House of Commons

Tuesday 23rd November 2021 Commons Chamber

Tuesday 23 November 2021

The House met at half-past Twelve o’clock

Prayers

Tuesday 23rd November 2021 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Tuesday 23rd November 2021 Commons Chamber

The Secretary of State was asked—

[John Howell (Henley) (Con)]

1. What steps his Department is taking to integrate health and care services.

[The Secretary of State for Health and Social Care (Sajid Javid)]

We are committed to the delivery of world-leading health and social care across the UK. The Health and Care Bill will ensure that every part of England is covered by our integrated care boards and integrated care partnerships. This will remove the silos within the NHS while supporting the NHS, local authorities and the wider system of partners to join up healthcare, social care and public health services to achieve the long-held ambition of more integrated care.

[John Howell]

Will the Secretary of State come with me to visit Townlands Community Hospital in my constituency, where we have built into the process of keeping the hospital going a real potential for the integration of NHS and social care services? It would be very good if I were able to share that with him.

[Sajid Javid]

I would be pleased to visit the hospital with my hon. Friend. I know that the site to which he refers is multi-disciplinary and provides rehabilitation and palliative care together and is doing well at it. I know also that it is an excellent example of good integration at work.

[Mr Speaker]

I call the shadow Minister.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I apologise for once again returning to the subject of integrated care boards. One important question remains unanswered following yesterday’s debate. If we are to have truly integrated health and social care, all voices need a seat at the table: public health; social care; mental health; the workforce; and, of course, patients and carers. As matters currently stands, there is nothing guaranteeing each of those groups a seat at the table. I am sure that the Secretary of State will agree that none of them should be missed out, so what will he do, for example, if an ICB decides to exclude the patient’s voice?

[Sajid Javid]

That is an important point, which is why the Government have listened to it. The hon. Gentleman will know that a lot of consultation was done before the Bill that he refers to was presented. In terms of voices around the table in the ICB, we have deliberately set up a permissive system that allows those local voices to be catered for, and for local decisions to be made. While there are minimum requirements, there are no maximum requirements.

[Jane Hunt (Loughborough) (Con)]

Humphrey Perkins School in my constituency had carried out all the necessary preparations ahead of its anticipated roll-out of the vaccine prior to the autumn half-term. However, the day before, the school was informed that the roll-out would be postponed until 30 November. Please can my right hon. Friend set out the reasons for this delay, and will he confirm that this date will not be pushed back again, as that could have an impact on transmission between local adults, among which cases have increased recently?

[Mr Speaker]

Unfortunately, that question is not relevant to Question 1. We will come back to it as a substantive question later.

[Jim Shannon (Strangford) (DUP)]

When it comes to the integration of health and care services, it is very important that we have early diagnosis. The covid-19 pandemic has shown that there are some 200,000 potential type 2 and type 1 diabetics. What can be done to address the issue of diabetes, speaking as one who is a diabetic?

[Sajid Javid]

The hon. Gentleman is absolutely right to raise that as one of the unintended impacts of the pandemic. The reassurance that I can offer him is that there is close co-operation across the devolved Administrations when it comes to working on those impacts. NHS England is working with the health service in Northern Ireland to see what more can be done.

[Jacob Young (Redcar) (Con)]

Can the Secretary of State outline the ways in which yesterday’s votes on integrated care systems and the increased social care cap will benefit my constituents in Redcar and Cleveland?

[Sajid Javid]

I am very happy to do so. My hon. Friend will know that the system that we set out back in September for social care will mean that no one loses out. In fact, when it comes to receiving social care in the future, the vast, vast majority of people across the country will be better off, including his constituents.

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

While the Scottish Government are taking action to establish a national care service in Scotland, the UK Government’s plans allocate the bulk of the money raised over the first three years of the national insurance rise to the NHS backlog. Does the Secretary of State agree that A&E functioning is greatly impacted by the lack of beds due to delayed discharges to social care? Will his Department provide urgent funding for the critical support for social care?

[Sajid Javid]

The Government have provided urgent funding, especially because of the impact of the pandemic. We have put more than £34 billion extra into health and social care, with the relevant Barnett consequentials, from which Scotland will of course have benefited. The issue of delayed discharges is an important one to continue working on and addressing, which is exactly why NHS England has a delayed discharge fund of almost £500 million for this winter.

[Philip Davies (Shipley) (Con)]

2. What assessment he has made of the adequacy of the number of locations providing booster doses of the covid-19 vaccination in Shipley constituency.

[The Secretary of State for Health and Social Care (Sajid Javid)]

There are more clinics in England delivering covid-19 vaccines than there were at any point during the covid-19 vaccination programme. A lot of planning has gone into ensuring that sites are distributed according to demand. I can tell my hon. Friend that there are three vaccination sites in Shipley itself—at Lynfield Mount Hospital, Shipley health centre and Windhill Green’s emerald suite—and eight walk-in centres within 10 miles of Shipley. These sites are available to all those who are eligible and need to book.

[Philip Davies]

Lynfield Mount is not in my constituency. Many of my constituents want to have the booster vaccine, but are unable to access it locally and are instead being told to go to Bradford, which many are unable or unwilling to do. If the Government want a bigger take-up of the booster vaccine, may I urge my right hon. Friend to ensure that there are more places available in the Shipley constituency where my constituents can have their booster?

[Sajid Javid]

My hon. Friend, as always, make an important point. I thank his constituents for their excellent response to the national roll-out of the vaccination programme, and for playing their part in that. I have heard what he has said very clearly. We want to make access to vaccination as easy and convenient as possible. I will speak to the NHS to see what more can be done.

[Alex Norris (Nottingham North) (Lab/Co-op)]

The vaccination programme has lost momentum over the summer and autumn. To ensure that everyone who is eligible gets their booster jab by Christmas, we need to be vaccinating half a million people a day, but we are currently not near that figure. We need to reboot the national effort in Shipley and beyond—[Interruption.] Always just for you, Mr Speaker. We need to be mobilising retired medics, and using pop-up clinics and of course our nation’s pharmacies, which are crying out to help. Will the Secretary of State commit to that, and confirm by which day the 500,000 person target will be met?

[Sajid Javid]

I know that the hon. Gentleman sees it as his job always to be negative about the Government, although on the vaccination programme he and his colleagues have so far been very co-operative across the House. We should not talk down our world-successful vaccination programme, because we have delivered more than 15 million booster vaccines across the UK to 26% of the population over the age of 12—the most successful booster vaccination programme in the whole of Europe.

[Paul Blomfield (Sheffield Central) (Lab)]

4. What steps his Department is taking to help ensure that unpaid carers can access support when caring for family members.

[The Minister for Care and Mental Health (Gillian Keegan)]

We recognise that carers perform a difficult role and often find it challenging to access support. The Care Act 2014 secured important rights for carers, including a responsibility for local authorities to assess and support their specific needs where eligible. We will work with unpaid carers and stakeholders to co-develop further detail in a White Paper for reform later this year.

[Paul Blomfield]

The Minister will know that among those unpaid carers are 800,000 young carers, who play an extraordinary role—some from as young as seven or eight years old—in looking after parents with long-term conditions. Too many are unidentified, and as a consequence struggle without the support that they deserve. Does the Minister agree that integrated care boards could require GPs, who are uniquely placed to do this, to identify young carers and signpost them to support services? Will she also work with ministerial colleagues to require schools to create a young carers lead, as with special educational needs co-ordinators, to co-ordinate the identification of and support for young carers?

[Gillian Keegan]

We will certainly be looking at all those points within guidance. Local authorities have a duty to assess the needs of young carers under the Children and Families Act 2014, and that duty has remained in place throughout the pandemic. Authorities must ensure that young carers are identified and referred to appropriate support if needed, and that the young carer is not taking on excessive or inappropriate care and support responsibilities. We have also announced an additional £1 billion of new recovery premium funding, which schools can use to support young carers’ mental health and wellbeing, alongside their academic recovery.

[Caroline Dinenage (Gosport) (Con)]

The carers action plan published in 2018 was a two-year cross-Government attempt to try to change the way we identify and support the millions of unpaid carers across our country. They save our health and care system a fortune, but for their loved ones they are literally the world. What plans are there to publish a progress report and set out the next steps for how the Government intend to keep focused on this really important issue?

[Gillian Keegan]

I pay tribute to my hon. Friend for her work in this role and also to all unpaid carers. There are 5.4 million unpaid carers in England and they do a fantastic job. In the forthcoming Bill that we are co-producing with unpaid carers, we will make sure that we continue to make progress in this area. I look forward to sharing that with her before the end of this year.

[John Mc Nally (Falkirk) (SNP)]

Carers UK recently called for an additional payment across the UK for unpaid carers after its survey found that more than one in five unpaid carers are worried that they may not cope financially over the next 12 months. In Scotland we already have a carer’s allowance supplement, and the Scottish Government will once again make a double payment this December, recognising the impact that the pandemic has had on our carers. Will the Minister now urge her colleagues in the Department for Work and Pensions to make a commitment to match the Scottish Government’s offer?

[Gillian Keegan]

There is a carer’s allowance in the UK as well, but in most cases financial incentives are not the main driver for those providing unpaid care. However, we may see a shift towards less intensive caring activities or a reduction in the hours spent caring as people become more eligible for state support and we push through some of the reforms. Charging reforms bring an end to the unpredictability of care costs for care users and will do the same for those who provide unpaid care for them, allowing them to make informed choices. We need to do more to support them in providing respite and day services.

[Theresa Villiers (Chipping Barnet) (Con)]

What action have the Government taken to support the charities and community groups that provide help to unpaid carers, because many of these charities found it very hard to operate and raise funding during the covid shutdown?

[Gillian Keegan]

My right hon. Friend is absolutely right: charities are also a vital part of the network of support for our unpaid carers, and some of them did have to close during the pandemic, so we have been encouraging them to open up now that we can all open up. Additional financial support was provided for the charitable sector to make sure that it could continue its vital services during the pandemic when fundraising activities were very difficult.

[Liz Kendall (Leicester West) (Lab)]

Many families are pushed to breaking point because they cannot get the help they need to look after the person they love. Will the Minister now confirm that somebody who is trying to hold down a job and care for their elderly mum whose house is worth £100,000 will face a tax rise that will not improve their mum’s care or give them a break from caring, and will not even stop them from having to sell their mum’s home, because under the plans Tory MPs voted through last night, she will never hit the cap on care costs? Will the Minister further confirm that this tax rise on working people will be used to protect 90% of a home worth £1 million? If she disputes these figures, why does she not publish the impact assessment before MPs are asked to vote on the Health and Social Care Bill tonight?

[Gillian Keegan]

From October 2023, the Government will introduce, for the first time in our history, a new £86,000 cap on the amount any adult in England will need to spend on their social care. That will protect them from unpredictable and unlimited costs. But as well as that there is a more—[Interruption.] The hon. Lady may like to listen to the answer. As well as that, there is a more generous—[Interruption.] Please listen. On top of that, a more generous means test for adult social care will come into effect, allowing more people to benefit from the means-tested support. Under the current system, about half of all older adults in care receive some state support. This rises to roughly two thirds under the recently announced charging reforms, which will help many adults, including unpaid carers. Everybody will benefit from this system.

[Laura Farris (Newbury) (Con)]

5. What steps he is taking to reduce waiting lists for (a) children and adolescent mental health services and (b) other mental health services for young people.

[The Minister for Care and Mental Health (Gillian Keegan)]

We are committed to ensuring that children and young people get the mental health support that they need. That is why we are expanding mental health services through the NHS long-term plan so that 345,000 more children and young people a year have access to services by 2023-24. This year the Government and the NHS, under NHS England, have provided an additional £109 million on top of long-term planned funding. This additional funding will allow 22,500 more children and young people to access community health services this year, earlier than planned, and that will accelerate the roll-out of mental health support teams in schools and colleges.

[Laura Farris]

In West Berkshire, a family seeking a child and adolescent mental health services diagnosis of autism spectrum disorder or attention deficit hyperactivity disorder can face a waiting time of up to two years. The Berkshire West clinical commissioning group has recently made £1.6 million available to recruit extra staff, but when I spoke to it, I was struck by the absence of any hard targets to reduce waiting lists and any consequences if it fails to deliver. These waiting times are causing misery to my affected constituents, so can my hon. Friend say what steps can be taken to ensure accountability in the provision of this service, and will she meet me to discuss waiting times in West Berkshire?

[Gillian Keegan]

I share my hon. Friend’s concern that waits for autism assessments and diagnosis are often way too long, and that is why we are investing an additional £13 million of funding this year. That funding will allow local systems to test different diagnostic pathways—including working on a multi-disciplinary basis, which will shorten the diagnosis time—and to find new solutions for addressing long waits. The precise allocation of funding for diagnostic pathways are decisions made at the local level, and those should be compliant with National Institute for Health and Care Excellence guidance. NHS England is working with local systems to evaluate what works well. Since November 2019, we have been reporting on waiting times between referral and first assessment, and that is important, because we use that to drive up local performance. I would be very happy to meet my hon. Friend to discuss this further.

[Dr Rosena Allin-Khan (Tooting) (Lab)]

When the Government talk about waiting times, they refer to how long it takes simply to get an assessment, and not to when treatment may start. Most children face an incredibly long wait after that first step, or even have their referral closed. The real truth is revealed when we look at how long it takes for children to complete treatment. In Yorkshire and the Humber, it took one child more than 13 years to complete treatment for their anxiety. In the north-west, some children took three years to complete treatment for eating disorders. In the midlands, it is not uncommon for treatment completion to take five years. Will the Minister commit, as we have, to the provision of a counsellor in every school, a mental health access hub in every single community and regular mental health assessments for children in all key stages?

[Gillian Keegan]

We know that the prevalence of children and young people with a mental health condition has increased—in some cases, it has increased massively. That is why we remain committed to increasing investment through the long-term plan. Also, we have consulted on the potential to introduce five new waiting times standards, including for children and young people and their families and carers presenting to community-based mental health services. In addition, NHS England and NHS Improvement have announced an additional £40 million to address the impact of covid on children and young people’s mental health, including for eating disorders. Since 2014, extra funding has been going into children and young people’s community eating disorder services every year, but we know that we have more to do. This extra funding will enhance the development of more than 70 new and improved community eating disorder teams, but there is no doubt that there is much to catch up on. We are also introducing services into schools for young people.

[Siobhain McDonagh (Mitcham and Morden) (Lab)]

When the chief inspector of hospitals placed St George’s in Tooting into special measures, he warned that the

“emergency department was not large enough for the number of patients that passed through it and privacy and dignity were compromised.”

Given the report by the British Red Cross in this morning’s edition of The Times highlighting the causal link between A&E attendance and deprivation, does the Minister understand the further huge impact that moving acute services from St Helier to wealthy, healthy Belmont will have on A&E attendances at St George’s?

[The Minister for Health (Edward Argar)]

Forgive me, but I fear the hon. Lady may not have moved her tabled question.

[Siobhain McDonagh]

I was just so keen to ask my question!

[Edward Argar]

I can answer the hon. Lady’s supplementary question, but would it be in order for me to answer her tabled question and then the supplementary?

[Mr Speaker]

Yes.

[Siobhain McDonagh]

6. What recent assessment he has made of the impact of the proposed downgrade of services at St Helier hospital on the delivery of acute services at St George's hospital.

[Edward Argar]

I am grateful to the hon. Lady. To answer the tabled question, no recent assessment has been made of the changes associated with the Epsom and St Helier reconfiguration, including proposed changes to some services outside the new Sutton site. The hon. Lady will know that these proposals have been through consultation, judicial review and the independent reconfiguration panel, which all supported the plans as being in the local population’s interest. The Secretary of State agreed with their advice.

Turning to the hon. Lady’s supplementary question, I am grateful to her and I know how strongly she feels about the issue, but I take her back to the point I have just made, which is that these proposals have all been through extensive consultation and extensive legal process and been looked at by the independent reconfiguration panel. Those processes all concluded that what is proposed is in the best health interest of the population.

[John Spellar (Warley) (Lab)]

7. What assessment he has made of the viability of the community pharmacy sector.

[The Parliamentary Under-Secretary of State for Health and Social Care (Maria Caulfield)]

The community pharmacy contractual framework outlines a transformational programme of work to integrate community pharmacies into the NHS, delivering more clinical services and making them the first port of call for many minor illnesses. The framework commits £2.5 billion annually to the sector to support that ambition.

[John Spellar]

That is a welcome response from the Minister, and shows that she and the Department now seem to recognise our pharmacies for their magnificent efforts during the pandemic, providing frontline primary care and delivering and encouraging vaccination. Will she further recognise their expertise and dedication, and push rapidly forward with integrating pharmacies into the delivery of primary care—thus also, of course, easing pressure on GPs and hospitals?

[Maria Caulfield]

The right hon. Gentleman will find no greater supporters of community pharmacists than this Government. That is why we launched the community pharmacist consultation service, where GPs and NHS 111 can refer patients directly to pharmacy services. We now see pharmacies dealing with minor ailments such as sore throats, coughs and colds, providing the new medicines service and providing public health services such as weight management and stop smoking services. We place on record our thanks to all in community pharmacies.

[Rob Butler (Aylesbury) (Con)]

Community pharmacies in my constituency have played a crucial role during the pandemic, not least in providing vaccines, as at Hughenden Valley. Will my hon. Friend join me in thanking them, as well as the pharmacists working in GP surgeries such as Meadowcroft surgery in Aylesbury, which I visited last week? Their growing role in primary care is an important part of our efforts to improve the health service and ensure that patients get the best possible care.

[Maria Caulfield]

My hon. Friend makes some excellent points, and I put on record again our thanks to community pharmacists and all community pharmacy teams. During the pandemic, more than 1,500 community pharmacy-led covid vaccination sites have been set up, delivering 15 million covid vaccinations so far, and this winter more than 3.8 million flu vaccines have been delivered through community pharmacies, which shows that they are leading the way in primary care.

[Dave Doogan (Angus) (SNP)]

The role of community pharmacies across Angus and Scotland during the pandemic cannot be underestimated. The way they were able to alleviate pressure on clinical services and the wider NHS must be noted. That is why the Scottish Government have introduced their NHS Pharmacy First Scotland service, backed by £7.5 million last year and going up to £10 million. Can the Minister assure me that the lessons we have learned in Scotland are accepted by Whitehall, and would she like to come to see the lessons we have learned in Scotland? I would be happy to accompany her.

[Maria Caulfield]

As I have said, this Government are leading the way in England in the way community pharmacies are transforming services in primary care. That is why we have the new medicines service, where patients with conditions such as asthma and high blood pressure or who are on blood-thinning medication are able to go and see their pharmacist as a first port of call in managing their medication. We will be expanding those services and are in discussion with community pharmacists about how we take that forward.

[Jane Hunt (Loughborough) (Con)]

8. What steps his Department is taking to roll out the covid-19 vaccination to 12 to 15-year-olds.

[The Parliamentary Under-Secretary of State for Health and Social Care (Maggie Throup)]

We have vaccinated more than 1.1 million 12 to 15-year-olds since roll-out began. Vaccine clinics have been held at around 3,500 schools, with 800 more to be visited next week, and there are more than 240 out-of-school vaccine sites in operation. To bolster the roll-out, since 22 October vaccination bookings for any 12 to 15-year-old in England can be made through the national booking service to attend a vaccination site outside school hours. I take this opportunity to thank everybody involved in making this programme so successful.

[Jane Hunt]

Humphrey Perkins School in my constituency had carried out all the necessary preparations ahead of its anticipated roll-out of the vaccine prior to the autumn half-term, but on the day before, it was informed that the roll-out would be postponed until 30 November. Please could my hon. Friend set out the reasons for this delay, and can she confirm that this date will not be pushed back again as this could have an impact on transmission between local adults, among whom cases have increased recently?

[Maggie Throup]

In late September, the Leicestershire Partnership NHS Trust school age immunisation service devised an updated schedule for covid-19 and flu vaccinations comprising the remaining schools to be visited. This was to address some operational challenges, reduce the need to postpone sessions at short notice and offer the best experience to the young people receiving vaccinations. All affected schools were notified as soon as possible. As my hon. Friend said, the service will be attending Humphrey Perkins on 30 November, when eligible students with consent will be offered both the flu and the covid-19 vaccines. West Leicestershire clinical commissioning group has confirmed to me that this date will not be moved.

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

Wales has now joined Scotland in having vaccinated more than half of all 12 to 15-year-olds, Scotland’s figure being 57.7% in comparison with England’s 36.3% of eligible pupils. Given that 10 to 19-year-olds have maintained the highest rate of infections in recent months, what steps are the UK Government going to take to follow Scotland’s lead and improve vaccination further in this age group?

[Maggie Throup]

As I said earlier, we have already vaccinated over 1.1 million 12 to 15-year-olds since the roll-out began, which to me is a huge success. We have opened up the national booking service, and provided more opportunities for youngsters to come forward whether within the school environment or outside the school environment. We always look at every opportunity to ensure complete accessibility for people to get their vaccine.

[Chris Green (Bolton West) (Con)]

9. What steps his Department is taking to increase the number of carers in the adult social care sector.

[Bill Esterson (Sefton Central) (Lab)]

10. What steps he is taking to tackle the high job vacancy rates in social care.

[Helen Hayes (Dulwich and West Norwood) (Lab)]

16. What steps he is taking to tackle the high job vacancy rates in social care.

[Chris Grayling (Epsom and Ewell) (Con)]

20. What steps he is taking to tackle staff shortages in the social care sector.

[The Minister for Care and Mental Health (Gillian Keegan)]

We recognise the considerable challenges the adult social care sector faces in recruiting and retaining staff. We have put in place a range of measures to support local authorities and care providers to address workforce capacity pressures. These include a new £162.5 million workforce recruitment and retention fund, and the latest phase of our national recruitment campaign, launched on 3 November, which highlights adult social care as a rewarding and stimulating place to work.

