every year through MAS to co-ordinate financial education in schools and to improve the public’s financial capability. A further £49 million was spent in the previous financial year on providing more than 440,000 free-to-client debt advice sessions across the country. We want to continue to look for measures to protect the public and to improve financial literacy and awareness.
I know that the hon. Lady is disappointed by the Government’s decision at this stage. I reassure her that the decision was not taken due to pressures on parliamentary time, although that is always a consideration when introducing legislation. The Government’s primary objective is to ensure that, if we legislate, we do so correctly, and bring in interventions that will protect consumers without unintended consequences. That is why we decided, following the consultation, that the Bill was not yet in the right place.
Question put and agreed to.
Written Statements
(5 years, 10 months ago)
Written StatementsRead Full debate Read Hansard Text
Contingent Liabilities
(5 years, 10 months ago)
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The Parliamentary Under-Secretary of State for Defence (Guto Bebb)
I am today laying a departmental minute to advise that the Ministry of Defence (MOD) is retrospectively notifying Parliament about contingent liabilities not previously disclosed, due to procedural errors. HMT recognise the urgency for these contingent liabilities to be laid before Parliament and have approved them in principle. Final approval is expected pending the outcome of a wider departmental review, as part of the balance sheet review, being conducted by Her Majesty’s Treasury.
The minute describes the contingent liabilities that the MOD holds against three Air Command contracts, two Defence Infrastructure Organisation (DIO) and one Navy Command contract. It is usual to allow a period of 14 sitting days prior to accepting a contingent liability, to provide hon. Members an opportunity to raise any objections. Regrettably, this was not done ahead of contract award in these cases and I sincerely apologise for our failure to do so. The purpose of the minute is to regularise the position with Parliament. The contracts remain fully enforceable and the associated contingent liabilities will be reported in the 2017-18 MOD annual report and accounts.
Failure to notify these contingent liabilities prior to the award of the associated contracts has been reported to the Public Accounts Committee. The Department has noted the Committee’s concerns about this situation and fully accepts the need to follow the correct approvals and reporting procedures. Air Command, DIO and Navy Command have put in place a series of measures to address this issue including staff briefing, mandated training, improving the clarity of internal guidance and procedures and additional controls in the approvals process, to ensure compliance.
If the liability is called, provision for any payment will be sought through the normal supply procedure.
If, following the laying of the departmental minute, a Member signifies an objection by writing to me, I undertake to examine the objection and respond to the member concerned.
[HCWS759]
Multi-agency Flood Plan Review Report
(5 years, 10 months ago)
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The Secretary of State for Environment, Food and Rural Affairs (Michael Gove)
On 3 November 2017 I announced that DEFRA and the Environment Agency would be undertaking a review of multi-agency flood plans produced by local resilience forums (LRFs) in England, as part of the Government’s ongoing work to address flood risk (written statement - HCWS221). The remit of the review was to look at the effectiveness and consistency of current flood plans, to identify good practice and provide advice on how it can be spread, to help make sure we have the best plans in place across the country. The review was led and overseen by Major General (retd) Tim Cross, as an independent external reviewer.
I am very pleased today to be publishing General Cross’s review. I would like to extend my sincere thanks to General Cross for conducting such careful, insightful analysis and so quickly. The review report includes 12 recommendations which General Cross developed in light of his discussions and evidence gathering with LRFs and specialists across the country and he has brought to the fore important issues that need to be addressed.
I will now consider the report’s recommendations in detail, in consultation with other Departments, and will publish a Government response later in the year.
I have arranged for a copy of the report to be placed in the Libraries of the House.
[HCWS758]
Justice and Home Affairs Post-Council Statement
(5 years, 10 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr David Gauke)
The Justice and Home Affairs Council took place in Luxembourg on 4 and 5 June 2018. The UK was represented by a senior official from the Ministry of Justice on Justice Day (4 June). The Home Secretary represented the UK on Interior Day (5 June).
Justice Day began with a discussion on the contract law—sales of goods directive. The UK supported the presidency’s approach of a single set of rules in this measure for all goods (including those with embedded digital content), and on guarantee periods, but expressed concern on the potential for full harmonisation of remedies. A more general concern was expressed around the room, including by the UK, about the impact of the remedies provisions on consumer protections set out in national laws. Work will continue at technical level in line with the digital content directive, taking this concern into account.
The presidency secured a partial general approach on the insolvency directive provisions covering the discharge of debts for honest entrepreneurs, training for judges and practitioners and data collection, in line with UK views.
There was a discussion around certain policy questions on Brussels lla, with broad support for circulation of provisional measures in relation to child abduction cases, as well as the need for consent in relation to the placement of children in foster or institutional care in another member state. On the recognition and enforcement of judgments, member states were divided on whether (and how) to treat cases involving children differently, with the presidency concluding that further work would be required at technical level.
There was a report on the preparatory steps needed to be taken to ensure that the European Public Prosecutor’s Office (EPPO) becomes operational in 2020. The UK will not participate in the EPPO.
Member states discussed the misuse of user data and the protection of democracy in relation to Facebook. The UK provided an update on the ICO’s (Information Commissioner’s Office’s) investigation. The Commission noted the importance of fully implementing the General Data Protection Regulation (GDPR) and welcomed the co-operation between the UK and Ireland on the Cambridge Analytica case.
Judicial training and the role of the European judicial training network was discussed over lunch. There was broad support for more money for the network in the next multi-annual financial framework.
The incoming Austrian presidency provided an update on their programme. They will aim to achieve a general approach in a number of dossiers: insolvency, e-evidence, sale of goods, service of documents and taking of evidence; political consensus on Brussels lla; and the adoption of the confiscation, Eurojust and ECRIS TCN (European Criminal Records Information System—Third Country Nationals) measures. The July informal JHA Council will also include a discussion on mutual trust and mutual recognition, and developing ECJ jurisprudence (in particular the Irish references on UK and Polish European arrest warrants (EAWs)).
In a joint session of Justice and Home Affairs Ministers there was a policy debate on the draft EU legislation on improving cross-border access to electronic evidence. Ministers agreed on the need to explore further whether to include live intercept and direct access in the scope of the legislation. The Council also reaffirmed widespread support among member states for a common EU approach towards the negotiation of an executive agreement with international partners, and concluded that the Commission should submit recommendations for negotiating mandates before the summer. The UK has a JHA opt-in decision to take on this regulation by 22 August.
Ministers adopted Council conclusions on support for victims of terrorism. A new co-ordination centre for victims of terrorism will bring together expertise and facilitate co-ordination.
Interior Day began with a discussion on progress made on negotiations on the reform of the Common European Asylum System (CEAS). Of the measures that make up CEAS, the UK has only opted in to the recast of the Eurodac regulation. Member states remained split on the inclusion of a mandatory redistribution mechanism in the recast Dublin regulation. The June European Council will aim to reach agreement as a priority.
There was a policy debate on the regulation amending the Schengen visa code. The UK does not participate in the border and immigration aspects of the Schengen acquis so this legislation has no impact upon the UK.
Over lunch, Ministers exchanged views on the current developments on the migration situation at the eastern, central and western Mediterranean migration routes. The UK reinforced our commitment to the EU-Turkey statement and called for focus on breaking the people smugglers’ business model and encouraged more action on strategic communications. The Council agreed the immediate and short-term measures proposed by the presidency.
Ministers then exchanged views on enhancing co-operation between counterterrorism authorities. The Council endorsed the importance of the Counter Terrorism Group’s work and endorsed the call for heightened co-operation between intelligence and law enforcement communities.
On internal security, the Council signalled continued support for the multidisciplinary approach of the EU policy cycle to counter organised and serious international crime.
Finally, there was a discussion on co-operation between common security and defence policy operations and EU JHA agencies. The Council was updated on the establishment of the new “Crime Information Cell” in the EUNAVFORMED Operation Sophia.
[HCWS760]
House of Lords
NHS: Overseas Doctors
Baroness Hayman
To ask Her Majesty’s Government what plans they have to review the Tier 2 visa system to ensure that overseas doctors recruited by the National Health Service are able to take up their positions.
Baroness Hayman (CB)
I beg leave to ask the Question standing in my name on the Order Paper, and remind the House of my interest as a member of the General Medical Council.
The Earl of Courtown (Con)
My Lords, the Government are committed to keeping the operation of the immigration system under review to ensure that it operates in the national interest. As my right honourable friend the Home Secretary has indicated, we are looking urgently at this issue.
Baroness Hayman
I thank the Minister for that reply, but I have to say that I am disappointed. Although the word “urgency” was used, we have not seen a great deal of urgency in action. Does he not agree that it is ludicrous and, frankly, shameful that patient care in this country is being compromised every day by the shortage of doctors and yet, every day, doctors from overseas recruited to positions in the NHS are being turned away and refused visas by the Home Office?
Yesterday, we learned that 2,360 such doctors have been refused visas. We learned that through a Freedom of Information request, not in response to my Question four weeks ago, when the Minister at the Dispatch Box did not give me the numbers. That is in the past six months. Is it not time that the Government took urgent action and ended this damaging and dogmatic policy?
The Earl of Courtown
My Lords, the noble Baroness is quite right: this issue needs to be looked at seriously. That is why my right honourable friends the Home Secretary and the Prime Minister have been discussing it. As I said, progress will be made in the very near future.
Lord Clark of Windermere (Lab)
My Lords, given that we are tens of thousands of doctors short, will the Minister explain to the House and, through this House to the British people, why the Government are prepared to put the British people’s health at risk by refusing thousands upon thousands of doctors who have been recruited the right to come into this country?
The Earl of Courtown
My Lords, as the noble Lord will be aware, we have made it a priority to increase doctor numbers in this country. A record number of undergraduates will begin medical training by 2020, with 1,500 new funded places and five new medical schools—
The Earl of Courtown
Noble Lords may jest, but this is a very serious matter. The fact is that where the Migration Advisory Committee has recognised that there has been a shortage in the UK, visas are given priority on the SOL, and no one in these specialisms has been refused a visa.
Baroness Redfern (Con)
My Lords, while adding child and adolescent psychiatrists to the shortage occupation list, as the Government have done with the other health specialties, does my noble friend agree that any removal of the tier 2 visa cap should apply to all health professionals in both physical and mental health specialisms, in accordance with the principle of parity of esteem?
The Earl of Courtown
My Lords, my noble friend mentions mental health issues, and as she will be aware, Her Majesty’s Government have published a Green Paper setting out proposals to transform mental health provision for children. As for shortages, these factors are taken into account when different specialist areas are put on the shortage occupation list.
Baroness Walmsley (LD)
My Lords, is it not true that the current situation is quite deliberate? The Conservative Party manifesto last year promised to double the cost of employing someone from outside the EEA. The head of business immigration at law firm Kingsley Napley believes that the cost of employing much-needed staff from other parts of the world will be £14,174 a year more than employing EU staff. So, as EU staff leave the NHS in the face of Brexit, how will the Government’s proposals help NHS budgets, even if it can get visas for the staff it desperately needs?
The Earl of Courtown
My Lords, I do not recognise the noble Baroness’s figures but as she and the House will be aware, the quotas have been exceeded and a large increase in the number of doctors from outside the EEA have been applying to come to this country. These are highly qualified doctors who do an excellent job.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, why will the Government not urgently announce that where there are job shortages, such applicants will be exempt from this rule? To stall repeatedly on this issue is a serious error of judgment and directly damages patient care. How does the noble Earl reconcile that position with working in the national interest, as he said in his first response to the Question?
The Earl of Courtown
My Lords, the noble Lord accuses Her Majesty’s Government of stalling on this issue; we are not stalling. It is being taken extremely seriously, as I said, by my right honourable friends the Home Secretary and the Prime Minister, and we will hear news on it shortly.
Lord Patel (CB)
My Lords, can we first agree that the doctors coming out of the new medical schools that are planned will not be available for service for at least eight to 10 years? Having accepted that, can we find a solution to the visa cap that has been put on doctors? One solution might be to include them in the same category as those who do not qualify for the cap—those earning more than £159,600. That would not in any way jeopardise the Conservative manifesto or other plans. It would just shift a category and therefore remove them from the cap.
The Earl of Courtown
My Lords, we are looking at all issues relating to this at the moment. The noble Lord says that the qualifying period is seven to eight years before new doctors are fully qualified. However, I should add that graduate entry medical students—I declare an interest as my daughter has just qualified—qualify in four years. The daughter of a noble Lord opposite is on the same course, but as he is not in his place I shall not mention his name.
Baroness McIntosh of Pickering (Con)
My Lords, does my noble friend agree that a proper procedure should be in place to ensure that such doctors have the same qualifications as those EU doctors? They should be properly qualified, have a full knowledge of and proficiency in English and be registered to practise medicine in the country from which they come.
The Earl of Courtown
My Lords, the doctors applying, particularly those from the Indian continent, are some of the best qualified who operate in this country. There is an exceedingly high bar for employment, and all have to meet standards on the English language.
Lord Davies of Stamford (Lab)
My Lords, there is an aspect to this issue that has not been properly debated and discussed. There is no difficulty in hiring medical professionals from other EU countries, but will the Government be very cautious and careful in trying to recruit medical professionals from third-world countries—poor countries that often have very few doctors and nurses per thousand, or per million, of population? It is the most appalling act of selfishness to deprive those countries of their scarce medical resources.
The Earl of Courtown
The noble Lord is quite right. It is appropriate to take doctors only from countries that have their own very effective medical systems. To take them from third-world and developing countries is not acceptable.
Carers: Health and Well-being
(5 years, 10 months ago)
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Baroness Pitkeathley
To ask Her Majesty’s Government, in the light of the results of the 2011 Census that showed that those caring for 50 hours per week or more are twice as likely to be in poor health as non-carers, what steps they are taking to improve the mental and physical health and well-being of carers.
Baroness Pitkeathley (Lab)
I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I draw attention to my interests in the register.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
My Lords, the Government recognise and value the work that carers do and are committed to supporting carers so that they can provide care without compromising their own health and well-being. That is why, on 5 June, my department published a carers action plan, setting out a cross-government programme of support for carers. Furthermore, there will be a clear focus on carers in the forthcoming social care Green Paper.
Baroness Pitkeathley
I thank the Minister for that reply and for the action plan. The process was a bit protracted, as he will remember, but I am glad that the department managed to get it out in time for Carers Week. However, by its own admission it is a short-term plan only to bridge the issue of carers in the run-up to the social care Green Paper. In new research published for Carers Week, 70% of carers said that their own mental health had been adversely affected, while 60% said that their physical health had worsened, and two out of five said that they doubted their ability to go on caring unless they had more support. Given that that care is valued at £130-odd billion a year, that is a time bomb that must be addressed in the Green Paper. Can the Minister reassure the House that the needs of carers will be central to any plans for social care reform? Will he also understand that, as well as the moral imperative for supporting carers, to which I know he is personally committed, there is a very sound economic case for doing so?
Lord O’Shaughnessy
I thank the noble Baroness for her question and for her tenacity in pursuing me on this topic. I am glad that we were able to publish the action plan. It is appropriate during Carers Week to pay tribute to the amazing work that carers do. Yesterday, I had the opportunity to meet carers who were struggling, often against their own health needs, to care for those they love.
The action plan that we published is a two-year plan. It has some immediate actions but is not purely short-term and contains some actions for the medium term. I highlight one of those, which is important, particularly given these concerns about carers’ health and well-being: a commitment to creating equality standards for carer-friendly GPs. Carers mentioned to me yesterday how important it is for GPs to validate the fact that they are carers and signpost them in the direction of care. I can confirm that carers and support for carers will have prominence in the Green Paper.
Lord Mackay of Clashfern (Con)
My Lords, one of the most exciting experiences I ever had in my life was to go to a children’s hospice providing respite care for the parents of children facing an early death as a result of the onset of permanent illness. What sort of provision do we make for that?
Lord O’Shaughnessy
The importance of respite care is agreed by everybody. I point my noble friend to the better care fund, which provides around £130 million a year to support respite care and carers’ breaks, building on the commitment made in the Care Act 2014.
Baroness Tyler of Enfield (LD)
My Lords, the action plan contains a number of generalised statements about the need for health and social care professionals to have improved understanding and awareness of the needs of carers. What specific plans do the Government have to ensure that social worker training—both initial training and later professional development—contains practical guidance on how to identify carer fatigue and distress and ensure that carers receive the support to which they are entitled?
Lord O’Shaughnessy
The noble Baroness makes a very important point. Indeed, in the carers action plan there is a specific commitment from the department to work with local authorities to improve social work guidance in terms of spotting carers, many of whom are not even aware that they are formally designated as carers, and signposting them to the right support. There will also be an awareness-raising campaign among social workers so that they understand their duties.
Baroness Finlay of Llandaff (CB)
Will the Government’s action plan have a specific focus on children and adolescents who are carers, often of a single parent who may have physical and/or mental health problems? The child often carries the whole responsibility, and is sometimes also responsible for their siblings. When they have an adverse experience, such as coming home and finding their parent deteriorated or dead, they need an enormous amount of support. Therefore, the education system also needs to be involved in any strategy looking at children.
Lord O’Shaughnessy
The noble Baroness is quite right; it is hard to imagine what the burden must be on those young carers who are looking after parents and siblings. Young carers are explicitly mentioned in the action plan; again, I point to two commitments in that. First, there is a young carers identification project, which is working with Carers UK to make sure that we can find young carers. Secondly, the DfE has committed in its children in need review to make sure that young carers are getting the educational support they need in school and out of school to make sure that their educational outcomes do not suffer.
Lord Touhig (Lab)
My Lords, almost 50,000 babies, children and young people need palliative care, yet children’s hospices receive less statutory funding than adult hospices, and the lack of collaboration between support services is a major challenge. Carers and those they care for would benefit if we had a children’s palliative care strategy that was family-centred and had a holistic focus on health, education and social care. Does the Minister agree with that?
Lord O’Shaughnessy
Children’s hospices do an extraordinary job. They get less statutory funding as a percentage of their total; there are good reasons for that, both historically and to do with the type of care they provide. The Government are providing £11 million of support in 2018-19 through the children’s hospices grant to support them, in addition to funding from local clinical commissioning groups. But I will take his proposal for a palliative care strategy back to my right honourable friend the Minister for Care. I know that she is very interested in this issue.
Baroness Brinton (LD)
My Lords, the advice for local authorities on short breaks for carers of disabled children says on page 7 that short breaks should not just be there for those at crisis point. Given that many short break centres are now being closed across the country, removing help even at a crisis point, what are the Government doing to ensure that short breaks for children and their carers—for our most vulnerable and disabled children—will be guaranteed for the future?
Lord O’Shaughnessy
In addition to the £130 million in the better care fund, there is a commitment in the carers action plan to develop examples of best practice that can be spread around local authorities to make sure they all reach the highest standards. At the moment, unfortunately, only some of them are doing so.
BBC Persian Staff
(5 years, 10 months ago)
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Lord Grade of Yarmouth
To ask Her Majesty’s Government what action they are taking to prevent the harassment of BBC Persian staff by the Iranian authorities.
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, we are concerned by the charges and the wider activity against BBC Persian staff in Iran. We expressed our concern about this at the UN Human Rights Council on 12 March, and both the Foreign Secretary and the Minister for the Middle East have raised the issue with their Iranian counterparts on several occasions. I assure noble Lords that we will continue to raise the treatment of BBC Persian staff and their families with the Iranian Government.
Lord Grade of Yarmouth (Con)
I thank my noble friend for that Answer. BBC World Service staff working on the Persian service, which is a vital source of impartial news in that area, continue to be harassed and targeted by the Iranian authorities. While I know that the Foreign Secretary has raised this at the highest levels with the Iranian Government in recent times, what assurance can we have from the Government that they will continue to worry about this? This is a serious state of affairs for the BBC World Service.
Lord Ahmad of Wimbledon
I assure my noble friend that we will continue to raise this. The latest example of this was when my right honourable friend Alistair Burt, the Minister of State for the region, visited on 29 April and raised this directly. My noble friend is also quite right that in July 2017 a criminal investigation was opened into the activities of all BBC Persian staff, which includes alleging that their work constituted a crime against Iran’s national security. The result has been great hardship, the freezing of assets, and 152 named individuals linked to the BBC Persian service have been captured by this. We continue to implore the Iranian authorities to treat the situation in such a way as to ensure the freedom of the press in Iran, and we will continue to press for such.
Lord Clarke of Hampstead (Lab)
My Lords, obviously the House wishes the Minister well in his attempts to get this situation put right for BBC staff. But given the track record of Rouhani and his Government on dealing with the human rights of his own people, I would not hold your breath about them changing their minds very quickly. What will Her Majesty’s Government do to make sure that we get better treatment for the BBC staff than we got for the unfortunate lady from Hampstead, who is still incarcerated after repeated attempts by this Government to get her released?
Lord Ahmad of Wimbledon
The noble Lord is right. The human rights situation—I speak as the Human Rights Minister—is dire not just for the people of other nationalities or joint nationality, as the case that he has pointed to illustrates, but for Iranians themselves. We have seen the persecution of minority communities, including Christians and Baha’is, continuing in Iran. Our attitude, which I think is the right one, is that we will persevere with our bilateral exchanges directly with the Iranians and we will continue to raise this matter through international fora, including the Human Rights Council, as I have done most recently.
Baroness Northover (LD)
My Lords, many in the BBC Persian service are dual nationals. The noble Lord made very brief reference to Nazanin Zaghari-Ratcliffe, who has dual nationality. She has now been in prison for 800 days, and yesterday marked her daughter’s fourth birthday. Can the noble Lord be a bit more expansive about what the Government are doing to seek her release, especially after the flurry of activity in various directions last year by the Foreign Secretary?
Lord Ahmad of Wimbledon
I am sure that I speak for all noble Lords——I speak as a parent, too—when I say that our hearts go out to a young child whose parent was absent for a notable birthday, and our compassion goes out to the family. Many sensitivities are associated with the case that the noble Baroness raises and other consular cases, but I reassure her that we regularly raise the case of Nazanin Zaghari-Ratcliffe, as well as other cases, and we will continue to do so. The issue of dual nationals is pertinent because Iran does not recognise dual nationality.
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a series producer working at CNN. Last year, the Government gave an extra £85 million to the BBC World Service, which helped set up 12 new BBC language services in areas where free speech is oppressed. That funding has a commitment for two years. What are the Government’s plans for funding these services beyond 2020?
Lord Ahmad of Wimbledon
The Government have indicated their commitment through the funding that the noble Viscount has alluded to. In terms of longer-term funding, we believe strongly in the BBC World Service, most notably in its provision of impartial news and support to various populations across the world. I will write to the noble Viscount about funding beyond 2020.
Lord Cormack (Con)
My Lords, why does the Foreign Secretary not summon the Iranian ambassador to the Foreign Office every day until Mrs Zaghari-Ratcliffe is released?
Lord Ahmad of Wimbledon
I am sure that my right honourable friend will take note of my noble friend’s suggestion. However, I say to my noble friend that we do not miss any opportunity to raise consular cases. This is not just about the ambassador; let us be clear that, when it comes to the Iranian Administration, these calls are made in Tehran. We make these issues known not just to Foreign Minister Zarif but to President Rouhani, and there is also great influence in these cases from Ayatollah Khamenei, the spiritual leader in Iran. I do not believe that summoning the ambassador every single day would result in the release of Mrs Zaghari-Ratcliffe or the outcome that we desire.
Lord Collins of Highbury (Lab)
My Lords, the fact is that this issue has global implications. The BBC World Service has a well-deserved reputation, certainly in going to parts of the world where freedom of speech is denied. The noble Lord has spelled out what we are doing to raise the issue with the Iranian authorities, but can he spell out in more detail how we are building alliances with other countries, particularly with our allies in the EU, to tackle this problem?
Lord Ahmad of Wimbledon
The noble Lord raises an important point. This morning I attended a meeting of UN counterparts within the EU family. The important message that I conveyed was that we will continue to work co-operatively and collaboratively with our EU partners when we leave the European Union. As we saw on a different matter relating to Iran—the JCPOA—concerted action demonstrated unity. The fact that Chancellor Merkel, President Macron and Prime Minister May acted together ensured that that deal stayed on the table. That important collaboration should be a key focus of our continued co-operation with our European partners.
Burma
(5 years, 10 months ago)
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Lord Alton of Liverpool
To ask Her Majesty’s Government what assessment they have made of recent reports of the Burmese military attacking Christians in Kachin, and other ethnic minorities in Burma; what representations they have made to the government of Burma about these reports; and what consideration they have given to the case for referring the government of Burma to the International Criminal Court.
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the Government have expressed their deep concern at the surge of fighting in Kachin since April. We have called upon the Burmese military and all parties to cease hostilities and allow the humanitarian access that is required to be provided to displaced people. Turning to Rakhine, the Burmese authorities must show that the commission of inquiry can deliver accountability for the perpetrators of atrocities. If not, the Government will consider supporting international routes to justice.
Lord Alton of Liverpool (CB)
I am grateful to the Minister for that reply. Those responsible have been emboldened by the ethnic cleansing of 750,000 Rohingya Muslims, the destruction of villages and killings, torture and rape. What practical things do we intend to do in response to the United Nations estimate that fighting in Kachin and Shan states has now driven a further 120,000 people into 167 inaccessible displacement camps? How are we responding to the prosecutor of the International Criminal Court’s request that these unconscionable war crimes and crimes against humanity be referred to her court? Is not it high time that senior members of the Burmese military such as General Min Aung Hlaing are targeted with sanctions and brought to justice?
Lord Ahmad of Wimbledon
On the noble Lord’s final point, of course we have exercised the tool of sanctions against several members of the military, and continue to use that tool. On his more specific point on the displacement of people in Kachin, there has been an emboldening. Not only has the Rohingya community suffered immensely following its displacement—with almost 1 million in Bangladesh, if you take it over a longer period—but so too have specific communities in Kachin, predominantly Christian minority communities. There has been internal displacement, and quite often the full extent of that displacement has not been revealed because of lack of access. There is a glimmer of hope from the civilian Administration in that, for the first time, we have seen Burma sign an MoU with the UN agencies concerned—the UNHCR and the UNDP—which took place on 7 June. In a recent conversation with the civilian leader, Aung San Suu Kyi, my right honourable friend the Foreign Secretary reiterated the importance of ensuring the full return of all refugees, be they from Rakhine or from Kachin.
Lord Morris of Aberavon (Lab)
My Lords, remembering the role that the late Robin Cook played as Labour Foreign Secretary in his advocacy of the International Criminal Court, have the Government ever referred anyone to that court?
Lord Ahmad of Wimbledon
In terms of how many times there have been actual referrals, I will have to write to the noble and learned Lord. I assure him that the Government are fully supportive of the ICC and its efforts in this regard. We support all mechanisms in bringing the perpetrators of crime to justice.
Baroness Cox (CB)
My Lords, is the Minister aware that the last time I was in Kachin state I visited a village where I was told of how a local woman was abducted by the Burmese army, tied to a post in the army camp in full view of her family, repeatedly dragged away presumably for rape or other maltreatment, and eventually disappeared? A recent statement from the Kachin global network claims that:
“There have also been ongoing abductions, deaths, and injuries by landmine explosion, torture and subsequent health problems, and mortar shells exploding on civilians’ houses”.
Will Her Majesty’s Government raise as a priority with the Burmese Government the issue of the atrocities and violations of human rights perpetrated with impunity by the Burmese army?
Lord Ahmad of Wimbledon
Let me assure the noble Baroness that we are doing just that. We have all been horrified, first by what we saw in the Rohingya crisis, and now by the situation we see unravelling in Kachin. I assure her and all noble Lords that we will continue to implore the Burmese authorities, and that includes bilateral visits such as those made by my right honourable friends the Foreign Secretary and the Minister of State for Asia, Mark Field. We will continue to raise this through international fora, both at the UN and at the Human Rights Council.
The Lord Bishop of St Albans
My Lords, the reported atrocities against the Rohingya have been described as crimes against humanity, ethnic cleansing and genocide. What assessment have Her Majesty’s Government made as to whether the human rights violations in Kachin and Shan states meet the criteria of at least crimes against humanity and war crimes?
Lord Ahmad of Wimbledon
The right reverend Prelate is correct on the issue of the Rohingya, and as a Government we think that ethnic cleansing has taken place. Indeed, that is self-evident because of the number of refugees we have seen pour into Bangladesh. As I said in response to an earlier question, the situation in Kachin is of deep concern, but because of the lack of access for international agencies it is difficult to determine the issue of genocide more specifically. As regards judicial opinion, we will be guided appropriately, but we have certainly seen ethnic cleansing take place in Rakhine state—there is no better term for it. In Kachin, too, what we are seeing is very troubling, but a full assessment cannot be made because of the lack of access.