[Chris Green]

I thank my hon. Friend for her reply. The latest figure I have for the vacancy rate for carers in August was significantly worse than those from before the pandemic, and it is likely to worsen still further due to the requirement for compulsory vaccination. When does my hon. Friend believe the vacancy rate will return to pre-pandemic levels?

[Gillian Keegan]

The first thing to say is that obviously the vaccine saves lives, and it is our responsibility to do everything we can to reduce the risk for vulnerable people. As of 14 November, 92.5% of care home staff have had their second dose. We have put in place measures, as I said earlier, to support workforce capacity, which have only just gone to local authorities. The Department continues to closely monitor workforce capacity, bringing together the available data, including the vacancy rate, with local intelligence. Longer term, we have committed at least £500 million to support and develop the workforce, and that will go some way to addressing the barriers to people taking up work in adult social care, which has been an issue for a number of years.

[Bill Esterson]

There are 105,000 vacancies across all social care workforce grades, but employers are unable to recruit across those grades. The Government have accepted the need to add senior care workers to the shortage occupation list—they did that in April—but the Migration Advisory Committee is not due to report until next April on the need to recruit social care workers. It is no good the Minister saying employers need to pay more money to recruit UK workers, because this Government are the ones underfunding the employers, who cannot then compete with the likes of Amazon. When will the Government admit that they need to add all grades of social care workers to the shortage occupation list if they are to have any hope of addressing this shortfall and providing the care that is needed to address the care crisis?

[Gillian Keegan]

As I mentioned earlier, we have sent out £162.5 million, which has not yet been put into effect. For example, Sefton received £1,032,474. That money has only just gone into the bank account, and has not yet been utilised to retain staff, or to recruit agency or other staff. As the hon. Gentleman says, adult social care providers can recruit key adult social carers from overseas from the shortage occupation list. That provides lower fees and a reduced salary threshold of £20,480 for someone to be eligible for the skilled worker visa.

[Helen Hayes]

The adult social care sector faces the worst staff shortages in living memory. A recent survey by the National Care Forum found that one third of managers of registered care homes are limiting or stopping admissions from hospital, due to staff shortages, with direct consequences for both the NHS and for vulnerable people who cannot access the care they need. The care sector needs action now, not warm words and job adverts. Will the Minister commit to paying a retention bonus to frontline care staff, to help stem the tide of those exiting the care sector this winter? Will she commit to a fully funded, permanent pay increase, to bring the minimum level of pay for care workers up to £10 an hour—the minimum rate at which Amazon is recruiting in many areas where the care shortage is at its most acute?

[Gillian Keegan]

We have committed to bring forth new measures in the White Paper, and to spend at least £500 million on recruiting that workforce. To address the emergency now, as I mentioned, there is £162 million. In addition, we have put around £500 million particularly to address discharge processes, and to ensure a discharge to assess process, which means it can be much quicker. We must ensure that those teams work together to shorten the discharge process. There is no doubt that our NHS and our whole system is under extreme pressure this winter, and we thank it for all the work it is doing.

[Chris Grayling]

There is a particular challenge in a county such as Surrey that has a rapidly ageing demographic, high housing costs, and where the cost of living is high generally. Could I urge the Minister and the Secretary of State to ensure that they consider all possible avenues to assist with what is becoming an acute shortage of key staff? We cannot end up in a position where the elderly do not receive the care they need, and we need maximum flexibility to ensure they get that care.

[Gillian Keegan]

There is no doubt that the sector is facing extreme pressure. It always faces pressure as the demographic need grows by 1% to 2% every year, but we have set out money to help with the short-term impact of that. Surrey will receive £2,704,702, so just over £2.7 million. We recently started the biggest national recruitment campaign we have ever done, Made with Care, to thank our care workers and to show what a fantastic and rewarding career it would be. We will continue to work with local authorities to help as much as we can.

[Tony Lloyd (Rochdale) (Lab)]

In the context of what the Minister has announced about increased money for staff terms and conditions, what does she make of the Alternative Futures Group, which operates in the north-west? It refuses to take up the real living wage, even when councils offer to fund it, and is in a process that is seeing the terms and conditions of its workforce deteriorate? Is there a need to look at that group, and to have a collective agreement for the whole sector?

[Gillian Keegan]

Yes, and I would be grateful if the hon. Gentleman would write with the details. We have a skills shortage in many areas across our economy. Because of the success of the Plan for Jobs, and our bounce back from the pandemic, anybody who does not treat their staff well will find that their skills shortages become very acute indeed.

[Chris Loder (West Dorset) (Con)]

11. What steps he is taking to ensure booster doses of the covid-19 vaccine are available to all eligible people in West Dorset.

[The Parliamentary Under-Secretary of State for Health and Social Care (Maggie Throup)]

We have delivered more than 15.3 million booster doses in the UK, and we know there is a strong demand for boosters in Dorset. The NHS has worked hard to deliver boosters and third doses at all 18 primary care networks in Dorset, providing them across a number of sites. Additional provisions are also in place for those who are housebound, elderly, or in care, to ensure that they get their booster.

[Chris Loder]

I thank my hon. Friend for her answer. Almost a third of constituents in West Dorset are over the age of 65. While I welcome very much the Secretary of State’s announcement this week that he is rolling out the booster to those over the age of 40, I am afraid that, in the county town of Dorchester and the second town of Bridport particularly, it is still very difficult for the elderly to receive their vaccine boosters. Will my hon. Friend help urgently with sorting this issue by arranging walk-in centres so that we might address it rapidly?

[Maggie Throup]

The Department of Health and Social Care and the NHS keep the covid-19 vaccine programme under constant review in order to ensure that there is sufficient capacity across the country. There are more vaccination sites than ever before in England, including hundreds of walk-in centres. A lot of planning goes into ensuring that those sites are distributed to meet the level of demand, and there are measures in place to ensure that boosters are accessible for all in West Dorset, but I will look into this matter further on behalf of my hon. Friend.

[Ben Everitt (Milton Keynes North) (Con)]

12. What assessment he has made of the effectiveness of the roll-out of booster doses of the covid-19 vaccine.

[Dr Ben Spencer (Runnymede and Weybridge) (Con)]

19. What assessment he has made of the effectiveness of the roll-out of booster doses of the covid-19 vaccine.

[The Secretary of State for Health and Social Care (Sajid Javid)]

The UK’s covid-19 vaccination programme has been a recognised success story. It is the largest vaccination programme ever undertaken by the NHS. We are working at speed to get people their covid-19 booster vaccines. Our vaccination programme is making great progress, with over 15.3 million people across the UK already having taken their covid-19 booster or third jab.

[Ben Everitt]

It is great to hear about the uptake of the booster vaccine nationally. I have seen some data to suggest that in Milton Keynes, uptake is slightly below the national average. We have some great advertising campaigns—MKFM, for example, has been really good on this—but what more can we do to encourage people who need to take the booster to protect themselves and protect the NHS over the winter?

[Sajid Javid]

I think my hon. Friend might be wearing a booster badge, because I understand that he has taken his own boost this morning. What more encouragement would the people of Milton Keynes want than their very own Member of Parliament getting boosted? I can tell him that the Bedfordshire, Luton and Milton Keynes clinical commissioning group is in regular dialogue with Healthwatch and the local authority to see what more it can do to encourage local people to take up their booster jabs, and the national “Boost your immunity” campaign is helping to encourage more and more people to come forward, not just for their booster jab but for their vital flu jab.

[Dr Ben Spencer]

I thank my right hon. Friend for his answer and for the speed of the booster roll-out. In fact, it is so speedy that the criteria for getting a booster are changing all the time, and many constituents have contacted me confused about exactly what the criteria are. I have spoken to my CCGs to try to get them to improve the public engagement that they are doing, but will my right hon. Friend lay out what the criteria are for getting a booster at the moment, and what support he is giving to CCGs so that they can get the message out to people and get them into walk-in centres or booking their appointment for a booster?

[Sajid Javid]

My hon. Friend will understand that there is often good reason to change the criteria. They might be changed, for example, on the latest advice from the Joint Committee on Vaccination and Immunisation; the Government must of course consider that advice and take it seriously. As was mentioned earlier, we are extending the booster jab to 40 to 49-year-olds. NHS England has issued guidance to CCGs on the covid-19 vaccination programme, which includes guidance on eligibility for booster vaccines and how to manage those appointments. We encourage everyone to visit the NHS website on gov.uk for the very latest information on the programme.

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

A disabled member of my community needs the booster and is very keen to have it. However, he is housebound and unable to go the 1.2 miles to where the booster is being offered. What can the Secretary of State do to ensure that people who are housebound and unable to leave their homes can get the booster that they desperately need?

[Sajid Javid]

The hon. Lady makes a very important point. Hundreds of thousands of people have received their booster jabs directly from primary care—from their GPs—in most of the type of cases that she describes. If anyone is housebound or, for example, in a care home, they will receive a visit from their GP. That has happened up and down the country. If the hon. Lady is aware of any individual that has not received such contact, I ask her please to contact me, and I will do everything I can to assist.

[Mr Gregory Campbell (East Londonderry) (DUP)]

Take-up of the booster jab in Northern Ireland has been somewhat behind, although it is now beginning to catch up. Does the Secretary of State agree that the roll-out is best done as a voluntary roll-out, so that we can persuade people that it is a good thing, and that it protects both them and their family and friends, to take up the booster jab?

[Sajid Javid]

I very much agree with the hon. Gentleman. The general vaccination programme for covid-19, or any other vaccine for that matter, should be voluntary. It should be a positive decision that people take to protect themselves and those around them. The only exception to that in England, as the hon. Gentleman will know, is those who work with vulnerable people in the NHS or in social care. Otherwise, it absolutely should be a positive decision that people are encouraged to take.

[Gordon Henderson (Sittingbourne and Sheppey) (Con)]

13. What recent steps he has taken to help ensure that everyone in Sittingbourne and Sheppey constituency has access to a GP.

[The Parliamentary Under-Secretary of State for Health and Social Care (Maria Caulfield)]

The Kent and Medway clinical commissioning group has informed us that all practices in the area have open lists and are accepting new patients. It has also informed us that practices in Sittingbourne and Sheppey are being prioritised for support to help them manage the high levels of demand they are currently facing.

[Gordon Henderson]

I think the Minister has been misled by my local CCG. I can tell her that all the GPs in my area are oversubscribed and people are finding it very difficult to get an appointment with their GP, even including a virtual appointment. Indeed, some patients struggle even to speak to a receptionist, because the phones are engaged for hours on end. I understand that the NHS is planning to give GPs an upgrade of their telephone systems, but such upgrades will be of no use whatever unless doctors have the resources needed to recruit and train additional receptionists to answer the phones. What assurances can my hon. Friend give me that GPs will get those resources?

[Maria Caulfield]

We recognise the difficulty that patients have had in particular with telephone access and GPs have fed in that phone lines have been busier than ever. That is why the Secretary of State, through the winter access fund, has addressed the issue in two ways: the availability of the cloud-based telephone system that GPs and primary care networks can be a part of, which will help to build their telephone capacity; and the £250 million winter access fund, which GPs can use to either recruit more telephone receptionists and train up existing telephone receptionists or build up more resources. I am very happy to discuss that further with my hon. Friend.

[Jill Mortimer (Hartlepool) (Con)]

T1. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Health and Social Care (Sajid Javid)]

It is a critical time for our country, and we are taking vital steps across health and care. First, on covid, we have now given over 112 million doses of the vaccine in total across the UK. Yesterday, our booster programme was opened up to all people over the age of 40 and we extended our offer of a second dose to all people aged between 16 and 17.

Secondly, on recovery, we are delivering the biggest catch-up plan in the history of the NHS, including the £5.9 billion capital investment we announced last month. Lastly, on reform, yesterday we announced our intention to put a policy of education and training for the health workforce and digital transformation at the very heart of the NHS, so we can plan more effectively as one for the long term, with clear accountability for delivery.

[Jill Mortimer]

A young constituent of mine, Chris, has had to have part of his skull removed following a stroke. Although he is prone to falling, his brain has been largely unprotected for nearly two years. This is because his surgeon feels that the necessary surgery is primarily cosmetic. Several other of my constituents have been refused surgery on those grounds, despite procedures being available elsewhere. What steps is my right hon. Friend taking to level up such health disparities and make health inequality a thing of the past?

[Sajid Javid]

First, I am sorry to hear about my hon. Friend’s constituent Chris and wish him all the very best. She will know that clinical commissioning groups are responsible for commissioning local healthcare services. If the aim of a cosmetic procedure is health rated, such as the need to repair or reconstruct missing or damaged tissue or skin that might come through illness, birth defect or accident, it will be commissioned and seen to by commissioners. She refers to a particular case. If she would like to provide me with more details, I would be happy to take a look.

[Jonathan Ashworth (Leicester South) (Lab/Co-op)]

At the weekend, the Secretary of State effectively ditched his promise to deliver 6,000 extra GPs. Last week, the Infrastructure and Projects Authority said his promise to deliver 40 new hospitals is “unachievable”. Last night, he whipped a vote that sees poorer pensioners lose their homes to pay for care, while the homes of the richer are protected. Can he tell us which promise is he going to break next?

[Sajid Javid]

I have to say that the right hon. Gentleman is wrong on all three counts. The Government are absolutely committed to hiring more GPs, with over 1,800 full-time equivalent GPs entering primary care in the two years to September 2021. We are seeing success after success in the hospital building programme, with the biggest capital investment programme in hospitals that this country has ever seen. As for our social care programme, this Government are the first in decades to have the guts to deliver, and that is exactly what we are getting on with.

[Jonathan Ashworth]

The Secretary of State’s social care programme is not levelling up when the promise in his manifesto that no one should have to lose their home to pay for care is broken and in tatters after last night.

The Secretary of State’s next promise was to give the NHS “everything” to get through the backlog. With waiting lists growing at pace, ambulances backed up outside hospitals, and cancer operations getting cancelled, what will he do to recruit the staff we need? He is apparently not going to support the cross-party amendment in the name of the former Health Secretary, the right hon. Member for South West Surrey (Jeremy Hunt), tonight, and he failed to win the funding needed for recruitment and training in the Budget, so how will he deliver on his promise to give the NHS “everything” when it does not have the staff to deliver the care to bring waiting lists down?

[Sajid Javid]

Once again, the right hon. Gentleman proves he still does not understand the social care programme that this Government have set out. I think that is deliberate; he chooses not to understand it. For the first time, catastrophic costs are being capped for everyone in the country, regardless of where they live, and the generous means-testing system will ensure that the vast majority of people will benefit and that no one will lose out.

The right hon. Gentleman asks me what I am doing about the workforce. We are making the biggest investment in the workforce that this country has ever seen. Yesterday I announced the merger of Health Education England into the NHS, so that we can have a better joined-up strategy, and we have already set out a 15-year framework to consider the long-term needs of the workforce.

[Robert Largan (High Peak) (Con)]

T2. Hundreds of local people have responded to my High Peak GP surgery survey, and I look forward to presenting Ministers with the results shortly. One of the top concerns is about how we can improve access to primary care. One way would be finally to build a major new health centre for Buxton. The local NHS already owns a suitable town centre location with outline planning permission; all it requires is the capital funding. Derbyshire Community Health Service NHS Trust has submitted a strong bid, which I support, so will the Secretary of State meet me to discuss how we can deliver the proposal and improve healthcare for Buxton and the whole High Peak?

[Sajid Javid]

Yes, I will. I looked at the previous bid and have been trying to understand why it was not taken forward. However, I would like to look carefully at the revised bid. I reassure my hon. Friend that more funding is available for such capital projects, and I would be happy to discuss that with him.

[Andy McDonald (Middlesbrough) (Lab)]

T4. Now that the cap on care costs has unravelled, many of my constituents feel misled and betrayed, especially those with modest capital in the value of their home. How can it be that those with the most will contribute the least and that those with the least will contribute the most? Where is the equity, where is the fairness, and where is the justice in any of that?

[The Minister for Care and Mental Health (Gillian Keegan)]

I thank the hon. Gentleman for his question. We are trying to solve something that has not been solved for decades, and the Labour party does exactly what it always does when it comes to this point: it picks one specific part without looking at the package as a whole and misleads the whole country. I want a better system not only for our grans and grandads, but for our mums and dads and all of us. If this system had been in place for my grandmother when she had dementia before dying in 2018, she would have been a lot better off. While we sit here doing nothing, the reality is that everybody loses—

[Mr Speaker]

Order. Questions and answers are meant to be short and punchy. We cannot get into a full-blown debate.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

T5. My constituents benefit from the excellent healthcare provided at Hillingdon Hospital, but it is long overdue a rebuild. Can my right hon. Friend give me an update on when we might expect to see progress on those plans?

[Sajid Javid]

It is a vital project, and the trust project team are working well with NHS England and with my Department. The scheme, as I understand it, remains on track; like my hon. Friend, I look forward to its completion.

[Vicky Foxcroft (Lewisham, Deptford) (Lab)]

T7. New research from the Disabled Children’s Partnership shows that nearly three quarters of disabled children and young people have seen their conditions regress in the pandemic because of a lack of adequate support. Therapies, short breaks and health services have all been massively reduced, and there are huge backlogs. Will the Secretary of State outline how the Government plan to rapidly sort that out?

[Sajid Javid]

I thank the hon. Lady for her very important question. There is nothing more important than our children. Sadly, some of the actions that were taken at the height of the pandemic, for understandable reasons, have had unintended consequences. That is exactly why we are putting in a record amount of funding, with the biggest catch-up programme for elective procedures in the history of the NHS. I know that that will help.

[Philip Dunne (Ludlow) (Con)]

T6. The capital transformation of acute hospitals in Shrewsbury and Telford has been eight years in the making. Will the Secretary of State confirm what is now needed to start delivering the £312 million of capital committed by the Conservative Government to improve Shropshire’s healthcare facilities? Will he also confirm that it does not make sense to head down the rabbit hole of a new hospital and start this whole process all over again?

[The Minister for Health (Edward Argar)]

I am grateful to my right hon. Friend, who has taken a long-term and consistent interest in the matter. The strategic outline case for transforming the Royal Shrewsbury Hospital and Princess Royal Hospital Telford was received at the end of October 2021. It has been reviewed by the NHS and detailed feedback has been given; I look forward to it coming forward to me early next year. We remain committed to delivering the investment and improvement that Shropshire’s hospitals need and that he and his colleagues have helped to secure.

[Sarah Green (Chesham and Amersham) (LD)]

Women across the country have lost jobs and life savings as a result of chronic pain and disability caused by complications after the use of medical mesh. Many, including one of my constituents, have had to pay for corrective surgery overseas. The Government have so far refused to set up agencies to provide financial redress, as was recommended in the Cumberlege report. Will the Secretary of State revisit the Cumberlege report, and in particular the need for financial redress?

[The Parliamentary Under-Secretary of State for Health and Social Care (Maria Caulfield)]

Women who have suffered are being helped and supported through the difficult choices that they are having to make. The Government have set up eight specialist mesh centres across the country to provide them with the specialist treatment that they need. Our priority is patient safety, preventing anything like this from happening again, and supporting women who have been affected. There is no evidence that a redress system would improve patient safety or improve the outcome for those women.

[Andrew Selous (South West Bedfordshire) (Con)]

T8. As ear syringing is no longer being undertaken in local surgeries, and as self-care does not work for many people, will the Government make sure that microsuction is at least available in every primary care network area? Otherwise, we are leaving people to go deaf.

[Maria Caulfield]

Local commissioners are responsible for meeting the health needs of their local population and should continue to ensure appropriate access to ear wax services. However, should a CCG not routinely commission ear wax removal or the suction method that my hon. Friend refers to, a patient can request an individual funding request. I am happy to help my hon. Friend if that is not happening locally.

[Andrew Gwynne (Denton and Reddish) (Lab)]

Cancer targets are not being met. This September had the worst figures on record for both the 31-day and the 62-day targets; the 62-day target has not been met since 2015. Extra funding is welcome, but where is the detailed implementation plan that was promised to follow?

[Maria Caulfield]

I reassure the hon. Gentleman that cancer has remained an absolute priority for the NHS during the pandemic, as it will continue to be. The funding that has been awarded to deal with long-term electives includes funding for cancer referrals. Some amazing work is being done by our cancer alliances, which are looking to deal with the urgent backlog that has developed during the pandemic.

[Mr David Davis (Haltemprice and Howden) (Con)]

T9. In the next week or so, the Secretary of State will receive the Goldacre report on maximising the use of data in the national health service for both research and operational reasons. The Department has failed dramatically, a couple of times in the past decade, to maximise the use of this enormously important resource. Will he undertake to read the report, consider carefully the policies in it with a view to implementing them quickly, and publish it before the end of January?

[Sajid Javid]

My right hon. Friend has raised this issue with me before, but he is right to raise it again, because proper use of data is important to the future of the NHS. He may have noted our announcement yesterday that we are merging NHS Digital and NHSX with NHS England, which will enable us to do a much better job with data. I will of course look carefully at that report, and I should be happy to meet him to discuss it further.

[Rachael Maskell (York Central) (Lab/Co-op)]

Poppy is just eight. She has severe epilepsy, with ever more frequent and enduring episodes. Her specialist consultant has said that surgery is her only hope, but Sheffield and Leeds have refused to assess her for capacity and administration reasons, not clinical reasons. Will the Minister work with me to ensure that Poppy receives the treatment that she needs?