Baroness Berridge (Con)
My Lords, 32% of Burma’s population are from ethnic minorities, so we are seeing the systematic persecution of people spread from one group like the Rohingya to another like those in Rakhine state. Can my noble friend the Minister please outline whether this systematic persecution has had any impact on the ability of the UK Government to employ people from the Burmese ethnic-minority population in our embassy in Rangoon? I understand that around 70% of the embassy’s staff are normally recruited locally. Can he confirm that we are not restricted in who we can recruit by virtue of this persecution?
Lord Ahmad of Wimbledon
Our recruitment policy reflects the impartiality we would employ in any circumstances. It would be beneficial for all noble Lords to know the exact numbers and I will look into that. My noble friend, who speaks from great experience, makes an important point; namely, that we need to ensure that we demonstrate the inclusive nature of our operations in all our actions, including the efforts we are making on the ground in Rangoon. As I have said, there is a degree of hope, in that for the first time the United Nations is now gaining access to parts of Burma. We will continue to impress on both the civilian and military authorities for that access to be applicable universally across the country.
Communications Committee
The Senior Deputy Speaker
International Relations
15:18 - Division on the Senior Deputy Speaker’s Motion - Ayes: 128 / Noes: 124 - Motion agreed.
The Senior Deputy Speaker
That Baroness Anelay of St Johns be appointed a member of the Select Committee in the place of Lord Balfe, resigned.
Lord Balfe (Con)
My Lords, allow me to fill in a little background. First, the Order Paper should not say,
“in place of Lord Balfe, resigned”.
Rather, it should say, “In place of Lord Balfe, sacked by the Whips’ Office despite his protests”.
Last year, I was asked by the Whips’ Office to serve on the International Relations Committee and was told that it was a three-year appointment. At that time I pointed out that, as a member of the Council of Europe, I could bring a different perspective to the committee but would have to miss a small number of meetings when the committee clashed with meetings of the Council of Europe. This was specifically accepted by the Whips.
On 14 May this year, I was asked to see the Whip and presented with some attendance figures which purported to show that my attendance was not very good. I challenged the figures and they were later proved woefully wrong by the committee secretariat. In fact, I was the joint second-best Conservative attender, and some way ahead of the lowest-attending Conservative. On 16 May, two days later, I saw the Deputy Chief Whip and asked him to review the decision in view of the new evidence. Not only did he refuse, but it was clear to me that the decision to sack me had been taken and the attendance figures were just an excuse.
It is true that I have voted against the Government on a handful of occasions and, rather like those removed from committees last year, it seems that I am now to be the subject of this sort of “punishment beating” for stepping out of line on just a few issues: namely, Leveson and a couple of times on the EU votes.
I put it to the House that this type of arbitrary behaviour by the Whips has to cease. As Members, we must have the right to exercise our judgment and not be under constant threat that if we stray a little out of line we will be victimised. This may play well with the Daily Mail and for the leader’s reputation in No. 10, but it is no way to get loyalty or run a happy ship.
Before this happened, I suggested to the Senior Deputy Speaker that the appointment of committees and their chairs should be settled by the House and not by the current method. The Whips’ behaviour is unacceptable and should not be allowed to continue. I was going to address the Leader of the House, but she is not here, so I invite the Deputy Leader to indicate that he would be happy for the Motion to be withdrawn while further consideration is given to the matter.
Lord Foulkes of Cumnock (Lab)
My Lords, I wonder whether I can add something as a fellow rebel. The Order Paper is inaccurate. It is wrong to say that the noble Lord, Lord Balfe, resigned. We have just heard that he did not, so the Motion is not correct. I address the Senior Deputy Speaker because he is moving the Motion. As the House heard last week, I have the greatest respect for him, sitting with him as I do on the Liaison Committee, which he chairs impeccably. I have known him for years in both this place and the other place. In all seriousness, I ask him to take this back. It would be a travesty and look very bad if this House passed something that, from what we have heard, is manifestly inaccurate. The Senior Deputy Speaker would do this House a service if he took the matter back to the committee.
Lord Davies of Stamford (Lab)
My Lords, the House is grateful to the noble Lord, Lord Balfe, for putting us in the picture. Whatever our views on the subject may be, it is very important that we should at least know what is going on. It would be very bad for this country’s confidence in its institutions if those who sit in the House of Lords did not know about several practices that were afoot which affected the way we work.
The present situation is clearly unsatisfactory. I do not blame the Chief Whip in any way. I think that the way he has been playing the system is the way that the system has been played by Chief Whips for generations. However, it is time for us to review the position. As we all know, the House of Commons in very similar circumstances recently took a decision that committee membership should no longer be a matter of patronage from the Whips’ Office but of democratic election. That has been a very happy experiment at the other end of this building and we might all want to reflect on whether it would be appropriate for us to follow that example.
Lord Judd (Lab)
My Lords, I have known the noble Lord, Lord Balfe, for many years. We do not always agree but I believe that he is one of the most distinguished Members of this House in the contributions he brings to deliberations on foreign affairs—and he is certainly one of the most respected members of the Parliamentary Assembly of the Council of Europe. The proposed amendment is clearly inaccurate and should be withdrawn.
Lord Cormack (Con)
My Lords, I must support my noble friend Lord Balfe. Together with my noble friend the Duke of Wellington and others, I was one of a number of Members removed from our committees last year for voting twice on amendments to the Article 50 Bill. A Select Committee of either House must be able to operate without fear or favour. It must have no regard to the narrow, temporary issues of party politics but look at subjects in the round. We all know that committees carry much more influence—I speak from experience—when their reports are unanimous. This sort of behaviour is inimical to vigorous parliamentary democracy, and I join other noble Lords in saying that I hope we will not be asked to vote on this issue today.
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, I should like to fill noble Lords in on my part in this and on the reason for the Motion. The noble Lord, Lord Balfe, mentioned figures. The figures that were circulated came from the committee secretariat. The appointment Motions before the House today are all casual vacancies. In the majority of cases they follow agreement by the Committee of Selection that, in light of the longer Session length, attendance statistics for all the House’s committees, including domestic, should be circulated to the usual channels midway through the Session, and that this should inform their consideration of any changes they might want to propose to committee membership at that point. Such statistics are routinely circulated to the usual channels at the end of a Session, but, in light of the longer length of the Session, the committee considered that this would be a sensible course of action part way through the current Session. It also agreed that, where possible, the changes should be co-ordinated in order not to inconvenience the House.
I do not think it would be helpful or appropriate for me to comment on the consideration by the Whips of their committees’ membership, except to underline that, in proposing these changes, they are acting in accordance with the approach agreed by the Committee of Selection. It is of course open to all noble Lords to discuss these matters with their Whip, which I believe has been done in this case, and ultimately, if they so wish, to test the opinion of the House. The noble Lord will also know that committee membership, including the process by which members are appointed and removed from committees, is something that has come up in the review of committees that the Liaison Committee which I chair is currently undertaking.
I thank the noble Lord, Lord Balfe, both for his letter of 4 May this year and for the meeting we had last week to discuss this issue, as well as wider issues regarding the review of committees. As I mentioned to the noble Lord at that meeting, I am prepared to take that away and include it in the review of committee consultations. When we met again last week at one of the weekly drop-in sessions I hold between 12.30 pm and 1.30 pm every Tuesday, I said I would take the issue further. Indeed, the noble Lord, Lord Cormack, in his appearance before the committee last week with the noble Lord, Lord Norton, made this very point, and the committee is very aware of it. With that information, I am quite happy to take this to the committee if Members feel that that is appropriate. I see someone getting up with alacrity.
Lord Foulkes of Cumnock
I am not clear, although I normally understand exactly what the noble Lord, Lord McFall, says. Is he saying he is going to take this Motion back and reconsider this appointment to the International Relations Committee? Is that going back to the committee?
The Senior Deputy Speaker
No, I hope I have been very clear. I am taking the issue that Members have brought up into the review of committees, not this particular Motion. This has resulted from the usual channels putting this forward to me, and in those circumstances I beg to move.
Civil Liability Bill [HL]
Tuesday 12th June 2018
(5 years, 10 months ago)
Lords ChamberRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 90-R-I(Rev) Revised marshalled list for Report (PDF, 139KB) - (11 Jun 2018)
17:47 - Division on Amendment 18 - Ayes: 205 / Noes: 218 - Amendment 18 disagreed.
19:02 - Division on Amendment 47 - Ayes: 169 / Noes: 183 - Amendment 47 disagreed.
The Deputy Speaker (Lord Geddes) (Con)
My Lords, before calling Amendment 1, I must advise the House that if Amendment 1 is agreed to I will not be able to call Amendment 1A due to pre-emption.
Amendment 1
Baroness Vere of Norbiton
(1A) An injury falls within this subsection if it is—(a) a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or(b) an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.(1B) An injury is excepted by this subsection if—(a) it is an injury of soft tissue which is a part of or connected to another injury, and(b) the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within subsection (1A).”
Baroness Vere of Norbiton (Con)
My Lords, I shall speak to all the government amendments in the name of my noble and learned friend Lord Keen in this group. These amendments concern putting the full definition of “whiplash injury”, to which the measures in Part 1 will apply, in the Bill. Amendment 4 introduces a limited power to amend the full definition of whiplash injuries by means of affirmative regulations.
The Government have carefully considered the view of the Delegated Powers and Regulatory Reform Committee that it is important, in order to get a full understanding of the Bill, for “whiplash injury” to be defined in full in the Bill rather than in regulations. We have also reflected on the similar views put forward by noble Lords during recent debates in this House. We agree with the merit of these arguments, and as a result I now bring forward amendments to achieve this.
The Government’s proposed full definition is focused on soft tissue injuries to the neck, back and shoulder. It is particularly important to ensure that claims for soft tissue injuries to the shoulder, which are already routinely included in many current whiplash claims, will also be covered. The detailed definition provides clarity and certainty for both claimants and defendants. We have listened to experts and also broadened the definition to injuries to the shoulder to mitigate against claims displacement. It is consistent with the Bill’s aim of bringing into scope all relevant claims and injuries so we can effectively tackle the continuing high number of whiplash claims which so impact on the cost of insurance premiums for ordinary motorists.
As many noble Lords recognised in previous debates, it is essential that the full definition can be adapted so it can respond to future medical developments or changes in the behaviour of the claims market. If it cannot be amended promptly it could have an adverse impact on genuinely injured claimants and insured motorists. We therefore propose a further amendment to introduce a limited power to amend the definition by regulations. We have discussed this issue in detail with noble Lords from across the House in recent weeks and believe that many in this Chamber agree that this is necessary. Amendment 4 would therefore permit the Lord Chancellor to amend, by regulations, the definition of “whiplash injury” to include other soft tissue injuries to the neck, back or shoulder or to exclude or refine the description of soft tissue injuries to the neck, back or shoulder.
The power to amend the definition the Government are seeking is limited. No changes can be made for three years to ensure the current definition has time to bed in. Before making any changes, the Lord Chancellor must first undertake a review of the current definition and publish a report including the decision about whether to amend it. Any amendments must also be subject to consultation with the statutory consultees set out in the Bill, which are the Lord Chief Justice, the Chief Medical Officers for England and Wales, the Bar Council and the Law Society, among others. The power could not be used within three years of the previous review. I believe that the definition and power to amend, as proposed in the government amendments, reflects the will of the House. They are clear, reasonable and proportionate to the problem. I beg to move.
Baroness Vere of Norbiton
Lord Berkeley
Lord Berkeley (Lab)
Amendment 2A is in my name and that of my noble friend Lord Young of Norwood Green who, sadly, cannot be here today. It is the result of a lot of discussion in Committee about how to avoid what is otherwise a very useful Bill having an adverse effect on vulnerable road users, who could be defined as cyclists, pedestrians, motor cyclists—those who can sometimes suffer most from injuries such as this. I am also grateful to the Minister for agreeing to see us a few weeks ago, when we had a useful discussion.
We were able to table this amendment only yesterday because we struggled to come up with wording that does not affect the main Bill but that protects vulnerable road users and allows them to continue, if they need to, to get legal aid under the present arrangements, rather than increasing the minimum figure to £5,000. We concluded that, as the Minister and many other noble Lords have said, this Bill is about whiplash and nothing else. As I understand it—I hope the Minister will confirm this when she responds—it is only about whiplash and nothing to do with any other kind of legal aid claim that might be needed for other issues, road traffic or otherwise.
I had a long discussion with the clerks on this issue, as well, and it seemed to me that what was needed was something that would exclude vulnerable road users from the particular issue we are talking about—raising the legal aid limit—if they suffer whiplash. One might ask how a pedestrian or a cyclist is going to suffer whiplash if they are not in a car, but they probably could, for whatever reason, if they are hit by a car.
We then looked at Clause 1(3) and I, as a non-lawyer, started to get a bit confused as to who the phrase “the person” referred to. Is it the person who suffered injury, or the person who might be alleged to have caused the injury? It seemed to me that there is a reasonably elegant solution—which I am sure my legal friends will say does not work—that clarifies what is meant by “the person” in subsection (3). If the amendment were accepted, it would be clear that:
“For the purposes of this Part a person suffers a whiplash injury because of driver negligence if … when the person suffers the injury”,
that person,
“is using a motor vehicle other than a motor cycle on a road or other public place”.
I think that this is quite an elegant solution, providing an exception to this Bill for vulnerable road users who are not in cars, and who therefore would not be included.
I hope that that short explanation is helpful. I look forward to other comments and in the meantime, I beg to move.
Baroness Vere of Norbiton
My Lords, I have listened carefully to the noble Lord and appreciate the change he would like to make. In our view, however, the existing clause already makes it sufficiently clear that the person who suffers a whiplash injury because of driver negligence is the person who is either using the motor vehicle or who is a passenger in the motor vehicle at the time of the accident. The amendment therefore seems to add no practical difference to the construction of the clause.
In relation to vulnerable road users, I reassure the House that the clauses of the Bill relating to whiplash do not extend to cyclists, passers-by or pedestrians outside the vehicle or vehicles involved in the accident. However, I am aware that such road users remain captured by the Government’s non-Bill measure to increase the small-claims limit for road-traffic-accident-related claims to £5,000. We will deal with this issue in more detail a little later today, but I can say that we are sympathetic to the arguments made in relation to vulnerable road users and will continue to consider the matter. For the reasons that I have set out, I urge the noble Lord, Lord Berkeley, to withdraw his amendment.
Lord Berkeley
My Lords, I am grateful to the Minister for that explanation. One of the reasons for tabling the amendment was to probe her response. I will read it very carefully but in the meantime I beg leave to withdraw the amendment.
Baroness Vere of Norbiton
Baroness Vere of Norbiton
“Power to amend section 1
(1) The Lord Chancellor may by regulations amend the definition of “whiplash injury” in section 1, but not so as to include an injury of soft tissue other than soft tissue in the neck, back or shoulder.(2) Before making regulations under subsection (1), the Lord Chancellor must—(a) review the definition of “whiplash injury” in section 1,(b) as part of the review, consider whether to amend section 1,(c) prepare and publish a report of the review, including a decision whether or not to amend section 1 and the reasons for the decision, and(d) lay a copy of the report before Parliament.(3) After laying the copy of the report before Parliament and before making regulations under subsection (1), the Lord Chancellor must consult—(a) the Lord Chief Justice;(b) the General Council of the Bar; (c) the Law Society;(d) the Chief Medical Officer of the Department of Health and Social Care;(e) the member of staff of the Welsh Government designated by the Welsh Ministers as the Chief Medical Officer for Wales;(f) such other persons or bodies as the Lord Chancellor considers appropriate.(4) The Lord Chancellor may not carry out the first review under subsection (2) before the end of the period of three years beginning with the day on which section 1 comes into force.(5) After the first review, the Lord Chancellor may not carry out a review under subsection (2) before the end of the period of three years beginning with—(a) if regulations under subsection (1) were made following the previous review, the day on which those regulations came into force, or(b) if no regulations under subsection (1) were made following the previous review, the day on which a copy of the report of the previous review was laid before Parliament.(6) A statutory instrument containing regulations under this section is subject to affirmative resolution procedure.”
Baroness Vere of Norbiton
Lord Woolf
Lord Woolf (CB)
My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lords, Lord Beecham and Lord Marks, for allowing me to speak first to this amendment, which also relates to Amendments 17B, 18 and 30. I also record my gratitude to the Minister for the courteous manner in which he has promoted the Bill and for being prepared to discuss its contents with me.
I draw attention to my interest in the register. I also disclose that I have a son who is a QC practising in clinical negligence. What is most relevant so far as my own career is concerned is having chaired the access to justice inquiry and helped with the implementation of its recommendations, in my then capacity as Master of the Rolls. The recommendations included different tracks and procedures for disposing of civil claims.
The one that we are concerned with today is the disposal of small claims by what is known as a small claims court. As noble Lords would expect, this was designed to provide speedy and simple justice for litigants who are not usually represented. The assessment by a court of damages has always been accepted as a purely judicial responsibility in England and Wales, as far as I know, and that responsibility has been reflected in many decisions of the courts. The Personal Injury Bar Association published a paper that referred in this regard to the speech of Lord Blackburn in Livingstone v Rawyards Coal, 5 App Cas 25, at page 39—a decision as long ago as 1880. Lord Blackburn said:
“I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”.
Another well-established legal principle is that, if you are wrongfully injured, the wrongdoer has to take the victim as he finds them. The effect of whiplash injuries, with which we are concerned, can vary substantially according to the physical and mental sturdiness of the victim. This means that the appropriate amount of damages for a whiplash injury can vary substantially when applying the rule to which I referred. I suggest that they are not suited to a fixed cap, as proposed by the Government.
Lord Marks of Henley-on-Thames (LD)
My Lords, we share the Government’s objective of reducing fraudulent whiplash claims, but we do not agree that the proposed arbitrary reduction in damages for all claimants, fraudulent or genuine, coupled with removing judges from the assessment of damages, is a proper way in which to address it. For that reason, I shall concentrate on supporting Amendment 18, so eloquently and comprehensively spoken to by the noble and learned Lord, Lord Woolf, with his strong appeals to principle.
We welcome banning cold calling, whether by claims management companies, car hire companies, car repair companies, solicitors or anyone running a calling operation for any of them. Section 35 of the Financial Guidance and Claims Act makes a start in banning cold calling, but its main weakness is that it does not outlaw the use in this country of information obtained by cold calling, often from abroad, and the definition of claims management services in that Act looks to me insufficiently broad. By amendments in the fourth group, we try to address the use of information from cold calling.
We welcome prohibiting settlement of whiplash claims without medical reports from properly accredited clinicians. So those provisions on cold calling and medical reports are targeted on reducing or eliminating fraud. However, the proposed radical reduction in the level of damages to the Government’s very low tariff is a blunt instrument that would indiscriminately cut to the bone compensation for genuine claimants as well as for fraudulent ones. The purpose of general damages in personal injury cases has, as the noble and learned Lord, Lord Woolf, explained, always been to compensate claimants, so far as money can, for the injuries they have suffered as a result of the negligence of defendants. Clause 2 abandons that principle in whiplash cases. If Amendment 18 is carried, Clause 3 would be meaningless, so we would expect the Government to accept Amendment 30 in the name of the noble and learned Lord, Lord Woolf.
Viscount Hailsham (Con)
Will the noble Lord also observe that this clause is only permissive and does not require the Lord Chancellor to make an uplift?
Lord Marks of Henley-on-Thames
My Lords, I am very grateful for that intervention, which is absolutely right. The point about an uplift is that, if it is just, it should be given. We say that there may be a whole range of circumstances where it is clear that an award greater than the tariff figure is justified. We would regard it as far better than insisting on a finding of exceptional circumstances to permit the courts, as per our Amendment 20, to increase a tariff award where satisfied simply that it would be in the interests of justice to do so. Were Amendment 18 not carried so that Clause 2 survived, we would propose to pursue that amendment to improve Clause 3, which would then remain.
Viscount Hailsham
My Lords, I shall comment on an amendment that has not been spoken to—Amendment 12, which I think will be articulated by the noble and learned Lord, Lord Judge—and, more precisely, on the proposed new clauses, spoken to so admirably by the noble and learned Lord, Lord Woolf.
Amendment 12 seems manifestly sensible. Of course the Lord Chief Justice should be consulted by the Lord Chancellor. That is particularly important when one bears in mind that many Lord Chancellors nowadays are not lawyers and will therefore be entirely dependent on the advice of their officials, who might themselves not be lawyers. Therefore, it seems admirable that we should put into statute a requirement that the Lord Chief Justice be consulted. If the Minister says, “But of course he will be”, all I can say is that Ministers sometimes have a curious habit of forgetting the obvious and their obligations. For example, I was rather surprised about three weeks ago when the noble Lord, Lord Callanan, during the debate on Brexit, said that Ministers had never used the phrase “meaningful vote”. That was a curious lapse of mind, and it may well be that Lord Chancellors will forget the obligation to consult the Lord Chief Justice. Therefore, I am all in favour of the amendment and I hope the Government will concede the point.
Perhaps I may move more directly to the proposed new clause in the name of the noble and learned Lord, Lord Woolf, and Amendment 18. I do not have the experience of the noble and learned Lord but for many years I practised as a personal injury lawyer. I do not do so any more, so there is no need for me to identify an interest, but I used to do a lot of work in personal injury law. Indeed, I was instructed by my noble friend Lord Hunt and I was very grateful for the briefs in those days. Back then, we were informed about the level of damages by the guidance of the Court of Appeal and by the reports, which in those days were available in the current law citator. There really was no difficulty in operating within the parameters set by the judiciary.
That takes me to my objections to what the Government are proposing. The first is a very deep-seated reluctance to see the Executive or Parliament interfering with essentially judicial positions. I am bound to say that that informed my real reservations about the determination of Parliament to impose tariffs in homicide cases, set out in a schedule to the Act. I deprecated that. This is another example which we should be very cautious about. We need to ask ourselves what the essential characteristic of justice is. It is to respond to the individual and varied cases that appear before the courts. The effect of imposing a cap of this kind is to prevent the trial judge being able to respond to the particular aspects of the case in front of him or her, and in my view that is, by definition, unfair.
There is a further point that I venture to intrude on the observations of the noble Lord, Lord Marks. It is perfectly true that the Bill provides for an uplift, but the uplift requirement is discretionary on the Lord Chancellor; it is not mandatory. The Lord Chancellor may provide for an uplift in regulations but he or she does not have to do so.
I am sorry to be pedantic about this, but your Lordships will know that on many occasions I have spoken in pretty derogatory terms about the statutory instrument process that we have. This is another example. Let me acknowledge at once that we are doing it by the affirmative procedure, which is a lot better than doing it by the negative procedure, but the cap will be determined by statutory instrument. Who, pray, is going to set the cap? I can tell you: it will be officials. Unless the Minister of the day is particularly well informed and/or intrusive, the cap will be determined by officials without interference. I am bound to say that I find that a very unpleasing prospect.
If, therefore, the noble and learned Lord, Lord Woolf, is minded to press his amendment and his proposed new clause and to test the opinion of the House, unless my noble and learned friend is even more persuasive than he customarily is, I anticipate that I will support the noble and learned Lord.
Lord Judge (CB)
My Lords, it is a great comfort to hear the noble Viscount, Lord Hailsham, say that he agrees with what I am going to say before he has heard it. Now, perhaps he will not mind hearing it.
We have to face the reality that there are a huge number of fraudulent claims for damages arising from alleged whiplash injuries sustained in road traffic accidents—far too many of them. We also have to remember that a large number of perfectly honest claims are made as a result of injuries suffered in road traffic accidents. We have to find a pragmatic solution to the problem of fraudulent claims, given that the cost of contesting them in court tends hugely to outweigh the amount of money that is at stake if the claim is not substantial. Whiplash injury cases, in the way that will now be defined in the Bill, are not cases that attract vast sums of money in damages. I particularly welcome the requirement of medical evidence, which provides some level of protection against the fraudulent. I welcome also the prohibition on cold calling, and I think there is something in the provision for uplift.
Can we be clear, though, that some claims absolutely reek of fraud? I suspect many of us know, for example, of a case where, at traffic lights with two cars in a line and none behind, the front car moves forward across the junction, not too fast, and is followed by the second car. Then, suddenly, the front car slams on its breaks for absolutely no reason, resulting in an impact. I am certainly aware of at least one case—perhaps we all are. It was not a case in court but was narrated to me by a friend, who was rather mortified to find that, after a small accident, the recipient of the injuries in the other car came out of the car saying, “Whiplash, whiplash!”, and had no other word of English to speak. He then found that his insurance company had received claims for no less than four people, when there was only one person in the car. As I say, these cases reek of dishonesty.
I hope that, if this part of the Bill is enacted, insurance companies will continue to remember that before a claim can be made for whiplash injuries, there has to be a claim and the claim should be contested as and when there is evidence of fraud. They cannot just sit back, otherwise they will find themselves paying out more and more. Some cases reek of fraud and they should be contested, and the easy way of doing nothing much more than that should be avoided. The police should be informed and the evidence should be handed to them so that at least they can investigate. I know that they have many other things to do, but a few knocks on doors and the word would go around the fraudulent area of this particular universe saying, “Hang on, there’s something going on here”. That too might discourage the odd dishonest claim.
What I cannot accept is a solution which means that a dishonest claim is handled in exactly the same way as an honest one. We cannot have dishonesty informing the way in which those who have suffered genuine injuries are dealt with. That is simply not justice. There should not be any idea that an honest claim for a whiplash injury made by the victim of a car accident should be less well compensated than an identical injury suffered by someone at work. There are all sorts of ways in which injuries can be caused; indeed, a slip in the street or a fall down the stairs can result in a whiplash injury, so there are many perfectly ordinary ways in which these injuries can be sustained. We need a process that produces the same result for the same victim who has honestly suffered the same consequences.
The Earl of Kinnoull (CB)
My Lords, I declare my interests as set out in the register, particularly those in respect of the insurance industry. The 2017 Conservative manifesto provides an interesting lens through which I feel one ought to consider various amendments in this group. It states the following in a section entitled, “Cutting the cost of living”:
“We will reduce insurance costs for ordinary motorists by cracking down on exaggerated and fraudulent whiplash claims”.
At a high level, the Bill seeks to do that principally by dictating how whiplash claims procedures will work in the future; that is, through the use of a tariff. Several amendments in this group seek to interfere with the principle of a tariff either by removing it or by making it rather more generous than market forces allow today. Both of these approaches seem to fly directly in the face of that express manifesto commitment. I remain very much of the view that any tariff should be set out in the Bill, just as the Delegated Powers and Regulatory Reform Committee has recommended.
We are in extraordinary and difficult circumstances here, with around 1% of the population of the UK annually successfully concluding a whiplash claim. I submit that a social and political necessity trumps jurisprudential purity, such as that advanced by my noble and learned friend Lord Woolf, even before considering the manifesto commitment point that I made earlier.
A tariff will bring benefits in terms of certainty and the potential for ordinary citizens to file claims online easily, without the need for external professional help. Any reduction in hassle and the costs of processing a claim will inevitably benefit everyone. Indeed, we heard at Second Reading how a tariff system seemed to work well in Spain. Deleting Clause 2 would deny those benefits. It would certainly deny the Government the ability to deliver on their manifesto commitment because the hugely unsatisfactory status quo would simply continue, with a numerous minority of our fellow citizens continuing to abuse the current environment to their financial advantage. Therefore, I strongly oppose Amendment 18.
Turning to the quantum in the tariff table, I accept that the issue is rather a Goldilocks one. If the quantum is too generous, the problem of exaggeration and fraud will persist. If it is not generous enough, the genuinely injured will be badly dealt with. The Government have attempted to walk this line in their draft statutory instrument; I make no comment on the numbers it contains. The structure of the Bill allows the Lord Chancellor to vary the tariff with suitable safeguards.
I fear that Amendments 10 and 17B are too generous because they depend on the Judicial College numbers, which are derived from cases heard. The numbers are actually above where the market—if I may call it that—is today because the cases that tend to get to court tend to have non-standard features, such as being more complex or involving psychological issues. Therefore, I fear that if either of these amendments were adopted, there would be no saving per the impact assessment—possibly even a negative saving—and thus they too defeat the Government’s manifesto commitment. Accordingly, I oppose them.
In turning to Amendment 30, I start by expressing my support for Amendment 12, which restores constitutional balance in a very elegant way. Indeed, I congratulate the noble and learned Lord, Lord Judge, on his excellent speech. Amendment 12 goes some way to addressing the issues that were set out well by the noble and learned Lord, Lord Woolf, in introducing Amendment 30. However, Clause 3 is not only a fully important part of a package to frustrate the designs of the claims industry but an important part of a strategy to deliver the manifesto commitment. On that basis, I feel that this amendment should also be resisted.
Lord Pannick (CB)
My noble friend Lord Kinnoull referred to “jurisprudential purity”. I would prefer to describe it as the essential role of the judiciary in deciding what compensation is appropriate. I would be very grateful if the Minister would tell the House whether there is any precedent for a Minister, rather than judges, deciding on the appropriate level of compensation for a civil claimant when that compensation is being paid not by the state—I recognise that that may be a different matter—but by a private wrongdoer or, more accurately, their insurance company. I suggest that either there is no precedent or this is rare, for a very good reason: put simply, judges, not Ministers—or their civil servants, more accurately—have expertise and independence in this area. For those reasons, I strongly support the speech made by my noble and learned friend Lord Woolf.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I confess to having found this group of amendments rather difficult. As I observed in Committee, the real question as I see it in Part 1 is whether it is right to fix especially low awards for whiplash injuries suffered in road accidents, to deter the disproportionate number of false claims which undoubtedly are made following such accidents. That is what Clause 2 does: it seems to me impossible to escape that conclusion. Obviously and inevitably its effect, therefore, would be to penalise those who genuinely claim for such injuries sustained in that way. They are to pay the price of the policy underlying Clause 2, the policy of deterring the dishonest. Obviously, one regrets that.
Whether to pursue that policy and, if so, to what extent and how vigorously—in other words, how far to reduce the awards so as to make the making of a false claim less attractive—is, it seems to me, par excellence a political question. It is purely a political question and therefore I, for my part, see no particular point in involving the judiciary as Amendment 12 would do. We know what the judiciary regards as the appropriate level of damages for honest claims of this sort: the Judicial College guidelines clearly tell us that. Therefore I do not support Amendment 12.
To my mind, the real question is the altogether more fundamental question raised by my noble and learned friend Lord Woolf’s Amendment 18 and that is the one I confess that I find the more difficult. I flagged up my concerns about this and about the whole of the Part 1 policy in Committee. My noble and learned friend suggests that the proposal will create an undesirable precedent and introduce injustice into the system. Of course, I recognise the force of these criticisms and to a degree I share his doubts as to whether the incidence of false claims remains grave enough to justify this wholly exceptional measure. However, at the end of the day I am reluctantly persuaded that this provision is justified: it is surely intolerable that we are known as the whiplash capital of the world, so I have concluded that it is open to government, as a matter of policy, to seek to deter dishonest claims in this way.
I do not suggest that there are any exact analogies between the law of compensating injuries negligently caused and what is here proposed. I accept that the criminal injuries compensation scheme, to which in effect my noble friend Lord Pannick and the Minister referred—statutory awards for injuries criminally caused—is a very different creature, but it should be recognised that broad questions of policy can and on occasion do have a part to play in this area of our law. For example, the courts have held, under what lawyers here will recognise as the Caparo principle, that in certain circumstances claims are barred altogether, not just restricted. In short, there is no duty of care held to arise, even when injury follows on from what otherwise would be plain negligence, where it is held, for whatever reason, that it would not be fair, just and reasonable to compensate in those circumstances. For example, years ago in the case of the Yorkshire Ripper, the police were held exempt from claims despite their failure to apprehend the killer, which manifestly they should have done, and, as we all recall, a series of subsequent women died.
On balance, my conclusion is that there is a sufficient policy reason here for restricting damages in this case. With some hesitation, I shall not feel able to support the amendment tabled by the noble and learned Lord, Lord Woolf.
Lord Hunt of Wirral (Con)
My Lords, this group contains 18 amendments, of varying importance. I declare my interest as having been a partner for 50 years—this year—in the global commercial law firm DAC Beachcroft LLP. I was so pleased to see the noble Lord, Lord Morris of Handsworth, in his place earlier because for many years I had the honour to act for the Transport and General Workers’ Union when, on the instructions of Mr Albert Blyghton, I went into battle to recover substantial damages where people had been seriously injured.
In supporting the words of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Earl, Lord Kinnoull, I remind the House that here we are dealing with a racket, as described by the noble Lord, Lord Blencathra, which has grown up in this country thanks to what is termed the compensation culture, encouraging not just fraudulent but spurious—I think that is a better description—claims, which have now made us the global whiplash capital. I greatly regret that.
After all, in this group of amendments we are talking about only minor injuries. As has been pointed out by the noble and learned Lord, Lord Brown, there has been a political decision. I remind noble Lords that in the Red Book in 2015, the then Chancellor of the Exchequer, Mr George Osborne, said:
“The government will bring forward measures to reduce the excessive costs arising from unnecessary whiplash claims … including by … removing the right to general damages for minor soft tissue injuries”.
I am not sure everyone here was present when we had a debate—and we have had a number of subsequent debates—about the need to tackle this whiplash culture.
Not everything George Osborne said in that Autumn Statement was received with universal acclamation but I well remember that that particular announcement was welcomed on all sides of the House. “At last”, we said, “we’re going to get rid of the whiplash culture”. There was a clear consensus in this House that the law and the courts had allowed a racket to flourish, leading to a manifest and substantial injustice—the injustice of millions of law-abiding insurance policyholders having to pay over the odds to fund this mass of bogus claims. We can point the finger at the insurance industry, perhaps, for allowing too many but we are talking not just about insurance-funded claims but about a whole range of minor claims, and we have to decide as a House whether we intend to fulfil what I understood we had agreed to do about this racket.
I congratulate my noble and learned friend the Minister on the determination he has shown to end this racket and to end the injustice. We have identified an injustice and we have promised to act to end it.
There is a judicious balance in the Bill, as one would expect, and those with genuine minor injuries have nothing at all to fear from it. The option of doing what George Osborne initially recommended, namely to remove general damages completely from soft tissue claims, has perhaps wisely been abandoned in favour of the proposed tariff. In Amendment 1, as we have already heard, the Government have further answered their critics in this House by putting a clearer definition into the Bill. It is not perfect but it is a lot better than the previous one in the draft regulations. It comes closer to capturing the scale of the problem.
I thought we had a consensus in this Chamber in July last year, when we debated the need to tackle the regulation of claims farmers during the passage of the then Financial Guidance and Claims Bill. I highlighted at the time the work of Carol Brady, in her excellent report in 2015, and the need to follow the money. Noble colleagues on all sides of the House agreed in that debate that these were important measures; now, we have to tackle the money itself, in the form of damages and solicitors’ fees, and we are of course suddenly beset by an enormous number of last-minute amendments. I must share with the House that, following the then Chancellor of the Exchequer’s announcement, I was told: “Don’t think for a moment that this will ever pass, because the jobs of thousands of those employed in the claims management industry will be lost. They will fight hard to stop the Government’s action”.
Why should the noble and learned Lord, Lord Woolf, of all people, be challenging the Government’s stated intent here? I have already heard the depressing rallying call of access to justice. In truth, I worry about some of the briefings that we have received in preparing for this debate. They really seek to delay what action the Government are taking. I know that the noble and learned Lord, together with many other Members of this House, has received instructions from me personally in the past and I have huge respect for him. We must surely recognise, as the noble Earl, Lord Kinnoull, reminded us, that the Government committed in the manifesto at the last election to tackle the rampant compensation culture around whiplash claims—the same culture which pays the bills for those who continually text and call us with offers of money for nothing. We must not allow our eye to be taken off that ball.
The noble and learned Lord, Lord Woolf, referred to the Judicial College guidelines. Amendments 11, 17A and 17B propose sagely that those guidelines are the cure of all ills, but they are really not the answer to the question we have to address. I do not know the guidelines off by heart but I know this particular section, because it reminds us that,
“the figures … merely represent what other judges have been awarding for similar injuries”.
That is all the guidelines do. They also say:
“The figures in this new edition recognise that … the general increase in RPI … since … 2015 has been 4.8%”.
With respect to the good work that the Judicial College does to make awards consistent, the guidelines simply record the numbers previously thought of by other judges over the years and then uprate them for inflation. These and other amendments proposed by the noble and learned Lord, Lord Woolf, in fact oppose the entire substance of Part 1. They ask us to agree to leave the problem to the judges to sort out.
I respectfully answer that the courts have had many years to contain the problem but I have yet to see any conspicuous success. The assessment of damages by judges is based on a ratchet effect; it can go up but it can never slip back, as the Judicial College guidelines themselves admit. Judges do not redress the balance at any time. On one recent occasion when they had the opportunity to do so—the noble and learned Lord may recall Heil v Rankin in 2000—the judges increased damages for all but minor injuries and left the damages for those alone, so the control effect is simply absent. That is why it is now up to Parliament to do what needs to be done.
I conclude by reminding colleagues that a graphic illustration of leaving such matters solely to the discretion of judges can be found in a High Court appeal case last month, Molodi v Aviva Insurance. A whiplash claim was initially accepted by the county court judge, even though Mr Molodi had lied on a number of aspects of his case. The High Court judge in Manchester, Mr Justice Spencer, threw the claim out and issued a salutary warning to the judiciary,
“it is also pertinent to recognise the problem that fraudulent or exaggerated whiplash claims have presented for the insurance industry and the courts. This was recognised in March 2018 when the Ministry of Justice published a Civil Liability Bill … proposing new, fixed caps on claims … The problem of fraudulent and exaggerated whiplash claims is well recognised and should, in my judgment, cause judges in the County Court to approach such claims with a degree of caution, if not suspicion”.
The need to issue such a general warning to fellow judges belies the suggestion that we can safely leave this issue for judges to control. The tariff is sorely needed. It applies the brake, which only the Government can apply, not the courts.
Lord Faulks (Con)
My Lords, I repeat my declaration of interests made at previous stages of the Bill. The noble and learned Lord, Lord Woolf, and others have advanced powerful arguments in favour of protecting the entitlement of those genuinely injured who seek compensation for whiplash. Coming from such a distinguished source, these arguments clearly demand a great deal of respect around the House. It is therefore—to adopt a phrase used by judges—my misfortune not to agree with the noble and learned Lord’s amendment. The noble and learned Lord, Lord Brown, referred to the fact that judges from time to time decide matters of policy and relied on the case of Caparo and the fair, just and reasonable test. It is of course for Parliament to decide fairness, justice and reasonableness, and it should approach this problem with that in mind.
It is undoubtedly true that some genuine claimants who have sustained whiplash injuries will be entitled to rather less than they would have been if the Bill becomes law, but we need to stand back and consider the policy driver behind these changes. At Second Reading, the Minister pointed out that there has been a 70% rise in 10 years in the number of road traffic accident-related personal injury claims. Of these, 85% are for whiplash-related injuries. In 2016-17, there were 670,000 whiplash claims—it is rather surprising that anybody gets into their car at all—yet we know that we have more of these injuries than any other European jurisdiction notwithstanding the considerable improvement in standards of road safety in this country and the adoption of neck restraints and the like. All this costs motorists and consumers a great deal, and the cost of premiums falls particularly harshly on those who live in rural communities and have to drive cars and on the young, who may find it difficult or impossible to pay premiums.
Lord McNally (LD)
My Lords, I have some trepidation in speaking before a former Lord Chancellor does, but perhaps what I have to say will help. I am grateful to the noble Lord, Lord Faulks, for reminding the House that I was the Minister who took through the LASPO Bill and I have been watching the Labour Front Bench nodding in unison at every word that could possibly embarrass the Government. However, the origins of what we are doing now lie with the last Labour Government, who shared then the growing cross-party consensus that we were becoming a more litigious society, driven by a compensation culture and a determination to have our day in court—the noble Lord, Lord Faulks, referred to Jack Straw’s campaigning on whiplash—and the response to that was the setting up of the Jackson report under Sir Rupert Jackson.
It is interesting to note that one of the reasons for the setting up of the Jackson report under the Labour Government was that the costs in civil litigation were often disproportionate to the issues at stake. Lord Justice Jackson, who has just retired, spoke at the Cambridge law faculty on 5 March 2018 and, reflecting on his reforms, he said that the problem was that,
“Almost everyone perceives the public interest as residing in a state of affairs which coincides with their own commercial interests”—
he might have said professional interests as well.
My locus in this is not as a lawyer—I have told the House before that when I was a Minister I once said to a visiting distinguished American lawyer, “I must explain that I am not a lawyer”, and he said, “Then I shall speak very slowly”—and, given the array of legal advice and talent we have already heard, I tiptoe into this with trepidation. This is based partly on a family experience of a whiplash, which was clearly fraudulent but the insurers thought that the cost of defending was greater than simply settling. That left me with the experience of not only a fraudulent claim but a fraudulent claim which was sustained by the obvious collusion of both the solicitors and the doctor concerned. Therefore, the noble Lord, Lord Hunt, is right to talk about a racket in which many respectable professions are involved. Those overseeing those professions have a duty of care to root out those who are complicit in these frauds.
As I have said, there was a growing cross-party consensus that something must be done. I confess that seven years ago I answered a Question from the Dispatch Box assuring the House of the urgency with which the Government were dealing with the issue of whiplash. I say to my Front Bench and to the noble and learned Lord, Lord Woolf, for whom the affection and respect I have is overwhelming, that I worry his amendment is just another one kicking the problem down the road when everybody else who speaks on it recognises that there is a problem. This has been said on a number of occasions: we are dealing with not the kind of catastrophic life-changing injuries that the noble Lord, Lord Faulks, often refers to when we discuss medical negligence, but the very lowest level of claims where, as the noble Lord again said, many people would not even think of claiming if they were not spurred on by the claims management industry out of its own self-interest.
I fully endorse what my noble friend Lord Marks said about the need for others to take responsibility, not least the industry itself, for fighting fraud and making attempted fraud not worth while. I worry that the legislation says that we need a medical certificate. Somebody said, maybe in a private briefing, that there was one doctor who had a kind of Roneo of letters that he just signed. If you are going to have a medical check in this, you have to make sure that it is not part of the fraud because in the past it has been.
Nevertheless, it is rather sad that we have this collection of amendments. I look forward to the usual forensic dissection of them by the noble and learned Lord, Lord Keen. There are some good and some not so good ideas in there, but I do not want us to see something that becomes a wrecking amendment when we have waited for far too long for this. Perhaps because I am not a lawyer I do not share the fear from the noble and learned Lord, Lord Woolf, that we are setting some terrible precedent that will weaken the role of the judiciary. I do not see that at this very low end of the process. I hope that, in our usual way in this House, we can extract some of the good ideas that have been put forward but not lose the sense of urgency with which the Bill, at last, tries to address a real problem in a practical way.
Lord Mackay of Clashfern
My Lords, I will speak primarily about the amendments that my noble and learned friend Lord Woolf has proposed. This part of the Bill is concerned only with claims for pain and suffering. It has nothing to do with any other form of loss. Other forms of loss are easily quantifiable, but loss arising from pain and suffering is a development of the law that has very little in the way of structure.
When I was a junior at the Scottish Bar long ago these matters were often the subject of jury claims. Pain and suffering was an element in a jury claim. The judges were warned against suggesting a figure to the jury. You can imagine how difficult it was to provide a summing up that dealt with that. I remember well that one of the senior judges that I knew had a formula in which he said, “This is a sum to mark your sense of the pain and suffering that the claimant has suffered”. That was done by juries; it was before the time that judges were involved in this, and therefore it was a jury question. It has all the character of a jury question in the sense that there are no rules that I know of—none has so far been quoted—to determine the amount to be given. How has that been done? As my noble friend has just quoted from the judicial guidance, it has been done by collecting what others have decided in other cases. There is nothing specifically judicial about that. I think almost any of us could manage to deal with that; you do not need to be a very experienced judge to do that kind of calculation.
Baroness Berridge (Con)
My Lords, I have spoken at every stage of the Bill and I first thank the Minister for his time discussing matters with me.
For those who have been in your Lordships’ Chamber for the entirety of this debate, it is interesting to note how blame has been passed around like a squash ball. Is the fault that of the Government for not acting quickly enough, the insurance companies, those dastardly claims management companies or the judiciary for not getting a handle on this earlier?
While there is undoubtedly a problem with fraudulent claims, the one group not to blame is those people who are genuinely injured in this manner in an accident. Some of these cases indeed reach court: I have the privilege of representing those people.
Before I proceed, let me also comment on the matter of low-end claims or minor claims. I have met many a claimant for whom the difference in damages now proposed by the introduction of the tariff, taking some damages from four figures—£1,200 or £1,400—down to the likes of £470 is a significant matter for many people’s incomes up and down this country. I cannot have it portrayed that this might not make a great deal of difference to many ordinary people in the country.
From my experience in your Lordships’ House, we are in an unusual situation. We have so often spoken of the scrutiny of legislation needed here to avoid unintended consequences. But in this Bill, the intended consequence—whether that is the conscious intention of the judge or the virtually certain consequence of the legislation—will be to affect that group of people. Therefore, we are in the unusual situation where an amendment is laid on Report that is like a Second Reading point, because it is a point of principle about the Bill. It is also affects a point of principle that, as a law student, was the DNA of our justice system. It was taught to you from the moment you entered your lecture theatre—where, I have to say, I was taught by some amazing people.
I have thought much since Second Reading about how these genuine claimants might respond—the hundreds of folk who I have had the privilege of sitting with in waiting rooms on the northern circuit when I was a barrister—bearing in mind that they also, of course, care about their premiums and the societal implications of fraud, which is alleged to be so prevalent. It is these people to whom the justice system and the amount of compensation must be explained and make sense.
In my view, a genuine complainant might respond: “Her Majesty’s Government say that the insurance companies are to blame as well. Have you made them do everything possible before depriving me of my compensation?”. In fact, we know that insurance companies have often made commercial decisions to pay out for possible claims just to get rid of a claim at an earlier stage because it is cheaper—even suggesting to people that they might have been injured although they themselves have not mentioned it. Her Majesty’s Government have not asked the insurance companies to stop this behaviour first. The insurance companies have paid out without medical reports, so would it not be fairer to genuine claimants to have a period with the medical reports that the legislation will make mandatory before reaching for such a drastic policy solution?
Secondly, a genuine claimant might respond: “Was this situation so dire for the insurance companies that insuring everybody was really at risk? How are their profits doing?”. A report from Direct Line Group, the largest insurance group, shows profits for the financial year 2017 of £610.9 million—a leap of 51.4% on 2016. Dividends were up 40.2%. In its interim report in 2017, one of the reasons it gave was fewer than expected bodily injury claims. It is not the only insurance company to give this reason at the moment. I quote from the Insurance Times of 24 May this year:
“Fewer whiplash claims have helped Sabre Insurance Group’s gross written premium return to 2017 levels. Sabre said: ‘Pricing action was taken in early March to reflect the improving claims trends, specifically lower whiplash claims frequency’”.
Could the insurance companies not be asked to use perhaps a fraction of these profits to fight the fraud before genuine claimants have to be affected by such a policy decision? I could not help but notice that genuine claimants might actually see the flaw in the system: if, for example, Harry Kane were to get injured in a road traffic accident and was unable to captain England, that would probably merit more in compensation than my having a whiplash injury.
Genuine claimants might respond to the Government and ask, “With those enormous changes that you made as a result of the Jackson review and LASPO, introduced in April 2013, what happened then to premiums and savings made?” I repeat the figures I outlined in Committee. Insurers have saved £8 billion in claims costs between 2010 and 2016. The figure to date is £11 billion. But premiums have gone up from £385 in the second quarter of 2013 to £493 in the last quarter of last year, according to the ABI’s own premium tracker—an increase of 28% since the LASPO changes. Would not a genuine claimant ask, “Can the Government just make sure that the premiums will actually come down so that my compensation that I should have got will in fact be reallocated in lower premiums to everybody else, and not in higher profits for the insurance companies”?
Unfortunately, the legislation at the moment is unable to ensure that. There is nothing wrong with higher profits. Pension funds need them—I recognise that. But this is genuine claimants’ compensation that we are asked to redistribute in this way. I agree with the principle mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that this is a policy decision. For the reasons I have outlined, I do not think that we have reached the point—although the time is fast approaching—to so affect genuine claimants and their understanding in the waiting rooms of our courts throughout this country of what a justice system should deliver. More can be done, so unfortunately, at this time, I cannot support the Government.
Lord Sharkey (LD)
My Lords, I will speak briefly in support of Amendment 18, in the name of the noble and learned Lord, Lord Woolf, and, as a consequence, I will not be speaking to my Amendments 9, 10 and 17.
As this Bill has progressed, I have repeatedly pointed out that the tariff levels proposed by the Government lack any substantive justification. It remains entirely unclear why these specific amounts have been chosen. What is clear, of course, is that they are very substantially lower than the amounts currently awarded. What is also clear is that they require genuine claimants to suffer a very large reduction in damages in order to try to reduce the incidence of alleged fraud or unmeritorious claims. The incidence of such claims is highly contested and relies, in part, on data that unhelpfully categorises dropped claims as probably fraudulent.
The noble Lord, Lord Faulks, if I heard him correctly, asked if there can be any doubt about the incidence of whiplash claims. The answer is yes; such a doubt exists, for example, in the House of Commons. The House of Commons Justice Select Committee discussed the question in its report of 15 May this year. Paragraph 2 of its conclusions and recommendations states that,
“we are troubled by the absence of … data on fraudulent claims and we find surprising the wide definition of suspected fraud that is used to collate the ABI’s statistics. In particular, the failure by the ABI to break down their figures by the nature and type of claim, and to isolate RTA PI claims broken down by type of road user, is a significant and regrettable omission that weakens their evidence base”.
The committee went on to recommend that,
“in the interests of accuracy, the Government work with the ABI to develop a more nuanced approach to avoid conflating innocent—if unexpected—consumer behaviour with fraudulent activity”.
It seems wrong in principle to look to genuine claimants to pay for what may reasonably be characterised as, at least partially, a failure of the insurance industry’s own practices. The long-standing practice of no-med settlements springs to mind here.
The Government’s proposals would also create serious anomalies, as mentioned at Second Reading and in Committee, and as the noble and learned Lord, Lord Woolf, has again mentioned today. A whiplash injury of 24 months’ duration suffered at work would attract damages of up to £6,500. Under the Government’s proposed tariff, that injury would attract £3,725 in a road traffic accident, which is obviously undesirable and unjust. Finally, as far as I can see, the Government’s forecast reduction in the cost of fraudulent claims takes no account of dishonest claimants trading up. The Government’s proposed tariff may well deter small claims, but it may equally encourage dishonest claimants to attempt to move up the duration ladder to compensate.
I believe that we should remove Clause 2, which would leave the determination of damages where it currently is, with the judiciary. It would give the Government and the insurance industry time to reflect further on how better to assess the level of fraud and time to work out how to reduce it without unreasonably burdening genuine claimants, creating unacceptable and unjust anomalies in awards and creating incentives for larger dishonest whiplash claims.
Lord Beecham
My Lords, I refer to my interest as an unpaid consultant to my former legal practice. A distinguished former Member of this House in the late 19th century, Lord Bowen, who served as a Lord of Appeal in Ordinary, was a noted wit. He it was who wrote:
“The rain it raineth on the just
And also on the unjust fella;
But chiefly on the just, because
The unjust hath the just’s umbrella”.
In its enthusiasm to deprive the unjust claimant in whiplash cases of the umbrella of justice, the Government’s measures, embodied in Clauses 2 and 3, will effectively remove it from the just claimant—a reversal of Lord Bowen’s scenario. As the noble and learned Lord, Lord Woolf, asserted, this is,
“a proposal which involves a genuine victim of whiplash injuries receiving reduced damages in order to deter a dishonest claimant from bringing a claim”.
Let me be clear. There can be no one in this House who wishes to facilitate false claims. All of us support the need for any claim to be founded on objective medical evidence, and it is right for this to be a requirement of any out-of-court settlement. However, as the Bar Council points out, the effect of the Bill as originally drafted, and the draft regulations that have been published, would result in reductions of between 22% and 89% in compensation for the victims of whiplash injuries for up to two years, coupled with the costs that they will have to bear no longer being recoverable by the defendants. Thus the compensation under current Judicial College guidelines, set in 2017, for a four to six-month duration of injury, would drop from a range of £2,150 to £2,703 to £470 under the draft regulations, and for a 10 to 12-month duration from £3,257 to £3,810 as a range to £1,250. Of course, the new arbitrary figures for damages would relate only to the time factor and not, for example, to the intensity of any pain suffered.
The amendment proposed by the noble Lord, Lord Sharkey, comes closer to the Judicial College guidelines, but it would be better in my submission simply to delegate the responsibility for certain tariffs to the college rather than to either Ministers or Parliament. That should be a matter for the judiciary.
The Minister’s letter of 7 June contains some welcome changes to the Bill as drafted, including a triennial review of Part 1. However, it contains a statement that underlines the problematic nature of the Government’s response. The Minister avers:
“The Lord Chancellor should set those tariffs which will act to disincentivise unmeritorious claims to reduce costs for all motorists but which will also continue to provide a proportionate amount of compensation where genuine injury is suffered”.
In other words, a genuine claimant is to recover less compensation than he would otherwise receive in order to deter the fraudsters.
But why are the insurers not more rigorous in their assessment of claims, and what happens when the fraudsters cotton on to the implication that they simply need to moderate their claims and the insurers will be content to pay up, effectively on demand, without demanding proper examination of the claim? As the noble and learned Lord, Lord Woolf, averred in a note circulated some time ago, this proposal,
“involves a genuine victim of whiplash injuries receiving reduced damages in order to deter a dishonest claimant from making a claim”.
There is of course disagreement about the extent and cost of fraudulent claims, which should certainly be resisted by insurance companies. It has been suggested that they have been too ready to settle dubious claims rather than risk the costs of defending them. But, importantly, the insurance industry’s own estimates show that the amount paid out on whiplash claims declined by 17% between 2007 and 2016, while premiums rose by an average of 71%. Meanwhile, premium tax—imposed, of course, by the Government—doubled to 12% between 2014 and 2017, and the cost of repair bills has risen by 33% since 2013. The noble Baroness, Lady Berridge, gave us further illustrations of where costs are rising. I remind your Lordships at this point that there is not a consensus on the number of fraudulent complaints brought and settled hitherto. Of course fraud must be deterred—but again I say, not at the expense of genuine victims.
Another consequence that is highly likely to flow from the Bill’s proposals is on the working of an already overstretched court system, with the increased number of litigants in person already causing delay likely to rise even further. Perhaps the forthcoming courts and tribunals Bill will impact on this, as more people who work in the system will be empowered to offer advice—although not representation, which is no longer available from legal professionals. However, there must be a risk in reducing the level of expertise in this way.
Amendments 6 and 8 in this group would restrict the application of the clause to 12 months rather than two years. Most cases are in that category, and two years of pain and discomfort is surely too long for the lowest level of compensation. Injuries that are serious enough to last over one year and up to two years are not “minor” by any reasonable definition. The effect of the reductions in damages is the removal of the right to claim full compensation. These are arbitrary and disproportionate measures.
Amendment 7 deletes an unnecessary requirement to mitigate the effect of damages which of course is already part of common law. We on these Benches support Amendment 9. On Amendment 10, there has been much pressure, understandably, for the tariff to be in the Bill. However, the problem with that amendment, and generally with Clause 2, is that the figures would be determined by the Lord Chancellor—with all due respect to former Lord Chancellors in your Lordships’ House. Our view is that, while any changes would be made by secondary legislation, the setting of the tariff should be determined by the Judicial College—and we concur with the argument of the noble and learned Lord, Lord Woolf, in that respect—in accordance with the practice as exemplified by the 14th edition of the Guidelines for the Assessment of General Damages in Personal Injury Cases. It should be for the judiciary, not the Government of the day, to determine this, and we do not favour Amendment 10 on that ground.
Amendment 12 goes some way to meet that requirement, but still leaves it open to the Lord Chancellor of the day—now, of course, no longer necessarily someone well-versed in legal matters, as other noble Lords have pointed out—to take a position contrary to that of the judiciary. This could be a troublesome precedent for other areas of justice at a time when it seems to be increasingly difficult to recruit judges of calibre, let alone with the experience of the noble and learned Lords participating in today’s proceedings.
Amendment 29A follows in seeking to leave out Clause 13 and giving the court power where it seems that the tariff is inadequate in respect of damage inflicted. We on these Benches support Amendment 46, which would require regulations for the FCA to report on the effect of insurance practices in relation to premiums and savings.