[Sajid Javid]

I am sorry to hear about the hon. Lady’s constituent, and of course a Minister will meet her.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

T10. I refer to my interest as chair of the all-party parliamentary group on stroke and as the husband of a stroke survivor.Mechanical thrombectomy can be a game-changer for sufferers of strokes, greatly reducing the levels of disability they are left with. NHS England committed itself to a full roll-out of mechanical thrombectomy availability by 2022, but we are lagging seriously behind. Where are the plan and the investment to bring the programme back up to date and on track?

[Maria Caulfield]

I know that my hon. Friend has a personal interest in improving stroke services. I can reassure him that the national stroke service model was published by NHS England and NHS Improvement in May this year, and that as of 1 April there are 20 operational integrated stroke delivery networks, bringing together key stakeholders to improve the diagnosis, treatment and rehabilitation of those who have suffered a stroke.

[Daisy Cooper (St Albans) (LD)]

Ambulance response times are at their highest since records began. A month ago, on 22 October, I tabled a parliamentary question asking the Secretary of State how many ambulance trusts had moved into level 4—the level at which potential failures creep into the service. I am still awaiting an answer. Will the Minister answer that question today, please?

[Edward Argar]

If the hon. Lady supplies the number of the question, I will ensure that it is dealt with today. As for her broader point, yes, ambulance services across the country are under significant pressure this winter, which is one of the reasons why we have already invested an additional £55 million in helping them to cope with that pressure.

[Mr Speaker]

I call the Chairman of the Health and Social Care Committee, Jeremy Hunt.

[Jeremy Hunt (South West Surrey) (Con)]

Thank you, Mr Speaker.

The Secretary of State knows that some in Government are worried about the extra cost of training additional doctors, but does he agree that every additional doctor we train means one fewer locums that the NHS has to hire, which is cheaper for the NHS and better for patients?

[Sajid Javid]

I agree that we want more and more full-time doctors, which will mean that there is less demand for locums and is, of course, very good for the NHS. I also agree that there should be more focus on the workforce, and I hope that my right hon. Friend welcomes the measure that I took yesterday of merging Health Education England with the NHS, so that we can have a much more joined-up workforce plan.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

Andrew Dilnot, whose commission undertook the inquiry into social care nearly 10 years ago, says that the impact of the Government’s social care plans on working-age disabled people will be “catastrophic”. What is the Government’s assessment of the impact?

[Sajid Javid]

The hon. Lady is right to raise the importance of doing everything we can to look after working-age people who need social care. As she will know, the total funding of social care from the state now constitutes most of the funding, and it is right that all needs are met through those funds. As for the new plan, everyone will benefit—no one will lose out from this versus the current system—so the vast majority of people will be better off, including working-age adults.

[Daniel Kawczynski (Shrewsbury and Atcham) (Con)]

The Minister has heard from my right hon. Friend and neighbour the Member for Ludlow (Philip Dunne) how essential it is that the £320 million we have secured for the Future Fit programme be released, so that construction can start. We are beginning to see a definite negative impact on A&E services because of the seven or eight years of delays. Please will the Minister do everything possible to ensure that the money is finally released and construction can start?

[Edward Argar]

I am grateful to my hon. Friend, and likewise to my right hon. Friend the Member for Ludlow (Philip Dunne), who has campaigned vigorously this issue. We now have the outline business case from the trust, and we are reviewing it at pace to ensure that we can deliver the investment in both of Shropshire’s hospitals that they need to continue to serve my hon. Friend’s and colleagues’ constituents.

[Jeff Smith (Manchester, Withington) (Lab)]

My 90-year-old constituent, Jimmy, fell in his garden recently and broke his hip. When his family rang 999, they were told that it would be up to 14 hours before an ambulance could attend. The family got the fire brigade out after two and a half hours to sort him out. When the Government going to get a grip on the crisis in our ambulance services?

[Edward Argar]

The hon. Gentleman might have done this already, but if he wishes to, I would be grateful if he wrote to me about that case, not only to see whether there is anything I can do, but because it is always interesting and useful to hear from individual Members about specific incidents. To his broader point, as I set out to the hon. Member for St Albans (Daisy Cooper), we have invested £55 million this year ahead of the winter to support our ambulance services, but it is entirely true to say that they are under considerable pressure this winter across the country.

Petition

Tuesday 23rd November 2021 Commons Chamber

Mr Steve Baker (Wycombe) (Con)

- - Excerpts

The residents of Pine Trees in High Wycombe bought their homes on the basis that the council would adopt open spaces—indeed, they have supplied evidence that the council’s original intention was that a planning obligation should secure just that—but it has not happened. I am therefore pleased to have received a petition signed by three but accompanying a much longer petition signed by 524 residents.

The petition states:

The petitioners therefore request that the House of Commons urge the Government to legislate to ensure in future if planning is granted on particular conditions, and these are not carried through by a council, then that council is responsible for remediation and to ask the relevant Member to seek to broker a solution.

I will of course seek to broker a solution to this problem.

Following is the full text of the petition:

[The petition of residents of the constituency of Wycombe,

Declares that planning permission for Pine Trees was granted by the local authority (now Buckinghamshire Council) on the condition that the developer, Taylor Wimpey, paid a commuted sum to support the upkeep of the open spaces and play areas known as Bobcat Park, allowing for the local authority to adopt the park; notes that the local authority failed to include any mention of said commuted sum in the Section 106 planning conditions for the development; notes that the developer sold, and continued to sell, homes at Pine Trees on the basis that Bobcat Park would be adopted by the local authority and that residents would not need to pay anything towards upkeep of the park; notes that in connection with a separate planning condition, the developer has paid to the local authority more than £2 million for the creation of a bus link scheme which has since been abandoned, leaving funds available to support adoption of the park; and notes that in the absence of a commuted sum, the local authority has indicated its opposition to adopting the park, leaving the costs of maintenance to be borne by the residents at the development, conflicting directly with what they had been told.

The petitioners therefore request that the House of Commons urge the Government to legislate to ensure in future if planning is granted on particular conditions, and these are not carried through by a council, then that council is responsible for remediation and to ask the relevant Member to seek to broker a solution.

And the petitioners remain, etc.]

[P002698]

Point of Order

Tuesday 23rd November 2021 Commons Chamber

13:35

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

On a point of order, Mr Speaker. On 18 November, the same day as the statement was made in this House on the integrated rail plan, Transport for the North was written to by the Department for Transport setting out changes in relation to its future operation. In essence, the already limited powers of TfN are to be further reduced and its budget cut again. This comes after TfN’s recommendations on the integrated rail plan were largely rejected, with the scaling back of previously promised investment plans for northern England’s rail network.

As you know, Mr Speaker, rail infrastructure investment is a central part of the levelling-up agenda, which in turn is meant to be a central part the Government’s strategy to increase overall UK economic growth. These changes to TfN represent a significant policy development, with consequences for the levelling-up agenda, and as such they should be discussed in this House. With no Transport questions scheduled until 16 December, Mr Speaker, have you been told whether Ministers intend to make a statement in this House on TfN’s future? If not, could you advise on how we might best summon Ministers to the House to answer questions on this matter?

[Mr Speaker]

First, I am grateful to the right hon. Member for giving me notice of her point of order. The short answer is that I have not had any notice from the Government that they wish to make a statement on the important subject that she has raised. She might wish to speak to the Clerks in the Table Office about other ways to pursue this subject. She has also put her point on the record and those on the Treasury Bench will have heard it; and there are always other ways, such as an urgent question.

Climate Education

1st reading
Tuesday 23rd November 2021 Commons Chamber

Motion for leave to bring in a Bill (Standing Order No. 23)

13:37

[Nadia Whittome (Nottingham East) (Lab)]

I beg to move,

That leave be given to bring in a Bill to require matters relating to climate change and sustainability to be integrated throughout the curriculum in primary and secondary schools and included in vocational training courses; and for connected purposes.

Madam Deputy Speaker, 2050 is the year that the world needs to reach net zero. This will require fundamental changes to every sector of our economy unprecedented in their overall scale. For some, 2050 might feel like it is a long way away. In the next 30 years, Governments will come and go and many Members of this House will retire, but for my generation and for those who are still in school—young people who have their whole future ahead of them—2050 will be the middle of their working lives. A child who started primary school this September will not even be 35. The world and the economy that they inherit will feel very different from those of today.

If our education system is not preparing young people to mitigate and deal with the impacts of climate change, it is failing them. If it is not teaching them the knowledge and skills they need to thrive in a net zero society, it is failing them. If young people are not being taught to understand the impact of human interaction with the natural world and the need to maintain biodiversity and cut our carbon emissions, it is failing them and our planet. This Bill aims to put that right and to prepare young people for the future, and this Bill is what young people are demanding. In 2018, one survey found that 42% of pupils felt that they had learned a little, hardly anything or nothing about the environment at school, and 68% said that they would like to know more.

This Bill exists only because of the hard work of young people. School students from Teach the Future, who have joined us today in the Public Gallery, have spent the past two years campaigning relentlessly to be taught the truth about the climate crisis and to be equipped with the skills to tackle it. Their campaign has put this issue on the agenda; it now falls to us to put it into law.

The Bill comes in the same month that the UK hosted the COP26. If we want to know whether something was a success, we need to start by asking the people who have the most to lose—people such as 15-year-old Safia Hasan, a climate activist from Chad, who said:

“I’m hugely disappointed and hugely let down by COP. Coming from Chad, millions of my people are suffering but nobody is listening to our cries, our tears. It’s our planet, and it’s time to stop messing about with our future.”

Notwithstanding the disappointing outcomes on climate finance, decarbonising of the energy sector and just transition initiatives, however, I welcome the Government announcement at COP26 that they will take action to promote greater teaching of climate change in the curriculum. That is a key first step and a vital recognition of the importance of climate education, but a voluntary scheme such as the one announced can achieve only so much, and unfortunately the fine print of the announcement was such that it amounts to little more than teachers being sent PowerPoint presentations.

While teaching about the climate remains voluntary, many young people will continue to miss out. Teachers must also be supported to deliver climate education, given that 70% of teachers feel that they have not received adequate training to educate young people about climate change. This Climate Education Bill would make climate education mandatory, embedding it across the national curriculum and ensuring that all teachers receive training. It would be intertwined with every subject, a golden thread that runs through a young person’s schooling, just as the climate crisis and our actions to tackle it run through every aspect of our lives.

Whether those young people grow up to be a builder or a banker, a carer or a caterer, the climate crisis will affect everyone. We need to train the next generation of plumbers to install low-carbon heat pumps, and teach the next generation of chefs about sustainable diets and sustainable food production. This Bill would ensure that climate change is given the emphasis in our education system that it deserves.

The climate and ecological crisis impacts everything around us. Pandemics, such as the one that has turned our world upside-down for the past two years, will become more frequent as loss of habitat forces animals to migrate and come into contact with other animals or people. Climate education will help young people to understand the world around them and provide access to nature and opportunities for children to engage with our natural world. Some 57% of child and adolescent psychiatrists in England see patients who are distressed about the climate crisis and the state of the environment. The Bill would provide support for students to deal with eco and climate anxiety, which climate education will also mitigate, as it will empower students to understand what actions they can take to help tackle climate change and the role that they will play in the future.

I hope that the Government will recognise the Bill as a natural continuation of their announcement at COP26. I hope it will encourage them to go further—to legislate to make climate change part of the core content of all subjects, to support teachers to deliver climate education and to decarbonise the education sector much faster. Not only young people but our entire economy stands to benefit. Our green jobs and recovery plans lag far behind those of most G7 countries. The availability of the right skills and a keen interest in sustainability will pave the way to a productive green transformation and decent job creation.

I am delighted and grateful that the Bill includes among its sponsors the Chairs of the Environmental Audit Committee, the Select Committee on Education, and the Business, Energy and Industrial Strategy Committee. I pay particular thanks to the right hon. Member for Ludlow (Philip Dunne) for his continued leadership on skills and training as part of a just transition to a greener economy, as well as for his personal kindness and support for this campaign.

It is important to be honest about the climate and ecological emergency, but it is also important to remember how much we still have to fight for. Every ray of hope and every inch of progress at COP26 was won through relentless pressure from activists and campaigners, especially those on the frontlines of the crisis. Change has always happened this way, and always will. The next generation are calling on us to take these steps, to secure their future. I want us to listen to them and act for them. Some of us may not be around to see the full results of our actions, but our legacy will live on. We must decide: do we want to be remembered for what we did or for what we failed to do? Young people’s futures depend on us. We must not let them down.

Question put and agreed to.

Ordered,

That Nadia Whittome, Philip Dunne, Robert Halfon, Caroline Lucas, Layla Moran, Mhairi Black, Yvette Cooper, Rebecca Long Bailey, Zarah Sultana, Darren Jones, Clive Lewis and Jeremy Corbyn present the Bill.

Nadia Whittome accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 28 January 2022, and to be printed (Bill 197).

Health and Care Bill

Report stage
Tuesday 23rd November 2021 Commons Chamber

2nd Allocated Day

Further consideration of Bill, as amended in the Public Bill Committee

[Relevant documents: First Report of the Health and Social Care Committee, The Government’s White Paper proposals for the reform of Health and Social Care, Session 2021-22, HC 20; Fifteenth report of the Joint Committee on Human Rights, Care homes: Visiting restrictions during the covid-19 pandemic, Joint Committee on Human Rights, Session 2019-21, HC 1375 / HL 278; Second Special Report of the Joint Committee on Human Rights, Care homes: Visiting restrictions during the covid-19 pandemic: Government Response to the Committee’s Fifteenth report of session 2019-21, Session 2021-22, HC 553; Letter from the Care Quality Commission regarding the Committee’s report on Care homes: Visiting restrictions during the covid-19 pandemic, dated 18 May 2021; Report of the Joint Committee on the Draft Health Service Safety Investigations Bill, Draft Health Service Safety Investigations Bill: A new capability for investigating patient safety incidents, Session 2017-19, HC 180 / HL 1064, and Government Response, Cm 9737.]

New Clause 36

Offence of virginity testing: England and Wales

“(1) It is an offence under the law of England and Wales for a person to carry out virginity testing.

(2) ‘Virginity testing’ means the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

(3) An offence is committed under subsection (1) only if the person—

(a) is in England and Wales, or

(b) is outside the United Kingdom, and is a United Kingdom national or habitually resident in England and Wales.

(4) ‘United Kingdom national’ means an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 is a British subject, or

(c) a British protected person within the meaning of that Act.

(5) In subsection (2), ‘female genitalia’ means a vagina or vulva.”—(Edward Argar.)

This new clause creates an offence under the law of England and Wales of virginity testing.

Brought up, and read the First time.

13:47

[The Minister for Health (Edward Argar)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

Government new clause 37—Offence of offering to carry out virginity testing: England and Wales.

Government new clause 38—Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales.

Government new clause 39—Virginity testing offences in England and Wales: penalties.

Government new clause 40—Offence of virginity testing: Scotland.

Government new clause 41—Offence of offering to carry out virginity testing: Scotland.

Government new clause 42—Offence of aiding or abetting etc a person to carry out virginity testing: Scotland.

Government new clause 43—Virginity testing offences in Scotland: penalties and supplementary.

Government new clause 44—Offence of virginity testing: Northern Ireland.

Government new clause 45—Offence of offering to carry out virginity testing: Northern Ireland.

Government new clause 46—Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland.

Government new clause 47—Virginity testing offences in Northern Ireland: penalties.

Government new clause 48—Virginity testing: consequential amendments.

New clause 1—Licensing of aesthetic non-surgical cosmetic procedures—

“(1) No person may carry on an activity to which this subsection applies—

(a) except under the authority of a licence for the purposes of this section, and

(b) other than in accordance with specified training.

(2) Subsection (1) applies to an activity relating to the provision of aesthetic non-surgical procedures which is specified for the purposes of the subsection by regulations made by the Secretary of State.

(3) A person commits an offence if that person contravenes subsection (1).

(4) The Secretary of State may by regulations make provision about licences and conditions for the purposes of this section.

(5) Before making regulations under this section, the Secretary of State must consult the representatives of any interests concerned which the Secretary of State considers appropriate.

(6) Regulations may, in particular—

(a) require a licensing authority not to grant a licence unless satisfied as to a matter specified in the regulations; and

(b) require a licensing authority to have regard, in deciding whether to grant a licence, to a matter specified in the regulations.”

This new clause gives the Secretary of State the power to introduce a licensing regime for aesthetic non-surgical cosmetic procedures and makes it an offence for someone to practise without a licence. The list of treatments, detailed conditions and training requirements would be set out in regulations after consultation with relevant stakeholders.

New clause 12—Protection of the title of “nurse”—

“(1) A person may not practise or carry on business under any name, style or title containing the word ‘nurse’ unless that person is registered with the Nursing and Midwifery Council and entered in sub part 1 or 2 of the register as a Registered Nurse or in the specialist community public health nursing part of the register.

(2) Subsection (1) does not prevent any use of the designation ‘veterinary nurse’, ‘dental nurse’ (for which see section 36K of the Dentists Act 1984) or ‘nursery nurse’.

(3) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level four on the standard scale.”

New clause 21—Prohibition of virginity testing—

“(1) A person is guilty of an offence if they attempt to establish that another person is a virgin by making physical contact with their genitalia.

(2) A person is guilty of an offence if they provide another person with a product intended for the purpose, or purported purpose, of establishing whether another person is a virgin.

(3) A person is guilty of an offence if they aid, abet, counsel or procure a person to establish that another person is a virgin by making physical contact with their genitalia.

(4) No offence is committed by an approved person who performs—

(a) a surgical operation on a person which is necessary for their physical or mental health; or

(b) a surgical operation on a female who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.

(5) The following are approved persons—

(a) in relation to an operation falling within subsection (4)(a), a registered medical practitioner; and

(b) in relation to an operation falling within subsection (5)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

(6) There is also no offence committed by a person who—

(a) performs a surgical operation falling within subsection (4)(a) or (b) outside the United Kingdom; and

(b) in relation to such an operation exercises functions corresponding to those of an approved person.

(7) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.

(8) This section applies to any act done outside the United Kingdom by a United Kingdom national or resident.

(9) A person who is guilty of an offence under this section is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine, or to both.

(10) The court must refer the case of any person guilty of an offence under this section who is subject to statutory professional regulation for investigation by the relevant regulator.”

New clause 22—Prohibition of hymenoplasty—

2(1) A person is guilty of an offence if they undertake a surgical procedure for the purpose of re-attaching membrane tissue, creating scar tissue or otherwise attempting to re-create the hymen in the vagina of a patient.

(2) A person is guilty of an offence if they advertise the service of hymenoplasty or any service that purports to ‘re-virginise’ or otherwise re-create or re-attach the hymen of a patient by way of surgical procedure.

(3) A person is guilty of an offence if they aid, abet, counsel or procure a person to undertake a surgical procedure for the purpose of re-attaching membrane tissue, creating scar tissue or otherwise attempting to or re-creating the hymen in the vagina of a patient.

(4) This section applies to any act done outside the United Kingdom by a United Kingdom national or resident.

(5) A person who is guilty of an offence under this section is liable, on conviction, to imprisonment for a term not exceeding 5 years.

(6) The court must refer the case of any person guilty of an offence under this section who is subject to statutory professional regulation for investigation by the relevant regulator.”

New clause 28—Secretary of State’s duty to report on long term workforce planning—

“(1) The Secretary of State must prepare and publish a report each year on projected workforce shortages and future staffing requirements for health, public health and social care sectors in the following five, ten and twenty years.

(2) The report must report projections of both headcount and full-time equivalent for the total health, public health and care workforce in England and for each region, covering all regulated professions and including those working for voluntary and private providers of health and social care as well as the NHS.

(3) The projections must be independently verified and based on projected health and care needs of the population for the following 5, 10 and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(4) All relevant NHS bodies, arm’s-length bodies, expert bodies, trade unions and the Social Partnership forum must be consulted in the preparation of the report.

(5) The assumptions underpinning the projections must be published at the same time as the report and must meet the relevant standards set out in the National Statistics Authority’s Code of Practice for Statistics.

(6) The Secretary of State must update Parliament each year on the Government’s strategy to deliver and fund the long-term workforce projections.”

New clause 29—Duty on the Secretary of State to report on workforce planning and safe staffing—

“(1) At least every five years the Secretary of State must lay before Parliament a health and care workforce strategy for workforce planning and safe staffing supply.

(2) This strategy must include—

(a) actions to ensure the health and care workforce meets the numbers and skill-mix required to meet workforce requirements,

(b) equality impact assessments for planned action for both workforce and population,

(c) application of lessons learnt from formal reviews and commissions concerning safety incidents,

(d) measures to promote retention, recruitment, remuneration and supply of the workforce, and

(e) due regard for and the promotion of workplace health and safety, including provision of safety equipment and clear mechanisms for staff to raise concerns.”

Amendment 10, in clause 34, page 42, line 12, leave out from beginning to the end of line 17 and insert—

“(1) The Secretary of State must, at least once every two years, lay a report before Parliament describing the system in place for assessing and meeting the workforce needs of the health, social care and public health services in England.

(2) This report must include—

(a) an independently verified assessment of health, social care and public health workforce numbers, current at the time of publication, and the projected workforce supply for the following five, ten and 20 years; and

(b) an independently verified assessment of future health, social care and public health workforce numbers based on the projected health and care needs of the population for the following five, ten and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(3) NHS England and Health Education England must assist in the preparation of a report under this section.

(4) The organisations listed in subsection (3) must consult health and care employers, providers, trade unions, Royal Colleges, universities and any other persons deemed necessary for the preparation of this report, taking full account of workforce intelligence, evidence and plans provided by local organisations and partners of integrated care boards.”

This amendment would require the Government to publish independently verified assessments every two years of current and future workforce numbers required to deliver care to the population in England, based on the economic projections made by the Office for Budget Responsibility, projected demographic changes, the prevalence of different health conditions and the likely impact of technology.