The noble and learned Lord, Lord Woolf, made a powerful case for removing Clauses 2 and 3 from the Bill. If the real concern is the prevention of fraud, with which we all concur, we should look at other measures. These could include heavier sentences for insurance claims fraud, higher no-claims bonuses and, above all, not punishing a genuine claimant for the misdemeanours of the fraudulent or the laxity of the insurance industry in resisting the fraudster. Of course, the role of claims management companies demands rigorous examination and action.
In the light of our support for the noble and learned Lord’s proposal to delete Clause 2, we will not push our amendments to Clause 2 today, as we hope that the clause will disappear. However, should it remain, we will need to bring our amendments back at Third Reading.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
I am obliged to noble Lords for their contributions. I will speak to Amendment 6 and to Amendments 7, 8, 9, 10, 11A, 12, 17, 17A, 17B, 18, 19, 20, 25, 26, 27, 29A, 30, 32, 39 and 46. I hope noble Lords will forgive me if I take a little time over some of the points.
I begin by picking up on some of the observations made by noble Lords but will begin with a generality. I sometimes have the feeling that, were some noble Lords faced with an enormous edifice, their response would be, “You have to explain how every component part is held together before I am prepared to believe that I face an edifice”. The reality was outlined by my noble friend Lord Faulks, who pointed out that there has been a 70% rise in whiplash-based claims in the past 10 years, during which time the number of road traffic injuries reported has dropped dramatically and during which time Thatcham Research has identified that the safety of seats and headrests in cars has improved in something like 88% of vehicles on the road, up from 18%.
Seven hundred and eighty thousand personal injury claims arising out of road traffic accidents were reported in 2016-17. That is the totality. Of those, 670,000 were whiplash claims. It is an astonishing statistic, and the edifice, let alone its component parts, is enormous. As some have already observed, there is clearly widespread abuse.
We have heard reference to the need to test the validity of claims. I noted the reference of the noble Lord, Lord Beecham, to the impact on the courts of increased litigation. One has only to stop and imagine the impact of trying to litigate 650,000 claims in the courts in order that liability can be established and the claim can be tested in each case. The cost implications of that go wider than just the impact on the courts.
There was a call from the noble Lord, Lord Marks, to do more to test the validity of claims. Again, one of the difficulties is the sheer magnitude of the problem that we now face. He also alluded to the need for further measures in relation to aspects such as cold calling, which feed this enormous industry.
To address that point, the GDPR and the Data Protection Act 2018 ensure that, where personal data is obtained through an unlawful cold call, further use of that data will not be allowed, and indeed the ICO can impose very large fines. In addition, the Financial Guidance and Claims Act bans any legal person, not just claims management companies, from making unsolicited calls relating to claims services without having first obtained consent. Crucially, changes made by that Act make it explicit that any organisation in the United Kingdom cannot make unlawful cold calls and, in addition, cannot instigate others to do so on their behalf. Notwithstanding that, there is an enormous unregulated industry out there, much of it based abroad where we cannot touch it, and it continues with these practices. It is a major social problem and requires a policy decision.
Touching on the matter of the damages, the noble and learned Lord, Lord Woolf, referred to a highly complex judicial process, but I take issue with that. As my noble and learned friend Lord Mackay of Clashfern pointed out, the assessment of damages for pain, suffering and loss of amenity is essentially a jury question. Whether you give it to a judge or a jury is neither here nor there; it is essentially a jury question and it always has been.
Lord Woolf
My Lords, we have had a good debate and all the points have been explored, so I shall not detain your Lordships for long by seeking to review the evidence which has been given, in excellent speeches, on behalf of both sides of the argument. However, there is a serious point to make. I would suggest that the vital feature at the core of my case for deleting Clause 2 is very clear: it results in injustice and it is known to result in injustice. Indeed, no one can deny that it results in injustice. There has never been a case where legislation deliberately introduces injustice into our law. It may be that it is only in regard to small claims, but surely it is important that we pause before we do that.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
If Amendment 10 had been agreed, I would not have been able to call Amendments 11 or 11A by reason of pre-emption.
Amendment 11
Lord Keen of Elie
The Deputy Speaker
If Amendment 11A had been agreed, I would not have been able to call Amendments 12 to 17A by reason of pre-emption.
Lord Keen of Elie
Lord Woolf
Lord Keen of Elie
“Review of regulations under section 2
(1) The Lord Chancellor must carry out reviews of regulations made under section 2.(2) The first review must be completed before the end of the period of three years beginning with the day on which the first regulations under section 2 come into force.(3) Subsequent reviews must be completed before the end of the period of three years beginning with the day on which the previous review was completed.(4) The Lord Chancellor must prepare and publish a report of each review.(5) The Lord Chancellor must lay a copy of each report before Parliament.”
Lord Keen of Elie
“(b) it is the case that—(i) the whiplash injury is, or one or more of the whiplash injuries are, exceptionally severe, or(ii) where the person’s circumstances increase the pain, suffering or loss of amenity caused by the injury or injuries, those circumstances are exceptional.”
Lord Keen of Elie
Lord Sharkey
“(i) of the whiplash injury, and(ii) that the claim does not arise from cold-calling,and”
Lord Sharkey
My Lords, Amendments 32 and 39 return to the issue of cold calling, the problems of which we have debated on many occasions in this House. Our latest attempts to curb the menace of cold calling became law with the passing of the Financial Guidance and Claims Act, but, despite frequent debates and new laws, there remains significant uncertainty as to whether our current set of regulations is as effective as it should be. In particular, as we said in Committee, we are concerned at the extent to which cold calling will continue to drive fraudulent claims for RTA whiplash injuries. The Commons Justice Committee shares these concerns. Paragraph 133 of its 15 May report says:
“We conclude that the Government’s current package of reforms creates a risk of increasing cold calling by, or on behalf of, CMCs; we welcome the restrictions on cold calling in the Financial Guidance and Claims Act, but believe they do not go far enough and that an outright ban should be introduced. In the meantime, we recommend that the Government monitor the effectiveness of the proposed restrictions, particularly on calls from overseas, and that technical remedies are urgently explored to tackle any loopholes that might be exploited by overseas operators to circumvent the restrictions; we ask that the Government report to us on progress with this within a year of the proposed restrictions being implemented”.
In Committee we discussed amendments that would require an assessment of the real-world effect of all the current regulations trying to prevent cold calling. We also discussed the possibility of trying to cut off the revenue streams of cold callers by banning the commercial use of data so collected. I think that the Minister understood our concerns: he acknowledged, as he did again this afternoon, what he referred to as, “the problem of regulating the unregulated”. He mentioned that the Government were seeking to approach this problem by regulating the use of material gathered by cold calling, and we entirely support this approach. There is a widespread unease that we have not really cracked this problem yet—and I believe that the Minister shares at least some of this unease.
Our Amendments 32 and 39 do two things. First, they give the Minister the opportunity to address the House once again on the issue of whiplash and cold calling. Secondly, they propose yet another method of coming at the problem of cutting off the revenue stream of cold callers. Clause 4 sets out new rules against settlement of whiplash claims before medical report. Amendments 32 and 39 extend these rules to cover whiplash claims arising from cold calling. Amendment 32 does this by making it a breach to settle without seeing appropriate evidence that the claim does not arise from cold calling. Amendment 39 allows the Lord Chancellor to specify the form of any evidence required to demonstrate that the claim does not in fact arise from cold calling. Both amendments mirror the provisions in the Bill to ban pre-med settlements.
I realise, as I think we all do, that clamping down on cold calling is a difficult and complex business—but it is also vital. I hope that Amendments 32 and 39 will suggest to the Government a way forward in their attempts to cut off revenue streams and I very much look forward to the Minister’s reply. I beg to move.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
I advise the House that if Amendment 32 is agreed I shall not be able to call Amendments 33 and 34 for reasons of pre-emption.
Lord Beecham
My Lords, I shall speak very briefly to the amendments in my name and that of my noble friend Lady Chakrabarti. There is not, I think, a great deal of difference across the House on the need to ensure that there are proper medical reports and that the MedCo website should be used. The amendments would allow the Government to employ others with medical qualifications, in addition to MedCo, if that was thought to be helpful. Our amendments expressly state that there must be appropriate medical evidence of injury. The amendments are fairly straightforward: we do not dissent from those of the noble Lord, Lord Sharkey, and we hope that the Government will look sympathetically on the amendments here.
Lord Marks of Henley-on-Thames
I shall speak very briefly to Amendments 35 and 36, both of which concern medical reports. These and also Amendment 39, to which my noble friend Lord Sharkey spoke, are in my name. The purpose of Amendment 35 is simple. While it is very difficult to prove, there is widespread concern that the quality of medical reports and, sadly, sometimes the quality and genuineness of those who provide them, is low.
Of course, it is notoriously difficult for clinicians to give reliable evidence of whiplash injuries, both because the symptoms are self-reported—and reported differently by different patients depending on their robustness—and because patients’ accounts are hard to test objectively. Assessment of the likely duration of whiplash injuries, which becomes increasingly important in view of a cliff edge-type tariff, is also very challenging because the course of recovery is extremely difficult to predict and varies from patient to patient, again often dependent on no more than the robustness of the patient concerned. However, some clinicians develop considerable experience of these injuries, and a sensible system of accreditation, with the assistance of MedCo—which is already involved in assisting with the criteria for qualifications to produce medical reports, and quality assurance—ought to be able to encourage some consistency. That is why we seek the incorporation of a reference to MedCo in the legislation.
Amendment 36 would require the Lord Chancellor,
“by regulations make provision for the cost of obtaining appropriate medical evidence … to be recoverable by a claimant who succeeds … unless the court decides that such recovery would be contrary to the interests of justice”.
This is a topic on which I have sought reassurance from the Minister in previous stages, and I have received some. But the current position is that recoverability is a matter of discretion. With the proposed change in the small claims limit and the proposed new portal, we would like to hear a statement that it is intended that in all cases where a claimant, even one below the small claims limit, succeeds in recovering damages for pain, suffering and loss of amenity under the tariff, the cost of obtaining the medical report, which will be compulsory, will go with it, unless doing so,
“would be contrary to the interests of justice”.
Baroness Vere of Norbiton
My Lords, the amendments in this group all relate to either the provision of medical reports in relation to the ban on pre-medical offers for whiplash claims or the cold-calling provisions.
I start by reassuring noble Lords that the cost of medical reports is already recoverable in personal injury claims where the defendant insurer has admitted any part of liability. They will continue to be recoverable following these reforms, including in the small claims track following the proposed increase of the limit to £5,000.
The amendments in the names of the noble Lord, Lord Beecham, and the noble Baroness, Lady Chakrabarti, place the requirement for medical reports to be,
“provided by an accredited medical expert selected via the MedCo Portal”,
or other experts specified by the Lord Chancellor in regulations. Currently, the Civil Procedure Rules require any initial medical report in support of a whiplash claim to be sought through the MedCo IT portal, which, as noble Lords will be aware, was established to improve the independence and quality of medical reporting. The Civil Procedure Rules also require that all MedCo medical reports must be provided by an accredited medical expert.
These provisions were made through the Civil Procedure Rules for a reason. The Civil Procedure Rules are flexible and their use allows for rapid responses to changed circumstances. MedCo is an industry-owned and operated company, and it would be very unusual to enshrine the purposes of such an organisation in the rigid structure of primary legislation. MedCo was formed to take forward government policy in relation to medical reporting. However, circumstances may change, as could MedCo’s role. Alternative accreditation schemes may be added or it may become necessary to appoint another organisation to operate the current process. Were the use of the excellent MedCo process to be put in the Bill, the ability to respond to such changed circumstances would be lost, and genuine claimants could suffer as a result. I therefore urge the noble Lord, Lord Beecham, not to press his amendments.
Amendments 32 and 39, in the names of the noble Lords, Lord Sharkey and Lord Marks, seek to add a requirement relating to claims sourced through cold calling to the Government’s prohibition on the making or seeking of settling whiplash claims without medical evidence. While I fully understand the noble Lords’ motivations in tabling these amendments, I believe it would not be appropriate to widen the ban on seeking or offering to settle a whiplash claim without the claimant first seeking medical evidence to also include claims which may have been sourced via a cold call. This could discriminate against genuinely injured claimants.
Lord Sharkey
I thank the Minister for her reply about cold calling. It is a pity because, as I said in moving Amendment 32, there is a widespread feeling that things are not working. I hesitated to say this in the previous debate but I got three calls over the weekend—I thought it might be more appropriate to mention that now rather than earlier. There is a common unease, as my quoting the report from the House of Commons Justice Select Committee shows.
It may get better, and I hope it does, but, as I am sure the Minister knows, I was deeply involved—as was the whole House—in trying to craft regulations in the then Financial Guidance and Claims Bill, which were substantially watered down when they reached the Commons. When they left here, they were much stronger than they turned out to be after the other place had had its way with them. Again, that seems to reinforce the possibility that actually we have not yet got a grip on this. I ask the Government to reflect on whether or not the current package of regulations is going to work and exactly how we will monitor its working. In particular—addressing the point the noble and learned Lord, Lord Keen, made a moment ago—given that these factories in Pakistan can generate a million calls a day, then close down and reopen next door as another, separate legal entity, how are we going to deal with that if not by cutting off the revenue? I would welcome a conversation—perhaps not on the Floor of the House—about what progress we think we have made in the existing regulations in cutting off the flow of the revenue. In the meantime, and pending that kind of conversation, I beg leave to withdraw the amendment.
Lord Keen of Elie
Lord Keen of Elie
Lord Sharkey
“(4A) The Treasury must, within one month of the passing of this Act, make further regulations specifying that the Financial Conduct Authority is to require all insurers holding a licence to offer UK motor insurance to publish a report—(a) on the loss cost savings achieved as a result of the provisions of Part 1 of this Act, and(b) how, and the extent to which, such savings have been applied to reduce motor insurance premiums.(4B) The first such report from insurers must cover the period of 12 months beginning with the first day of the month immediately after the commencement of Part 1 of this Act and must be sent to the Financial Conduct Authority by the end of the period of 15 months beginning with the commencement of Part 1 of this Act.(4C) The regulations must grant the Financial Conduct Authority the power to require further reports on an annual basis. (4D) The Financial Conduct Authority, within the period of 18 months after the commencement of Part 1 of this Act, must make and publish a reasoned assessment of whether it is satisfied that each such insurer is passing on to customers any cost benefits arising from Part 1 of this Act.(4E) The regulations under subsection (4A) must make provision for the Treasury to grant powers to the Financial Conduct Authority to enforce a requirement for insurers to pass on loss cost savings, achieved as a result of the provisions of Part 1, from insurers to consumers through a reduction in the cost of premiums if, after the period of 30 months following the commencement of this section, the Financial Conduct Authority advises the Treasury that such powers are necessary.”
Lord Sharkey
My Lords, Amendment 46 is in my name and those of my noble friend Lord Marks, the noble Earl, Lord Kinnoull, and the noble Lord, Lord Beecham. I am grateful to them all for their support. The amendment addresses the question of pass-through. How much of the savings generated for insurance companies by whiplash reforms would in fact be passed on to motorists, in the form of reduced premiums?
Most of the insurance companies wrote to the Lord Chancellor in March. The penultimate paragraph of their letter said that,
“the signatories to this letter today publicly commit to passing on to customers cost benefits arising from Government action to tackle the extent of exaggerated low value personal injury claims and reform to the personal injury Discount Rate”.
There would obviously need to be clarity about: the definition of a cost benefit; whether all customers would share the promised distribution or just those with motor insurance; and how the savings would be passed on. This might be in lowered premiums or just the promise of lower than expected premiums in the future, for example.
The House of Commons Justice Select Committee again noted the problem in its May 2015 report. Paragraph 3 of its conclusion and recommendations said:
“Potential savings to motor insurance customers are central to the policy justification for these reforms, but we conclude that the Government’s estimate of the pass-through rate may be over-optimistic, given the lack of robust evidence and the unenforceable nature of insurers’ promises to reduce premiums”.
The committee recommended that,
“if the reforms are implemented, the Government work with the ABI and either the Prudential Regulation Authority or the Financial Conduct Authority to monitor the extent to which any premium reductions can be attributed to these measures and report back to us after 12 months”.
Our amendment would require the Treasury to make regulations specifying that the FCA would require all motor insurers to publish a report on the savings made as a consequence of the whiplash reforms in the Bill, and how and to what extent these savings have been applied to reduce motor insurance premiums. It specifies the period to be covered by these reports as 12 months after commencement and how long the insurance companies would have to submit reports to the FCA, which would be three months. The FCA would then have a further three months to make and publish a reasoned assessment of whether the insurers have made the promised passed-on savings. The amendment also gives the FCA the power to request further reports from insurers annually as it sees fit. Finally, it would ensure that the FCA has the power to force the insurance companies to pass on savings if they have not done so, or done so sufficiently, within 30 months of commencement.
I think most if not all noble Lords would agree that the insurers should be held to their promise. To do that, we need to monitor and assess whether they have in fact held to their promise and, if they have not, to have the power to force them to do so. To do these things requires a tough and experienced regulator. Only the FCA has the resource, reputation, toughness and experience to be the regulator to do that, which is why this amendment gives it the job.
I know that the Minister feels strongly that insurers must be held to their promise and I realise that achieving this may be a rather complex matter. However, it is critical that we achieve it. It would be absolutely scandalous if savings made by insurers as a consequence of the Bill were retained by insurers. Amendment 46 sets out a method by which we can hold insurers to account for their promises. I beg to move.
Lord Keen of Elie
My Lords, we have on several occasions referred to the savings under these measures, which will be passed on to consumers by motor insurers. I understand that a number of Peers clearly have concerns about ensuring that this actually occurs.
I should say that the Government hold firm that the highly competitive nature of the motor insurance sector will mean that insurers have little or no choice but to pass on savings to consumers or risk being priced out of the market. An in-depth investigation by the Competition and Markets Authority in 2012 found that the motor insurance market is highly price-sensitive, driven by low levels of market concentration and high levels of penetration by price comparison websites. Resulting estimates indicate that 85% of insurance savings from whiplash measures will be passed on to the consumer. Finally, as the noble Lord, Lord Sharkey, observed, motor insurers providing cover to 84% of the UK market have already written to the Lord Chancellor to make the welcome commitment that they will pass on any savings.
That said, the Government are not unsympathetic to the underlying intention of Amendment 46, as tabled by the noble Lord, Lord Sharkey. The point is that having made a firm commitment, insurers should be accountable for meeting it. It is, however, important that any amendment in this regard is drafted with care so that it is effective but does not also impose requirements that push beyond the recognised remit of regulators such as the Financial Conduct Authority. I also observe that we must ensure that any legislative requirement in this area does not infringe on the very important area of competition law.
I therefore confirm that the Government will accept the views of Peers and develop an amendment, to be tabled in the House of Commons, that meets these requirements and provides an effective means for reporting on the public commitment made by the insurance sector, showing that it results in savings being passed on to consumers and thereby holds insurers to account. This is quite a complex and delicate process and it is ongoing at present.
I add only one further matter. Requiring a report to be made within 12 months of commencement is not likely to be the best way forward because claimants have a three-year period in which to make claims. After the Bill receives Royal Assent, there will therefore be an overhang for up to three years of claims that fall outwith the requirements for the tariff to be applied. We will have to look carefully as well at what point it would be appropriate for a report to be made and laid before Parliament. However, that is under active consideration and, in light of that indication, I hope the noble Lord will consider it appropriate to withdraw his amendment.
Lord Sharkey
My Lords, I am very grateful for the Minister’s answer and encouraged by it, too. I take the points about being careful on competition law and the period over which we assess the insurance companies’ return to the people they insure. I will follow with interest the progress of a government amendment as it goes through the House of Commons. Having said that, I beg leave to withdraw the amendment.
“Restriction on increase in small claims limit for relevant personal injuries
(1) In this section, the “PI small claims limit” refers to the maximum value (currently £1,000) of a claim for damages for personal injuries for which, in accordance with Civil Procedure Rules, the small claims track is the normal track.(2) Civil Procedure Rules may not increase the PI small claims limit in respect of relevant injury claims to an amount above £1,000 for the first time unless—(a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to CPI, would be at least £1,500, and(b) the rules increase the PI small claims limit to no more than £1,500.(3) Civil Procedure Rules may not increase the PI small claims limit in respect of relevant injury claims on any subsequent occasion unless—(a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to CPI, would be at least £500 greater than on the day on which the rules effecting the previous increase were made, and(b) the rules increase the PI small claims limit by no more than £500.(4) In this section—“CPI” means the all items consumer prices index published by the Statistics Board;“relevant injury” means an injury which is an injury of soft tissue in the neck, back, or shoulder and which is caused as described in paragraphs (b) and (c) of section 1(3) (negligence while using a motor vehicle on a road, etc.);“relevant injury claim” means a claim for personal injury that consists only of, or so much of a claim for personal injury as consists of, a claim for damages for pain, suffering and loss of amenity caused by a relevant injury, and which is not a claim for an injury in respect of which a tariff amount is for the time being prescribed under section 2.”
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 47 stands in my name and those of my noble friends Lord Bassam, Lord Beecham and Lord Monks. We need this amendment because, on the back of wanting to take action on what are claimed to be fraudulent whiplash claims, the Government propose to remove legal help from a swathe of people with genuine personal injury claims. This is not simply unnecessary but wrong.
When the Government introduced fees in employment tribunals, the absence of legal advice and representation frightened many away from taking cases to court and we saw a drop-off of some 90%. In family courts, where legal aid was largely withdrawn, we have again seen the difficulties when people are unrepresented. Denying legal advice undermines the commonly held view—I thought it was commonly held—that justice should be open to all and not just to those able to pay.
Lord Bassam of Brighton (Lab)
My Lords, I rise to support my noble friend Lady Hayter and specifically to speak to Amendments 47 and 48. It is worth saying that we are trying to bring forward and implement part of the Jackson recommendations.
My noble friend Lady Hayter has covered most of the ground better than I could ever dream of doing in making her powerful and persuasive case from the Front Bench. If we could, we would have brought forward a different amendment and found a simpler way of inserting into the Bill a restriction to the Government’s ability to raise the small claims limit for personal injury to £1,500. This amendment, imperfect though it is, goes some way towards tackling that problem. It is our contention that, by raising the limit in the way they have, the Government intend to seriously disadvantage those with an entirely legitimate personal injury small claim and prevent them gaining access to justice and legal advice.
I have no doubt that most of us privileged enough to sit in this House, or in the other place, have little fear of taking on those in authority and power—some of us rather enjoy it. That is not the case if you are a nurse or a teacher, a farm or shop worker, or you work in a factory and have limited spare time, financial resources and ability to tackle issues of personal injury. This amendment seeks to protect those people. As has been said on numerous occasions, the Government are proposing to make changes to the small claims limit, not on the face of the Bill but by other, back-door means. This will impact on hundreds of thousands of people injured through no fault of their own. It will pitch the nurse, the teacher, the shop worker, the factory worker and the land worker against the insurer, on their own and in their own time. The insurers will be able to afford lawyers and wily negotiators, but the injured will be expected to take on these forces with no help whatever.
The Minister, who I am sure is a fair man, may say that the system that deals with this is simple, but it is not designed by those who have to confront it. We all know that there are many who cannot use portals and online means of tackling these issues because they do not have the training or expertise and feel uncomfortable in the online world. The Minister may say that insurers will not fight a case which they know they are going to lose but that does not stop them playing hardball because they choose to. Why would they not, faced with a claimant on their own? Insurers also have a duty to their clients. I trust that the Minister will not say—as he did before the Justice Committee—that claimants can get help from the CAB, because anyone who knows anything about the diminished state of free legal advice services in this country would be only too happy to take him to see how they are struggling and the queues, delays and frustration that are routine.
From this perch, I could recite case after case where insurers have fought injury claims to the bitter end for reasons that frankly perplex lawyers for the claimants. However, we have limited time so I will briefly quote just two of many cases provided to me by Thompsons. One claim involved a care assistant in her early 40s who injured her right elbow and upper arm when lifting a patient. She was using the correct technique but did not have the equipment required to complete the task properly. The employer denied liability throughout and fought the case for more than a year before it was eventually settled for a sum that would have fallen within the new proposed small claims limits. The other case, which would also fall within the new limits, involved a senior staff nurse who tripped over wires that had not been properly protected and covered. Her employers fought the claim right up to the point when the trial was due to begin. Our amendments seek to ensure that those who do not have a corporate lawyer behind them do not fall prey to another racket—the routine denial of claims by insurers, just because they can.
The amendment seeks to ensure that claimants always have advice on the value of their claim so that they do not undersettle. It also provides that, where insurers deny liability, the claimant has someone by their side to advise them and, if necessary, represent them in relation to the issue of liability. It does not propose that the costs recoverable by the lawyer for the claimant are open ended; they will be the same fixed costs that would be recoverable if this case were in the fast track.
As my noble friend Lady Hayter has outlined, the second amendment in this group is specifically aimed at ensuring that those injured can have access to medical advice in their case and recover the cost of medical reports that might be necessary. That is essential and will be a contribution towards ensuring that there is no significant undersettling, which is a major issue in these cases. These amendments are about fairness and equity in the legal process. They may not seem to the Minister to be vast in their extent, but they are numerous. Although they do not always involve large sums of money—which noble Lords may feel uncomfortable talking about—this House has a duty to try to ensure fairness and balance in the legal system. Even at this late stage, the Minister could make a commitment to retaining the limit in accordance with Lord Jackson’s recommendation.
Lord Monks (Lab)
My Lords, I will add briefly to the points that have been made by my noble friends on Amendment 47. I declare an interest: I am associated with Thompsons Solicitors, one of the largest trade union solicitors in the country. In its current form, the Bill will deter claims for personal injury for many vulnerable, low-paid people. The inequality of arms which exists when someone tries to bring a case will be overwhelming for many people. I note from UNISON’s brief—which most noble Lords got—that it did a survey of people it had helped to get compensation. This found that 63% would not have taken the case if they had not had a guarantee of legal support and an opportunity to recover costs. There is an absence of good information about the effects of these changes, so that is probably as good as any. There will be a deterrent effect on this sector of personal injury.
When speaking to an earlier amendment, the noble Lord, Lord Hunt, was rather dismissive of the access to justice argument, which a number of lobbyists have drawn to the attention of those who follow this subject. The information supplied by UNISON and others shows that there will be a lot of people who will not take cases who otherwise would have done under the present limit. On this side of the House, we are looking to temper that kind of approach by the Government. The noble Lord, Lord Hunt, will know from his experience with the Transport and General Workers’ Union—to which he referred—that for low-paid and vulnerable people a period off work for an injury or illness is a big deal. It is not to be assumed that employers will automatically cover the cost. These people experience the cost of illness more than those of us in comfortable jobs.
Amendment 47 seeks to tie the Government to the recommendations made by Lord Jackson in his review of civil litigation costs. These said, in effect, that there should be an increase in the small claims limit only when inflation justifies it. The Justice Committee in the other place very much agreed with that in its recent report. That is what leads to the figure of £1,500, an increase based on changes in the CPI, rather than the £2,000 which the Government are pressing for. I note that the Justice Committee was deeply unimpressed by the inability of the Ministry of Justice to quantify the impact of raising the small claims limit for employer liability and public liability claims to £2,000. That is the crux of the issue addressed by the amendment. I hope that in light of these points, and those made so ably by my colleagues, the Minister will soften a little bit and look at the plight of the people at the bottom, the most vulnerable, those who are struggling, those who lose money when they are ill and off work, and so on. Without labouring it too much, I hope that the Government can see our point rather more clearly than they have done so far.
Lord Judge (CB)
My Lords, as it has not emerged that the amendment is the property of the Opposition, perhaps I may add a few words in support of Amendment 47.
Lord Justice Jackson’s report was a remarkable document. It exhaustively analysed the entire structure of our civil justice system. It would not have supported the present Government’s position. I would love to read out the Justice Committee’s report—but, if I did, we would be here awfully late and no one would want to hear it. However, can we briefly recognise that the Justice Committee report is not adverse to the Government’s proposal but deals a series of hammer blows, each one individually worth noting?
“We recommend the Government should not increase the small claims limit to … £5,000”.
Bang.
“There is no policy justification for including vulnerable road users within the reforms proposed”.
Bang.
“We recommend that they be excluded from any higher small claims limit that is imposed on other RTA PI claims”.
Bang.
“We are deeply unimpressed by the inability of the Ministry of Justice to quantify”.
Bang.
And so it goes on. This is not one of those reports with recommendations that obscure their meaning, and perhaps the Minister will consider that as an important feature of this debate.
Lord Keen of Elie
My Lords, I will not begin with a bang but I will address the points that have been raised.
I begin by pointing out, with great respect, that the noble Baroness, Lady Hayter, may not be entirely correct in some of the propositions she advanced. She said that the £1,000 limit had been with us since 1999. It has been with us since 1991. The small claims limit in respect of claims other than personal injury and housing claims is now £10,000 and operates effectively and efficiently at that level. That has to be borne in mind as well.
The noble Baroness spoke with her consumer hat on and referred to the small guy. Reference was made to the worker with limited ability to deal with his claim. The noble Lord, Lord Bassam, referred to workers being pitched out on their own with no help and alluded to a number of examples given by Thompsons solicitors—I shall come back to that in a moment—of where they were perplexed by the way in which claims were dealt with by insurers. The noble Lord, Lord Monks, said rather modestly that Thompsons solicitors were one of the largest firms of trade union solicitors in the country. They must be the largest by quite a long way. They are well established and have been for many years. Why do we refer to them as trade union solicitors in this context? It is because one of the great benefits of union membership for workers is the availability to them of legal advice and assistance when they require it in respect of a claim, particularly one arising in the course of their employment—which is why legal aid is not available in those circumstances. So, far from the little guy, the worker, being pitched out on their own without any help, they almost invariably have the assistance of probably the largest and most established firm of trade union and personal injury solicitors in the country.
I do not decry that—it is an immediate and obvious benefit—but the disbenefit of increasing the small claims limit is that the extent to which the union will recover its legal costs will be more limited, and that will have an impact on trade unions. I understand that and one has to take it into account in the overall scheme of these provisions.
Lord Bassam of Brighton
The noble and learned Lord will probably accept that somewhere in the region of 6 million people are members of trade unions. That leaves a rather larger workforce who are not represented by trade unions. Those employees are in a more vulnerable position than that faced by those who are represented by a union. My guess is—perhaps the noble and learned Lord can help me here—that the majority of people will not be able to access the support they would get if they were a trade union member. So most people who come up against this limit will be affected by that.
Lord Keen of Elie
I note what the noble Lord says about national trade union membership, and no doubt the unions will try harder to recruit more widely. One of the obvious benefits they can hold out is the provision of legal advice and assistance for those who become members. I accept that there is a balance to be struck.
Amendments 47 and 48 seek to restrict the increase in the small claims track limit for whiplash injury claims to a maximum of £1,500, as opposed to the proposal that there should be an increase to £5,000. They also seek to restrict the ability of the Civil Procedure Rule Committee to make further amendments to the upper limit. As we have indicated before, motor insurance premium costs are increasing as insurers pass on the cost of dealing with the continuing high number and cost of whiplash claims. I referred earlier to the 2017 election manifesto provision that the Government were committed to cracking down on these claims and ensuring that the money saved was returned to consumers through lower premiums. These amendments would maintain the burden on ordinary motorists by restricting the flexibility of the Government to reduce the costs of civil litigation through changes to the Civil Procedure Rules.
Whiplash claims are generally straightforward and do not routinely require legal advice. The small claims track is suitable for such claims. It is designed to be accessible to litigants in person, and the Government are working closely with stakeholders to develop a comprehensive package of guidance and support for users.
The Government have chosen to increase the small claims limit for road traffic accident personal injury claims to £5,000 for good reason. This limit, as I said, has been set at £1,000 since 1991 and, as compensation levels have risen, the small claims track no longer covers the same breadth of claims as it once did. Following consultation, the Government believe that increasing the limit for RTA personal injury claims to £5,000 is a careful and proportionate increase, particularly having regard to the fact that the limit for other claims, with the exceptions I mentioned earlier, is now £10,000. A level of £5,000 will facilitate early and expedited settlement under the proposed tariff structure and will encourage insurers to challenge unmeritorious claims, many of which are not now challenged because of the potential legal costs.
A decision to tie such limits—currently, for good reasons, enshrined in secondary legislation—to a restrictive primary legislative process would be inflexible. The Civil Procedure Rule Committee, under the leadership of the Master of the Rolls, sets out the rules of procedure to ensure that the civil justice system is fair, open and effective. It is the body that sets the financial upper limits for the current three tracks of the civil justice system following consultation. That system has operated effectively for some time. It is flexible and it is appropriate that procedural changes should be made in this way to the civil justice system.
However, we listened to points made earlier about the position of those who are considered to be vulnerable road users. Noble Lords will be aware that they are already excluded from the provisions of Clause 1, and it is proposed that they may be exempted also from the £5,000 limit on the small claims track. We are giving further consideration to that at the present time.
Amendment 48 seeks assurances as to the recoverability of the cost of a medical report in respect of whiplash injury claims, notwithstanding the increase in the small claims track limit. That has been addressed already. The amendment also seeks to change the nature of the small claims track itself by permitting a claimant to recover their legal expenses. We consider that, given the nature of the small claims track for personal injury claims, it would be wholly inappropriate to introduce the recovery of legal expenses. The small claims track was designed to be a low-cost process accessible to litigants in person. The rules have been purposefully and carefully drafted to ensure that both parties share the financial burden of litigation and pay their own legal costs—or, in the case of a union member, have them met by the union. That is a key advantage of the process.
A number of noble Lords have questioned why insurers do not do more to challenge potentially inflated or fraudulent claims, particularly whiplash claims. Part of that answer lies in the cost of defending a claim in the fast track. Increasing the small claims limit so that more of these straightforward whiplash claims—where the insurance industry tells us that liability is admitted in around 90% of cases—are heard in a small claims court will encourage insurers to challenge unmeritorious claims. By contrast, challenging a claim in the fast track is an expensive process that insurers not unnaturally seek to avoid. So there are very clear cost advantages overall in increasing the limits for the small claims track. Where a case is considered to be of a degree of complexity such that it would not lend itself to the small claims track, clearly the court can direct that it should go on to the fast track.
Therefore, in respect of Amendment 48 in particular, the idea of having different cost rules in the small claims court based on the type of claim would create confusion, would undermine the whole purpose of the small claims track and would potentially be unfair to all users of the court system. In these circumstances I invite the noble Baroness, Lady Hayter, and the noble Lord, Lord Bassam, not to press their amendments.
Baroness Hayter of Kentish Town
I thank not the Minister but the noble and learned Lord, Lord Judge—I will get him to move things in future. He is so much more effective than I am.
I was very disappointed by the tone of the response. I stand here as the shadow Consumer Minister, talking about consumers, and we get a sort of suggestion that this is all about keeping trade unions happy. As my noble friend Lord Bassam said, sadly there are only 6 million people in trade unions—I wish it was more. It is exactly the low paid and the people who are most vulnerable to this who are not represented by trade unions—but, even if they were, I do not accept that that makes putting up the limit somehow acceptable.
I will not take up time. I acknowledge a movement on vulnerable passengers—for which, as a cyclist and a pedestrian, I am grateful—but I am afraid that the Government’s own figures show that, by their changes, one in four of the people compensated today would no longer be compensated. If on that basis the Minister thinks that we will save costs—in other words, it is injured people who will pay—I do not think that that is good enough. It should be done not behind the scenes but in the Bill. I beg leave to test the opinion of the House.
“( ) Rules of court under subsection (1) must draw attention to those aspects of orders for periodical payments which may make them more suitable in cases where individuals receive large sums of damages, have long-term injuries or are risk-averse.”
Lord Hodgson of Astley Abbotts (Con)
My Lords, we come to a matter that we discussed at some length in Committee, so I will cut to the chase. An award of damages that will be paid out over a long period—for example, to provide care to someone previously injured in their 20s—is based on two very important assumptions: how long the person will live and what rate of return can be expected from the sum awarded. If the damages are awarded in the form of a lump sum, these two factors assume a particular and increased importance. The first of these factors, the length of time that a person is expected to live, is inevitably based on averages, so if the injured person lives beyond the expected average then there is a risk that the individual will spend the last few years of their life in financially straitened circumstances. As regards the second factor, if the investment performance falls below that which is anticipated then a similar outcome will result.
As we have already discussed, there is a way for the individual to avoid both the longevity risk and the investment risk. He or she can do so by taking the award in the form not of a lump sum but of a periodical payment order, a PPO. Under a PPO, part or all of the award can be paid weekly, monthly, quarterly or whatever to suit the injured party, and paid normally on an inflation-proof basis for the rest of a person’s life. Sadly, though, we have discovered that PPOs appear to be the poor relation as regards the methods of awarding damages. We discussed in Committee the various structural reasons why this was so—the preference of insurance companies for a swift solution and the capital required to back a PPO, the potentially seductive nature of a very large lump sum compared with the more modest amount of a periodic payment and so on.
My amendment is designed to tip the balance more in favour of PPOs, so that in cases where lump-sum damages exceed, say, £1 million and/or the award will be paid out over more than 10 years and/or the individual is of a risk-averse nature, the court should press for the award to be made in the form of a PPO. To be clear, the court should not compel; that would be completely inappropriate. If a person is determined to have a lump sum, a lump sum they must have. However, the court should certainly encourage PPOs. None of this appears to run counter to the wishes of the House of Commons as expressed by the Justice Committee in its report on the discount rate, nor indeed the thinking of the Government as expressed in their response to that report.
So how to achieve this desired result? Giving the Minister the power to make regulations in this area might interfere with judicial independence, so it appears that the only avenue remaining is the use of the Civil Procedure Rules of court, and that may perhaps be a clumsy way to proceed. If my noble friend cannot accept my amendment, and I fear he may be unwilling to do so, I hope he will be able to make a clear and unequivocal statement that the Government favour the increased use of PPOs in the sorts of cases that I have described so that, with the views expressed in your Lordships’ House today and previously in Committee and, no doubt, in due course in the other place, courts can be in no doubt about the will of Parliament in this important matter.
It may be worth while undertaking a review at some future date of whether the use of PPOs is increasing. That might be along the lines of Amendment 89 in the name of the noble Lord, Lord Beecham, to which I have no doubt he will speak fruitfully in a minute or two. In the meantime, though, I beg to move.
Lord Hope of Craighead (CB)
My Lords, I should like to say a word in support of Amendment 50, which is in my name and builds on an amendment tabled in Committee by the noble Lord, Lord Faulks, to which I put my name but to which I was unable to speak because at the very moment he rose to speak I was taken out of the Chamber for a business meeting, so I never got to say what I should like to say now.
I have proposed for the noble and learned Lord’s consideration an expanded version of his amendment, and I should like to explain the background to it a little more so that the point is firmly before the House. On page 7, line 32, subsection (2) of proposed new Section A1 provides that proposed new subsection (1), which talks about the duty of the court to take into account the rate of return prescribed by order by the Lord Chancellor,
“does not however prevent the court taking a different rate of return into account if any party to the proceedings shows that it is more appropriate in the case in question”.
At first sight, that is quite a reasonable provision which the courts might feel able to use from time to time, but, as case law has developed, the door has effectively been shut on any use of the provision in these terms in cases where it is most likely to be wanted, which is those of injury of maximum severity.
In Warriner v Warriner 2002, the Court of Appeal, drawing on points made in Wells v Wells, stressed that on policy grounds there was a need for negotiations to be conducted with reasonable certainty as to the result and to eliminate unnecessary costs and the leading of extensive evidence. Building on the principle stated in Wells, which I of course support, it refused to interfere with the rate of return prescribed. That point was repeated in subsequent cases and more recently in the Court of Session in Edinburgh, where the same principles apply. The Lord President, Lord Carloway, made it clear in the case of Tortolano v Ogilvie Construction Ltd in 2013—Court of Session Inner House Cases, page 10—that there must be something special or exceptional about the case and that the fact that the injuries were catastrophic, which puts the level very high indeed, was not a special or exceptional case factor that would justify departing from the specified rate.
My point is that the Bill repeats almost exactly the wording of the Damages Act 1996, on which the case law has been built. There is one tiny difference. The formula in the 1996 Act was “does not, however, prevent”. In the Bill, we find the slightly different words “shall not, however, prevent”. But the crucial wording, in particular the word “appropriate”, is still there. If the wording of the Bill remains as it is, my concern is that it is effectively a dead letter because the courts, following established case law in the Courts of Appeal both north and south of the border, will feel that there is no case for interfering at all, even in the most extreme cases, where, as I have suggested, the need for even more precision and care in the rate of return is most compelling.
There is reason to be a little more generous at this stage. As the noble and learned Lord is well aware, the basis on which the rate of return is to be struck is to be taken at a slightly different level from that on which Wells v Wells was based. In Wells, the House of Lords used a rate of return that was inflation-proof—adopting a relevant government bond which had that rate of return—to avoid any risk of losing touch with inflation. Now, instead of a very, very low level of risk, there is to be an assumption that more risk will be acceptable than a very low level of risk, although it is less risk than would ordinarily be accepted by a prudent and properly advised individual investor. So there is a change towards a slightly greater element of risk, although not that high. The point is that any change in the level of risk being contemplated raises the possibility that in these extreme cases, the level may fail to achieve what is needed to provide the injured party with what is necessary to compensate them fully for the loss and injury sustained.
Simply to repeat the same formula is unsatisfactory. I was grateful to the noble and learned Lord for agreeing to a meeting the other day at which I was able to explain the point. I think the meeting was left on the basis that an attempt would be made to find a form of words that would not undermine what the Government seek to do but would, at the same time, allow the courts to look afresh at the idea of departing from the rate—although one would of course not want them to do so as a matter of course or have any unnecessary delay or expense in going through these complicated cases just to achieve a different rate. It would have to be a case that really justified such attention.
Some points can be drawn from Wells that may be relevant to my point. First, I was looking at the award in the form of a capital sum—we are talking about that rather than what the noble Lord, Lord Hodgson, was talking about a moment ago—in which the income will not be reinvested. The ordinary investor would reinvest the income to keep the capital sum as inflation-proof as possible, but in our case the income would be used to meet the needs of the injured party. At the same time, the injured party would be drawing on the capital sum, because it is a diminishing fund, the idea being that at the end of the claimant’s lifetime, or when the injuries have finally resolved themselves, there will be nothing left. So we have the extraordinary situation of a sum of money where the income cannot be used to protect against inflation and, at the same time, the sum is reducing. As Lord Lloyd of Berwick pointed out in Wells, if you are having to draw on the capital to meet these costs because the income is not good enough, in a diminishing market, that runs the real risk that the market may not recover sufficiently to bring the award up to the level needed to sustain the injured party for the rest of the period during which that party needs to be sustained. There is a difficult area here: in some cases, particularly if you alter the level of risk, you run into the possibility of the injured party not being fully compensated.
I seek by the amendment to suggest for the noble and learned Lord’s consideration a slightly different formula of words in that critical proposed new subsection that would enable the court to escape from the straitjacket of existing case law in cases that justify a fresh approach. On that basis, I have expanded a little on the formula of the noble Lord, Lord Faulks, to draw attention to the need for this sum to be sufficiently large to meet the needs of the claimant for the rest of the period. It is in that context that I ask the noble and learned Lord to consider my amendment in deciding what best to do to avoid simply repeating a dead letter.
Baroness Bowles of Berkhamsted (LD)
My Lords, I shall speak to my Amendment 73. It is an attempt not to change anything in the Bill, just to avoid some very unfortunate, superfluous wording. At the foot of page 9, it would delete the words,
“who has different financial aims”.
The effect of that deletion is to leave intact the wording cited just now—without what I would say are the offending last words—by the noble and learned Lord, Lord Hope. It leaves intact the reference to an,
“assumption that relevant damages are invested using an approach that involves … less risk than would ordinarily be accepted by a prudent and properly advised individual investor”.
At that point I would put the full stop, as it is clear and sufficient to achieve the intended purpose. Adding on that this prudent and properly advised individual investor “has different financial aims” at best adds nothing, and at worst contradicts the earlier provisions about the basis for the rate of return, which appear in new paragraph 3(2).
Lord Faulks
My Lords, I could not hope to better that very compelling speech and I will not try to add any confusion to the analysis. I agree with what my noble friend Lord Hodgson said about the desirability of periodical payments, but all is not gloomy on that front. I regularly act for the NHS in settlements involving periodical payments even now, when it is probably less attractive for periodical payments than it has ever been, having regard to the change in discount rate. Nevertheless, the desirability for periodical payments is a point that the House is generally agreed upon and I entirely accept what my noble friend has said.
However, it has to be said—my noble and learned friend the Minister will confirm it—that the courts have power to order periodical payments by virtue of Section 100 of the Courts Act 2003, which built on the original Act—the Damages Act 1996. The fact that they do not is usually because both sides are advised at a reasonably high level, having regard to the size of the claim and the complexity of injuries, so on the whole the courts will stand back and not seek to impose on or insist against somebody’s periodical payments. None the less, it is something that all advisers will be very much bearing in mind, and I do not disagree with the suggestion that the rules of the court may well be useful to ensure that as far as possible these are considered by the courts, the parties’ advisers and the parties themselves.
I turn to the amendment tabled by the noble and learned Lord, Lord Hope, which, as he kindly said, built on something that I put down in Committee. He puts it much better in his amendment than I did. Of course, the variation in rate is something that was explored, as I said in Committee, by Jonathan Sumption QC, as he then was, in a case in Guernsey, when he decided that it would be appropriate in certain cases to have a different discount rate. As the noble and learned Lord, Lord Hope, said, the amendment makes the scope of the power clearer. There is much in what he says.
I look forward to what will apparently be a fruitful analysis by the noble Lord, Lord Beecham, when he comes to address his amendments. The review that he suggests in Clause 89 troubles me a little because, although all noble Lords are concerned to encourage periodical payments, I am not quite sure how that will work. There are all sorts of reasons why people may or may not have periodical payments. Certainly by changing the discount rate in an upward direction from, say, 0.75% to 1% or 2%, it is much more likely that they would go for periodical payments. However, there are a plethora of reasons why they will or will not seek periodical payments. It is quite a difficult thing for that review to provide the sort of clarity that I am sure the amendment is seeking to achieve. I look forward with interest to the explanation behind it.
Lord Beecham
My Lords, I shall attempt to provide some sort of explanation. The amendment seeks a review of what is actually happening in the light of the changing circumstances; it does not prescribe a particular solution. It offers precisely the opportunity for the professions to contribute to ensuring that the arrangements for periodical payments suit the client, particularly those who have suffered significant injuries and may be looking for lifetime support. It is very much an open request, and the expertise of the noble Lord—and others, of course—is very welcome in dealing with it.
Amendment 73A in my name also seeks a different review on the assumptions on which the discount rate itself is based and how investors have dealt with that over time. As will be seen, the review should, I hope, indicate whether the assumptions on which the discount rate is based need to be changed, and set out any recommendations.
This is entering new territory, and it is reasonable to have a report within a reasonable time—three years is probably long enough—to allow a proper examination of the impact of the new arrangements. For that matter, there is a question of course about how often there should be such a review. It would be difficult to prescribe, because interest rates and returns on investments change. We have been living in a fairly good period in terms of returns, but that may not last. So periodic reviews should be very much part of the agenda.
On the amendment proposed by the noble Lord, Lord Hodgson, I strongly support the position that he takes and hope that the Minister will feel sympathetic to it and to the other amendments in this group.
Lord Keen of Elie
I am obliged to noble Lords. In speaking to Amendment 49, I shall also address Amendments 50, 73, 73A and 89. Clearly, we welcome the support on all sides of the House for the appropriate use of periodical payment orders as a means of ensuring that the anticipated future needs of an injured person are met. Of course, periodical payment orders avoid many of the uncertainties inherent in taking damages for future loss as a lump sum.
My noble friend’s Amendment 49 would require new rules of court to be made to highlight features of PPOs that may make them more appropriate than a lump-sum payment for a person with a long-term injury who is risk-averse, who would otherwise receive a large award for damages for future pecuniary loss. In responding to the very similar amendment tabled by my noble friend in Committee, the Government underlined their support for the use of PPOs. However, they also recognised that claimants and defendants must be able to make choices, and that the best choice for any individual is dependent on the circumstances of their particular case. My noble friend Lord Faulks pointed out that under Section 100 of the 2003 Act it is open to the court to insist on a PPO being utilised. As far as I am aware, the court has never actually exercised that power, but it does exist in statutory form.
It is vital that claimants who have suffered long-term serious injuries are well informed as to the implications of their choice between a lump-sum payment and a PPO, irrespective of whether their particular case reaches such a stage that the court has to consider whether to order a PPO. The Government remain fully committed to ensuring that appropriate advice is available to claimants in all cases. We are working to encourage the use and understanding of PPOs. In particular, we will over the coming months provide, or at least endorse, guidance that ensures claimants fully understand the choice between a lump sum and a PPO, and investigate whether current advice received by claimants on the respective benefits of lump sums and PPOs is effective.
Over and above that, we have listened carefully to the points raised in Committee and in further engagement with noble Lords. I am obliged to many of them for their engagement in the period running up to this stage of the Bill. The Lord Chancellor has now written to the Master of the Rolls on this matter, and I am pleased to say that he has recently agreed in principle to the Civil Justice Council, with its specialist expertise, exploring the issue with a view to suggesting the most practical, beneficial steps to increase the use of PPOs within the current system. The Government are grateful to the Master of the Rolls for this.
Taken together, we believe that these steps will ensure that focused and practical action will be taken to identify effective reforms that will encourage the use of PPOs whenever they are suitable. These measures can be tailored to address specific identified problems. Rules of court may be part of the solution, but they will relate to the practice and procedure of the courts. That is the appropriate function of rules of court and their related practice directions, not providing guidance as to when one form of taking an award of damages might be better than another, which might be better in guidance itself. In light of that explanation, I hope that my noble friend would consider it appropriate to withdraw his amendment.
I turn now to Amendment 50 in the name of the noble and learned Lord, Lord Hope, which, as he says, would require the court to consider certain factors in deciding in an individual case whether it would be appropriate to take into account a different discount rate to that prescribed by the Lord Chancellor. As he pointed out, the wording in the present Bill reflects almost exactly the wording that appeared in the original provisions in the Damages Act 1996. The application of those earlier provisions is, of course, coloured by the decision of the Court of Appeal in Warriner, and the more recent decision in the Inner House in Tortolano. In light of that, I wish to give further consideration to the matter that the noble and learned Lord has raised to come to a view as to whether something might be done to tailor the wording to address the almost complete guillotine that is, in effect, in place in the two Appeal Court decisions.
Lord Hodgson of Astley Abbotts
My Lords, I said that my amendment was designed to tilt the balance in favour of PPOs, and I am grateful to the Minister for his comments. It is good to know that guidance will be rewritten to draw attention to the PPO advantages, and to hear the news that the Lord Chancellor has written to the Master of the Rolls on using the Civil Justice Council to make improvements in that regard. Before I withdraw my amendment, can my noble and learned friend say how long he thinks it will be before the Civil Justice Council produces some results from that discussion and consultation?
Lord Keen of Elie
I cannot at this stage answer that question. However, I will consider the point and write to my noble friend, and place a copy of the letter in the Library.
Lord Hodgson of Astley Abbotts
I am grateful to my noble and learned friend and, on that note, I beg leave to withdraw the amendment.
Immigration and Nationality (Fees) Regulations 2018
21:27 - Division on Baroness Lister of Burtersett’s Motion - Ayes: 102 / Noes: 130 - Motion disagreed.
Baroness Lister of Burtersett
That this House regrets that the Immigration and Nationality (Fees) Regulations 2018 include a £39 increase in the fee for registering children entitled to British citizenship, given that only £372 of the proposed £1,012 fee is attributable to administrative costs; and calls on Her Majesty’s Government to withdraw the fee increase until they have (1) published a children’s best interests impact assessment of the fee level, and (2) established an independent review of fees for registering children as British citizens, in the light of the report of the Select Committee on Citizenship and Civic Engagement (HL Paper 118) (SI 2018/330).
Baroness Lister of Burtersett (Lab)
My Lords, this is the first time I have moved a regret Motion, and I do so because of my concern for an estimated 120,000 highly vulnerable children. These are children who are not automatically British because of their parents’ status, despite being born in the UK or having lived here most of their lives, but who nevertheless have rights to register, or in some cases to apply to register, as British citizens, subject only to a good character test from the age of 10. However, because of the exorbitant registration fee levied, many of them do not do so and can then find themselves effectively treated as immigrants, at risk of removal, even when born in this country.
The Motion itself is very modest. Having pointed out that only £372—less than two-fifths—of the new fee is attributable to administrative costs, it calls for two things. First, it calls for a children’s best interests impact assessment of the fee level. A freedom of information request has elicited that such an assessment has never been carried out, even though, since 2009, Section 55 of the Borders, Citizenship and Immigration Act requires the Home Office to ensure that children’s best interests are given primary consideration in all decisions that affect them. Secondly, it calls for an independent review of fees for registering children as British citizens. This should cover not just the level but the recommendations of the Select Committee on Citizenship and Civic Engagement, of which I was a member. These concern situations where the fee might be waived—or, better still, I suggest, no fee should be charged at all: I should emphasise that so far the Home Secretary has not introduced any waivers or exemptions for these cases—and the appropriate age from which to apply for the good character test.
I readily acknowledge that the power to levy a fee above the administrative cost was introduced by Labour, but for some years the problems it was creating went unnoticed, rather in the way that the mounting problems faced by the Windrush generation went largely unnoticed. However, the fee is much higher now and has increased by 51% just since 2014. Thanks to the work of Solange Valdez-Symonds, who established the Project for the Registration of Children as British Citizens—the Project, for short—supported by a small, dedicated group of volunteer lawyers and later joined by Amnesty, there is now no excuse for ignoring the injustice being caused. I pay tribute to their commitment and tenacity and thank them, as well as Coram and Let Us Learn, for their help with this Motion.
The Project and Amnesty first drew my attention to the issue during the passage of the Immigration Act 2016. I and the noble Lord, Lord Alton of Liverpool, raised it in the middle of the night with, I think, only the Minister there to hear us. The response from the noble Lord, Lord Bates, was unusually hard-line for him, and no one took much notice. But in the past year, the issue has begun to surface. Last July, Synod passed a unanimous motion on the level of citizenship fees, and in December there was a demonstration of children, supported by Citizens UK, protesting against the fee level and pointing out that it is considerably higher than the equivalent in other EU countries. The Mayor of London raised concerns in his strategy for social integration and has more recently spoken out on the issue, and our Select Committee could,
“see no ground for the Home Office charging more than the costs they incur”,
and questioned the application of the fee to children in care or who have spent their entire life in the UK.
An Early Day Motion, tabled last month, calls for the fee to be reduced to no more than the cost of processing, and for various exemptions and waivers. Its co-sponsors include a Conservative and a DUP MP, and, at his first appearance before the Home Affairs Committee, the new Home Secretary was questioned closely more than once on the issue. I am pleased to see that the shadow Home Secretary has now committed my party to reducing the fee. It has now been taken up by the media, which, quite rightly, are making the link to the Windrush scandal. Although this is a different group, there is a remarkably clear parallel, because, like the Windrush generation, these children face a possible denial of social and economic rights, and even removal, because they lack necessary documentation. Yet—this cannot be repeated too frequently—those born here are children with a clear legal right to be registered as citizens.
When I last raised this issue in your Lordships’ House, the Government’s response revolved around two main arguments. First, they argued that the level of the fee was and continues to be justified on the grounds of the Home Office’s commitment to a self-funded border, immigration and citizenship system, so as to minimise the burden on the taxpayer, who, it was argued, should not have to pay for the benefit falling to those who make the application. That might be fair enough when we are talking about adult immigrants applying for what amounts to the benefits accruing from naturalisation, which is not a clear right. However, in the case of children born here, some of whom are stateless, this is about registration of a pre-existing statutory entitlement. In what way does that constitute a benefit? Do we think of our citizenship as a benefit? As it is, children entitled to register as citizens are in effect being asked to subsidise the immigration system. How can that be fair? When I tell people what the fee is—over £1,000—and that nearly three-fifths of it is in effect profit to be recycled in the immigration system, they are shocked.