Amendment 40, in clause 108, page 96, line 9, leave out subsection (2) and insert—

“(2) In this Part ‘protected material’ means—

(a) all statements taken from persons by the HSSIB during a safety investigation or in the course of deciding whether an incident is going to be subject to an HSSIB investigation,

(b) records revealing the identity of persons who have given evidence in the context of the safety investigation,

(c) information that has been collected by the HSSIB which is of a particularly sensitive and personal nature, such as (but not limited to) copies taken by the HSSIB of health records, care records, clinical notes, or personnel records,

(d) material subsequently produced during the course of an HSSIB investigation such as (but not limited to) notes, drafts and opinions written by the investigators, or opinions expressed in the analysis of information obtained through the investigation,

(e) drafts of preliminary or final reports or interim reports, and

(f) information that would be subject to legally enforceable commercial privileges.”

This amendment would define more closely the materials covered by the “safe space” protection provided for by the Bill.

Amendment 41, page 96, line 32, leave out

“information, document, equipment or other item held by that individual”

and insert “protected material”.

This amendment is consequential on Amendment 40.

Amendment 43, in clause 109, page 96, line 43, leave out from “Part” to end of line 24 on page 97.

This amendment would remove the ability of the Secretary of State to make regulations authorising disclosure of protected material beyond that provided for in the Bill.

Amendment 74, page 101, line 1, leave out clause 115.

Government amendments 24 and 127.

Amendment 57, page 110, line 11, leave out clause 127.

This amendment seeks to ensure that a profession currently regulated cannot be removed from statutory regulation and that regulatory bodies cannot be abolished.

Government amendments 86 and 87.

Government new schedule 1—Virginity testing: consequential amendments.

Government amendment 88.

Amendment 42, in schedule 14, page 218, line 30, leave out paragraph 6.

This amendment would remove the provision allowing coroners to require the disclosure of protected material.

[Edward Argar]

This broad group of amendments concern improving patient safety and the quality of health and care services, both of which are a priority for this Government. For that reason, this Bill will put the Health Services Safety Investigations Body on a statutory footing. The HSSIB will be one of the first independent healthcare bodies of its kind, leading the way in investigating for the purpose of learning, not blaming. For the HSSIB to be able to perform this “no-blame” role, the integrity of safe space is paramount. I look forward to contributions from right hon. and hon. Members from both sides of the House, recognising the depth of expertise, particularly that residing in the hon. Member for Central Ayrshire (Dr Whitford), on how best to make safe space work. As we discussed extensively in Committee, we recognise that ultimately this comes down to: what is the appropriate balance to be struck? Different views are likely to be aired again today.

Within this group, I will also address amendments brought forward by colleagues, including my right hon. Friend the Member for South West Surrey (Jeremy Hunt), on the health and social care workforce. Ensuring we have the workforce this country needs will, in the short-term, tackle the elective backlog. Crucially, in the long-term, as we build back better, it will help to reduce damaging health inequalities. For those reasons, I will later speak in more detail about this Government’s plans on the workforce, some of which of course are already in motion. I hope I can reassure the House that the provisions already made in this Bill, alongside the Government amendments I am about to discuss, do go sufficiently far to address these important issues.

I will begin by addressing new clauses 36 to 48, new schedule 1 and amendments 86 and 87, which comprise the package of Government amendments to prohibit virginity testing in the UK. I offer my deepest thanks to my hon. Friend the Member for North West Durham (Mr Holden) for his tireless efforts in proposing these amendments originally and in supporting the Government in proposing our variations on them, which we believe achieve the right balance—I will turn to that in a moment—as we bring forward this ban.

I should also put on the record my gratitude to the Opposition Front-Bench team for their constructive engagement on this issue, which does not divide us on party political lines but is about doing the right thing. I am grateful to the shadow Ministers on the Opposition Front Bench: the hon. Members for Ellesmere Port and Neston (Justin Madders) and for Nottingham North (Alex Norris).

In July, the Government promised in our violence against women and girls strategy that virginity testing will not be tolerated in the UK and will be banned at the earliest opportunity, so I am delighted that we are introducing amendments that demonstrate the strength of our commitment to the removal of all forms of abuse against women and girls. Our amendments will create three offences: conducting a virginity test; offering virginity testing; and aiding or abetting another person to conduct a virginity test in the UK or on UK nationals overseas. Each offence will carry a maximum penalty of five years’ imprisonment and/or an unlimited fine. This sentencing reflects the long-term physical and psychological damage that this repressive practice can cause.

The offences begin to tackle the harmful misconceptions that surround a woman’s sexuality. This House’s commitment to legislate is a profoundly important step forward in helping to tackle the damaging myths concerning the so-called purity of women’s sexuality. In response to concerns that, once the offence is banned in the UK, vulnerable women and girls will be taken abroad and subjected to virginity testing there, the offences will carry extraterritorial jurisdiction.

The proposals have been discussed by Health Ministers throughout the UK, including in the devolved Administrations, and I am working with them to ensure that the whole of the UK together tackles this abhorrent practice. I put on record my gratitude to the devolved Administrations for the constructive manner in which they have engaged on the issue. I hope that the House will pass the amendments today and allow us to take another step forward in our shared endeavour and important work on safeguarding and improving the lives of women and girls throughout the United Kingdom.

Let me turn briefly to new clause 21, tabled by my hon. Friend the Member for North West Durham—I thank him again for doing so. I hope that what I have said will reassure him and the rest of the House that the package of Government amendments that I have just discussed go further to protect women and girls from this form of abuse and are the most effective vehicle by which we can achieve what we seek to do. Our package of amendments set out that the conducting, offering or aiding of a virginity test is simply indefensible. The amendments ensure that victims are protected on our shores and abroad and that the sentencing of those convicted reflects the detrimental physical and psychological impacts of the practice. I therefore hope that my hon. Friend will feel able not to press his new clause to a vote and instead to support our amendments. I am incredibly grateful to him—as, I am sure, is the House—for his campaigning vigour on this issue.

My hon. Friend also tabled new clause 22, which seeks to ban the practice of hymenoplasty. The Government remain concerned that hymenoplasty is also driven by a repressive approach to female sexuality and is closely related to virginity testing, which we have made clear today is not an acceptable practice in the United Kingdom or elsewhere. We announced in the violence against women and girls strategy that we would set up an independent expert panel to explore the complex clinical, legal and ethical aspects of the procedure in more detail. The panel, which includes key stakeholders with ethical and clinical expertise, has already met and will shortly make its recommendations to Ministers, before Christmas. It is crucial that, having asked the panel to contribute, we carefully consider its views before we make a firm decision to ban hymenoplasty. However, I assure the House that although we cannot accept the new clause today because we await the recommendations of the review panel, we will of course fully reassess our position as soon as the panel makes its recommendations.

If we are to ensure patient safety and quality of care, it is vital that we have the workforce in place to deliver it. That is a priority for the Government and I reassure the House that we are taking the necessary steps to secure the workforce of the health and social care sector. Members throughout the House would all agree that although investment in technology, in new hospitals and buildings, in therapeutics and in kit are all phenomenally important, the golden thread that makes that investment valuable is the workforce—the people who always go above and beyond, particularly in the past 18 months, to make that equipment more than just a shiny piece of kit but something that actually saves lives. They are absolutely the heart of what we are doing.

[Chris Grayling (Epsom and Ewell) (Con)]

I am particularly concerned about the workforce situation in primary care. In my constituency, the practices are reporting back not only on an acute shortage of locums, but on their ability to recruit new GPs. One reason is that, 10,15, 20 years ago, there was inadequate planning for the future and we did not train enough doctors. That is one reason why I have signed amendment 10 tabled by my right hon. Friend the Member for South West Surrey (Jeremy Hunt). May I urge the Government to go beyond where they have been and to look for any way available to deal with this issue now, and particularly to plan for the future so that this does not happen again?

[Edward Argar]

My right hon. Friend is perspicacious in his prediction of where I was about to go. I was about to turn to amendment 10 tabled by my right hon. Friend the Member for South West Surrey and new clause 28 tabled by the shadow Minister, which go to the heart of what my right hon. Friend is talking about.

I hope the shadow Minister will agree that amendment 10 and new clause 28 are, essentially, broadly unified in their intention and therefore I hope that he will allow me to take them both together. They require the Government to publish independently verified assessments of current and future workforce numbers for the needs of the health, social care and public health services in England.

There has rightly been much discussion on workforce planning for the NHS and adult social care. That reflects the deep debt of gratitude that the country owes the staff and also, as I said, their absolute indispensability in delivering on all our aspirations for healthcare and social care in this country and for our constituents’ care.

As part of our commitment to improving workforce planning, my Department is already doing substantial work to ensure that we recover from the pandemic and support care. We have already committed to publishing, in the coming weeks, a plan for elective recovery and to introducing further reforms to improve recruitment and support for our social care workforce, with further detail set out in an upcoming social care White Paper. We are also developing a comprehensive national plan for supporting and enabling integration between health, social care and other services, which support people’s health and wellbeing.

Let me turn to that framework, to which my right hon. Friend the Member for Epsom and Ewell (Chris Grayling) was alluding, for a longer-term perspective. The Department has already commissioned Health Education England to work with partners to develop a robust, long-term 15-year strategic framework for the health and social care workforce, which, for the first time, will include regulated professionals in adult social care. That work was commissioned in July by my hon. Friend the Member for Faversham and Mid Kent (Helen Whately) when she was in post in the Department. That work will look at the key drivers of workforce demand and supply over the longer term and will set out how they impact on the required shape and numbers of the future workforce to help identify those main strategic choices, and we anticipate publication in spring of next year.

It is vital that the workforce planning is closely integrated to the wider planning across health and social care and, as such, Health Education England, which has established relationships with the health and care system at a local, regional and national level, is best placed to develop such a strategy. Crucially, following the announcement yesterday of HEE merging with NHS England in improvement, we will, for the first time, bring together those responsible for planning services, for delivering services on the ground, and for delivering on the workforce needs of those services so that we can have a more integrated approach to delivering on that framework.

[Richard Fuller (North East Bedfordshire) (Con)]

I am grateful to the Minister for giving way. There is much to commend in the amendment of my right hon. Friend the Member for South West Surrey (Jeremy Hunt) and in what the Minister is saying. One thing that is not obvious in either, though, is the focus on labour costs and productivity. For example, how is technology going to reduce labour costs in the delivery of the same quality or higher quality of service? What is the possibility of creating new care pathways, which require less qualified staff to deliver as good or better service? What is going on in terms of reducing the proportion of non-clinical staff by the adoption of technology and other means in healthcare? Perhaps the Minister could address that. I am sure that my right hon. Friend will be doing so later, too.

[Edward Argar]

My hon. Friend is absolutely right. We see huge opportunities, almost every day, from new technology and new ways of using that technology to deliver more efficient and shorter turnaround times—for tests and diagnostics, for example. He is also right to talk about the need constantly to examine care pathways, and, where opportunities exist, to use highly qualified healthcare professionals but to look carefully at the most appropriate level at which a treatment or test can be carried out; historically, we may have used healthcare professionals for particular tasks for which they were almost over-qualified. It is right that care pathways are informed by clinical and scientific expertise and judgment, but that we continue to review how new technology, new ways of working and new care pathways can improve the productivity of our amazing workforce.

14:00

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

As part of the Minister’s workforce review, will he look at the Carr-Hill formula, which local GPs tell me incentivises GPs to go to areas with longer life expectancy—therefore, wealthier areas—at the expense of areas such as Hull? It feels like the funding mechanism for GPs is not fair.

[Edward Argar]

The Carr-Hill formula has been through many “almost reviews” over the years and has been looked at by different Governments. Various GP practices in my constituency—as I am sure is the case in the hon. Lady’s—understandably raise opinions about how the formula might be improved. The point does not necessarily goes to the entire heart of what we are discussing, but she has managed deftly to make it within scope, in the context of GPs and so forth.

Finally, the report in clause 34 will increase transparency and accountability of the workforce planning process. It is for those reasons that I encourage—perhaps unsuccessfully—my right hon. Friend the Member for South West Surrey and the shadow Minister, the hon. Member for Ellesmere Port and Neston, to consider not pressing their amendments to a Division.

[Rachael Maskell (York Central) (Lab/Co-op)]

Fifteen years is a long time in workforce planning. The make-up of the workforce could change significantly over that time, not least as we are trying to address some real workforce crises now. Will the Minister put in place a road map to fill those vacancies over that time, and interim reports so that we can review progress?

[Edward Argar]

I set out the commissioning of the 15-year framework to look at need. Within that, the House will be regularly updated, as happens now—not least in oral questions, as we saw in the session preceding this debate—with plenty of opportunities for Members to challenge the Government and to see updates. There is also the regular publication of figures and workforce statistics, which will continue. Once we have that 15-year framework back and see what HEE says, we will be able to look at how best that might be interrogated by Members of the House and the wider public. I am hopeful that it will report back in the spring, and I suspect that that may well occasion a debate in this House. If not, I suspect that it may well occasion an urgent question from the hon. Lady or the hon. Member for Ellesmere Port and Neston.

Let me turn to new clause 29, which also addresses the issue of workforce planning. This new clause would place a duty on the Secretary of State to report on workforce planning and safe staffing. I have just elaborated at some length on the substantial work that my Department is doing to improve workforce planning. It remains the responsibility of local clinical and other leaders to ensure safe staffing, supported by guidance and regulated by the Care Quality Commission. The ultimate outcome of good-quality care is influenced by a far greater range of issues than how many of each particular staff group are on any particular shift at any one time, even though that is clearly important, which is why the Government are committed to growing the health workforce. It is also important that local clinical leads can make decisions based on the circumstances in their own particular clinical setting, utilising their expertise and knowledge.

The amendment would also require the report to contain a review of lessons learnt. In the last decade, the Government have introduced significant measures to support the NHS to learn from things that go wrong, reduce patient harm and improve the response to harmed patients, such as: a regulated duty of candour that requires trusts to tell patients if their safety has been compromised and apologise; protections for whistleblowers when they raise safety concerns; the Healthcare Safety Investigation Branch, which we are building on and establishing as a separate statutory body through the Bill; and the first-ever NHS patient safety strategy, with substantial programmes planned and under way to create a safety and learning culture in the NHS.

I hope I have given the House some reassurance that we are doing substantive work to improve safe staffing and workforce planning. Again, I encourage the shadow Minister—perhaps it will be unsuccessful, but it is always worth trying—to consider withdrawing his amendment.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

New clause 29(2)(d) has merits, as I am sure the Minister will accept, in that we need to incentivise people to join health and care, and, crucially, to be retained with the system. Will he give some consideration to this, particularly given that, for example, somebody working in the care system can work for years and years and still be in the same place when it comes to applying for a training place in a profession allied to medicine as somebody who simply has a couple of A-levels? That seems to be wrong. Does he agree that we need to complete the structure so that there is some prospect of progression with health and care and to try to break down the barriers between the two?

[Edward Argar]

As ever, my right hon. Friend—my friend—makes his point well, and, as ever, I will commit to taking it away and reflecting on it very carefully. He is always very considered in the points he makes in this House, so I am happy to look at it.

I turn to Government amendment 127, which I bring forward with support of the Welsh Government. Clause 127 on professional regulation provides additional powers that will widen the scope of section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation. One of the powers within this clause is to enable the regulation of groups of workers concerned with physical and mental health, whether or not they are generally regarded as a profession. This element of the clause falls within the legislative competence of the Senedd. When the section 60 powers are used, they are subject to the existing statutory requirements in schedule 3 of the Health Act 1999— namely, consultation and the affirmative parliamentary procedure. When legislation made using section 60 powers also falls within areas of devolved competence, it will be developed in collaboration with the devolved Administrations. Orders may require the approval of the Scottish Parliament where they concern professions brought into regulation after the Scotland Act 1998, or of the Welsh Assembly where the order concerns social care workers. In Northern Ireland, where the regulation of healthcare professions is a transferred matter, the UK Government will continue to seek the agreement of the Northern Ireland Executive when legislating on matters that effect regulation in its territory.

The amendment introduces a requirement to obtain the consent of Welsh Ministers before an Order in Council can be made under section 60 of the Health Act 1999 when it contains a provision that would be within the legislative competence of the Senedd. It would apply if we were seeking to bring into regulation in Wales a group of workers who are concerned with physical or mental health of individuals but who are not generally regarded as a profession. The UK Government recognise the competence of the Welsh Government regarding this provision and are respecting the relevant devolution settlement in making this amendment. For these reasons, I ask hon. Members to support the amendment.

Finally, I turn to the amendments related to part 4 of the Bill on the health services safety investigations body. These are the most significant set of provisions found within this Bill to enhance patient safety. The establishment of an independent healthcare body focused on learning from mistakes to improve safety and quality is a world first. For the health service safety investigations body to be able to perform this “no-blame” role, the integrity of safe space is paramount. Without it, health and care staff will not have confidence to come forward, and potential learning will be lost. This principle runs throughout the drafting of these clauses. We have made a small number of exceptions in the Bill—for example, to ensure that coroners can continue to perform their vital functions as judicial office holders and effectively as part of the judiciary. We have also provided for a regulation-making power to ensure that safe space can evolve in line with innovation in technology or medical practice. However, nothing in the Bill can or will undermine the imperative that the HSSIB is an independent organisation or the fundamental importance of safe space to the effective working of that organisation.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Will the Minister give way?

[Edward Argar]

Yes, of course, although I do so with a degree of trepidation, because the hon. Lady is well versed in these issues.

[Dr Whitford]

The Minister does not need to be anxious, because he has already heard it all in Committee. Does he not recognise that there is nothing in HSSIB that takes away from coroners’ investigations that they carry out at the moment, and that HSSIB should not be seen as replacing that work by another health body? Adding coroners to it has already created a campaign relating to the ombudsman and freedom of information, and there is a real danger that it weakens the safe space.

[Edward Argar]

I am grateful for the manner in which the hon. Lady puts her points. She is right; we have debated this previously. We have been publicly clear that we do not believe that the exemption or exception should be extended to the ombudsman. She is right that there are campaigns saying we should have no exceptions or that we should widen the exceptions. We believe we have struck the right balance with this measure, while respecting the fact that a coroner is a judicial office holder and has a very specific function to perform, as set out in legislation in—this is where my memory may fail me—the Coroners and Justice Act 2009, which recognises their particular and special status. I suspect that she and I may have to agree to disagree on whether the appropriate balance is struck, but that sets out why we have done what we have done.

How best to achieve an effective safe space is complex and the current drafting has been arrived at through years of detailed policy work, including pre-legislative scrutiny before the Health Service Safety Investigations Bill was introduced in the other place in autumn 2019. The issue was also debated at length in Committee, and I look forward to hearing contributions from Members on that, particularly the hon. Member for Central Ayrshire.

Turning to the two minor and technical Government amendments to the health service safety investigations body provisions, amendment 24 is a technical amendment to clarify the definition of “investigation” that applies to part 4 of the Bill. Investigations carried out by HSSIB by agreement under clause 114, which relate to Wales and Northern Ireland, were never intended to be part of the main investigation function of HSSIB and therefore will not be covered by the safe space or other investigatory power provisions provided for in the Bill. The amendment ensures that the drafting of the Bill fully reflects that original policy position. I hope that hon. Members on both sides of the Chamber will be content to pass this technical amendment.

Finally, I turn to Government amendment 88 to schedule 13. Schedule 13 contains a regulation-making power which allows the Treasury to vary the way any relevant tax has effect in relation to associated transfer schemes. Regulations made under this power will be used to ensure that no unintended tax consequences arise. The amendment ensures that value added tax is included in the taxes which the Treasury can, by regulations, vary when considering the transfer schemes in this Bill. Without this amendment, it is possible that complications with VAT bills may arise when transfer schemes are made and transactions take place. It is for those reasons that I ask hon. Members to support this amendment.

I am conscious that other hon. and right hon. Members may wish to speak to their amendments. I look forward to addressing those that I have not directly addressed thus far when I wind up debate on this group of amendments. With that, I conclude.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I thank the Minister for his introduction. It seems like only yesterday that we were having a similar exchange across the Dispatch Box.

I will begin with our new clauses 28 and 29 and amendment 10. This discussion about workforce could well be the most important of all today. Just this weekend, Chris Hopson from NHS Providers was trying to get the Government to acknowledge the seriousness of the problem when he tweeted:

“93k NHS staff vacancies. £6bn spend on temporary staff to fill gaps. 55% of staff working unpaid extra hours each week. 44% saying they’ve felt ill with work related stress. NHS desperately needs long term workforce planning. Govt must make this happen this week.”

Everything comes back to workforce and the failure to invest in it consistently over a sustained period. Today we have a chance to correct that.

While we favour our new clause 29, it is obvious that amendment 10 has captured the attention of many and may well be put to a vote. In many ways, as the Minister said, it closely mirrors what we have put forward, so I will be making my general points on both the new clauses and the amendment. In supporting amendment 10, I pay tribute to the right hon. Member for South West Surrey (Jeremy Hunt), the Chair of the Health and Social Care Committee. Given his previous role, he is well placed to have an informed view on what needs to be done, and he has done that with this amendment without undue hype or drama. The support he has obtained more widely from stakeholders outside the House is impressive; indeed, the way he has united just about the entire sector shows not only his powers of persuasion, but the importance of the issue. He has come close to uniting the entire sector in the past, but that was usually in opposition to something he was proposing, rather than in support. There may be many other areas where we have disagreed in the past, but that does not diminish our support for his call.

14:15

[Jeremy Hunt (South West Surrey) (Con)]

May I just comment that it feels a lot better this time?

[Justin Madders]

Let us just say that the more I hear of the right hon. Gentleman, the more I like what he has to say—I will leave it there.