Lord Alton of Liverpool (CB)
My Lords, with her usual combination of conviction and eloquence, the noble Baroness, Lady Lister, has rightly returned to a policy which, as she said, we both contested in 2016 at the Committee stage of the Immigration Bill and again on Report. She has done so with her customary forensic skills and I am in agreement with the arguments that she has put forward. She was also right to pay tribute to Let Us Learn and Coram. I was struck by one of the cases that they drew to my attention—that of Regina, a 22 year-old woman who has lived in the United Kingdom all her life. They say:
“She was taken into the care of the local authority as a child. Despite repeatedly asking the local authority for her documents, and several commitments from them that they would assist her in applying for her British nationality, she left care with no citizenship, or any form of immigration status. She is now homeless, and unable to find the fee to secure her rights. The only fee waiver available is for an application for time-limited leave to remain and without any proof of her status, Regina cannot work, or rent a property. She is pregnant, and desperately needs documentary proof to prevent her being charged for health-care. Without further action, her child will also be born without citizenship, or a right to stay in the UK”.
That is why this regret Motion is so important. It is about this generation but, as the noble Baroness said, it is about future generations as well.
Two years ago, on 21 March at the Report stage of the Immigration Bill, I mentioned that the then Minister, the noble Lord, Lord Bates, and I had been in correspondence about the fees required for a child to be registered as a British citizen. Along with the noble Baroness, I argued that Amendment 145A, which bears the attention and interest of noble Lords who might like to know the background to this evening’s debate, would have prevented the Secretary of State using the money of these child applicants for profit. The only matter to which he could have had regard would have been the cost of processing the application.
The amendment also provided that fee regulations—the matter before your Lordships’ House tonight—would have required fees to be waived where a child was in care or otherwise assisted by a local authority, and it provided for discretion to waive the fees in other cases on the grounds of the means of the child, his or her parents or his or her carers. The amendment, of course, was not accepted by the Government, although some of the arguments clearly struck a chord.
In our correspondence and in debate, the noble Lord, Lord Bates, referred to the importance of children in the care of local authorities having their status regularised and registered. This was no doubt because of the importance that the Home Office—and, I dare say, all of us—attached to drawing a clear line between those who are here legally and those who are not. But this was also bound up with the so-called hostile environment, referred to by the noble Baroness, a doctrine promulgated by Amber Rudd and others.
As the noble Baroness and I argued two years ago, the then fee of £936, as of 18 March 2016, was the reason why undesirable non-registration had occurred. As I said then, in many cases, the reason why no registration had taken place was precisely because of the size of the fee. Where the child and/or the parents cannot afford to pay, or the local authority will not pay, this money is simply beyond their means. I pointed out that the cost of registration in 2016 was calculated by the Home Office at £272, having risen from £223 in 2015—that is £272, compared with a charge of £936, which is an indefensible discrepancy. There is an old adage that it is the profit that makes things so expensive. Profit may not, in many circumstances, be a dirty word, but profiteering by government on the backs of vulnerable children is a stain that brings no credit on any of us.
That was 2016: let us fast-forward to 2018. We now have a new Home Secretary, Sajid Javid. On 15 May, he said that the fee—now up from £936 to £1,012—is a “huge amount of money” to ask children to pay for citizenship. He is right. Let us look once again at the discrepancy between the now £372 attributable to administrative costs and the £1,012 taken by the Home Office. Yes, it is a “huge amount”. As for Amber Rudd’s “hostile environment” policy, Mr Javid says he will review it in the wake of the Windrush scandal, to which the noble Baroness referred in her remarks. He says he regards the phrase as,
“a negative term, a non-British term”,
and that there were lessons to be learned from the controversy. He has said that he wants to replace the term “hostile environment” with the term “compliant environment”, which distinguishes between illegal and legal immigrants. Speaking to the BBC, he said:
“I am going to look at how it’s being implemented. I want to review aspects of the policy. I’ve already made some changes”.
The noble Baroness’s Motion, which calls—modestly, as she said—for the fee increase to be withdrawn until the Government have published an impact statement and established an independent review, gives Mr Javid the opportunity to make another change and to do so right away. Failure to do so, letting things stand, means that many children with a statutory entitlement to British citizenship will continue to be excluded because of what Mr Javid says is a “huge amount of money ” to ask children to pay. Incidentally, some of these children have no memory of any country other than this. Like yesterday’s Windrush children, they simply assume that they are as British as their school friends. What a cruelty it is when they discover they are not and that they do not have the resources to do anything about it.
In 1981, I was a Member of the House of Commons and I participated in proceedings on the British Nationality Act. It was always Parliament’s intention, and that of the Government of the day, to entrench the concept and reality of citizenship. It was never the intention that the Home Office should impede or prevent full integration of children by levying prohibitive fees. That Act recognised that some children would be born here and grow up here without parents who were themselves British. The law categorically states that they,
“shall be entitled to be registered as a British citizen”.
In other circumstances, the Act also retained the discretion from the British Nationality Act 1948 enabling the Home Secretary to register a child as British where, for instance, parents have become estranged or deceased and status is problematic.
The 1983 fee for registration was £35. Today, as I have said, it is £1,012. That is inflation on quite some scale. As the noble Baroness said, the opportunity to make a profit was taken in 2007 and the fees have risen inexorably since then. This statutory right was never supposed to have been about income generation or supporting Home Office officials. We are talking here about British citizenship, not the National Lottery or a nice little earner on the side. The argument put forward by the Home Office, that a child can apply for leave to remain instead of citizenship, is flaccid and insulting. That is not what Parliament intended and it is not a tenable substitute.
In 2016, the Minister said that the money needed to go into the general pot to,
“achieve a self-funded border, immigration and citizenship system by 2019-20”.
He asked why resident taxpayers should,
“be the ones who have to pay”.
He went on to say:
“Citizenship can never be an absolute right, nor is it necessary in order for a person to reside in the UK and access our public services”.—[Official Report, 21/3/16; cols. 2217-18.]
But this is like Don Quixote inviting us to tilt at imaginary windmills. These children should not be categorised in the first place as migrants: children born here are not migrants. For them to be used to subsidise the UK immigration system is an affront and an injustice.
Lord Kirkhope of Harrogate (Con)
My Lords, I was not originally going to take part in this debate, but as a former Immigration Minister it seemed to me that it was worth looking carefully at the regret Motion. Indeed, having listened to the introduction of the noble Baroness, there are one or two things that ought to be put on the record with regard to the history of this.
I know that these matters, particularly those that deal with children, produce a lot of emotion and concern, as they rightly should. But of course we have to go back. I think that the noble Lord, Lord Alton, just mentioned the British Nationality Act 1981 and other legislation which has been passed from, in fact, 1948 onwards. That reflects on the fact that, as the noble Baroness said, the benefits of British citizenship should not be overstated—or at least she said something similar to that. The fact of the matter is that none of us who are British citizens really prizes our citizenship as much as we ought.
That does not mean that it has to be used as an excuse to look at the value of citizenship against the fees that are charged, but I would point out that when I was the Minister, the Treasury was always on my back, wanting me to produce value for money in anything that my department did. Of course, this was confirmed, as the noble Baroness has admitted, by the Labour Government in 2004, which introduced the term “over-cost”, as it was called, and applied it from 2007 onwards. This related to fees in a vast number of areas across a vast number of departments. Because of pressure from the Treasury and indeed from outside of government, the idea was to try to make sure that the costs of departments that were involved in matters such as immigration were, as far as possible, covered to minimise the amount of extra moneys that would be required from the public. That is perhaps rather more surprising under a Labour Government than it might be under the normal Conservative prospectus, but there it was and there it has been ever since. The fees have been rising commensurately ever since in a great many areas.
I am not here to defend those facts except to say to noble Lords that I am delighted to know that the Government are at least now looking at the issues of complexity, which is the other point I wish to make. When I was doing things on immigration, we had a simple situation. There were few areas and qualifications with which one could remain in this country. Similarly, the application processes and the way we looked at these matters was simple as compared with the situation we now have, with different categories of rights to remain, which have been referred to, such as indefinite rights to remain and temporary rights to remain; they now exist and they are applied. In my opinion, we are much more generous, and rightly so, towards many more applicants than we used to be. In those days, we were much tougher: either you were able to remain here or you were not. However, the complexity has got out of hand. We have so many different headings and categories that, inevitably, there are going to be those, including children and perhaps some others, who will fall foul, as it were, of the regulations whatever they happen to be.
I therefore welcome the Government’s approach, which is to look at the complexity and try to simplify these matters. Bearing in mind what may well be happening after next year, it will be necessary for us to have a new approach to how we deal with citizens who are closer to this place than normal—Europe. All of this gives us an excellent opportunity to try to simplify the system. However, I fear that while the regret Motion has been put before us today, we are in a situation where the fee structures in this department and in others is to some extent controlled. Moreover, as has rightly been said, the discretions of Ministers in being able to help are somewhat limited, although they do exist in certain cases. I would certainly urge that, in those cases of particular suffering or particular poverty or particular circumstances, Ministers should exercise what powers they have in favour of child applicants.
Baroness Sheehan (LD)
My Lords, I rise to support the noble Baroness, Lady Lister, and thank her for bringing this regret Motion to your Lordships’ House. She has drawn our attention to the iniquity of the Government’s position, which would add insult to injury by seeking to increase the fee for registering children entitled to British citizenship and thus increase the Government’s profit.
As we have heard, the figure of more than £1,000 per child that is being demanded is, according to the Government’s own figures, comprised of £372 in administration fees with the remaining £640 being pure profit: profit, including even on the backs of children in care. According to the current Home Secretary, it is a “huge amount of money” to ask children to pay for citizenship, a comment he made just a few weeks ago. I agree with him, and he has the power to do something about it. The noble Lord, Lord Kirkhope, pointed out that he does have vestiges of power that remain.
The Home Secretary has come close to recognising that the imposition of the fee is part and parcel of the wish of the previous Home Secretary but one—perhaps Amber Rudd also, but certainly Theresa May—to create a “hostile environment” in this country for—but this is where I come unstuck. Who precisely is the hostile environment aimed at? We are told that it is to deter illegal immigrants, but the events of the last few weeks have shown us that innocent people, those who have every right to be here and who believe themselves to be utterly British, are finding that they are ensnared in these pernicious rules. Without British citizenship, these children face the same issues as the Windrush generation, which have been exposed recently: being refused access to healthcare, employment, education, social assistance and housing; being held in detention centres; and potentially being removed and excluded from the country altogether.
The briefings that we have received from the Coram Children’s Legal Centre and Amnesty International tell us the human stories of the economic hardship and psychological trauma of being unable to surmount the barriers to gaining citizenship. We have heard a couple of the stories this evening; they are heartbreaking. These children have statutory rights—that cannot be stressed enough—to be registered as British citizens, conferred on them by the British Nationality Act 1981. No child should be denied their British citizenship rights by a fee. I add my support to that of others in asking for the removal of any element of the registration fee over and above the actual cost of administration, the removal of the entire fee in the case of children in local authority care and the introduction of a waiver of the fee in the case of any child who is unable to afford the administrative cost of registration.
Of course, I also support the call in the regret Motion of the noble Baroness, Lady Lister, asking the Government to withdraw the fee increase until they have published a children’s best interests impact assessment and established an independent review of fees for registering children as British citizens, as recommended by the report of the Select Committee on Citizenship and Civic Engagement.
The Lord Bishop of Derby
My Lords, I support the Motion of the noble Baroness, Lady Lister, and associate myself with the remarks of the noble Lord, Lord Alton. I will not go into the mathematics—which are very simple, in a way—but I invite the Minister to help us understand the Government’s role in dealing with citizenship. This is about citizenship, not immigration, although sometimes they are linked.
All of us were probably born into citizenship—that is, children become citizens in our country. Obviously, there has to be a system looking at qualification if people come here by other routes. Citizenship is the privilege that glues a country together and enables a Government to have a culture of law and order that people respect and work in and where they support each other. In a market-driven economy, the role of citizenship is even more important because the market will cover some things, but you need a lot of energy and commitment underneath to look after people, look out for them and go the extra mile. There is enormous evidence of social breakdown, including the breakdown of families and communities, isolation and alienation, one of the causes of which seems to be what I call a “citizenship deficit”—that is, many people are not public-spirited, wanting to be citizens with others and live in a joined-up way for a common good.
Noble Lords will know that church people in particular give millions of hours every month to voluntary activity to improve the life of the community. That is what citizenship is: going the extra mile. Many others do this, not just church people. People engaged in such work could give lots of examples of how the civic energy that we need to offer welfare, support, friendship and kindness to make human life more bearable is under stress more and more. We need more recruits. The challenge facing the Government is to create a culture where citizenship is good, creative and worth while.
This issue points to the giving of signals that increase the citizenship deficit. I want to tell two stories from my diocese. I could take you to a parish where an Australian family with three children who were all born here, who have lived over half their lives in this country, claim citizenship. They could afford to pay, so there was not that kind of struggle, but from knowing the family I know that they feel insulted and undervalued. They are citizens living among citizens and making contributions, but suddenly they have to find quite a lot of money to register that.
More poignantly, there is an enormously poor Nigerian family in the parish. They struggle tremendously. Their children are entitled to become citizens, but the fees are way above their possibility. Local church people work hard to try to raise the money, but it is a double whammy: the people becoming citizens feel that the state does not want people to be part of it—it has no commitment to them, so why should they commit to the state?—and all the people of good will who raised the money think, “Golly, what is happening to citizenship in our country, when it is not a right that can benefit society, but some kind of financial transaction that people struggle to meet?”.
If we are not careful, we give out a message that society is just a heap of things that have to raise money to pay the costs of things. A rich society is one in which we give ourselves to each other, generously, graciously and compassionately—that is what citizenship is about. If we cannot induct children into that culture, but give the contrary message that it is a very expensive privilege, and then you just live for yourself, or that very poor people cannot afford to be citizens despite their legal rights and their participation in communities, then I think we are contributing through this scheme to the citizenship deficit and the continuing disintegration of our society.
Lord Judd (Lab)
My Lords, in welcoming strongly what the right reverend Prelate said, does he not agree that, in the breakdown of society, what is repeatedly demonstrated is that children need to belong? There has to be a culture, an overwhelming culture, of being wanted and belonging, and if that is not there, disintegration increases. Does he not also agree that, in the kind of society he is talking about, phrases such as “hostile environment” have absolutely no place, because they generate the wrong kind of context?
The Lord Bishop of Derby
I would be very happy to say that belonging is what it is about—that is what a citizen is. It is about belonging, not just to your close family but to your community, your society and your state. We want people to feel proud of that, to feel welcome and fully participative.
Lord Haskel (Lab)
My Lords, I congratulate my noble friend on bringing this regret Motion. I sit on the Secondary Legislation Scrutiny Committee and, yes, this regulation did cause us concern: that is why we reported it to the House. For the Minister’s convenience, that was regulation 330. Last week, regulation 680 came before the committee with an almost identical title, dealing with fees for children and immigrants, and this one caused us even more concern: this one dealt with the waiving of fees for the Windrush generation. As my noble friend said, they came here as children. Here again, the Home Office’s uncompromising attitude towards immigrants caused a lot of disruption and difficulty for a lot of people—people legally entitled to be here but whose family settled in the UK prior to 1 January 1973, when the Immigration Act 1971 commenced.
People were not informed and only recently has Parliament become aware of these problems, and the difficulties and expense to which people have been put. The Government quickly introduced the Windrush scheme to put it right and this enabled the Home Office to waive fees for those eligible for the scheme. Yes, in this case the Home Office has apologised and rushed to put things right. Indeed, it has rushed so much that regulation 618 came into force without the normal period for people to pray against it. Indeed, the Immigration Minister wrote to your Lordships’ committee explaining the need to bring these regulations in immediately instead of waiting the usual 21 days. Your Lordships’ committee asked the Home Office how many people it anticipated would use the scheme, the cost and the end date. The answer was that it did not know.
This later regulation 618 proves that my noble friend is absolutely right to raise this question, because there was more trouble in the pipeline; trouble which, at least on this occasion, the Government have apologised for and tried to put right. The effect of having a hostile environment in the Home Office towards immigrants—presumably to get numbers down to the tens of thousands—and the damage done to innocent people will not be put right by an apology.
This policy has done the NHS an enormous amount of harm, as today’s first Oral Question illustrated perfectly, with concern expressed on all sides of the House. Only a change in policy will put it right, so I hope the Minister will carry my noble friend’s message to the Home Secretary and the Prime Minister and that they will accept my noble friend’s proposal.
Lord Russell of Liverpool (CB)
My Lords, I support the Motion of the noble Baroness, Lady Lister. I declare my interest as a trustee of Coram, which includes the Coram Children’s Legal Centre and the Migrant Children’s Project. I will give a cross-party flavour. The noble Earl, Lord Dundee, would have spoken in support from the Government Benches but he is unavoidably detained, organising the wedding of his last remaining unmarried daughter. Understandably, that takes priority.
One almost feels a degree of sympathy for the Home Office at the moment. It is under enormous pressure. The Windrush scandal has been mentioned, as has the cap on skilled workers, particularly the effect on doctors. One wonders who will be next in the firing line. Some of us in this Chamber have a horrible sinking feeling that it will be children.
As has been mentioned by other noble Lords, the new Home Secretary—brave man that he is—went in front of the Home Affairs Committee on 15 May. He went so far as to agree to a memo giving a rundown on costs and how they were justified, without giving any timeframe for when that would happen. He mentioned that he found the £1,012 fee to be rather a lot and said, “I understand the issue”. Let us hope that he is beginning to understand the full complexity and awfulness of it.
As has been said, we have a fee where there is a £640 surplus over the cost of processing a child’s application. We are completely out of line with other countries. Our fee is nearly six times what it costs in Ireland, 20 times the amount it costs for a child to be registered as a citizen in Germany, and 21 times what it costs in France—not an entirely comfortable place to be.
As the noble Baroness, Lady Lister, said, we think there are about 120,000 children in this country with neither citizenship nor immigration leave to enter or remain, and for many of them these fees are a huge and significant impediment. I think we all agree that that is completely unfair.
The noble Lord, Lord Alton, gave the example of Regina. I will quickly talk about another lady, Amelia. She is 24 years old. She is a single mother. She has been living in this country since she was 12. She has one dependent child: a son aged two. She will have to pay a series of four payments—£3,066 every two and a half years—in order for her to reach settlement in the UK. She will need in due course to pay a total of £7,144 for her son to become a citizen, and a total of £9,851 for herself. She is unlikely to be able to afford legal advice, if indeed she could find it, so she may be unaware that her son is in fact entitled to British nationality under Section 1(4) of the British Nationality Act 1981. At the moment there is no legal aid available for her or her child at any stage. That is simply unacceptable and untenable.
I would like to put on the record my own deep embarrassment and shame at what has been going on recently with the Windrush scandal. I suspect I speak for many of your Lordships when I say that. That is combined with a degree of anger over what I have read about the ill treatment and lamentable maladministration that appears to have gone on. How on earth the Home Office could even imagine not grasping this slightly uncomfortable and complex nettle of how to deal with children, I cannot really understand—not least in the interests of its own self-preservation and to spare it further embarrassment, anger and shame. There is almost a sense of institutional depression, which occasionally seems to be the culture there.
I strongly support the regret Motion in the name of the noble Baroness, Lady Lister, which has been carefully crafted to give the Home Office a “get out of further embarrassment” card. I urge the Home Office to seize the moment or regret it later.
Baroness Massey of Darwen (Lab)
My Lords, I congratulate my noble friend Lady Lister on her important regret Motion. I shall be very brief, as noble Lords have spoken eloquently and poignantly about children being sometimes cheated out of their livelihood. I want to do one thing, which is to appeal to this House’s sense of fairness and responsibility towards children. We have always had that responsibility and we have had many Bills over the last few years—longer, indeed—on issues relating to child welfare, child protection, social mobility, poverty measures, child refugees, integration into British society and so on. We have consistently been concerned for vulnerable children and vulnerable families. We have a strong record of supporting and protecting children. Can we really forget all that?
I regard this profiteering by the Home Office on all children who make nationality and immigration applications as quite extraordinary and unacceptable. We all know that young people need an affordable way of gaining permanent status and stability. They also deserve legal advice, along with legal aid for separated children and young people. As we have stated over and again, young people in our society deserve help to succeed and lead useful lives. How can a young person faced with this extraordinary situation pay this kind of money, as my noble friend and others have said, for their own security as citizens in this country, something to which they are entitled? What price the Government’s policies on social mobility and child protection? Surely this needs urgent attention.
Lord Scriven (LD)
My Lords, I will be brief and, like other noble Lords, I thank the noble Baroness, Lady Lister, for instigating this debate. I want to tackle head-on something that no one else has: the facts and figures of the Home Office’s budget and the reason why it says it has to do this. When she responds, I think the Minister needs to reply to this.
The cost impact assessment says that this provision will close a £60 million gap in the Home Office’s budget. If we read the financial impact assessment, that is the primary reason why this is being done. The amount that will be raised by the issue in the Motion tabled by the noble Baroness, Lady Lister, is just over £1 million of that £60 million. That comes within a total Home Office budget of £13 billion. If we take a look at the accounts for last year, we see that the Home Office underspent by £60 million. The accounts clearly show that, at the stroke of a pen today, the Home Office could write this measly figure off. It is a litmus test for this Home Office and the words that have been spoken. Is this really a new system with a humane approach or is it the system in which the Windrush generation was caught up? I say advisedly to the Minister that there is no financial reason whatever to deny these children their citizenship. There is no financial reason to increase this fee and I ask the Minister to explain financially why, at the stroke of a pen, this cannot be written off and the fee put to bed.
The Earl of Listowel (CB)
My Lords, I thank the noble Baroness, Lady Lister, for moving this very important Motion. I am grateful to the noble Lord, Lord Kirkhope, for highlighting that there may be complexities to this and limits to what the Minister and the Secretary of State can do. I must confess that when thinking about this I feel furious. How can we as a country do this to our vulnerable children—children who have a right to be here? Why would we so foolishly make them feel unwelcome? It is absolutely shameful. There may be constraints on what the Minister can do. This morning I spoke about child health at the Royal Society of Medicine with young GPs and young paediatricians who are enthusiastic to help children in their community. They are working in Hackney and other deprived neighbourhoods. I am proud to be British, to have a health system that is free at the point of delivery and helps vulnerable families and families of all kinds, and an education system available to all. Many countries do not have such services. I am proud of that. I am deeply ashamed of this. What is the underlying message here? We do not want you here. You have a right to be here. We will begrudgingly let you be here. We are going to make as much money out of you as we can because we can get away with it—until the noble Baroness, Lady Lister, highlighted it to us.
The right reverend Prelate the Bishop of Derby talked about belonging and helping people to be proud to be British, to be proud of this country and to want to be a part of it and contribute to it. I spent this afternoon with foster carers. Church groups around this country have recognised the need of the children of this country for foster carers and adoptive parents and work with their congregations to recruit more vital placements for those young people. These congregations are reaching out to the vulnerable, mostly from impoverished backgrounds, to take them into their homes.
We talked yesterday about the Serious Violence Strategy and young people feeling that they do not belong. When they do not belong, they find places where they are welcomed—gangs where they feel they have a family. Noble Lords will have followed stories of young people from this country choosing to go to Syria to fight for ISIS because they felt that was the place they belonged. Will the Minister say how this policy fits with the Government’s strategy to prevent the alienation of young people so that they may wish to be drawn towards organisations such as ISIS? It is surely in our own best interests not to be so penny-pinching and, where these children have a right, to make it as easy as possible for them to become British citizens and fully integrated members of our society. I am sure there are limitations on what the Minister can say tonight, but I hope she can assure us that every effort is being made to address this problem as speedily as possible.
Baroness Hamwee (LD)
My Lords, I, too, congratulate the noble Baroness. I will add persistence to the attributes that have already been listed. As noble Lords have said, this was raised not only in the Select Committee on Citizenship and Civic Engagement but at a recent Home Affairs Select Committee taking evidence from the Home Secretary. In response to one member, the Home Secretary said that the Home Office had to get the right balance between the funding of the Home Office and the fees charged. Like other noble Lords, I question whether this is a matter of balance.
As the noble Lord, Lord Russell, mentioned, a memo giving a rundown of the cost of these fees and how they were justified was requested. The Home Secretary responded to the comment that, on the face of it, the fees go way beyond normal cost recovery by saying that it would be a “good exercise for me” as well.
We hear many complaints and expressions of astonishment about the level of Home Office fees generally. I take the point made by the noble Lord, Lord Kirkhope, that the complexity of the system is at the root of this. When the Home Office introduced its premium service some years ago, my first reaction was that, given what all applicants have to pay, they should all get a reasonably quick and reliable service. I do not think I need to expand on that. The briefings have reminded me that I have often read about a whole family being subject to fees, particularly those payable periodically over a long period. That is similar to the position of Amelia, which has been mentioned. If it is not essential to pursue the matter, for instance with naturalisation, and it is too much for the family, some members are omitted. It may be children but often it is women. I can imagine the potential problems down the line in the cases we have heard about, quite apart from the issue of these children being unable to exercise their rights.
What is at issue is not entitlement but the registration of that entitlement. The child has a statutory right to citizenship and everything that goes with it. As noble Lords have said, this is not about immigration control. On Thursday, we will be debating the difficulties that some people face when they try to pursue activities in everyday life. However, these children are not migrants and, as the noble Lord, Lord Alton, mentioned, the leave to remain is not a substitute for citizenship, as is sometimes suggested by the Home Office. I understand that it is not necessarily available, but it is not for the Home Office to dismiss rights in this way.
In his strategy for social integration, the Mayor of London put it very bluntly, saying that,
“if a young person has the right to be a British citizen, then government should remove obstacles to them becoming one”.
He commented on the profit element, which is,
“at least ten times higher than in many other European countries”,
and is,
“preventing too many young Londoners from accessing the rights they are fully entitled to by law”.
The Project, to which the noble Baroness referred, is very telling and powerful and I will quote one short paragraph from it:
“High-cost fees are completely contrary to the promotion and process of integration. Fees act to divide, distorting the vibrant futures of us—and other young people—caught in the complex net of immigration and nationality entitlements. Fees prevent young people from working, paying tax and contributing economically to society”.
I think that meets the right reverend Prelate’s definition of citizenship. Picking up the noble Earl’s point about young people finding other families, I recently heard that one should not use the term “gang” when working with young people in gangs, because they regard the gang as their family. That needs to be recognised.
The Joint Committee on Human Rights, of which I am a member, recently reported on a remedial order following declarations of incompatibility with regard to the British Nationality Act. In that case, it was about requirements of good character. We raised potentially discriminatory provisions in British nationality law with the then Home Secretary, concluding:
“We would be grateful for an assessment and an explanation from the Home Office as to whether any such discrimination does in fact persist”,
and were pleased that the Immigration Minister responded that she would ask her officials to look at this. I cannot help thinking that charging fees in the way that we have been discussing is a form of discrimination.
I have read the Library briefing for Thursday’s debate. It refers to the work by Coram and the Children’s Society, which have reported that there are 144,000 undocumented migrant children in the UK. I do not know how many are in the categories we have been discussing but that is an astonishing and worrying figure. To summarise what other noble Lords have said, I end by saying, “and dot, dot, dot”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, my noble friend Lady Lister of |Burtersett has highlighted an important issue in her regret Motion and I agree with almost everything that every noble Lord has said in the debate so far.
First, my noble friend has highlighted the increase in the fees that have to be paid and that just over one-third of the fee payable is attributed to the costs involved. The Government generally have a confusing attitude to fees and charges, and consistency is at no point evident in the actions they take in this regard. Generally, I am in favour of cost recovery on fees and have been calling for this to be implemented in the planning system. That call has fallen on deaf ears—even my suggestion that the idea should be trialled in one local authority has not been taken up—so council tax payers are left subsidising applicants for planning permission. Despite the Local Government Association calling for this to be brought in, the Government will not engage with it. The overcosts referred to by the noble Lord, Lord Kirkhope of Harrogate, have now reached local government planning, because the fee is a local one and not a national fee set by the Government. In that respect the Treasury is not a direct beneficiary—which might explain its attitude.
Here we have the opposite. We go way beyond recovering the costs of the application and are charging a large amount of money and, in effect, making a large profit from the process of becoming a citizen. My noble friend asks the Government to withdraw the increase until they have done two things: first, published a children’s best interests impact assessment and, secondly, established an independent review of fees for registering children as British citizens in the light of the report of the Select Committee on Citizenship and Civic Engagement.
Dealing with each point in turn, an impact assessment has been produced in respect of the regulations which is fairly detailed in comparison with some other impact assessments I have read on other statutory instruments. However, my noble friend’s regret Motion to Regret is specific: it does not refer to the whole of the fees set out in the regulations but specifically to the increase that affects children. In that respect the impact assessment is fairly light.
As the noble Lord, Lord Russell of Liverpool, said, the new Home Secretary, the right honourable Sajid Javid, has accepted that the fee is a very large amount of money. He said on 15 May:
“It is a huge amount of money to ask children to pay for citizenship”.
So my noble friend’s request for a specific impact assessment to be produced focusing on children impacted by this fee increase is reasonable, and I hope the Government will agree to it willingly.
The children impacted include those born in the UK; those who came to the UK at a young age, who have grown up in this country and often have no idea that they are not British; stateless children; and children growing up in local authority care. As we have heard, the British Nationality Act 1981 brought to an end being born in the UK on its own as a sufficient reason to acquire British citizenship—unless you were born to British parents. However, the Act recognised that there would be other children who also had a very strong claim, and if the level of fees being charged is becoming a barrier to that, it is a matter of much regret.
The second part of my noble friend’s Motion draws the attention of the House to the report of the Select Committee on Citizenship and Civic Engagement. This has a section on the naturalisation process, and two of its recommendations are particularly pertinent to today’s debate. On page 120, at paragraph 485, the Select Committee says that the fees charged for naturalisation should be much more in line with the actual costs and that the Government should not seek to make excessive profits out of the process. On page 122, at paragraph 492, it asks the Government to consider whether the fees should be waived for children in care and children who have spent their entire life in the UK. My noble friend is asking for an independent review to be established in the light of this report—and, again, she makes a very strong case.
I was struck by the figures that the noble Lord, Lord Scriven, brought to the debate. I will bring one final point to noble Lords’ attention. The fee in 1983 was £35. If that fee had increased only by taking into account inflation, it would today be £114.71—£897.29 less than the proposed fee of £1,012 in the regulations. As I said at the start of my remarks, I am in favour of cost recovery, so it should be set at least at that £372 mark—but those figures are stark and highlight why my noble friend is right. The Government should act quickly on this and the House should support my noble friend in the Division Lobby.
Baroness Manzoor (Con)
My Lords, I congratulate the noble Baroness, Lady Lister, on securing this important debate and on the way she advanced her arguments. No one can be in any doubt about the strength of her feeling or her concern for the well-being of children, and I pay tribute to the tenacity she shows in furthering this area of work. It is laudable. I am also very grateful to all other noble Lords who have contributed to what has been a thoughtful and compassionate debate. My thanks also go to my noble friend Lord Kirkhope, who of course was, as he said, a Minister for the Home Office, so has great experience and expertise in this area.
I must declare an interest: I came to the United Kingdom as a child and had my first encounter with the immigration system here as a four year-old. So how the immigration system treats children is a subject close to my heart.
I will deal with the specific issues raised by the noble Baroness in her Motion in a moment. Before I do, I will say a few things about the issue at the heart of this debate—the welfare of children. The noble Baroness, Lady Massey of Darwen, raised this in her contribution. There is no greater test for any society than how it looks after its most vulnerable members.
I remind the House that our immigration, asylum and nationality functions are already delivered with a requirement to take account of the need to safeguard and promote the welfare of children. Indeed, Parliament has explicitly to give statutory effect to that requirement through Section 55 of the Borders, Citizenship and Immigration Act 2009. As the noble Baroness, Lady Massey, said, words in statute are not enough: it is actions that matter.
The Government fully accept the need to be concerned about the plight of migrant children. We understand that children are often caught up in situations and circumstances not of their own making. That is why it is important that I put on record that we have acted and granted asylum or another form of leave to 51,000 children since 2010, and we have committed to resettling 3,000 children and their families fleeing the Syrian conflict under the vulnerable children’s resettlement scheme by 2020. This is in addition to the 20,000 individuals, who will include children, under the wider Vulnerable Persons Resettlement Scheme. Since 2010, more than 180,000 children have been granted settlement, giving them the right to remain in the UK permanently, through our routes for children and families. These are not insubstantial numbers.
I also reassure the House that the Home Office has regular meetings with a range of children’s charities and advocacy groups in order to understand children’s needs and ensure that there are ways of meeting them—the Children’s Society in particular but also Barnardo’s, Save the Children and other smaller groups that are in contact with these young people.
I turn to the issue of the fees that the immigration system charges for those who want to come to the UK, whether as visitors or as workers, and for those seeking to make their stay in the UK permanent. The noble Lord, Lord Russell, and other noble Lords raised these important issues. Again, I want to make some general observations. It is essential that we have a sustainable and well-resourced border, immigration and citizenship system that is fair to all who use it and who are affected by it—both issues that my noble friend Lord Kirkhope raised in his contribution.
Income from fees charged for visas and for immigration and nationality applications plays a vital role in such a system and in minimising any additional burden on the taxpayer. It is for that reason that the fees for any individual application are likely to be in excess of the cost of processing an individual application. To put it simply, the fee for an individual application not only pays for the cost of that application but also makes a contribution to the wider cost of operating the border and citizenship system—for example, the Border Force officers who staff the desks at ports and airports. The noble Lord, Lord Kennedy, said he understood the case for charging.
Lord Harris of Haringey (Lab)
Would the Minister explain why it is relevant to the cost of these children getting citizenship, when they have lived their entire lives in this country, to pay for the borders when they have probably never crossed them?
Baroness Manzoor
I will come to that point in a moment. The noble Lord makes a very relevant point.
As I said, the noble Lord, Lord Kennedy, said he understood the case for charging. It is only right that immigration fees should contribute to funding an effective and secure immigration system to support the prosperity and security of the UK. This approach, which has been in place since 2004, as the noble Baroness, Lady Lister, herself acknowledged, was endorsed by Parliament through the enactment of the Immigration Act 2014 and in previous primary legislation, which the 2014 Act replaced.
I shall put this into context. To reset fees for child registration so that they cover just the costs associated with processing an individual application—a point raised by the noble Lord, Lord Scriven—would reduce fees to below the level that they were in 2007 and reduce the amount of funding that the Home Office has available to fund the immigration system by about £25 million to £30 million per annum. However, I take fully on board the other points that the noble Lord, Lord Scriven, made in relation to this.
I turn to the issue of child registration fees. Let me be clear at the outset that, far from wanting children and young people who regard this country as their home to leave, the Government strongly encourage them to make appropriate applications to make their stay here lawful. The most compelling reason for this is that these children are at risk—at risk of being exploited by adults and of being led into unofficial work that is neither safe nor properly rewarded, and without proper status they could easily be led to look to the wrong social groups for support. The noble Baroness, Lady Hamwee, alluded to this.
Baroness Hamwee
My Lords, can the noble Baroness explain how this might apply to children who are here lawfully, who are entitled to be here? It is their entitlement to citizenship that we have been discussing, not the concerns that she is raising, which I see would apply to other cohorts of children, but not, I think, these.
Baroness Manzoor
I am getting to that point, but I thought it was important to give the scenario. All children are important, but I want to talk about children who have not been registered in any way. As I said, the most compelling reason for this is that those children are at risk, and we want them to make appropriate and lawful applications.
I accept that the immigration system is complex—several noble Lords raised this issue, including the noble Lord, Lord Kirkhope, the noble Baroness, Lady Hamwee, and others. I accept that we need to address that and that the system needs to be simplified. But there is no reason why a child who has been in the UK since birth should be afraid of contacting the Home Office or asking a charity to do so on their behalf. I think that that was the point that the noble Baroness was raising.
The Home Office may grant leave to remain to a child who has lived in the UK continuously for seven years or to a young person who is over 18 but under 25 who has lived continuously in the UK for half of their life. Such leave gives the person concerned the right to live, study and work in the UK and the right, in appropriate circumstances, to receive benefits from public funds.
The noble Lord, Lord Alton, is right that immigration applications require a fee. Even so, an application can be made to the Home Office for the fee to be waived when it involves certain human rights-based claims for leave to remain and there are reasons why the applicant cannot meet the payment required. These human rights-based claims include those that are relevant to a child who has been in the UK continuously for seven years.
In addition, there is no fee where a child is being looked after by a local authority at the time that an application for leave to remain or indefinite leave to remain is made to the Home Office. This will, of course, cover some of the most vulnerable applicants and children in our society.
Of course, some migrants, like my parents, may wish to become citizens, reflecting that they have spent most of their lives here and are committed to this country—I agree with the right reverend Prelate the Bishop of Derby that citizenship is important as a part of civil society. That is something that we should welcome. I speak as someone who was born abroad but is now very proud to call myself British.
However, a child will normally acquire citizenship at birth derived from his or her parents. Since 1983, it has not been automatic that a child born in the UK is British. This does not mean that we do not cater for children and their well-being. We care. Children born in the UK are indeed catered for in our immigration and nationality provisions, which are designed to take account of the fact that a child’s strongest entitlement is to preserve links with his or her parents and, where they exist, with his or her country of origin.
If I may respond to the right reverend Prelate, one reason that the Government require formal applications to be made in a designated way is so that all the factors relevant to a child’s life and future can be taken into account in an appropriate and considered way. We do not provide fee waivers for citizenship, which reflects the fact that, while citizenship provides extra benefits such as the right to vote in elections and the ability to receive consular assistance while abroad, becoming a citizen is not necessary to enable individuals to live, study and work in the UK, and to be eligible for benefit of services appropriate to being a child or a young adult. The decision to become a citizen is a personal choice, and it is right that those who make that decision should pay a fee.
Baroness Smith of Newnham (LD)
My Lords, the noble Baroness suggested that the Government wanted people to take citizenship. We are talking about children. In what way does the increase in fee, which the noble Baroness, Lady Lister, has raised in her Motion to Regret, help any of the things that the noble Baroness says the Government aspire to?
Baroness Manzoor
My Lords, I have answered in my earlier comments exactly and precisely the question raised by the noble Baroness. I am conscious of pressing time and I want to deal with some specific points that have also been raised.
As I said, the decision to become a citizen is a personal choice, and it is right that those who make that decision should pay a fee. However, the legislation does allow for local authorities which are looking after children to pay a child citizenship fee if they believe it is in the child’s interests.
I shall respond to a few questions. The noble Baroness, Lady Lister, said that the Home Office needs to move much more quickly, and I can tell your Lordships that only last week the Immigration Minister met Solange Valdez-Symonds to whom she referred, to discuss this issue, which I think is an indication of the seriousness with which we treat this matter. I can say to the noble Baroness that caring and compassion about the welfare of children, as we have seen this evening, rests across the House, including on these Benches.
The noble Baronesses, Lady Lister and Lady Sheehan, the noble Lords, Lord Alton and Lord Russell, and other noble Lords, made some comparisons with Windrush. Just to be clear, Commonwealth citizens who arrived in the UK before 1973 had a legal right to be here then, and to stay here. There is not a comparison between the children we are talking about today and the Windrush generation.
I turn to a question raised by the noble Baroness, Lady Sheehan and the noble Lord, Lord Alton, that the Government are making a profit from children in care. I cannot agree with that, and I totally refute the allegation that has been made. Those in care can qualify, as I said, to receive indefinite leave to remain, and are exempted from paying the fee. Local authorities may also pay their citizenship fee, where appropriate, as I have said. Those who are not in care and who meet the destitution criteria receive limited leave to remain free of charge. The normal period of leave to remain for those applications is 30 months, but there is discretion to grant a longer period of leave and to grant indefinite leave to remain immediately, where appropriate and where it is clearly sought.
We have in place legislative safeguards to ensure that children have access to education and health services, and that they are supported with access to accommodation and living needs if these cannot be provided by their parents. These safeguards apply to all children, irrespective of their immigration status. Limited leave to remain, based on a child’s private life or other human rights grounds, confers legal resident status and allows access to higher and further education, training and employment opportunities.
Time is moving on, and I hope that that has captured some of the issues that were raised. In conclusion, as I said at the start of my remarks, this has been an excellent debate, with informed contributions from all sides. I repeat my thanks to the noble Baroness, Lady Lister, for having given your Lordships the opportunity to discuss this important topic. As I sought to demonstrate, the Government are deeply committed to the welfare of children who come into contact with the immigration system, and the numbers that I cited earlier provide strong evidence of that. We set fees at a level designed to minimise the burden on the taxpayer. As I have said, there is the capacity to waive fees for those who most need it. The Government will continue to honour their international obligations in respect of children and ensure that those children who are here are treated fairly and humanely.
Like the Home Secretary, I understand the issue and care about it passionately. I have heard very clearly the strength of feeling on this matter expressed by your Lordships this evening about children. Of course, I will ensure that the message is transmitted to the Immigration Minister and the Home Secretary.
Baroness Lister of Burtersett
My Lords, I am very grateful to everybody who has spoken and to noble Lords who have listened as well. I shall not try to sum up everything that has been said, but many noble Lords spoke with great passion and drew attention to how we compare with other European countries in how the fee has increased. The noble Lord, Lord Kirkhope of Harrogate, said that I had argued that the benefits of British citizenship should not be overstated. It was not me who argued that; just for the record, I was stating that that is what the Government argue. Noble Lords such as the right reverend Prelate and the noble Lord, Lord Alton, emphasised the importance to children of citizenship and belonging.
I am grateful to the Minister. I feel that she has drawn the short straw; she has been asked to justify the unjustifiable, and there were moments when I got the sense that she was finding it quite difficult to do so. That is not a criticism, actually—it is a compliment.
I was looking around the House and there was a look of bewilderment on everyone’s faces. I lost count of the number of times that the noble Baroness talked about immigration. A number of noble Lords made it clear from the outset that this is not about immigration; it is about children who are either born here or have lived most of their lives here and know no other country. That is what we are talking about. We are not talking about the number of asylum-seeking children who have been let in—not nearly enough, as I am sure my noble friend Lord Dubs would agree. We are talking about children who belong here, who have discovered that they are not British although they thought they had British citizenship—but they have that entitlement to it. I am afraid I do not see it as context; I see it as rather irrelevant and a bit of a red herring.
The Minister talked about visas, immigration and so forth, and the Border Force. As my noble friend Lord Harris said, these are children who have never crossed a border, so what is the relevance? Why should they be paying for the Border Force? She said that the Government strongly encourage children to apply to make their stay lawful, but they are here lawfully—that is not what they are applying for. She said that the fee could be waived for leave to remain, or indefinite leave to remain. The noble Lord, Lord Alton—I think I have his words correct—said that this is “a flaccid and insulting argument”. I know that the Minister would not want to be insulting, but we are not talking about leave to remain but about the need for citizenship, and it matters. We have been given examples of children who would otherwise have been removed from the country if it had not been for charitable support and the work of the Project supporting them. So it does make a difference, and I am afraid it is not enough to talk about leave to remain.
The Minister then said that it was not right to make the comparison with the Windrush generation because they have the legal right to be here. We are talking about children who have a legal right to be here, which is why a number of us have made the comparison with the Windrush generation, and fear that we are creating a new Windrush generation if we are not making it possible for these children to take up their right to citizenship because of what the Home Secretary himself called a huge cost. “Huge” is not a word government Ministers use lightly, but it is on the record that the Home Secretary thinks that this fee is huge. He said that, yes, perhaps we need to look again at whether we have the balance right. We clearly do not have the balance right. How can we have the balance right when, in effect, there is a surcharge of £640 per each child applying for their right to citizenship?
I am desperately disappointed. When the Home Secretary told the Home Affairs Committee that,
“we have to get the right balance”,
talked about the “huge amount of money”, said that,
“it is right at some point to take a fresh look … and it is something that I will get around to”—
which, as I said, did not exactly give a sense of urgency—and said, “I understand the issue”, I thought it suggested that the Home Office was finally accepting that it had to do something about this and that there were signs of movement here. It appears that those signs were an illusion. They were fine words, perhaps simply given to placate the Home Affairs Committee.
It is not enough just to say that the Immigration Minister met with Solange Valdez-Symonds from the Project last week. I know that, but a meeting is not enough. I hoped for an acceptance that the Home Office must take some action now, swiftly, and make a clear and firm commitment. In the end, I was asking only for a clear and firm commitment that the Home Office will look at this issue now before further injustice is done. That is not what we have heard tonight. I know that it is late, that many noble Lords will have gone home, and that noble Lords want to get on with the next business, but I am sorry—this is so important. The passion with which so many noble Lords have spoken suggests that we should test the opinion of the House, and I would like to do so.
Civil Liability Bill [HL]
Tuesday 12th June 2018
(5 years, 10 months ago)
Lords ChamberRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 90-R-I(Rev) Revised marshalled list for Report (PDF, 139KB) - (11 Jun 2018)
Lord Sharkey
Lord Sharkey (LD)
My Lords, all the amendments in this group are aimed at significantly bringing forward the date of the first review of the discount rate. They are all in my name and those of my noble friend Lord Marks and the noble Earl, Lord Kinnoull, and I am very grateful for their support. I am also extremely grateful to the noble and learned Lord, Lord Keen of Elie, and to his officials for the considerable time they gave to the discussion of this matter between Committee and Report, and for their help in suggesting drafting for some of the amendments in this group.
As the Bill stands, the timetable for the first review would be as follows. The Lord Chancellor can decide when the provisions in Part 2 commence and there is no minimum or maximum period laid down. At his sole discretion, he can take as long as he likes to commence the provisions that enable a review of the discount rate. Once he has decided to commence the provisions, he then has up to 90 days to trigger the start of the first review. The review must conclude within 180 days, during which the expert panel has up to 90 days to respond to the Lord Chancellor.
All this means that the entire process will take up to 270 days plus the time elapsed before the Lord Chancellor commences the provisions in the Bill itself. As the noble and learned Lord, Lord Keen, said in his letter of 30 April, assuming the Bill receives Royal Assent this year and that the provisions are brought into force within two months, the statutory timetable means that the first review would be completed before the end of 2019. This will take far too long, as I think all those who contributed to the debate in Committee recognised.
The amendments in this group replace the existing process for conducting rate reviews with a separate and much faster process for conducting the first review. They leave untouched the process for subsequent reviews. Amendments 51, 55, 58 and 59 shorten the length of time after commencement that the Lord Chancellor has to trigger the first review from 90 days to 25 days. Since other amendments in this group will later remove the expert panel from the first review, there is clearly no need for the three-month maximum delay.
Amendments 64 to 66, 72, 74, 78 and 87 set up the new process for the first review. The essence of this new process is contained in Amendment 65. The other amendments are enabling or consequential, with the exception of Amendment 90, tabled by the noble Earl, Lord Kinnoull, to which I have added my name and which I will discuss later. Amendment 65 requires that the review is held and the rate determined within 140 days from the Lord Chancellor’s triggering of the first review. It also requires that the Lord Chancellor must, within 20 days of the start of the 140-day period, consult the Government Actuary and the Treasury. The requirement to consult an expert panel is removed entirely from the first review. The only consultees are the Government Actuary and the Treasury. The amendment specifies that the Government Actuary must respond to the consultation within 80 days of the Lord Chancellor requesting the consultation, while Amendment 65 sets out that:
“The exercise of the power … to determine … the rate … is subject to paragraph 3”,
exactly as at present and exactly as for subsequent determinations.
In summary, the changes brought about by the amendments to the process of the first review are as follows. They will reduce the time between commencement and triggering from 90 days to 25 days; they make it plain that the Lord Chancellor must request consultation no later than 20 days after triggering a review, a period unspecified in the Bill as it stands; they will remove the expert panel from the first review and the only consultees will be the Government Actuary and HMT; they will require the Government Actuary to respond to a request for consultation within 80 days after the request has been made; and the entire review must be concluded within 140 days of the Lord Chancellor’s triggering the review.
In all, these measures will reduce the time to arrive at the first determination from commencement by 105 days. This will represent a very significant saving, especially to the NHS, where it may be as much as £300 million a month. Amendment 65 and the other amendments in my name do not address the absolute discretion the Bill gives the Lord Chancellor to decide when the provisions governing rate reviews should commence, but this is addressed in Amendment 90 in the name of the noble Earl, Lord Kinnoull. There is no good reason to allow the Lord Chancellor unfettered discretion and I support Amendment 90, which removes it.
In my view, the time between Royal Assent and commencement should be either zero or some small number. When we discussed these matters in Committee, the Minister opened his response to our proposals to bring forward the first review by saying:
“I believe we are as one in our desire to see the provisions brought into force as rapidly and sensibly as possible”.—[Official Report, 15/5/18; col. 633.]
He went on to commit to reflect further on the matter. It is quite clear that he and his officials have done exactly that. Many of the amendments in this group, particularly Amendment 65, are largely the fruit of that reflection and of our discussions. I am grateful for that and I commend these amendments to the House. I beg to move.
The Earl of Kinnoull (CB)
My Lords, it is very hard to follow such a clear speech and say anything. I congratulate the noble Lord, Lord Sharkey, on such a clear presentation. I will only observe mathematically that the latest NHS Resolution annual report states very clearly that the change from 2.5% to minus 0.75% would cost the NHS an additional £1.2 billion per year. Making the change from minus 0.75% to 1%, which appears to be what the industry in general expects, works back mathematically to suggest that speed is worth around £2 million per day to the NHS. So the amendments have great merit in that they would have a direct positive effect on the front-line availability of NHS funds. Accordingly, I commend them.
Lord Hunt of Wirral (Con)
My Lords, I declare my interests as set out in the register and congratulate the noble Lord, Lord Sharkey, and the noble Earl, Lord Kinnoull, on Amendment 65, in particular, and the consequential amendments. More than anything else, the simplification of the process for the first review of the discount rate will allow the Lord Chancellor to proceed with the speed that everyone in this House has urged. I very much hope that my noble friend the Minister will confirm that the Government are prepared to accept Amendment 65 and the consequential amendments. I look forward to her acceptance.
Baroness Vere of Norbiton (Con)
My Lords, the amendments relate to the speed with which the first review of the rate can be conducted. Initially, I will focus on Amendment 65 and the related consequential Amendments 64, 66, 72, 74, 78 and 87.
The amendments would accelerate the conclusion of the first review in four ways: first, by replacing the need for the Lord Chancellor to consult the expert panel with a requirement to consult the Government Actuary, thereby simplifying the preparation for the first review. Secondly, by reducing the maximum period within which a review must be completed from 180 days to 140 days. Thirdly, by requiring the Lord Chancellor to consult the Government Actuary within the first 20 days of the review starting. Fourthly, by reducing the time for the Government Actuary to carry out his or her review following the Lord Chancellor’s request, from the 90 days currently afforded to the expert panel in the Bill to 80 days. The remaining changes made by the amendments, including the obligation on the Lord Chancellor to publish information about the Government Actuary’s advice, are consequential to these four changes.
The Government have made clear on several occasions that they are committed to starting and completing the first review as quickly as practical after Royal Assent. The amendments will assist the achievement of that objective because they will remove much of the uncertainty that would exist as to the readiness and availability of the as-yet-unknown members of the panel to commence the review promptly. This means that the open-ended period for the request to the panel can be confined to a specified period.
In addition, the carrying out of a review by the Government Actuary rather than a panel is administratively and substantively a simpler proposition. The overall period for the review and the period for the Government Actuary’s response can therefore both be shortened. The proposal that the Lord Chancellor will make the determination on the rate within 140 days of the start of the review, and that the Government Actuary will respond within 80 days of the Lord Chancellor’s request, recognises these changes in the proposals. The amendments do not affect the timing of the commencement of the review.
However, the removal of the panel from the first review reverses a policy decision that the Government took when replying to the Justice Select Committee’s recommendation to involve the panel in the first review. The reversal of this decision is not something that the Government would do lightly—but, having listened to strong arguments from noble Lords across the House that the first review needs to be completed more quickly than would be possible if the panel had to be constituted, the Government accept that the proposed approach is a sensible and pragmatic step. We have spoken with the noble Lord, Lord Sharkey, and are grateful to him for agreeing some changes from the terms of his initial proposal in Committee. On this basis, the Government are content to accept Amendment 65 and the related consequential amendments.
Turning to the other amendments in this group, the effect of Amendment 51 and the related Amendments 52, 55, 58 and 59 would be to require the first review to be started within 25 days of commencement, rather than the maximum 90 days as provided for in the Bill at present. Amendment 90 would be even more restrictive on the time allowed, as it would require the timetable for the first review to begin on the date of Royal Assent. As I have explained, we share noble Lords’ desire to ensure that a review is carried out as quickly as is reasonably practical. However, reducing the period within which the Lord Chancellor must begin the first review—which is a maximum period that may well be bettered in practice—runs the risk of creating unnecessary problems around compliance with time limits for those involved in translating this legislation into action. This is particularly the case given the Government’s acceptance of the reduced time limits in Amendment 65.
Even though the review will no longer involve the expert panel, there is still a need for extensive pre-review research and analysis to be completed to enable the Government Actuary to provide input to the review on a fully informed basis. This will include developing the data requirements to inform a call for evidence on investment advice and behaviour, funds available to investors and their risk characteristics, and allowances for tax and investment management costs; preparing and publishing the relevant call for evidence documents; and collating and analysing the responses. While we will ensure that the gathering of evidence proceeds as quickly as possible, that work will require time and it is important that it is done properly. At present we estimate that it will be completed around the end of November, but there is a possibility that the Bill may achieve Royal Assent earlier than expected.
The Government are, however, sympathetic to exploring ways to reduce the 90-day period within which the first review must begin, without making the period so short as to cause problems for the rest of the timetable. In light of this we would be happy to discuss the detail of these amendments further with noble Lords before Third Reading if they would be willing to do so. I hope that this commitment will reassure noble Lords that the Government are prepared to examine how the 90-day period following commencement might be reduced and, on that basis, I urge them not to press their amendments.
Lord Sharkey
I am very grateful to the Minister for her response, particularly to Amendment 65 and the consequential and preparatory amendments. I am also grateful for her comments about Amendment 51 and the allied amendments. I think it is generally agreed, as she said, that 90 days is too long. Perhaps 25 days is not quite right; perhaps we need a Goldilocks solution. I would be very happy, as I am sure others would, to join in a conversation between now and Third Reading to discuss exactly what size of bowl Goldilocks would like.
I notice, though, that the Minister did not address Amendment 90. I acknowledge the comment that it would be difficult to reduce it to zero, but I heard nothing else. I did not hear a suggestion that it could be some number that is not zero but is still quite small—and certainly less than the number that is currently in place. Would the Minister be happy to discuss that number as well between now and Third Reading?
Baroness Vere of Norbiton
Yes, I reassure the noble Lord that we would be very happy to do that.
Lord Sharkey
I thank the Minister very much. That is very helpful—and having said that, I beg leave to withdraw the amendment.
(3A) The expert panel under paragraph 5 must advise the Lord Chancellor to undertake a review of the rate of return when it considers that the nature of return on investment has changed sufficiently significantly to justify such a review.”
Lord Hodgson of Astley Abbotts (Con)
My Lords, with this group of amendments we come to the procedure for timing the future reviews of the rate. They are in large measure parallel to some amendments I tabled in Committee but during that debate a number of important points were made by noble Lords, which I have reflected in changes in the drafting.
Our policy objective should be to establish a system that has three guiding principles. First, there should be a change in the rate only when the underlying investment climate—that is, the generally prevailing rate of return—has changed sufficiently significantly. We do not want frequent jerks on the tiller. Secondly, the timing of the change should be as unpredictable and quick as possible to minimise the chance of any people gaming the system. Thirdly and finally, we need to avoid the consequences of political inertia. The decisions to change the rate will always be controversial. As we heard from the noble Earl, Lord Kinnoull, the costs of these changes, one way or the other, can be very great indeed. Therefore, there will always be pressure on the Lord Chancellor to postpone any changes until the very end of any fixed-term period.
The way the Bill is currently drafted in large measure fails this test. First, having time-based reviews—for the reasons I have just explained, these are essentially time-based—fails to link to the fundamental reason for undertaking such a review; that is, the changing of the underlying rate of return on investments. Secondly, a system that requires the establishment of a new expert panel on each occasion—a decision that will undoubtedly leak—inevitably increases the chances of the system being gamed. Thirdly and finally, a system which places on the MoJ and the Lord Chancellor the whole responsibility of deciding both whether a review should take place and then whether the result of any review should be implemented is likely to lead to a preponderance of reviews taking place at the end of any fixed-term period.
The amendments I have tabled are designed to address the system and remedy these weaknesses. First, the decision on whether or not to implement a change remains with the Lord Chancellor because, as noble Lords have pointed out, this is at root a political decision. Secondly, the Lord Chancellor is relieved of the duty of monitoring changes in the available rates of return. This is undertaken by the expert panel, which will now become a permanent body. The expert panel, the proceedings of which will be confidential, will decide when to recommend to the Lord Chancellor that the rate should be changed and, if so, by how much. In this connection, to avoid frequent small changes, I have inserted “significantly” after “sufficiently” in the penultimate line of Amendment 53. All the above can be undertaken confidentially, away from the public glare, inevitably leading to a reduction in the amount of gaming. Indeed, if the Lord Chancellor chose not to accept the expert panel’s advice—which he or she would be perfectly entitled to do—no one need ever know it had taken place.