We all accept the urgent need to address the workforce crisis, but I cannot find anyone who thinks that what the Government have put forward in clause 34 is the solution.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

A doctor in my constituency, Dr Tom James, told me that he and his colleagues in the hospital were demoralised, exhausted and at the end of their tether, particularly after the covid crisis, in a building that was falling apart around them. He said there was no more goodwill, and the Government needed to grab hold of this crisis and resolve it. Are new clause 29 and amendment 10 not a minimum, rather than a maximum, for what we should be looking to achieve?

[Justin Madders]

New clause 29 and amendment 10 are the starting point, not the whole answer. They are a framework for getting this right in the future and offering the workforce, which, as the Minister said, has given so much in recent times, some hope that there will be better times along the way. I will refer later to the report by the Health and Social Care Committee on workforce burnout, which brought home just how demoralised the workforce have become and why they need to be given some positive news today.

[Rachael Maskell]

Anyone who on Sunday was on the March with Midwives will understand the real crisis now facing that profession—a particularly acute once since it is also about women’s health. Is there not a need to ensure that plans are not just on paper, but expedited, so that we are sure of seeing real delivery of those much-needed staff?

[Justin Madders]

Like just about every profession and sector in the NHS, midwives are under tremendous pressure and are understaffed. We need a clear plan, and a plan that is delivered. Of course, having a plan is not the whole answer, which is why it is important that we hear regular reports back from the Secretary of State on progress. That is why we hope amendment 10 will be supported.

[Emma Hardy]

One reason I want to emphasise the importance of new clause 28 is that we are anticipating a greater demand for mental health services, and therefore a greater demand for mental health professionals working in the NHS. Only by having regular reviews will we be able to anticipate what that demand will be and prepare accordingly.

[Justin Madders]

My hon. Friend is correct; we could not have anticipated what has happened in the past 12 to 18 months, but we can see what it means moving forward. Regular reviews of demand are critical, and we know that training these highly qualified and skilled staff takes time, which is why a longer-term view and approach are required.

[Richard Fuller]

I want to pick up on the increasing demand for mental health services. Does the hon. Gentleman accept that in general, it is utterly impossible to meet the expectation of increasing demand for health services without vast improvements in the efficiency with which people working in the health and care sector deliver that service? Is it not a shortcoming of both the Government and the Opposition that there is not an intense focus on solving that problem of labour cost productivity? Without that, we will not be able to meet current needs and we certainly will not meet future needs.

[Justin Madders]

We are always looking at ways to improve productivity, but we know that on the current figures there are 100,000 staff vacancies in the NHS. No amount of productivity gains will cover for that.

[Munira Wilson (Twickenham) (LD)]

The hon. Member for North East Bedfordshire (Richard Fuller) talks about efficiency, but the figures show that in 2019-20, some £6.2 billion was spent on bank and agency staff. If we are talking about efficiency and using all the extra money the Government are saying they will put in to catch-up, we need to provide value for money for the taxpayer. Therefore, long-term planning to recruit the right skills is critical.

[Justin Madders]

I thank the hon. Member for her intervention. The point about agencies and locum spend is not a new one. It will be interesting to see the figures for the last 12 to 18 months when the Minister has finally ratified them, because I suspect they will be even higher than those we have heard recently.

[Dr Whitford]

Having spent over three decades in the NHS, I know that this is not just about senior staff and what are called frontline staff. It is said, “We’ll protect frontline staff, but we’ll cut administrative staff or backroom staff.” However, if I am not in a clinic with the right results with the right patient at the right time, I am a waste of space. In actual fact, we need to look at the whole team. There is a sweet spot where I am working flat out but I have a team who are helping me. If we cut any of those, then we lose efficiency, and as the hon. Member for Twickenham (Munira Wilson) said, costs are going up, so we are becoming not more productive, but less productive.

[Justin Madders]

I thank the hon. Member for her intervention. Indeed, this actually covers some of the debate we had in Committee. There has been a rhetoric coming out of Government in recent months that managers are somehow a cost burden and that administrative staff do not actually help deliver the services. Of course, as the hon. Member has just pointed out, they are a vital source of support for those on the frontline.

[Dr Murrison]

The hon. Member is being generous in giving way. Would he avoid the temptation to suggest that productivity is in some way simply a demand for hard-pressed people in health and social care to work harder? It is not that at all. It is just doing what they want to do, which is to work smarter and thus get more out of the system, which I think is what the hon. Member for Central Ayrshire (Dr Whitford) has just said.

[Justin Madders]

I accept what the right hon. Member has said. There has been a gap in investment in IT and other things that make people’s jobs easier and more efficient, and that has been a characteristic of NHS spending over the last decade.

With your permission, Madam Deputy Speaker, I will try to make some progress, but it is important, as we have talked about the staff, that we pay tribute to all those who make the NHS what it is today. On Nursing Support Worker Day, I pay tribute to all those who work in wards, clinics and community settings to support our nurses and provide that essential hands-on care to patients.

Our care system does indeed face a crisis—over waiting times, over recovery—but as with all other crises, the root cause is inadequate funding. The most visible and significant symptom is an inadequate workforce, plus the scandal of social care provision. There is no plan at the moment; it is just a plan for a plan. When we talk about a workforce crisis, that cannot be in any way a reflection on the huge value and contribution of the workforce we have now.

There are particular positive aspects to amendment 10 to which I would like to draw attention. Explicit recognition of the need to consult with the workforce through trade unions is very welcome. The planning covers health and social care, which is also absolutely essential. Given the scope of the review, the timescale is about right—every two years is demanding, but not too onerous—but a regular update each year might be preferable. However, the main point, which I have made already, is to compel a regular report and review of demand. The central role is that the Secretary of State has a duty to get planning done, and we hope that will be a crucial lever for the change we need to see.

If the amendment has a weakness, it is probably the one we have touched on already, which is that it does not ensure that the plan is feasible or delivered. A plan that shows the gap is not a plan unless it has a credible funding solution alongside it. Even if that is not explicit in the amendment, we assume that funding would follow any such assessment and plan that is set out. Our suggestion would be that any such financial projections in a plan are subject to the same level of independent expert verification as we see with the Office for Budget Responsibility. Since all the various think-tanks are going to do an assessment anyway, we may as well have a built-in process for verification.

[Rachael Maskell]

Does my hon. Friend agree with me that many of the recruitment challenges often sit in outsourced services in the private sector, and as a result it is really difficult to find the complement of staff required because people want to work in the NHS? That needs to be taken into consideration in any workplace plan.

[Justin Madders]

I thank my hon. Friend for her intervention and I will later talk a little about outsourcing and the role it has to play. We believe that plans should be built from the bottom up, not from the top, and that implies the involvement of ICBs, NHS trusts and foundation trusts. ICBs and their strategic arms, integrated care providers, will not be functional for some time. That is a shame, but it does not mean we should not proceed with the amendment.

The scale of the workforce challenge is well established: high rates of vacancy, inadequate levels of retention, and much more. It goes far deeper than numbers and structures, to issues of workforce terms and conditions, particularly in social care. It must also cover cultural issues, as there is a clear indication that all is not well in the NHS in terms of diversity. There is also whistleblowing, and aspects of how staff are nurtured and supported. At its very best, the NHS is very good, but unfortunately that is not the story across the board. It should be good in every part.

On that theme, let me mention the continuing disgrace in the way that some members of the NHS workforce are treated. I find it unacceptable that cleaners, porters, catering and IT staff are still being outsourced by trusts that are trying to make tax savings or outsource services to the lowest bidder. Perhaps the Minister can look into the current dispute at South Warwickshire in that regard, as we do not think that is a template to follow. Workforce planning is not a problem that can be solved quickly, although increased funding in social care could help that. For the NHS, the long term is indeed a long time—for example, the time needed to develop and train GPs and consultants. More money is not the only answer; technology and reform of the way we work must all be part of the mix. However, the labour-intensive nature of care will not fundamentally change, so we must look at workforce numbers as the priority. It is often said that failing to plan is the same as planning to fail. Some colleagues believe that a failure to plan is exactly that—a route to ending the NHS as we know it by showing that it fails. However, the Bill suggests an acceptance that a plan is needed, and work is under way. Hopefully that work is not being handed out to more consultants, of whom we see enough already.

Labour will support the amendment tabled by the Chair of the Health and Social Care Committee, which we hope will be pushed to a vote. I hope I have not been too effusive in my comments about him—I have a reputation to maintain after all—but I will refer to the excellent report done by his Committee on workforce burnout, which in many ways is the cornerstone of what we are debating. In its conclusion, the Committee said:

“The emergency that workforce burnout has become will not be solved without a total overhaul of the way the NHS does workforce planning. After the pandemic, which revealed so many critical staff shortages, the least we can do for staff is to show there is a long term solution to those shortages, ultimately the biggest driver of burnout. We may not be able to solve the issues around burnout overnight but we can at least give staff confidence that a long term solution is in place.

The way that the NHS does workforce planning is at best opaque and at worst responsible for the unacceptable pressure on the current workforce which existed even before the pandemic.

It is clear that workforce planning has been led by the funding envelope available to health and social care rather than by demand and the capacity required to service that demand. Furthermore, there is no accurate, public projection of what health and social care require in the workforce for the next five to ten years in each specialism. Without that level of detail, the shortages in the health and care workforce will endure, to the detriment of both the service provision and the staff who currently work in the sector. Annual, independent workforce projections would provide the NHS, social care and Government with the clarity required for long-term workforce planning.”

That conclusion shows what we are trying to achieve today. That is the nub of it: if not now, when? When will the Government finally accept the obvious that has been staring them in the face for years?

New clause 29 would require the Secretary of State to lay before Parliament a fully funded health and care workforce strategy to ensure that the numbers, skill and mix of healthcare staff are sufficient for the safe and effective delivery of services. It builds on other amendments, and seeks further assurances by putting patient safety and safe staffing levels at the heart of workforce planning, by setting out how the Government will be required to act to assess and rectify shortages. It seeks to ensure that the workforce will be on a sustainable footing in future. Patient safety should be our primary concern. We have the evidence base: when there are not enough registered nurses, mortality rates change and health outcomes are worse. I accept that the level of detail in the new clause is significant, but we consider that necessary to underscore the importance of setting out how this will be delivered.

14:30

New clause 12, which deals with the use of the title “nurse”, follows one that we tabled in Committee, on which we got sympathy and agreement from the Minister but were told that it was not quite good enough. Nevertheless, we will continue to support new clause 12, for the reasons we have already set out. Even if it does not get approval today, we hope that the Government will look into the issue and involve all those who need to be involved in trying to reach a satisfactory conclusion.

Currently, the title “registered nurse” is protected but “nurse” alone is not, meaning that anyone can legally call themselves a nurse. Under current legislation, someone could operate under the title “nurse” even if they have no nursing qualifications or experience, or indeed if they have previously been struck off. To protect the public, the title “nurse” should be limited to those who are registered with professional regulators, such as registered nurses and dental nurses, as is the case with titles such as “paramedic” and “physiotherapist”, which are limited to those on professional registers. The issue of the title “nurse” not being protected in law has long caused concern in the profession. There have been many examples where the use of the title appears to have been abused, and it is about time we put an end to that.

I turn to the issues covered by Government new clauses 36 to 48, which appear to respond to new clauses 21 and 22. New clause 21, in the name of the hon. Member for North West Durham (Mr Holden), would prohibit virginity testing. This horrendous so-called procedure has absolutely no basis in science; instead, it is based entirely in misogyny. The Royal College of Midwives states:

“We are clear that virginity testing is a violation of women’s and girls’ human rights. In addition to being wholly indefensible and offensive, there is no medical benefit to virginity testing, and it is in any event not possible to conclude through an examination of the hymen whether or not a woman or girl is a virgin (even if such an examination was justifiable),”

which, clearly, it is not. Similarly, the World Health Organisation has said that this is a practice of abuse.

The hon. Member for North West Durham has done a superb job in advocating for the end of this gross practice and, as with the new clause he tabled in Committee, he has assembled a strong cross-party coalition of support for new clause 21. We are therefore pleased to see that Government new clauses 36 to 48 seek to consign this practice to history.

[Mr Richard Holden (North West Durham) (Con)]

I thank the hon. Member for giving way, and I apologise to the Minister for not being here at the very start; I was on a train back from a ministerial visit in my constituency. I would just like to pay tribute to some of the campaigners who are in the Public Gallery at the moment, particularly those from Karma Nirvana, the Iranian and Kurdish Women’s Rights Organisation, the Middle Eastern Women and Society Organisation, and the Royal College of Obstetricians and Gynaecologists. Does the hon. Member agree that it is those campaigners and charities who have worked on this issue for a very long time who have really brought it to the fore—they have just been supported by some Members of this House—and that it is they who deserve the credit?

[Justin Madders]

I thank the hon. Member for his intervention. I think he is being very modest, but he is absolutely right that these things do not happen by accident. It is often the hard work, over many years, of campaigners and campaign groups who being these issues to the fore and do the diligence and the hard work behind the scenes that leads us to the sort of outcome that we will hopefully get today—an end to this abhorrent practice.

On the hon. Member’s other amendment, new clause 22, we also want to see hymenoplasty ended. It has no medical benefit whatsoever. As the Minister said, there is currently an expert panel looking at the issue, and he is waiting on its recommendations. I think the outcome is in little doubt, to be frank. However, I wonder whether the Minister can give us an assurance that, should those recommendations turn out to be as we would expect, he will be able to act on them quickly and get something down in statute as soon as possible so that we do not miss the boat.

Turning to the amendments on the health services safety investigations body, much of the proposed legislation is the same as that proposed in the other place, and there were extensive debates on this matter in Committee. There are, however, issues that remain, which are covered by amendments we will be debating today. I can imagine the other place having quite a lot to say about some of these issues. In general, we support the move to the new body, but over time attention must be applied to some aspects of the way it will function in practice. Our major reservation is, yet again, with the involvement of the Secretary of State. Our amendment 74 would have the effect of leaving out clause 115, which is another clause that gives the Secretary of State extra powers to interfere.

Our general observation would be that there is far too much extra power going to the Secretary of State in the Bill anyway, but we are particularly concerned at the powers set out in clause 115, which give him what we consider to be wholly unnecessary powers to direct. It is pretty much a blank cheque to enable him to step in and interfere any time he likes as long as he considers that there has been a significant failure. Under subsection (2), the Secretary of State can direct the HSSIB in whatever manner he determines, which I would have said is about as far away from independence as we can get—until we get to subsection (4), which means the Secretary of State can also effectively step into the HSSIB’s shoes and undertake the duties himself. I can do no better than refer to the evidence Keith Conradi gave to the Public Bill Committee, when he said:

“Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have that complete freedom to be able to make recommendations wherever we think that they most fit.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 60.]

We also support the amendments put forward by the spokesperson for the Scottish National party, the hon. Member for Central Ayrshire (Dr Whitford), which are important in preserving the principle and status of protected spaces. We feel it is important that they cannot be nibbled away at, as the Bill currently allows.

The purpose of amendment 57, which we also tabled in Committee, is simply to delete clause 127, which deals with the role of the Secretary of State in professional regulation. So far, we have had no convincing explanation of why the Secretary of State needs these powers. If there are no professions that he wishes to remove, we do not need the clause. If there are, he should say so, so we can have a debate now on whether it is appropriate to hand over those powers to him.

Finally, on new clause 1, I pay tribute to the all-party parliamentary group on beauty, aesthetics and wellbeing, whose work in this area has been influential in producing it. Many of the group’s members have put their name to it. As we know, cosmetic treatments can include a wide range of procedures aimed at enhancing or altering appearance. Many of those procedures are becoming increasingly popular and new clause 1 speaks to the well-articulated concern that non-medically and medically trained practitioners are performing treatments without being able to provide evidence of appropriate training, and without required standards of oversight and supervision.

I hope the Members moving new clause 1 will have the opportunity to speak to it, as there are far too many stories of people suffering horrific, life-changing injuries. There would undoubtedly be a saving to the NHS in reduced visits to accident and emergency and GPs to correct mistakes made by poorly trained and unregulated practitioners. We therefore think the new clause has value. Some of the impacts on the NHS from the lack of regulation include outbreaks of infection at a skin piercing premises, resulting in individuals being hospitalised; disfiguration and partial removal of an ear; second and third-degree burns from lasers and sunbeds; allergic reactions due to failures to carry out patch tests or medical assessments, which led to hospitalisation; and blindness in one eye caused by the incorrect administration of dermal filler.

New clause 1 seeks to put the protection of the public at the forefront by giving the Secretary of State power to bring into force a national licensing scheme for cosmetic procedures. Clearly, given that this is a departure from the wild west we face at the moment, we recognise that significant research and engagement with stakeholders will be needed to develop a scheme, as well as the provision of a practical and efficient system for people to become regulators and practitioners. If that does not make it on to the face of the Bill today, we hope this is an issue the Government will return to shortly.

[Jeremy Hunt]

I rise to speak in support of amendment 10 but, before I do, I also want to express strong support for amendments 40 to 43, tabled by the hon. Member for Central Ayrshire (Dr Whitford), which will make a big difference in making the new health services safety investigation body a success. I strongly encourage the Minister to listen to what she says later not just with the deference due to an experienced surgeon, but with the enthusiasm to follow a doctor’s advice, because what she says is extremely important.

I also thank the hon. Member for Ellesmere Port and Neston (Justin Madders) for his generous comments about me. Having sat opposite him at the Dispatch Box on many an occasion, I realise how difficult they must have been for him to say. He must have wrestled with those thoughts for a long time, and I am delighted that he has been able to unburden himself today.

The hon. Gentleman was absolutely right to focus on burnout in the NHS workforce. All of us would agree that NHS and care staff have done a magnificent job looking after us and our families in the pandemic, but right now they are exhausted and daunted. They can see that A&E departments and GP surgeries are seeing record attendances. They can see nearly 6 million on waiting lists, which is more than one in 10 of the population. They also have the vaccine programme and covid patients.

[Jim Shannon (Strangford) (DUP)]

I commend the right hon. Gentleman for amendment 10. With 2,700 vacant nursing posts in Northern Ireland, and 40,000 in the NHS as a whole, will the amendment offer more nursing bursaries, train nurses up to relieve the pressure, and provide a decent working environment?

[Jeremy Hunt]

I believe it will. I am grateful to the hon. Gentleman for raising that issue, because medical training is relevant to the whole United Kingdom, not just one part of it. I hope the amendment will be beneficial to Northern Ireland as well.

If we put ourselves in the shoes of any frontline doctor, nurse or care worker, we would see that they are all completely realistic that this is not a problem that can be solved by next Monday. It takes a long time to train a doctor or nurse. All they have is one simple request: that they can be confident that we are training enough of them for the future, so that even if no immediate solution is in place, there is a long-term solution. That is the purpose of amendment 10. It simply requires the Government to publish every two years independently verified estimates of the number of people we should be training across health and care.

The Government have recognised the pressures on the NHS by giving generous amounts of extra funding. I commend the Government for doing that, but extra money without extra workforce will not solve the problems that we want to solve. At the moment, the NHS just cannot find the staff.

[Munira Wilson]

I congratulate the right hon. Gentleman on amendment 10 and on how he has built such a coalition of support. Many of the challenges facing those with mental health concerns are because, as he says, there simply is not the workforce—it has hardly grown over the past decade. There are over 16,600 full-time equivalent vacancies and a waiting list of 1.5 million. His amendment, which would require a report every two years, is so important for ministerial accountability because the targets in the five year forward view have not been met, so we have no chance with the 15-year projection.

[Jeremy Hunt]

The hon. Lady gives a good example, because mental health is an area that we have all recently come to realise can be immensely beneficial to ourselves, our families and our constituents. However, while there has been explosive growth in demand, we have not had growth in the supply of people able to look after those with mental health issues. We can only do that with the kind of long-term planning that amendment 10 will make possible.

The royal colleges say that, as of today, there are shortages of 500 obstetricians, 1,400 anaesthetists, 1,900 radiologists, 2,00 A&E consultants, 2,000 GPs, 39,000 nurses and thousands of other allied health professionals. That is why this problem has become so acute.

The Minister has engaged thoughtfully with me on the issue on a number of occasions. He and I both know that there is some concern in the Government about the cost of training additional doctors and nurses. I want to take that concern head on. Yes, the amendment would lead to more doctors, nurses and professionals being trained. Yes, that would cost extra money. Yes, it would save the NHS even more money, because every additional doctor we train is an additional locum we do not need to employ. Locums are not only more expensive for the NHS, but less good for patients. Patients prefer to see the same doctor on every visit if they possibly can, which is much harder with a high number of temporary workers.

14:44

[Dr Whitford]

It is not just that patients prefer to see a doctor long term. There are safety issues when locums in acute specialties move from hospital to hospital, particularly if they are dealing with an acute case. They do not know where things are or who to phone; passwords and phone numbers change. There is a real safety issue with having too many locum staff in the very exposed acute services.

[Jeremy Hunt]

I absolutely agree with the hon. Lady, who knows about acute services. I also point to recent evidence from Norway that shows the same for general practice: patients who see the same GP over and over again go to A&E departments less than patients who see different GPs.

[Dr Murrison]

The hon. Member for Central Ayrshire (Dr Whitford) is absolutely right about acute safety; I speak from personal experience. My right hon. Friend is right about general practice, but the issues are different. In general practice, the issue is chronic long-term care: patients need to know that practitioners have a view of their condition that spans a long period—sometimes generations. The issues are very different in acute and primary care, but they come to the same thing.

Does my right hon. Friend agree that part of the problem with the workforce is not recruitment, but retention, particularly the retention of senior doctors in their mid-50s? It pains me to say it in this consensual debate, but the root cause is the GP contract and the consultant contract brought in by the last Labour Government. Those contracts incentivise people—in my demographic, as it happens—to leave, potentially leaving the service short of 10% of their entire career.