Finally, the other change from my Committee amendment is to remove the expert panel’s requirement to report to the Lord Chancellor at the end of every 12 months in which a review has not taken place, explaining why no review has taken place. My original intention was to improve transparency and clarity but it is clear from the remarks of noble Lords in Committee that it was a procedure that confused rather than enlightened and therefore I have struck it out. In the meantime, I beg to move.
The Deputy Speaker (Viscount Ullswater) (Con)
I must advise your Lordships that if this amendment is agreed to, I cannot call Amendment 54 because of pre-emption.
Lord Marks of Henley-on-Thames (LD)
My Lords, we support the thrust of the amendments tabled by the noble Lord, Lord Hodgson, and his introduction of Amendment 53. My noble friend Lord Sharkey and I, together with the noble Earl, Lord Kinnoull, and the noble Lord, Lord Faulks, have tabled a number of amendments to the proposals for later reviews of the discount rate; that is, all reviews after the first, which we discussed in the previous group. These amendments on the later reviews are considered in this and the following group—the last group—and I shall speak to both groups of amendments now.
Broadly, we support the following propositions. First, we do not regard it as sensible to have a fixed three-year period, or even a fixed five-year period, between reviews of the discount rate. Interest rates and rates of return change unpredictably and at very different speeds over time. Years may go by, as they have recently, with very little change then a period of rapid change may follow. Fixed periods between reviews do not respond to that pattern of change and slavish adherence to fixed periods would lead both to reviews required by statute taking place unnecessarily during periods of stability and, more seriously, to there being periods—possibly long periods—following rapid changes in rates when the discount rate failed to represent an accurate assessment of predicted long-term returns.
Lord Judge (CB)
My Lords, I have tabled Amendment 69 relating to the conduct of the review that we have been discussing, in particular in relation to Schedule A1. I wish to add one definite article and three words to this part of the Bill. That definite article and those three words are already part of the Bill in two places, and this afternoon the Minister indicated that there would be a third occasion when the words “the Lord Chief Justice” would appear.
This is a very dry debate, and therefore I remind the House that we are dealing with catastrophic cases, with injuries that are life-changing not only for the unfortunate man, woman or child who has suffered them but—let us not overlook it—his or her family: the wife, husband, parents or child. We are reflecting on family disaster.
Judges have to observe, day by day, year by year, the practical realities of the impact of the discount rate on claimants, defendants and, in particular, settlement proposals. I remind your Lordships that, in the case of children and those who need a guardian for the purposes of the conduct of litigation, a settlement can be acceptable only if it is presented to a judge, usually a High Court judge, to see whether he or she approves it and its satisfied by its reasonableness. In other words, there is a fund of experience constantly being refreshed by the litigation process. If the practical impact, the glitches and the nuances are not fully appreciated, the Lord Chancellor will be deprived of information that is vital to any decision relating to the review. The only way to make it fair and balanced is for there to be judicial input to it as a consultee, and therefore I invite the Minister to agree, as he did this morning in relation to Amendment 12, that the Lord Chief Justice should be made a consultee to this part of the Bill.
Lord Hope of Craighead (CB)
My Lords, I added my name to Amendment 69 and I support everything that my noble and learned friend has said. There is just one point that I would like to add. I draw attention to subsection (4) of the new Section A1, which is printed at page 7, lines 37 to the foot of the page. It refers to the content of the original order that the Lord Chancellor will have made, which is the background to the review process. The order not only talks about the rate but has to contemplate the possibility of descriptions of pecuniary loss, the length of the period during which pecuniary loss is expected to occur and the time when the pecuniary loss is expected to occur.
So one is not simply talking about the calculation of a rate of return in the abstract. It would be open to the reviewer to examine whether there should be some fresh approach to the matters that are contemplated in that subsection. It underlines the important point that my noble and learned friend has been making about the need for judicial input against the background of experience which everybody in the courts has drawn out of cases involving these very serious injuries. I support the amendment for that reason.
Lord Faulks (Con)
With some hesitation, I offer some slight doubt about the two contributions from the noble and learned Lords relating to the role of the Lord Chief Justice. I entirely accept the significance and appropriateness of the role of the Lord Chief Justice in the first part of the Bill, as the Minister accepted. I am more troubled about the suggestion in relation to the role which the Lord Chief Justice might play in the rate of return on investment. In essence, this is a quasi-mathematical function. The noble and learned Lord, Lord Judge, is quite right that judges regularly see and approve complex cases, and will be aware of the adequacy or otherwise of damages. However, with great respect, that is not quite the issue that the panel will be deciding.
I see a further problem and would be grateful for the Minister’s comments on it. The Lord Chancellor makes the rate determination—it has been accepted that this is essentially a political determination—must,
“give reasons for the rate determination”,
and,
“publish such information about the response of the expert panel established for the review as the Lord Chancellor thinks appropriate”.
If he or she has to give reasons in response to a judicial review—the Minister has said that the decision must be amenable to such review—presumably those reasons might include the advice that he or she has been given by the Lord Chief Justice. I am a little concerned that this puts the judiciary in an unfortunately political position, when it has been agreed that the role of the Lord Chancellor is pre-eminently a political one, albeit advised by the panel. So although I entirely accept the experience and wisdom of the judiciary, I wonder whether this is entirely the right role in this context.
Lord Hope of Craighead
Does the noble Lord agree that subsection (4), towards the foot of page 7, is not dealing with matters of mathematics? The matter of description of categories and so on is involved. It goes a little further than the noble Lord was contemplating in his brief remarks.
Lord Faulks
I entirely accept that it does, but ultimately the question of what the rate is is determined by experts, taking into account the factors which are, I agree, set out in the Bill. I shall listen with interest to what the Minister says, but it still seems to me that that is perhaps dangerously close to the judges getting involved in an area which might render them subject to criticism.
The Earl of Kinnoull
I will speak extremely briefly in support of the noble Lord, Lord Hodgson of Astley Abbotts. It seems to me that the Lord Chancellor would, very properly, have two questions in life that he would want to ask of an expert. The first is: “Do we need a review?” The second is: “Please will you conduct the review?” However, unless there is a standing panel, who on earth can he ask the first question of? I assume that he will not have anyone within the Ministry of Justice to whom he can turn and say: “Are we in circumstances where we need a review?” That is, in itself, a powerful argument for having a standing function that would allow him some access to expertise in this difficult and esoteric area. So, if the Minister is not minded to be amenable to the amendments proposed by the noble Lord, Lord Hodgson, how will that question be answered?
Lord Beecham (Lab)
My Lords, at this late hour I propose only to express agreement with much of what has been said from all round the Chamber in these debates. I am not as concerned as the noble Lord is about the role of the Lord Chief Justice. It does not seem at all inappropriate for the Lord Chief Justice to be consulted, which is all that the amendment suggests, in the course of making these very difficult decisions. The noble Lord need not worry very much about the consequences of that.
I am happy to support all the amendments that have been discussed and I congratulate noble and learned Lords on the progress that has been made. I assume that the Minister will be inclined to accept, and I certainly hope that that will be the case.
Lord Keen of Elie
I am obliged to noble Lords for their contributions. In speaking to Amendment 53, in the name of my noble friend Lord Hodgson, I shall speak also to Amendments 56, 60, 63, 69, 75 to 77, 79 to 86 and 88. I shall not, however, be speaking to the amendments in the next group, although I appreciate that the noble Lord, Lord Marks, referred to them. On that point and the submissions made by him, the period for review is not fixed either at three years or five years. It is not the case that review would not be available in years one to four if it was five years. The Bill is clear that the three-year period following the last review is the outlier—it is the maximum period—and it is there to ensure that we do not face the situation that we have had in the past where, for one reason or another, no review takes place over many years whether or not a panel or anyone else believes that such a review should have taken place. I wish to make that clear.
The reason we have grouped the amendments in the way we have is because they are generally concerned with the creation of a standing panel or make provision for the panel rather than the Lord Chancellor to determine when the rate should be reviewed and how it should be set. Amendment 53 would replace the system proposed in the Bill for reviewing the discount rate with one without time limits under which the need for the rate to be reviewed would be determined by the expert panel; and it provides that the panel will make its decision by reference to whether the nature of returns on investment has sufficiently changed for a review to be needed. I recognise that Amendments 56 and 60 are consequential drafting amendments on Amendment 53 to remove references to the three-year maximum period that we find in the Bill.
Amendment 77, again in the name of my noble friend Lord Hodgson, would make the obligation on the Lord Chancellor to establish the panel a one-off obligation rather than an obligation on the occasion of each review. Again, that is clearly consequential—as is Amendment 81—because if there is a standing panel there would be no need to deal with the simultaneous review as the panel would not cease to exist at any point.
Amendment 63, in the names of the noble Lords, Lord Marks and Lord Sharkey, would require the Lord Chancellor to have regard to the views of the panel in deciding when to commence any subsequent review of the rate. The expectation underlying the proposal is that the panel will be established again on a permanent basis. I will come back to the observations of the noble Earl, Lord Kinnoull, about that in a moment.
Amendments 75 and 82 would require the panel to be responsible for advising the Lord Chancellor, broadly on an annual basis, whether the rate should be reviewed and also for advising him or her in respect of the second and subsequent reviews of the rate. Again, Amendments 76, 79 and 83 through to 86 are consequential on these changes.
On the point made by the noble Earl, Lord Kinnoull, about who the Lord Chancellor would consult in deciding whether or not there should be a review if there was no standing panel, the answer is that he may consult who he wishes in that context—for example, it is open to him to consult with the Government Actuary and Her Majesty’s Treasury as to whether or not economic conditions are such as to prompt him to consider a review. There is no limit as regards the inquiries he may make in order to inform his decision—I emphasise his decision—as to whether or not a review will be required.
The panel’s expertise will be in technical matters and its introduction will inject expertise and help to ensure that the rate is reviewed properly with full expert consideration of the issues. However, deciding whether the current rate is no longer appropriate engages issues of judgment as to the level at which the rate should be set and we do not consider that the panel would be well placed to make that decision. It is a question not only of monitoring investment returns, but of making a broader judgment as to the social impacts of, for example, a change in the rate.
The Government therefore consider, as did the Justice Select Committee, that the Lord Chancellor should be responsible for this decision. To ask the panel to make, in effect, a substitute judgment as to what the rate should be would be contrary to its nature as an expert panel in providing merely technical advice. Again, we do not consider that the panel should be in that decision-making position. The Lord Chancellor, of course, has to make a properly informed decision in reaching a conclusion on the outcome of a review.
We have listened to concerns expressed by noble Lords and others in Committee that a long-stop fixed review period might result in all parties to litigation somehow engaging in what is termed gaming the system in expectation of a change to the rate. Obviously, we share a desire to ensure that as far as possible that sort of conduct does not take place. On one view, a standing panel might mitigate some of the potential gaming at the end of a fixed period, but we fear it would increase the frequency of gaming around the intervals at which the panel would meet. Claimants and defendants can also watch changes in rates of return, and it will not take long for them to anticipate when there might be a degree of change in investment returns that might trigger the panel’s interest in a review. We consider that whichever route we take there is always the risk of gaming. It is something we want to minimise, but we are not persuaded that a standing panel would be the means by which to minimise the gaming of the system, as it has been termed.
Delivering regular and broadly predictable timings for reviews was the principal concern of those we consulted when they replied to the consultation in March 2017. We know from responses to the consultation and pre-legislative scrutiny that the majority of claimants and defendants want and benefit from certainty and predictability. We consider that the approach proposed in these amendments would make the system less certain and perhaps less predictable. We consider that the present approach will deliver a process that will see the rate reviewed at least every three years following the first review. As the noble Lord, Lord Marks, conceded, it is not a fixed term. This will ensure that there is not the possibility that the rate will again be left without formal review for a period of about 16 years, but, of course, the Lord Chancellor will be able to review the rate at any time in the period if he or she consider that the rate is no longer set at the right level.
The reality is that there will always be litigants anticipating what may happen because of changes in the market and seeking to take advantage of them, but we must seek to mitigate and minimise that risk. I emphasise again that the fixed period within which a review must be begun is a maximum period.
I accept that in theory it would be possible to combine a standing panel with the Lord Chancellor deciding when the rate is to be reviewed, but such a panel would probably be inactive for considerable periods and it would increase the level of cost and bureaucracy required. That is something that we do not consider desirable. While the precise estimate for these will depend on how often the panel would consider whether there should be a review, a permanent appointment would require some form of continuous funding and administration.
Amendment 88, which is also in the name of my noble friend Lord Hodgson, would remove the provisions in paragraph 8 of the new Schedule A1 that cover the possibility of the Lord Chancellor deciding on the occasion of the review to set no rate or no rate for a particular class of case. They make clear, for example, that a reference to a review of the rate includes reference to a review of a situation where no rate has been prescribed. Even if the Lord Chancellor decided not to set a rate, paragraph 8 ensures that the review mechanisms in the Bill will still apply and that “no rate” will be reviewed at the next appropriate juncture in the same way as if it had been a rate. The provisions of paragraph 8 do not, contrary to some of the fears expressed in Committee, provide a means for the Lord Chancellor simply to dismantle the machinery for the required reviews of the discount rate.
It may be helpful in understanding paragraph 8 to consider the present law. The new section A1(1) reproduces provisions in the Damages Act 1996 that indicate that the court must take into account such rate of return, if any, as may from time to time be prescribed by an order made by the Lord Chancellor. The wording implies that the Lord Chancellor might decide to set no rate under the present law, and the provisions in paragraphs 8(2) to (4) are intended to clarify how this power would operate.
I concede that the possibility of no rate being set for some or all classes of case may well seem an unlikely eventuality. However, just as is envisaged in the present law, circumstances might arise in which a category of rather unusual cases occur that call out for individual assessment of an appropriate discount rate. Preserving a “no rate” provision would enable the parties in the cases affected to plan their litigation with the certainty that the discount rate would have to be settled as part of the case. That would be a potential benefit for claimants and defendants in unusual cases. Removing these provisions would be unhelpful to future users of the Bill.
Amendment 80 in the names of the noble Lords, Lord Marks and Lord Sharkey, aims to indicate that the four appointed panel members are expected to approach the work of the panel as experts with the objective of advising the Lord Chancellor in a way that is fair to the interests of both claimants and defendants. This is the spirit in which the appointed panel members are intended to approach their work. That is one of the reasons why they are required to take account of the duties imposed on the Lord Chancellor in determining the rate. The amendment is expressed in terms that appear to be aspirational in nature rather than obligatory, leaving us a little uncertain as to what the effect is intended to be.
The Government have already made clear in the response to the Justice Committee our intention to recruit panel members who will act as independent experts and that appointed panel members will be required to disclose potential conflicts of interest. The provisions in the Bill and the assurances already given will lead to advice from the panel that will be fair to the interests of claimants and defendants. We do not consider that any further express provisions are needed in order to ensure that result.
Amendment 69 in the name of the noble and learned Lord, Lord Judge, raises the question of the Lord Chancellor being expressly required to consult the Lord Chief Justice during the review process. I note the point made by my noble friend Lord Faulks with regard to the potential implications for the Lord Chief Justice. There are some grounds for that because under other legislation—such as, for example, the 2007 Act with respect to the regulation of the legal profession—there is a provision where a party applies for regulatory status, but the Lord Chancellor will consult with the Lord Chief Justice on such an application. Indeed, that occurred recently; the Lord Chief Justice gave his opinion and that is now subject to scrutiny in the context of an ongoing application for judicial review. It is a rather unfortunate situation that the views of the Lord Chief Justice, which he is obliged under the statute to express, come under the scrutiny of his own Administrative Court. So there are potential difficulties here.
Nevertheless, I recognise the force of the point that is made under reference to Amendment 69. On the one hand, I can say that the Lord Chancellor is of course free to take evidence on the question of how he is going to fix the rate, and that could include evidence from the Lord Chief Justice, but that is hardly a complete answer to the suggestion that he ought to be consulted. In light of what has been said on this matter, having regard to the difficulty that was identified by my noble friend Lord Faulks, I would like to take that proposal away and consider it further in anticipation of Third Reading. I will give it further thought and will be happy to speak to noble Lords on that point in due course. In the meantime, I invite my noble friend at this stage to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, I am very grateful to my noble and learned friend for his very full response. I am sure he will not be surprised when I say I am slightly disappointed at the way in which he has rejected quite a lot of the arguments that have been put forward from all quarters of the House. He rightly points out that the three-year period is a maximum, but I will have a sporting wager with him that when we come back here 20 years from now the reviews will be bunched around the end of the fixed period, whenever it is, because that is the way the political process will work.
As the noble Lord, Lord Marks, pointed out, the idea of the expert panel is that you build a body of knowledge and institutional memory about how these things will work more effectively, which will get lost if you have to constitute a panel every time.
As for advice, as the noble Earl said, Her Majesty’s Treasury has an interest in this case, as when you say, “We are going to change the discount rate”, it has to go back and redo its sums. This will be an interesting question that it has to face on each occasion. There remains confusion in the Government’s mind between instituting a review and instituting a change, and the two tend to get conflated.
There was a slightly strange suggestion that somehow there will be gaming around the meetings of the panel. That seems to me unlikely. I could not conceive why the panel would be announcing its meeting or why that would cause gaming in any way. No system is free of gaming, but this seems unlikely to lead to a greater degree of playing the system.
My noble and learned friend used a final rather strange phrase. He said that there was a social impact to the decision. I was not clear what social impact meant. This seems to me a clinical decision about the rates of return, which the Lord Chancellor must make. The social impact does not seem to me part of this discussion. Perhaps I have misunderstood what he said, so I will read Hansard carefully. In the meantime, I beg leave to withdraw my amendment.
Lord Faulks
Lord Faulks
My Lords, this amendment is in identical terms to that which I advanced in Committee. This time I have the support of the noble Earl, Lord Kinnoull. In view of the fact that there are no changes in the nature of the amendment, I think I can be brief in outlining its purpose.
The purpose is to ensure that the reviews are regular—indeed, that is the purpose of the Bill—which is particularly important in the light of the fact that Lord Chancellors so rarely exercised the power in the previous 20 years or so. The question is: how regular? I respectfully submit that the three-year period is too short, and a five-year period would be much better.
I say this based not least on personal experience at the moment and having had conversations with people on, as it were, both sides of the fence. When you are expecting a change one way or another, as is the position now—because the market suggests, as the noble Earl pointed out, that there probably will be a change, let us say from minus 0.7% to plus 1%—one side or another will see it to their advantage either to bring forward a claim or delay it to take advantage of the putative date of the decision.
This process is perfectly legitimate and part of the hurly-burly of litigation—there are lots of uncertainties in litigation—but this one is of particular significance where large sums of money are concerned. I am not disparaging anyone involved in the litigation process. But if the change happens every five years, there will be less of this gaming than if it happens every three years, just as everyone says about the last year of a four-year term of a President—nothing much happens. A lot of positioning will be taking place before the change.
This is a view expressed widely in the profession. I therefore ask my noble and learned friend carefully to consider accepting the amendment, or at least coming back at Third Reading with something that reflects those considerations. I beg to move.
The Earl of Kinnoull
My Lords, I support the noble Lord, Lord Faulks, in his amendments. I should explain why I did not support them in Committee. In Committee, I listened to two eloquent speeches—one from the noble Lord and one from the Minister. They went carefully through the arguments about gaming and not gaming. I thought it was very interesting. I have a lot of knowledge in this area, but I did not actually know. I then spoke to a large number of practitioners on the insurance side to try to form my own view on whether three or five years was right for gaming. I am afraid I strongly formed the view that five years was right and therefore strongly believe that the noble Lord, Lord Faulks, is on to something that would greatly benefit all concerned. That is why I support the amendment.
More importantly, I have tabled Amendments 68, 70 and 71, which are to do with the timing of the second review. Broadly, they try to bring the timing in from what I thought was 180 days to what I thought was120 days. Those thoughts were prior to the arrival from the Minister’s office of the draft terms of reference of the expert panel, which I have in my hand. It is very interesting because the expert panel is established at the very moment that the review trigger is pulled—or, I suppose, immediately after. In fact, in a section entitled “Preparation”, before the review is triggered there is a call for evidence, which asks for all sorts of evidence all round.
That raises two issues for me. The first is that it extends the period of uncertainty. There is a 180-day review period and the call for evidence period, which I assume is at least 60 days—probably 90 days—to increase the level of uncertainty. During this uncertain period, the people who suffer are not the banks of lawyers on either side of the argument; the fee clock is still running. The people who suffer are the individuals who have the catastrophic injuries. So I worry about that.
The second thing I worry about is that if I were an expert, I would not want someone else to draft my call for evidence. I probably do not need the call for evidence because I am an expert. The idea that the poor old Ministry of Justice will be able to ask for all this expert evidence is wrong. The Ministry of Justice is not full of this sort of specialist in the esoteric areas around the setting of a discount rate. I do not believe that is a wise thing to do, so will the Minister look again at the draft terms of reference? Maybe, when we have our coffee to discuss timings, we could have a short session on the terms of reference so that we can try to align this. The basic point behind Amendments 68, 70 and 71 is a desire to allow enough time for a panel of experts very well versed in discount rates to arrive at the correct answer, without extending that time unreasonably. The uncertainty is bad for the victims of the catastrophic injuries.
Lord Beecham
My Lords, I am inclined to agree with the noble Earl about Amendments 68 and 71, but I am afraid I remain unconvinced about the five-year period as opposed to the three-year period, and find myself in the rather strange position of agreeing with the Minister. It is not as though all claimants will be five years off a review. Some will be and others will not necessarily be. There will be different timescales for individual claims, and I do not think five years is necessary to protect the integrity of the system. Some people will try to game, whatever the period. Five years is not necessarily more likely to protect against that than otherwise. Rather unusually—I am sure the noble and learned Lord will stick to the three-year period in the Bill—I will have to agree with him.
I should like to say at the end of this very long day that the House has done its usual very good job of scrutinising difficult legislation. It is a little late to try to recall everything that we have discussed and agreed, but a good job has been done today and I hope the Bill will be improved. The Minister has offered to consider a number of matters before Third Reading—and, in any case, the Bill will go somewhere else in another week’s time and come back to us eventually for further consideration. There may be changes that we have to consider at that stage.
On behalf of these Benches—or what is left of us—I thank the Minister for his running of the Bill. He has been more than willing to talk to colleagues, even when some of them, like me, are rather slow on the uptake in this rather technical area. It is not one where, in practice, I had very much to do with cases at this level, as a personal injury lawyer—thank heavens. Around the House, we have heard some very important contributions from Members from all sides, and there is every prospect of further changes being made at Third Reading or in another place on the basis of the level of debate, discussion and argument that we have had. That is a signal tribute to the work of the House.
Lord Keen of Elie
I am obliged to noble Lords for their contributions, not only to this grouping but to the debate as a whole that has taken place this afternoon and evening. In speaking to Amendment 54, I shall speak also to Amendments 57, 61, 62, 67, 68, 70 and 71. I do so because, although they were not formally moved in this grouping, the noble Lord, Lord Marks, made it clear that he was addressing the amendments in this group when he spoke earlier. I appreciate his determination not to repeat himself.
As I explained in Committee, the choice between three and five years is not one of principle. The three-year period adopted in the Bill represents a compromise approach based on the responses received to the March 2017 consultation, which included a wide range of views, ranging from automatic reviews at short intervals up to a 10-year fixed maximum. We have listened carefully to the arguments this evening and in Committee from noble Lords about the potential for the gaming of the system, depending on whether there is a three-year or five-year maximum between periods.
I note the observations of the noble Lord, Lord Beecham, who brought himself to agree with the Government on this matter. Tempted as I am to move away from the Government’s position in light of that, I maintain that, overall, it would be appropriate for us to look to three years. But there is no clear-cut case, and I am perfectly content to speak again to noble Lords before Third Reading if they wish to make further representations to the Government with regard to the period. So I do not close the door on that, but our position is that three years would be appropriate, and we would have to be persuaded by something that might be termed “new evidence” before we would consider moving away from that position. However, as I say, the door is open.
Amendment 67 largely replicates the provisions already in the Bill for the conduct of a review, but applies them only to the second and subsequent reviews, in light of Amendments 65 and 66. But Amendment 67 in isolation makes a relatively small number of changes to the procedure for the conduct of the second and subsequent reviews. First, it adopts the language of advice rather than response to describe the panel’s reply to the Lord Chancellor. Secondly, it makes clear that it is not just the question of whether the rate is to be changed but what the new rate is to be that is subject to the provisions for determining the review in paragraph 3 of the new Schedule A1—and that, in reaching these decisions, the Lord Chancellor should have regard to the advice from the panel. Finally, that amendment would introduce a requirement that the Lord Chancellor will consult the panel within 10 days of the start of the 180-day period for the completion of the review. This is new, but noble Lords’ proposals for the first review contain a similar provision, albeit with a 25-day period, and we are conscious of that.
Lord Faulks
My Lords, I am grateful to the Minister for his response to my amendment, to the other amendments in this group and to all noble Lords who have spoken on this group.
I am sorry that I have not been able to persuade the noble Lord, Lord Beecham, of the wisdom of this amendment—nor, it appears, the Minister, or his predecessor who answered this in Committee. I echo what the noble Lord, Lord Beecham, said about the quality of the scrutiny that the Bill has received around the House. However, I am a little disappointed at the level of the response to this amendment. I have not yet heard any reasons why it should be three years rather than five years; I have heard that it is preferred, but not why. The submission that I have made consistently in debates on the Bill is that gaming is going on—I do not think that anybody doubts that at the moment. I accept the point made by the Minister that five years is the outer limit and that it can come earlier than that. The fact is that when, quite rightly, a “must” obligation is inserted in the Bill and there must be a review every three years, it means that in the year leading up to the review people will inevitably be guessing and manoeuvring to do that. That will happen less often if the period is five years. It is a simple but powerful point and, since we are on the whole determined to try to encourage the settlement of cases and as much certainty as possible, this seems to be desirable.
My noble and learned friend has very helpfully said that his door is open, as indeed it has been throughout the passage of the Bill, and I pay tribute to him for his engagement generally. I suggested in Committee that I would try to bring forward some evidence to convince the Government, but I am not sure what more evidence I can give. Inevitably it is hearsay evidence, although we now also have the evidence of the noble Earl, Lord Kinnoull, but I will not give up. Given that my noble and learned friend has left that door open, I will continue to try to assemble better arguments or more evidence to support this amendment. In the meantime, I beg leave to withdraw.
Lord Sharkey
“Conducting the first review1A_(1) This paragraph applies when the Lord Chancellor is required by paragraph 1(2) to conduct a review of the rate of return.(2) The Lord Chancellor must review the rate of return and determine whether it should be—(a) changed to a different rate, or(b) kept unchanged.(3) The Lord Chancellor must conduct that review and make that determination within the 140 day review period.(4) In conducting the review, the Lord Chancellor must consult—(a) the Government Actuary, and(b) the Treasury.(5) The consultation of the Government Actuary must start within the period of 20 days beginning with the day on which the 140 day review period starts.(6) The Government Actuary must respond to the consultation within the period of 80 days beginning with the day on which the Government Actuary’s response to the consultation is requested.(7) The exercise of the power of the Lord Chancellor under this paragraph to determine whether the rate of return should be changed or kept unchanged is subject to paragraph 3.(8) When deciding what response to give to the Lord Chancellor under this paragraph, the Government Actuary and the Treasury must take into account the duties imposed on the Lord Chancellor by paragraph 3.(9) During any period when the office of Government Actuary is vacant, a reference in this paragraph to the Government Actuary is to be read as a reference to the Deputy Government Actuary.(10) In this paragraph “140 day review period” means the period of 140 days beginning with the day which the Lord Chancellor decides (under paragraph 1) should be the day on which the review is to start.”
“Conducting later reviews2 (1) This paragraph applies whenever the Lord Chancellor is required by paragraph 1(3)”
Lord Sharkey
Lord Sharkey
(i) the response of the expert panel established for the review, or(ii) in the case of a review required by paragraph 1(2), the response of the Government Actuary or the Deputy Government Actuary (as the case may be).”
Lord Sharkey
Lord Sharkey