[Jeremy Hunt]

My right hon. Friend is right that there are problems with the GP contract. I do not want to get into too many discussions about doctors’ contracts in this very consensual debate, but Conservative Members have to take responsibility for not having remedied the pensions anomaly, which gives people an incentive to retire much earlier than we would want. We have to address that issue.

Lots of people might reasonably ask whether I did enough to address the issues in the nearly six years that I was Health Secretary. The answer is that I set up five new medical schools and increased by 25% the number of doctors, nurses and midwives we train. However, that decision was taken five years ago and it takes seven years to train a doctor, so not a single extra doctor has yet joined the workforce as a result.

That is the nub of the problem: the number of doctors, nurses and other professionals we train depends on the priorities of the current Secretary of State and Chancellor. As a result, we have ended up with a very haphazard system that means that although we spend about the average in western Europe on health, as a proportion of GDP, we have one of the lowest numbers of doctors per head—lower than any European country except Sweden.

[Dr Whitford]

All Governments in the UK are expanding medical school places and trying to train more students, but that has led to a shortage of foundation places. In the first two years after a doctor graduates, they are not allowed to practise outwith a foundation job, and they can never practise if they do not go through a foundation job. In the summer, about 400 young graduates were still struggling to find a place. It took 19 years from my entering medical school to my becoming a consultant surgeon. We need to think not just about medical school, but about the whole pathway.

[Jeremy Hunt]

The hon. Lady is absolutely right. Medical school, the foundation years and, as my right hon. Friend the Member for South West Wiltshire (Dr Murrison) said, the retention of staff—all those things need to be built into long-term planning and baked into the system.

That long-term planning strikes a contrast, if I may say so, with some of the short-termism that we have seen recently. Even in the recent Budget and spending review, the budget for Health Education England, which funds the training of doctors in this country, was not settled. Although I think that the proposed merger with NHS England is probably the right thing to do, I fear it will mean that the budget is not settled for many more months, at precisely the moment when the workforce crisis is the biggest concern for the majority of people in the NHS.

[Greg Clark (Tunbridge Wells) (Con)]

My right hon. Friend is making an excellent speech, and I strongly support his amendment. Will he add to the list of factors that need to be considered in the future the requirement for many research scientists in medical sciences to be trained in medical schools first? If we want to expand and build on the excellence that we have there, it is not just a question of meeting the needs of the NHS workforce; we need to have extra people who can become the brilliant researchers and discoverers of new medicines in the future.

[Jeremy Hunt]

My right hon. Friend speaks about these issues with a great deal of knowledge, given his former ministerial and Select Committee roles, and he is absolutely right. I think that the big lesson from the pandemic, and indeed an issue that emerged in the report that our Committees jointly produced, is the way in which science can add value to clinical practice and clinical practice can add value to science.

[Rachael Maskell]

One of the key workforces is, of course, in public health, where the aim is to shift the balance by increasing prevention so that we do not need all the doctors and nurses and other health professionals further down the road. The health visitor delivery programme led to a heavy stream of new health visitors, but it had other consequences. That is another reason why the right hon. Gentleman’s amendment is so important: we see rapid changes in the workforce which could have other consequences.

[Jeremy Hunt]

I thank the hon. Lady, who before entering this place spent her time campaigning to support NHS and care staff. She speaks with great experience, and I think that the fundamental point she makes is very important. Unless there is long-term strategic planning, when we have a priority such as the one we have at the moment of tackling the backlog, we will often make progress on that priority by sucking in staff from other areas, which then suffer. That is an unintended consequence which happened when I was Health Secretary, and I fear that it will happen again without a long-term strategic framework.

Amendment 10 has wide support. It is supported by 50 NHS organisations, including every royal college and the British Medical Association—an organisation which, to be honest, is not famous for supporting initiatives from me—and by six Select Committee Chairs and all the main political parties in this place. I am sure that the Government will ultimately accept it, because it is the right thing to do, but if they are intending to vote it down today, I would say to them that every month in which we delay putting this structure in place is a month when we are failing to give hope to NHS staff on the front line.

Let me end by quoting the Israeli politician Abba Eban, who said that

“men and nations behave wisely when they have exhausted all other alternatives.”

Let us prove him wrong today by supporting amendment 10.

[Dr Whitford]

I am delighted to follow the Chair of the Health and Social Care Committee, and, in this rather unnerving outbreak of consensus and good humour, to mirror his speech and add my support to his amendment on workforce planning.

It is important to remember that healthcare is not delivered by hospital buildings or fancy machines; it is delivered by people to people, which is why the most important asset in any health service is its workforce. As I pointed out in an earlier exchange with the right hon. Gentleman, we need a long-term view, because it takes a long time to train senor specialists. As I said to him, it took 19 years from my entering medical school to my becoming a consultant breast cancer surgeon. We will struggle to work out what specialties we might need in 20 years’ time, because medicine is evolving, but many aspects and many sectors of staff do not change. If we do not get even those right, we are constantly in a position of drought and thirst, and it is not possible for staff to evolve—to pick up new rules, to use new techniques and to develop new services.

Although this workforce strategy would apply only in England, I would encourage consultation with the Health Secretaries and the workforce bodies in the devolved nations, because junior doctors in particular tend to move around during their training. During the junior doctors’ strike, which the right hon. Member for South West Surrey (Jeremy Hunt) might remember rather painfully, I talked to students on the picket lines whom I had trained. People move around, and it is important that such a strategy does not end up just sucking staff out of the three devolved health services. Also, many aspects of medical training are controlled on a UK basis. Foundation places for new graduates are decided on a UK basis, for example, so it is important to take that wider view.

The workforce shortage is the biggest single challenge facing all four national health services across the UK. It has been exacerbated by the loss of EU staff after Brexit, with an almost 90% drop in EU nurses registering to come and work in the UK. Early retirements are being taken due to the Government’s pension tax changes, which, as has been highlighted, have not been sorted out and are resulting in senior doctors paying to go to work. There is only so long that they will continue to do that. Finally, there is the exhaustion of dealing with a pandemic for the past 18 months. This is why it is really important, when we talk about NHS recovery, to have a greater focus on staff wellbeing and on their recovery. There can be no recovery of the NHS without them. I am really disappointed to see how the clapping of last spring has turned to severe criticism and attacks directly from members of the public, from sectors of the media, and even from some Members in this place and members of the Government.

I shall now speak to my own amendments 40 to 43, which seek to tightly define the materials covered by the safe space protections as part of Health Service Safety Investigations Body investigations. The idea behind HSSIB was to learn from air accident investigations and to provide a confidential and secure safe space in which healthcare staff could be open and candid in discussing any patient safety incidents. I was on the pre-legislative scrutiny Committee, which was chaired by the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), and the recommendations of that cross-party—and indeed cross-House—Committee were very clear: evidence gathered under the safe space protocols should be protected and disclosed to third parties only in the most pressing situations, such as an ongoing risk to patient safety or criminality. Despite that, there are aspects of this Bill that could undermine the principle of the safe space, and that is what I am seeking to amend.

Amendment 40 would define he safe space materials much more tightly, because it seemed as though anything that HSSIB was using would be covered by the safe space protocol and that exemptions would then be made, whereas it makes much more sense to be very clear about the materials that are defined as protected materials. Therefore, all the original clinical information—medical notes, etc—would still be available to all the other bodies to enable them to carry out their investigations as they do now.

Amendment 43 would remove the ability of the Secretary of State to use regulation at a later date to authorise the wider disclosure of protected materials beyond the provision that is finally passed in this Bill. Amendment 42 would remove the provision allowing coroners to require disclosure of protected materials, as this has already led to calls for access by other health bodies and even freedom of information requests, as I highlighted in my earlier intervention. If a coroner uses safe space materials in their report, that report is public. The question is: how are they going to handle that so that the safe space materials are not further disclosed? It is critical to defend this. It is important to stress that HSSIB does not limit anyone else’s access to original materials, but nor should HSSIB be seen as an easy way for other bodies to avoid doing the legwork and carrying out their own investigations.

HSSIB will not apply in Scotland, where the Scottish patient safety programme is focused more on preventing patient safety issues in the first place. My interest is purely personal, as a surgeon. I experienced the impact of the Scottish patient safety programme when it was introduced to operating theatres in 2007. It cut post-operative deaths by 37% within two years. It has subsequently been rolled out to maternity, psychiatry, primary care and all the main sectors. It has not just reduced hospital mortality, but prevented morbidity—such as pressure sores, leg thrombosis or sepsis, which all in their own way cost the NHS a huge fortune.

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I recognise the innovative approach and the potential impact of HSIB, but I fear that if NHS staff do not trust the confidentiality of the supposed safe space, they will not be candid in giving their opinions. Most patient safety incidents are caused either by wider issues such as staffing levels or communications, or by the failure to develop a system that stops an individual error resulting in patient harm. It is relatively rare for the person left holding the baby to be the person entirely to blame. That is the whole argument for shifting from blaming to learning.

Therefore, it is vital to ensure that the staff have that confidence. We will be asking them to talk about their part in an incident—what role did they play in something going wrong—if we are to understand how it could have been prevented. The principal aim is to ensure that shift from blaming to learning, to turn the NHS in England into a learning organisation. The end result of that would be greater patient safety. That is surely what all of us are trying to achieve.

[Laura Trott (Sevenoaks) (Con)]

I will speak mainly to new clause 1, but I cannot start without paying tribute to my hon. Friend the Member for North West Durham (Mr Holden) for his work to ban virginity testing. It is an abhorrent practice and high time it was made illegal.

I speak to new clause 1 in the names of my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) and the right hon. Member for North Durham (Mr Jones), among others. The existing situation, absurdly, is that someone may walk into a clinic and easily and legally get a treatment that could blind them, and there is absolutely no regulation whatever. For some time, we have talked about fixing the issue, and my private Member’s Bill—now the Botulinum Toxin and Cosmetic Fillers (Children) Act 2021—which was passed with the support of many Members of the House, has been able to bring some regulation to this space. Under-18s are now able to get only non-cosmetic interventions, and that by legal practitioners alone.

For those over the age of 18, however, there is no protection. Save Face, a campaigning organisation, last year received 2,000 complaints from people. Those are complaints not about the clinics people were in being dirty, but practitioners being uninsured or unable to fix the problems created when patients were given injections or fillers. People had necrotic or rotting tissue, which individuals would have to pay for themselves to get fixed. It is unacceptable that we are in a situation where that can take place with no regulation by Government.

I am afraid that is a pattern over time, across many Governments, of issues that primarily affect women not having the attention that they deserve. I am hopeful that we make some progress today. I pay tribute to my right hon. Friend the Member for Romsey and Southampton North on tabling her amendment.

[Margaret Greenwood (Wirral West) (Lab)]

The Health and Care Bill allows for

“a profession currently regulated to be removed from statutory regulation when the profession no longer requires regulation for the purpose of the protection of the public.”

Labour voted against the relevant clause in Committee, but we were defeated by the Government. I therefore tabled amendment 57, which would remove clause 127 from the Bill and ensure that a profession currently regulated cannot be removed from statutory regulation, and that statutory regulatory bodies cannot be abolished. I am grateful that the amendment received cross-party support.

The removal of a profession from regulation is deeply concerning because, once a profession is deregulated, we can expect the level of expertise in that field to decline over time, and along with that the status and pay of those carrying out those important roles. It also brings with it serious long-term implications for the health and safety of patients. In the White Paper that preceded the Bill, the Government stated:

“This is not about deregulation—we expect the vast majority of professionals such as doctors, nurses, dentists and paramedics will always be subject to statutory regulation. But this recognises that over time and with changing technology the risk profile of a given profession may change and while regulation may be necessary now to protect the public, this may not be the case in the future.”

It is notable that the Government only “expect” that the vast majority of professionals will be subject to statutory regulation, but they give no guarantee. The fact is, if the Bill passes, Ministers will be able change their mind at any point and make changes through secondary legislation.

The Government appear to be arguing that technological advances may change roles to such a degree that the high level of professional expertise that currently serves the NHS will no longer be needed. I will make two points about that. First, if the work of an NHS profession has changed to such a degree that regulation is no longer needed, I would argue that it is a different profession and needs a new job title. Secondly, when deploying new technology, there is always a need for professional staff with a high level of expertise and understanding of not only the functionality of that new technology, but its shortcomings. Technology has the power to improve productivity, but it should not be used as an excuse to deregulate professions.

It is important to consider where the impetus for that proposal may be coming from. The recent lobbying scandal certainly gives us a clue when we consider the number of MPs on the Government Benches with private interests in medical technology—I do not want to elaborate on that today, but to make the point. Certainly, big business is keen on deregulation, because it allows them to pay lower salaries to staff.

During a seminar on wellbeing, development, retention, and delivering the NHS people plan and a workforce fit for the future, a representative of Virgin Care said:

“We should have flexible working for all. We should consider what that means. We should embrace what that means. Both of those things really push what has been quite a traditional work model across the NHS. We need to be more modern. We need to have a think about how we rip up the old rule book. But change in an area that is very risk averse because the nature of the work we do is really tricky, so we need our leaders and our workforce to embrace trying things”.

That was an alarming statement for her to make. I think we would all agree that healthcare professionals’ understanding of risk and the importance of mitigating risk is incredibly important. It is always a matter of concern when business says that it wants to “rip up” the rule book on employment rights and pay.

Yesterday, in the Minister’s summing up, he said that

“the Bill does not privatise the NHS.”—[Official Report, 22 November 2021; Vol. 704, c. 151.]

I have to say, however, that I disagree. ICBs—integrated care boards—will be able to delegate functions, including commissioning functions, down to provider collaboratives, and provider collaboratives can be made up of private companies. I do not understand what it is that the Minister does not understand about that.

Add to that the fact that the abolition of the national tariff will open up the opportunity for big business to undercut the NHS, this is a potent situation indeed, and one that will be exploited by big business if the Bill goes through. The late Kailash Chand, former honorary vice-president of the British Medical Association said:

“The core thrust of the new reforms is to deprofessionalise and down skill the practice of medicine in this country, so as to make staff more interchangeable, easier to fire, and services more biddable, and, above all, cheaper”.

The removal of professions from regulation is a part of that scenario he described.

I turn now to workforce planning. There is a workforce crisis in the NHS. In fact, that is probably an understatement. Earlier this year, I met members of the Royal College of Nursing in the north-west, who told me of the sheer exhaustion that they are experiencing because of staff shortages. I was struck by how, even at this point when they were describing how they are on their knees with exhaustion, their primary concern was patient safety. We owe it to them to address the matter. The British Medical Association highlighted:

“Burnout has led to significant numbers of medical professionals considering leaving the profession or reducing their working commitments”.

According to the latest figures, there are well over 90,000 full-time equivalent vacancies in England’s NHS providers. The best the Government can come up with is in this Bill is to require the Secretary of State to publish a report, at least once every five years, describing the system in place for assessing and meeting the workforce needs of the health service in England. That is woefully inadequate. The Royal College of Physicians says that this duty on the Secretary of State

“falls short of what is needed given the scale of the challenge facing the health and care system”.

The Royal College of Paediatrics and Child Health is among those who have called for this duty to be strengthened in the Bill. I ask the Government to listen to the expertise of those bodies.

The Government’s plans to remove NHS professions from regulations is wholly unacceptable and it is particularly alarming at a time when there are such acute shortages of staff, right across NHS professions. We all value the NHS highly and respect the high level of professionalism in the service. Instead of looking to deregulate professions, the Government should be investing in the training of the next generation of professionals.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

I draw the House’s attention to my interests, which are set out in the Register of Members’ Financial Interests, and to the fact that my wife is an NHS GP and has been for the past 30 years.

I rise to support amendment 10, tabled by my right hon. Friend the Member for South West Surrey (Jeremy Hunt), as it seems to be absolutely right. I cannot understand why the Minister, an extremely good Minister, is not obliging the Government to accept it in full. It is clear from what is being said across the House that my right hon. Friend has achieved an unexpected unity. Even brilliant junior hospital doctors who in the past have marched against some of his policies are four-square behind what he is saying today and the work his Committee is carrying out so brilliantly.

I wish to make three points about why the House and indeed the Government would be wise to support my right hon. Friend’s amendment today. The first is that, for reasons he has set out eloquently, as has the hon. Member for Central Ayrshire (Dr Whitford), who speaks on these matters for the Scottish National party, burnout in the NHS is an incredibly serious issue. The need for us to project how many people we are going to need in all the different disciplines in the health service has never been greater, and the workforce requirements have never been more uncertain. As has been so eloquently set out, the cost of that uncertainty is paid in locums, with all the difficulties and downsides that have been mentioned.

I wish to quote a note I have had from Dr Rahul Dubb, the lead doctor in Royal Sutton Coldfield. He successfully led the roll-out of the vaccinations in our town hall and he is extremely experienced. He says, “A greater understanding is needed as to why doctors are leaving the profession. It is clearly multi-factorial across the generations. One of the reasons includes pension rules. These penalise staff wanting to work more hours due to capped taxation rules, deterring senior staff from staying, and may lead to a significant exodus from the profession. In these circumstances, it is essential that far more effort is put into projecting future workforce numbers and how many are required to meet future need.” In my judgment, Dr Rahul Dubb is absolutely right in what he is saying.

The second reason is that the Government should listen carefully to what my right hon. Friend has said. During his time as Health Secretary—no one in the House has been so long at the crease and has as much experience as him—he significantly increased the number of doctors who will be trained. We were particularly pleased in Birmingham to see the additional work that Aston University has been able to do to bring those who might have felt themselves excluded from the medical profession into contention, so that they could go to university and achieve their ambition of qualifying as medics. Having that sort of analysis—the analysis that is behind his amendment—is right in securing value for money. I have been dismayed that when we had the measures to increase national insurance earlier this year—this was greatly to the credit of the Government for grasping a nettle that so many have not grasped before—those on the Treasury Bench were extraordinarily disinterested in checking that value for money for this additional taxpayer spend was achieved. When I suggested that we should account to our constituents through the Treasury, making certain that we understood where this £1.2 billion was going, the answer from those on the Treasury Bench was extremely lacklustre. Ensuring value for money and that we get these judgments right will save money and, for the reasons that have been set out, will make medicine and the treatment of our constituents that much safer. As my right hon. Friend set out, the whole sector is united behind this amendment, and the Government should hear that loud and clear.

15:15

The third and final reason why I have every intention of supporting my right hon. Friend in the Lobby this afternoon, and why I urge my right hon. and hon. Friends to do likewise, is that in this country we have for far too long been pinching doctors from the developing world to make up for the shortfall that he is seeking to address. Long-term planning is vital to stop that. It is grossly irresponsible of this country to pinch doctors from the developing world at any stage, but particularly in the aftermath of a global pandemic, yet that is one of the things we continue to do. It is an abrogation of British international leadership to act in that way. I remind the House that not so long ago more doctors trained in Sierra Leone were practising medicine in Chicago than were practising medicine in Sierra Leone—we cannot ignore that.

For all three of those reasons, I urge the House to support my right hon. Friend and amendment 10 this afternoon.

[Dawn Butler (Brent Central) (Lab)]

I rise to speak in support of new clause 12, which stands in my name and those of many hon. Members across this House, on the protection of the title of “nurse”. The Government’s response to Alison Leary’s petition implies that we are on the same page on the issue of protecting the title. As the Minister said, this is not a party political thing; it is about the safety and protection of patients and the public. I hope that the Government will vote in favour of new clause 12 today, as it is long overdue and brings nurses into line with paramedics and physiotherapists in terms of the protection of titles.

It is shocking that anybody can call themselves a nurse, whether or not they have any qualifications or a first aid certificate—they may have no qualifications at all and they can call themselves a nurse. As we know, when someone calls themselves a nurse, that gives them a certain standing in society and people automatically think they know what they are doing. The nursing profession has some harrowing stories of parents taking advice from somebody who called themselves a nurse but was not one, and the tragic and devastating consequences. It is really important that we have the opportunity to put this right today—in fact it would be dangerous not to do so. Throughout the pandemic, people have been struck off as nurses, yet they are still using the title of “nurse” as they publicly deliver misleading and dangerous information about the pandemic. The public and patients have the right to know that the treatment and advice they receive is from a registered healthcare professional.

Many other countries protect the title of “nurse”. The protection of the title is supported by more than 70 nursing organisations, including the Queen’s Nursing Institute, the Institute of Health Visiting, charities, those representing the public using health and social care, Unison Health, Unite and the Royal College of Nursing and its Professional Nursing Committee.

[Taiwo Owatemi (Coventry North West) (Lab)]

I would like to put on record my support for nurses, particularly on Nursing Support Workers’ Day. Does my hon. Friend agree that the priority that nurses are asking for and that NHS staff are looking for is not restructuring, but investment in resources, a plan to address the staff shortages and retention struggles that the NHS has, and a clear strategy to address the winter waiting times and demands on services such as operations and GP services?

[Dawn Butler]

My hon. Friend makes a valid and valuable point. One way we can show our appreciation for nurses’ work is to protect their title, but we should not do that instead of addressing any of the issues she mentioned, along with ensuring that they receive a pay rise.

I thank the people who have petitioned for the change in my new clause for a number of years, including the former Secretary of State, the right hon. Member for South West Surrey (Jeremy Hunt), who is no longer in his place but supports my new clause; the Labour Front-Bench team; Ann Keen; the chief nursing officer for England, Ruth May; Professor Mark Radford, the chief nurse at Health Education England; the previous chief nursing officer for Northern Ireland, Charlotte McArdle; Andrea Sutcliffe, Matthew McClelland and the Nursing and Midwifery Council; Mr Paul Trevatt; Professor June Girvin; Dr Crystal Oldman; Ms Shamim Donatta Ayiecho; Ms Leanne Patrick; Mr Gerry Bolger; Ms Catherine Eden; and the Florence Nightingale Foundation leadership scholars. The Government know that there is a lot of support for new clause 12 and I hope it passes today.

[Caroline Nokes (Romsey and Southampton North) (Con)]

It is a pleasure to contribute to this debate and specifically to speak to new clause 1, tabled in my name and the names of the right hon. Member for North Durham (Mr Jones) and many other Members throughout the House. First, though, I pay tribute to my right hon. Friend the Member for South West Surrey (Jeremy Hunt) for his incredibly important amendment on the workforce. I also pay tribute to my hon. Friend the Member for North West Durham (Mr Holden) for his crucial new clauses on virginity testing and hymenoplasty. As the Chair of the Women and Equalities Committee, I was pleased to be able to support those amendments and am delighted that the Government have introduced their own new clauses on those issues.

I wish to talk specifically about aesthetic non-surgical cosmetic procedures, which may seem quite trivial in comparison with the important matters I just referred to, but I vividly remember visiting a doctor in my constituency and talking to her about her experience when a patient came to her after she had had far too much lip filler placed into her lips by an unqualified and inexperience practitioner. The poor girl’s lips had, frankly, exploded, leaving her permanently scarred and with the prospect of many years of corrective surgery to try to rebuild her face. That is the stark reality.

The hon. Member for Brent Central (Dawn Butler) spoke about people being able to call themselves nurses when they are not nurses; aesthetic cosmetic practitioners can not only call themselves that but perform all sorts of procedures, some of which we would find it bizarre and disturbing to talk about and, indeed, at some of which we might look with absolute horror when they are reported on the internet and in the pages of national newspapers. I am talking about semi-permanent make-up and permanent tattooing, which can leave people permanently disfigured. The semi-permanent variety can fade to leave people with bizarre blue eyebrows that require many different procedures to be put back to normal. The list is long: we are talking about tattooing, botox and laser treatment—just imagine the damage that high-powered lasers can do to somebody’s skin when in unqualified, untrained hands.

[Dr Whitford]

Along with the damage to patients who trustingly go for such procedures, is it not also about the fact that when they go horrifically wrong, as sometimes they do, it is the NHS that ends up having to pick up the pieces?

[Caroline Nokes]

I thank the hon. Lady for using exactly that term because she is right: it is about the NHS picking up the pieces and spending taxpayers’ money trying to correct something that should not have been done in the first place. If it is to be done to somebody, it should be done only by the qualified, trained and, as my new clause argues, licensed. I call today for some form of licensing or regulation. I absolutely accept that the Minister may view my new clause as deficient and not doing what he would want it to do. I appreciate the fact that he took the time to meet me and other Members last week to discuss the issue, because there are concerns throughout the House.

I pay particular tribute to my hon. Friend the Member for Sevenoaks (Laura Trott), who has done so much work on injectables in respect of under-18s and deserves absolute credit for getting her private Member’s Bill on to the statute book. That is amazing work and I really appreciate the fact that she has done it. Nevertheless, we need to do more and to go further.

I pay tribute to a number of my constituents who, following the work I did last year on the beauty industry, approached me on this issue. In particular, I pay tribute to Dr Chris Rennie of Romsey Medical Aesthetics, and to Dr Mitra Najafi, who has developed an incredible process by which plasma-rich platelets are extracted from a patient’s blood and injected back into them. It is a highly medicalised procedure and her big worry is that if it falls into the hands of somebody who is unregulated and unlicensed, it could be extremely dangerous indeed. Those with medical qualifications absolutely understand how they have to treat blood products; the stark reality is that those without do not.

I pay tribute to aestheticians—I struggle to say that word—such as Naomi O’Hara who came to me, as someone who practises, to call for regulation and licensing.

I pay tribute to a lady who is not my constituent but travelled to Romsey to see me: Tania Gough, who publishes the Image Directory. Her concern was that it is perfectly possible for someone to set themselves up in practice with next to no training whatsoever. She spoke to me of some of the horror stories that she herself had seen and some of the training courses she had gone on that she said were quite simply not worth the money she paid for them or the waste of her time. She said that certificates were issued at the end of such courses that gave the impression that people were qualified and trained when in fact they had had no more than a couple of hours—in one case it was 90 minutes—of training.

I also pay tribute to the Chartered Institute of Environmental Health and the Joint Council for Cosmetic Practitioners; they have been incredibly supportive and helpful in the drafting of new clause 1. The Joint Council for Cosmetic Practitioners says:

“The creation of a national licensing scheme for practitioners of aesthetic non-surgical cosmetic procedures would ensure that all those who practise are competent and safe for members of the public.”

To my mind, that is the abiding word: safe. We want those who receive these sorts of treatments not to be putting themselves in harm’s way.

I look forward to the Minister’s response; I know he is listening on this issue. He can expect me not to push my new clause to a vote, but I very much hope he can show us a constructive way forward that may take us to the regime that we want to see.

[Tonia Antoniazzi (Gower) (Lab)]

I could speak about so many aspects of the Bill—such as the U-turn on the social care cap, the lack of action to include health inequalities, allowing private healthcare providers to access our NHS and, frankly, whether a reorganisation of the NHS at this time of crisis is what we need to support all our healthcare workers—but I am sure that colleagues will more eloquently cover a lot of those points in their contributions. As the chair of the all-party parliamentary group on cancer, I will restrict my comments to the amendment on the NHS workforce tabled by the right hon. Member for South West Surrey (Jeremy Hunt).

Staffing is the biggest challenge facing the NHS. The Prime Minister claims to be building 40 new hospitals; if that ever happens, they will be of no use to anyone if there are not the doctors, nurses, radiotherapists, pharmacists, porters, cleaners and other staff to look after patients. As we have already heard, the NHS had 100,000 vacancies before the pandemic started. That, coupled with the intense strain and burnout that staff have suffered over the past 18 months, is causing a crisis in staffing that needs bold action now.

The Budget was a missed opportunity to invest in the people who make the NHS great, but amendment 10 would go some way to rectifying that. According to research from Macmillan, it is estimated that we need an extra 3,371 cancer nurse specialists by 2030—that is a doubling of the number of cancer nurses in just over eight years if we are to have any chance of providing the care and support that patients deserve. Macmillan has worked out that it would cost £174 million to train and develop specialist cancer nurses to plug the gap. Any increase in funding would be passed on to devolved Governments through Barnett consequentials. In the grand scheme of things, £124 million in England, £31 million in Scotland, £12 million in Wales and £7 million in Northern Ireland is not too much to ask of the Government—it is probably in the region of the amount of money spent on security for the Prime Minister’s trip to Peppa Pig World at the weekend.

15:39

As chair of the all-party group on cancer, I would like to extend my thanks to the other all-party groups and their chairs for their support on this issue. We have been appalled by the stories that we have heard from people living with cancer and going through treatment. Twenty five per cent. of people diagnosed with cancer in the past two years have not had specialist nursing support. Laura from North Yorkshire is living with incurable secondary breast cancer. When she spoke at the Breast Cancer Now event, she said:

“Being told that I had incurable secondary breast cancer felt like going into the abyss. What I need most is emotional and psychological support, yet I still don’t have a specialist nurse. I’ve had to find my own way through the dark days.”

I would like to put on record my heartfelt thanks to the cancer workforce who are doing all they can at this moment. They are crucial to the diagnosis and treatment of cancer. The shortages in the workforce have had a devastating effect on outcomes. People are now being diagnosed through visits to A&E with later stages of cancer, the consequences of which do not bear thinking about. The mental and physical health of the cancer workforce is suffering, too; they are at breaking point.

I have accompanied nurses to Downing Street to deliver a petition calling for the cancer workforce fund. I have spent time with Miriam Dibba Demba, a specialist gynaecology, oncology clinical nurse at St Bartholomew’s Hospital, and Eamon O’Reilly, a Macmillan lead nurse for cancer and chemotherapy at the Chelsea and Westminster Hospital NHS Foundation Trust. That is when we know that something has to change for the future, because the care and support that cancer nurses provide has been a lifeline for so many living with cancer. I urge the Government to put in place the funding to ensure that this essential support can continue.

[Richard Graham (Gloucester) (Con)]

I rise to speak on amendment 10. I want to start by relaying a conversation that I had soon after being elected 11 years ago in Gloucester. I talked to the chief executive of a hospital trust—he has subsequently moved on—and asked him how many nurses a year we needed to replace those who have retired and resigned, and to cope with increasing demand, not just in the hospital trust but including district nurses and nurses to cover the whole panoply of our needs in the county of Gloucestershire. He explained that we needed roughly 400 a year at that time. I asked him how many we were training. He said that the University of the West of England trains around 120 graduates a year from its nursing outlet in Gloucester. How do we meet the gap, I asked, and he said, “Well, we advertise. We try to encourage people from London to look for a change in their lifestyle and we recruit from abroad.” I asked him where that got us to. He said, “Well, it increases the numbers, but it never gets us enough. We struggle with a permanent shortfall of recruitment.”

Over the next few years, I worked on three things. The first was to support the Government push to create nursing associates. The second was to encourage the University of Gloucestershire to become a nursing teaching university and to submit an application to get pilot project status for the nursing associates’ training. Both of those came to pass. They were a credit to the Government, a credit to the university and a credit to the Nursing and Midwifery Council that supported them. None the less, we were, and are, still short; that gap has not been closed.

One other thing that I have done recently is to support the close engagement with the Government of the Philippines, who have kindly allowed us to carry on recruiting nurses from the Philippines to the United Kingdom during the pandemic. I ask everyone here to join me in paying tribute to the roughly 35,000 nurses from the Philippines who have made such a difference to our NHS. All those things have helped, but anyone who has played the role that all of us in this House have over the past two years will know that the people problem is the greatest problem that we have.

I chaired, first every week and now every two or three weeks, a meeting between all the MPs in Gloucestershire, the heads of the NHS trusts, public health and the county council. Time and again, the same issue comes up in a slightly different way: it is about people. Yes, we could build extra wards. Yes, we could convert offices into wards. Yes, we could build bed capacity, but we do not have more people to look after the patients in them. Yes, we have plenty of spaces in care homes, but we need to be able to send people back to their home from hospital, because that is how they recover best, and we do not have enough domiciliary care workers.

We have gone round and round for the past 10 or 11 years on this issue of staff—doctors in primary care surgeries, nurses everywhere and domiciliary care workers. I do not believe that we can resolve this problem until we start planning for the needs in different parts of the country and then working out how we can provide the training, the skills and the recruitment of individuals to make that happen. Of course it will not be perfect. Of course disasters such as the pandemic will make a bad situation much worse. We recognise that, but until we start that process, I do not believe that things will change. For as long as I am MP for Gloucester, I am absolutely certain that I will be having the same conversations about human resources—the people who deliver the care and health that all the people in my constituency and across the county and country need and deserve. It is not the best use of MPs’ time to constantly have to sit down with our health professionals in local NHS trusts to work out how we are going to mind the gap. That whole process has to be started from higher up, in the Department of Health and Social Care.

Today, we have an amendment that has enormous support not just from the Select Committee that my right hon. Friend the Member for South West Surrey (Jeremy Hunt) chairs, but from outside this House from the royal colleges, the NHS trusts and many others beside. I am frustrated that the Government have so far not indicated whether they will accept the amendment. In their hearts, the Minister and his colleagues, all good people trying to do their best, recognise that this problem will have to be tackled. Perhaps part of the solution will be in the White Paper that we are all so eagerly waiting for and that we wish that we had been able to have a few days ago, before the votes last night, on which I supported the Government on the basis of trust. None the less, there comes a time when we have to say and vote for what we believe in. I do believe that we need this change and that the Government can and should do it, and I will vote for it.

[Mr Kevan Jones (North Durham) (Lab)]

I rise to support new clause 1, which stands in the name of the right hon. Member for Romsey and Southampton North (Caroline Nokes), myself and 18 other right hon. and hon. Members from across the House. I first took an interest in this subject through a constituent, Dawn Knight, from Tanfield in my constituency. Dawn raised issues around the cosmetic surgery industry having been a victim of a particular hospital group. She has been a tireless campaigner in ensuring not only that victims get a voice, but that we press for more regulation.

I join others in paying tribute to the all-party group on beauty, aesthetics and wellbeing for its recent report and to my hon. Friends the Members for Swansea East (Carolyn Harris) and for Bradford South (Judith Cummins) for their work on that report, which highlights what my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) called the “wild west”. That is exactly what it is: it is a wild west without any regulation. It is a multibillion-pound industry, which is not only putting people at risk, but costing the NHS money.

In April 2013, the Health Secretary at the time—Andrew Lansley, now Lord Lansley—commissioned Sir Bruce Keogh to carry out a review of the regulation of cosmetic surgery. The review came out not only when we were having problems in the sector itself, but when interest was heightened around Poly Implant Prothèse breast implants, which people will well remember. When the review concluded, it explicitly advised the Government to increase regulation of the cosmetic surgery industry to prevent unlicensed treatments and increase patient safety. The review stated that a person having a non-surgical procedure

“has no more protection and redress than someone buying a ballpoint pen or a toothbrush”,

and

“dermal fillers are a crisis waiting to happen.”

As the right hon. Member for Romsey and Southampton North said, that crisis has actually happened already.

I have been campaigning on this issue for a number of years, during which time I have gone through a succession of Health Ministers, all of whom have come back with two points. The first is, “We are going to implement the Keogh recommendations”. But because Ministers were too terrified previously to make any health legislation, they were reluctant to bring those recommendations forward in that way.

The only good news in the area has been private Member’s Bill of the hon. Member for Sevenoaks (Laura Trott), the Botulinum Toxin and Cosmetic Fillers (Children) Act 2021. That legislation was tightly focused—as all private Member’s Bill have to be—and banned botox injections for under-18s. I congratulate the hon. Member on that work. However, any other regulations have been left unfinished. I have sheaves of letters from former Health Ministers saying, “The Keogh recommendations will be implemented”, but they have not been to date. If we do not do that in this Bill, when will it be done? I doubt that the Department will come forward with a Bill just to implement those recommendations; that is wishful thinking.

There is clearly no regulatory framework in the UK at present for those performing aesthetic non-surgical cosmetic treatments. The area is completely unregulated and lacks any national standards. There is no consumer protection, education, training or qualifications for those administering such treatments. As my hon. Friend the Member for Brent Central (Dawn Butler) said, some people call themselves nurses with no qualifications whatever. There is a huge discrepancy between the standards and qualifications of the training of these people. The other side of the issue, to which I will turn in a minute, is the regulated system, which, frankly, is failing as well.

The right hon. Member for Romsey and Southampton North raised the issue of training. If hon. Members visit any website tonight, they will see huge adverts saying, “Become a dermal filler specialist: training and qualification online within half an hour”—even less time in some cases. The people offering such services have no qualifications whatever, because the qualifications are not worth the paper that they are written on, but these people start carrying out invasive procedures without anybody stopping them. They can do it in a kitchen, or in any area that has not been clinically cleaned and is not of a standard that we would expect for medical procedures. It is a multimillion-pound racket that includes both the people offering the training and those carrying out procedures. It is an increasing issue, which needs to be addressed.

We also need to address the issue of advertising. As I have said before in the House, the Advertising Standards Authority is frankly a complete waste of time. If hon. Members go on any website tonight, or even open the national newspapers, they will see people advertising these services—potentially dangerous procedures—without any qualifications. We might ask, “Why would people have these procedures?” Well, I suggest that everyone reads the Mental Health Foundation’s 2019 report on body image, which shows the increasing pressure on young people.

The right hon. Member for Romsey and Southampton North is correct that this issue mainly affects young women, but it is increasingly an issue for some young men. The pressure of factors such as advertising and photo enhancements lead people to think that there is the perfect individual, but—apart from you, Mr Deputy Speaker—I am not sure that there is. The foundation’s reports highlights the pressure that is put on young people, but particularly young women. If they look at prices for procedures, they end up going to people who are completely unqualified. It is a scandal that there is no legislation to prevent this.

15:39

The Keogh recommendations were published in 2013, Sir Bruce Keogh called for minimum standards. Well, there are no minimum standards or regulation of what should be going on, and that has to be put right. I agree with the right hon. Member for Romsey and Southampton North that if this new clause is not perfectly crafted—it may well not be—we still need to ensure that there is regulation. I thank the Minister for the meeting we had last week—it took longer to arrange than getting an audience with the Pope, but we finally got it—and for the positive noises he made during the meeting, but I felt that the civil servants were reluctant to have any more regulation. As I said, I can provide the Minister with letters written to me by his predecessors saying that they were recommending the implementation of the Keogh review recommendations; however, we still need to implement them. If the new clause is not acceptable today, we certainly have to ensure that a regulation system comes up during the passage of the Bill.

I want to touch on two other issues. The first is a point raised by the hon. Member for Central Ayrshire (Dr Whitford), about the cost to the NHS. Over the years, I have asked what the cost is to the NHS of putting these procedures right. As the right hon. Member for Romsey and Southampton North said, when things go wrong there is no insurance to cover the individuals and there is no putting things right; that falls to the NHS. I have continually asked whether local NHS trusts keep figures on this, but they do not.

In the cases that Dawn Knight has brought to me—I am sure that it is the same for cases mentioned by the right hon. Member for Romsey and Southampton North—the rectification process involves not only the mental health issues that result from these procedures, but the cost of putting them right, although in some sad cases they cannot be put right. That cost falls on the NHS and the taxpayer. There is no comeback at all on the people who sell the unsafe practices. I therefore tabled an amendment, which was not selected, on collecting data; we need that data.

Finally, I turn to the wider regulation of the sector and the surgical sector. Again, my hon. Friend the Member for Ellesmere Port and Neston said that the sector is a wild west. I always hear from Ministers, “Well, doctors are regulated by the GMC, and you’ve got the Care Quality Commission looking after the private hospitals where these procedures are taking place,” but those bodies are failing. It took my constituent Dawn Knight six years to get a doctor struck off. Self-regulation through the General Medical Council does not work any more. We need to change it if we are to ensure that the patient is not only protected, but can get redress.

The cosmetic surgery industry is a racket. Businesses that are basically marketing companies rather than medical companies can portray themselves as hospital doctors. The doctors are usually brought in—sometimes from abroad, mainly Europe—on a day basis to carry out procedures. In most cases, there is no insurance. The structure behind a lot of the companies is that they tend to have the same directors and go bust very quickly. First call usually goes to the taxman, to whom they owe huge amounts of money, but often they also owe the local authority rates that they have not paid for years. The poor patient has no redress, and those cases come back to the NHS, which picks up the tab for putting them right. My constituent Dawn Knight had surgery on her eyes, and I hate to think what it has cost the NHS to address her ongoing problems.

There are two aims on the non-surgical side, because we have to beef up the regulation as well. I say to the Minister that if we do not get that in this Bill, I am not sure where we are going to get it. If the amendment is not accepted for technical reasons, I and, I am sure, the right hon. Member for Romsey and Southampton North and others, would like to work with him to draft an amendment before the conclusion of the Bill that brings in the regulation that was promised. The evidence is behind it, as is the Keogh review. It will not only give people confidence that procedures have been carried out safely, but drive the cowboys out of the sector, so that they will not be able to practise and harm vulnerable people.

[Paul Bristow (Peterborough) (Con)]

I rise to speak to amendment 10 in the name of my right hon. Friend the Member for South West Surrey (Jeremy Hunt). I refer Members to my entry in the Register of Members’ Financial Interests.

I have spoken in the House before about being involved in health policy for about 20 years. The same thing tends to happen every three or four years: the NHS says it needs more money, it needs more capacity and it needs a plan, and that is what we are doing again in the Bill. When we talk about more capacity, we mean not just more hospitals, more theatres and more diagnostics, but a bigger workforce. Thanks to this Government and the investment that has been made, I do not think anyone with any credibility can now say that the NHS does not have enough money. NHS England’s resource budget will rise to £162.6 billion in 2024-25—a 3.8% average annual real-terms increase. The Government also plan to spend a further £8 billion to tackle the elective backlog. This is the biggest ever catch-up programme in our NHS for elective surgery. Department of Health and Social Care capital spending will rise to £11.2 billion by 2024-25. I repeat: I do not think that anyone can say with any credibility that our NHS is now underfunded. We have the new diagnostic centres. We have the new pathways that should be adopted to increase NHS productivity. A long-term deal with the independent sector can ensure that we have the capacity to power through the elective backlogs—the hip and knee, hernia and cataract procedures that make up the vast majority of cases.

Of course, we need the nurses, the doctors and the consultants—the workforce—to carry out those procedures. This is a historical problem; it did not just happen overnight. All past Governments and, I dare say, past Secretaries of State for Health and Social Care have a degree of responsibility for this. As my right hon. Friend the Member for South West Surrey said, there are an estimated 93,000 vacancies in our NHS—consultants, GPs, nurses and allied health professionals. I was proud to stand on a manifesto at the last election that pledged to increase the number of healthcare workers in our NHS, and I know that considerable progress has been made, but just as the Government are doing with social care by putting in place a plan that focuses, laser-like, on resolving some of the long-term issues we face in that sector, we need the same laser-like focus to deal with some of the challenges with our NHS workforce. Any changes we make to our NHS workforce, or any long-term plans, need to reflect the real needs of our NHS. That is incredibly important. Some sort of duty to report independent figures about how we will make up the workforce is a very sensible measure.

Many years ago, I worked with the British Society of Interventional Radiology. The proposals we made and the work that we called for then were about workforce. Some argued that a lot of people were reaching the end of their professional career and retiring and there was a lack of new people coming through, so ultimately this would have an impact on patient care—on the number of procedures that could be carried out. The same arguments are now being made across a number of disciplines. Since I became an MP, I have met the Royal College of Surgeons and the Royal College of Physicians, and the same arguments are being made there. It is sobering to think about these challenges, and that is why this laser-like focus has to be considered very carefully.

We have talked about overseas recruitment. I heard what my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), who is no longer in his place, said about that, and he made a very powerful argument. In some ways, we are going to have to use overseas recruitment to plug the gaps in our NHS, but there are other solutions. We have heard hon. Members talk about retention. I was alarmed and shocked by the number of healthcare professionals who—understandably—wish to work part-time because they are parents and they have childcare responsibilities. I understand that, but it is going to leave our NHS with recruitment challenges.

When I speak to clinicians—members of the Royal College of Surgeons and others—they talk to me about the ability to work independently and autonomously. Many clinicians want that ability, but do not feel that they have it. There is also the idea that they want to be part of something bigger than their own small team. It is not that they want to be part of this thing called the NHS and that they are all working towards that goal; it is more that, once we have come through the challenge of the pandemic—once we have got ourselves over that mountain—there is an even bigger mountain ahead of them, which is dealing with the elective backlog, where they feel that things never change. That is what I have been told, and those are very powerful things.

What are the solutions to this problem? Ministers need to think about how we can encourage our consultants, our GPs and our medical professionals to practise at the top of their licence. Speaking to medical professionals, I have been told alarming things. About 40% of a GP’s time is spent on sickness notes or providing medical records to insurance companies and other people. That is admin staff work. As valuable as those admin staff are, that is not what GPs and medical professionals went into their professions, and went to medical school for all that time, to do. It is absolutely right that that burden be lifted from our medical staff and placed elsewhere. Nurse-led prescribing has existed for quite some time, but we have not really had the push and the drive there that we should have. GPs should not be spending their time prescribing very simple things such as the pill. We can certainly be doing a lot better and working a lot more productively, as my hon. Friend the Member for North East Bedfordshire (Richard Fuller) said. This is not about working harder; it is about working smarter.

[Clive Lewis (Norwich South) (Lab)]

Listening to the hon. Member’s speech, I think he is giving the game away in some ways, because what I am hearing, if I understand him correctly, is that he wants to see a core of healthcare provided by the NHS and then the more lucrative parts of the NHS—administration and other parts—siphoned off to the private sector, which is a model we have seen in the US and which this Bill makes so much easier.

[Paul Bristow]

I would ask the hon. Member to listen a bit more carefully, because nowhere have I said admin should be carried out by the private sector. I said that it should not be carried out by medical professionals. They did not go to medical school to work in admin; they went to medical school to treat the sick. That is what we want our medical professionals doing—operating at the very top of their licence.

I also do not want to see situations where untold numbers of consultants are spending just one day a week in the operating theatre. I understand that consultants need the opportunity to train junior colleagues and to continue their own professional development, but they should be operating in our theatres a lot more frequently than that.

[Dr Whitford]

I gently point out that surgeons do not just operate—we run clinics; we run endoscopy lists and colonoscopy lists—so it is not that they are only working one day a week. They investigate the patient before they operate, and that is one of the strengths of the system in the UK in comparison to other countries, where surgeons only operate and someone else has done the diagnostics.

16:00

[Paul Bristow]

I agree with the hon. Lady that surgeons work incredibly hard. What I am talking about is operating at the top of the licence and for our consultants to be able to do the things that we want them to do. She is absolutely right; they are doing vital work in other areas running clinics and so on, but ultimately what we have is an elective challenge, and we need to ensure that we spend as much time addressing that elective challenge.

[Dr Ben Spencer (Runnymede and Weybridge) (Con)]

Does my hon. Friend agree that one of the challenges for primary care is that general practitioners have absorbed a great deal of the role of social advocacy in our society? People are trying to get a face-to-face GP appointment, and it is sometimes being suggested to them that such things as getting a fitness note or a letter to go to a school might be better served by someone else in the wider multi-disciplinary team. People are getting frustrated, because our messaging about how to use the health service and the different range of roles and responsibilities offered is sometimes getting a bit diluted.

[Paul Bristow]

My hon. Friend speaks with much experience and makes a powerful point. I think he would agree that that core admin function is not what he went into medicine to do. He went into medicine to treat patients. I am grateful that the Minister laid out some of the plans that the Government have to deal with this issue. It is right that we should be looking to the long term, and the 15-year framework for future workforce is to be welcomed, but there also needs to be a much more regular reporting mechanism attached to that to ensure that we as Members are informed, but more importantly the NHS is informed, about how that challenge is going. The integration between NHS England and Health Education England—aligning the delivery arm and the workforce capacity arm—is probably also the right thing to do.

I end with this point: the challenges around workforce will be addressed not only by employing and training more NHS staff, although that is crucial—that is why I have some sympathy for amendment 10—but by ensuring that we work more productively by asking clinicians to operate at the top of their licence. It is also about ensuring that the NHS works smarter. We have created organisations such as Getting It Right First Time and NICE and asked them to go away and do the hard work of coming up with the most cost-effective and efficient ways of delivering care. If we ask those organisations to come up with the pathways and the ways of doing these things, surely it is only right that the NHS then adopts them instead of sitting there and saying, “These things will not necessarily work here.” We ask experts to come up with the right way of performing procedures; I suggest we go ahead and adopt them.

[Sarah Olney (Richmond Park) (LD)]

I rise to speak in support of amendment 10, tabled by the right hon. Member for South West Surrey (Jeremy Hunt), the Chair of the Health and Social Care Committee, because the amendment reflects the key issue facing the NHS and all our health and care services at this time: the workforce. Access to healthcare services is the No. 1 issue raised with me by constituents at the moment, and I know that concern is being echoed in other constituencies across the country.

People are experiencing the issue in many different ways. Some are struggling to get a GP appointment. I regularly speak to parents in great distress because of the lack of available help for their children’s mental health needs. The accident and emergency department at Kingston Hospital in my constituency has regularly had to ask patients to consider whether there are more appropriate sources of help for their needs. Patients waiting in the backlog of elective procedures are regularly having appointments rescheduled or cancelled. Ambulances do not always arrive when called.

The impacts are many and various, but when I speak to health service leaders in my local area, the answer is pretty much the same: there is a lack of available staff. Even in cases where lack of funds is not in itself a limiting factor, the lack of people with the relevant skills makes it impossible to fill all the vacancies they are able to pay for.

Many of these problems are covid-related. The current NHS waiting list is estimated to be over 6 million, and it is clear that much of that is because so many elective treatments were delayed during lockdown. Demand for mental health services has accelerated because of the impact of the lockdown, particularly on young people. Covid is still with us, of course, and workforces in every part of the economy are being impacted by the need for individuals to isolate when they have symptoms or test positive. Healthcare staff need to be more vigilant than the rest of us.

Many of these problems are also Brexit related. A lot of young Europeans decided to return to their home countries at the start of lockdown and have not since returned. Brexit has stymied our ability to recruit from the EU, shutting off an extremely important supply for all parts of the labour market, but the effect is being felt most markedly in health and social care, since it is having to manage the extraordinary demand of a global pandemic at the same time.

Many of these problems are also the result of a long-term failure to correctly predict or prepare for workforce demand. One of the huge advantages of a national health service is that it is possible to get clear data from right across the sector and to make appropriate plans and decisions. For some reason, that has not been done, and it is absolutely right that the Government should adopt amendment 10 to start to put that right.

I want to amplify a Backbench Business debate that I was able to bring to this Chamber a few weeks ago, in partnership with the right hon. Member for South Northamptonshire (Dame Andrea Leadsom) and the hon. Member for Newcastle upon Tyne North (Catherine McKinnell). It was on the subject of giving every baby the best start in life, and it was the firm view of all who attended that debate that the health visiting workforce needs to be substantially boosted to enable all new parents to receive a home visit from a trained healthcare professional. During the course of that debate, we heard of the many ways in which a health visiting workforce can support new families and the critical role they play in supporting babies and their families. One estimate is that the cost of poor parental mental health in the first year of life is more than £8 billion. It is clear that the cost of boosting our health visiting workforce would more than pay for itself in a very short time.

I also want to reflect briefly on a conversation I had with a constituent in the street in Richmond town centre on Saturday. Despite having two degrees, she was working in the care sector, and she was talking to me about her terms and conditions of work. She is employed by an agency and is not allowed to engage with any other agency. She is on a zero-hours contract, so she has to sit at home and wait to hear how many hours she might be required to work the following week. For various reasons that suits her, but I feel that it underpins the recruitment crisis we are experiencing in our social care sector, because that is no way to retain skilled and committed staff.

[Mr Kevan Jones]

Does the hon. Lady agree that it is not just about levels of pay and uncertainty for those individuals, but ensuring that we nationally accredit the qualifications of those individuals and address the career paths that do not exist in those sectors at the moment?

[Sarah Olney]

The right hon. Gentleman is absolutely right, and that is the point I want to make: we need to boost the status of our care home staff and improve their terms and conditions. We need to improve their pay. This lady who I spoke to on Saturday was telling me that she gets paid for the hours she spends in people’s homes, but not the time spent travelling in between. It is clear to me that the crisis of staffing we are experiencing in our care sector—I think every one of us as MPs is hearing about it regularly from our constituents, who are at the sharp end of that—is as much about workforce planning and improving terms and conditions. The Government needs to give that the most urgent attention, and amendment 10 would go some way to resolving that, although it will not resolve it entirely.

I know that Ministers will push back against the cost of boosting the workforce in all areas of the NHS, but they must surely realise the cost of failing to do so. The right hon. Member for South West Surrey. along with the hon. Member for Central Ayrshire (Dr Whitford), spoke about the cost of locum resource in the NHS. It is not just about the direct cost of locums or of worsening health outcomes as people wait longer for treatment; it is also about the lost productivity of days off sick, the cost of poor mental health as lives are put on hold and, as has been mentioned many times, the cost of exhausted and demoralised staff who are overwhelmed by the demands on the NHS. We cannot afford to continue to fail to effectively plan our healthcare workforce.

I am also very happy to support the amendments tabled by the hon. Member for North West Durham (Mr Holden) on virginity testing and hymenoplasty. I am delighted that the Government are adopting the provisions on virginity testing. We still have much to do to make this country a safe place for women and girls, but all progress is to be welcomed, and I am very glad that this opportunity to bring to an end the degrading practice of virginity testing has not been lost. I congratulate the hon. Member for North West Durham on all the work he has done and, although they may have left the Chamber, the representatives of the other charities referred to earlier. I hope in due course we will see the provisions for hymenoplasty as well, when the review has concluded.

[Mr Deputy Speaker (Mr Nigel Evans)]

I have three people indicating that they wish to speak. I ask people to make really short contributions, because I want to give the Minister six minutes to wind up and we will then go into the votes at half past.

[Matt Warman (Boston and Skegness) (Con)]

I will be brief, Mr Deputy Speaker. I should declare that I am married to a doctor.

Staff are the No. 1 priority for the health service, and have been historically for this Government, so I will support the Government today, but somewhat through gritted teeth. I implore the Minister to include a few things in his 15-year review. I ask him to engage with the feeling of staff, which we have all heard about: if there are fundamentally not enough staff within the system, it is impossible for them to feel that they can do the job they went into medicine to do as well as they possibly can. I know his plans in this 15-year review will address some of that, but I hope he will also address the fact that there is a huge role to play for technology and for the increasing integration between health and social care. If more patients are stuck in hospitals because they cannot be sent on to the social care system, then we need more doctors to staff those hospitals.

I hope the Minister will consider those multiple facets in the review, and also consider that perhaps more important than anything else is how we retain staff. Even if we are putting more and more people into the beginning of a career pipeline, we will never be able to fill up that pipeline sufficiently if people, whether for pension-related reasons or a whole host of other reasons, are leaving more rapidly than we currently imagine they will in the planning.

That retention aspect has to be a hugely important part of the review. I hope that the possibility of addressing all those multiple factors will be core to what the Minister has been talking about. As others have said, I also hope he will be as transparent as possible within that, and that he or his Department will come to the House to make those plans transparent. Fifteen years is good, and transcends the political horizon that so often derails good intentions for the NHS, but the more transparent we can be, and the more support we can give to recruitment, retention, technology, social care and a host of other issues, the less my teeth will be gritted as I support the Government today.

[Mr Holden]

I shall keep my comments very brief. I apologise to the Minister for not having been here for his speech, because I was with one of his colleagues in my constituency earlier today.

I welcome what the Government are doing today in new clauses 36 to 48. There has been a huge campaign for a long time by people from so many different organisations, particularly Natasha Rattu of Karma Nirvana, Sara Browne and Payzee Mahmood from IKWRO, Halaleh Taheri and Natasha Feroze at the Middle Eastern Women and Society Organisation, Rosie Walworth and Zoe Russell from the Royal College of Obstetricians and Gynaecologists, who have worked closely with me over the past few months, Janet Fyle from the Royal College of Midwives, barristers Dr Charlotte Proudman and Naomi Wiseman and consultant gynaecologist Dr Ashfaq Khan, who did some excellent briefing for us in earlier stages of the process. I also thank Adam Mellows-Facer and Huw Yardley from the Public Bill Office, who did some excellent work with my office manager, Robbie Lammas, who has kept going on this throughout.

I am pleased that the Government are coming forward with the amendments on virginity testing today. I particularly welcome the fact that they are UK-wide and have had support from scores of Members, including the hon. Member for Richmond Park (Sarah Olney), the former Health Secretary, my right hon. Friend the Member for South West Surrey (Jeremy Hunt), and many other hon. Members from across the House who I can see here today.

It is excellent that the Government have listened so much and responded so thoroughly. I would like to hear the Minister talk about new clause 22, which I tabled today, on hymenoplasty. I know we are on Report, but I want his assurance that, if all goes well, we should see those amendments to this Bill in the House of Peers before too long. It is vital that banning hymenoplasty and banning virginity testing go hand in hand.

16:15

[Derek Thomas (St Ives) (Con)]

I rise to speak on amendment 10 on workforce planning, in the name of my right hon. Friend the Member for South West Surrey (Jeremy Hunt). However, surely the Government’s urgent priority is to look at effective ways to attract back into the NHS all those consultants, nurses and social care workers who have left, and to find any way they can to bring back that experience and expertise.

With your permission, Mr Deputy Speaker, I would like to talk about some lived experience. Just last Friday, I came across a lady who had fallen over and clearly injured herself. I phoned 999, knowing full well that I would be entering a system under severe stress and pressure. I confess that, as it happened. I put the phone down, because the priority for me was to ensure that she was safe, warm and comfortable.

The ambulance service called me back and told me it would be a wait of several hours. I knew that that was caused by the pressure on the ambulance service and on A&E and the subsequent pressure on beds, hindering the effective and timely treatment of people who go to hospital. The pressure on admission to A&E also affects surgery. All that pressure goes down to one place in Cornwall, and Cornwall will not be unique: delayed transfers of care.

We have been in this place before: in 2016, a system-wide review of the situation in Cornwall found far too many people who would be better off in the community, being looked after in homes or care homes, but were stuck in hospital. In Cornwall today I understand the figure is more than 100 people in that exact situation. The pressure on the whole system is largely to do with those delayed transfers of care. While much has been said about the workforce planning for the NHS, I will quickly touch on workforce planning for the care workforce.

The emphasis on workforce planning should transform the current state of the care workforce, leading to better support, better training, better pay and better status. I am hopeful that the White Paper will address that, as it is the only way to effectively ease the pressure on acute NHS settings. There is an urgent need to understand and address the pressure on care staff, GP practices and community care across the board.

Maybe I should have said this at the beginning, but I chair the all-party parliamentary group on diabetes. Several years ago, we found that, in the whole of the south-west, training for podiatry was coming to an end because of a lack of funding and the way it was delivered across the region. That had an immediate impact on community care and how people could be cared for and enabled to live with and manage their condition, which ultimately puts more pressure on urgent care.

As we look at workforce planning and how to understand exactly what is needed, I particularly thank the NHS staff who have worked so hard, especially those I met at the beginning of the year, who, as they delivered the vaccine roll-out, told me they were doing it for the national effort. Workforce planning and the commitment to ensuring that we have the workforce where they are needed, with the skills they need, is the best way to reward our NHS workforce.

[Edward Argar]

This is a little more generous than the six minutes I feared I might have to work with, Mr Deputy Speaker.

If I may, I will address each set or theme of amendments in turn. First, I am grateful to my hon. Friend the Member for North West Durham (Mr Holden) for the work he has done. He rightly highlights that in a sense he is but the voice of the campaigners who have worked so hard on this issue over a very long period. I am pleased that today, while it is not his exact amendment, we have been able to work together to table an amendment that I hope will command cross-party support across the House to deliver on what he has campaigned so effectively for.

I have known my hon. Friend a very long time, so I should not have been surprised by the persistence with which he beat a path to my door to seek to secure agreement on exactly this policy issue.

[Mr Holden]

Can I just say that the Minister has been absolutely superb in engaging throughout this process? I would like to thank the shadow team as well, who in Committee and today—and throughout—have shown real conviction towards this end. I thank the Minister and his team and also the shadow team for all they have done.

[Edward Argar]

I am grateful to my hon. Friend, who I think covered both bases there very eloquently. He makes an important point on this issue. The change will make a real difference to people’s lives, so I commend him for his work.

New clause 1 was tabled by my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) and would give the Secretary of State the power to introduce a licensing regime for aesthetic non-surgical cosmetic procedures, making it an offence for someone to practise without a licence. I thank her for bringing this to the House today. In that context, I also pay tribute to the right hon. Member for North Durham (Mr Jones); my hon. Friend the Member for Thurrock (Jackie Doyle-Price), who has taken a very close interest in the issue; and of course my hon. Friend the Member for Sevenoaks (Laura Trott) not only for taking a close interest in the issue, but for her success, with her private Member’s Bill, in moving the dial further forward on the issue more broadly.

As I said in Committee, I entirely understand the intention behind the amendment and that a strong case has been made for further regulation in this area. I and the Department are keen to work with stakeholders, including Members of this House on both sides, to see whether we can take this forward in the most appropriate way and clarify the scope of any further regulation. We are happy—we had a very positive meeting, which was alluded to—and I hope that we will be able to continue to explore the issue with hon. and right hon. Members.

In this context, I also commend the all-party parliamentary group on beauty, aesthetics and wellbeing for its important work. Its inquiry highlights the huge range of non-surgical cosmetic procedures available, which vary in their level of complexity and invasiveness. We are carefully considering the findings of that report, including, in that context, its recommendation for a licensing system. We look forward to reporting our conclusions from that work early in 2022. I look forward to working with my right hon. Friend the Member for Romsey and Southampton North and others on that.

Amendment 57 was tabled by the hon. Member for Wirral West (Margaret Greenwood). I can entirely understand where she is coming from—that the professions protected in law must be the right ones, with the right regulatory oversight, recognising that regulation is there for safety. We believe there is no immediate case to change the professions that are regulated, but we will consider whether any new groups of workers should be brought into statutory regulation, and the power to remove professions from regulations would only be used where regulation is no longer required for the protection of the public. For these reasons, we think the approach we are adopting is the right one, but I always reflect on what she says. Even when I do not entirely agree with all of it, I always reflect carefully because she has taken a long-standing interest in these issues.

The hon. Member for Brent Central (Dawn Butler) raised the issue of the title of “nurse” and protection for it. The title “registered nurse” is protected in law. Currently —she is right—the title “nurse” is not protected, given that it is used across multiple professions, including dental nurses, school nurses, veterinary nurses and similar. As has been pointed out by the interim chief nursing officer for Scotland, any change would need careful consideration of the impact on other groups currently using the title “nurse” outside healthcare settings.

I can see the benefit in providing reassurance and clarity for both patients and professionals. I would also note that the protection of a title is only one part of the regulatory system and the complexities associated with that. I understand where the hon. Member is coming from with her new clause 12. What I would say is that any subsequent change could form part of the legislative reform programme for the Nursing and Midwifery Council, which will be taken forward by secondary legislation made under section 60 of the Health Act 1999. But we do not feel we are able to accept her new clause, as drafted at the moment, because we do not feel that it addresses those fundamental challenges.

[Dawn Butler]

rose—

[Edward Argar]

If the hon. Member is going to be brief, I will of course give way to her.

[Dawn Butler]

I was going to quickly say that the Government’s response to Alison Leary’s very good petition says that the Government understand it. We could pass the new clause today and then the Minister could amend it in Committee.

[Edward Argar]

I am grateful to the hon. Lady, but we have had the Committee. We are now at the stage where we have been through this, and I therefore do not think it would be appropriate to pass an amendment that we thought was flawed in its drafting. I can understand the intent behind it, and I have said that I will continue to reflect on that, but we do not feel we can support the amendment as drafted.

On amendment 10 and new clause 28, hon. and right hon. Members who have spoken to those amendments from both sides of the House have raised something that I think is of huge importance to all Members of this House. As I said in my opening remarks, we all recognise that technology, kit and buildings are all wonderful if we invest in them, but they are nothing without the people—the professionals—who know how to care, are able to care and are able to use that kit to provide the best possible outcomes for our constituents. The workforce are in a sense the beating heart of our NHS, and it is important that I again recognise and join the Opposition in paying tribute to the work undertaken by the workforce.

I appreciate entirely the strongly held, sincerely held and, as ever with my right hon. Friend the Member for South West Surrey (Jeremy Hunt), well-informed views that he brings to this debate, based on his extensive experience. I would extend that to the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), in a spirit of bipartisan cordiality. I hope I have been able to help to reassure colleagues just how seriously we take this issues. Hon. and right hon. Members have been right to raise the issue. We reflect very carefully on it. We have already, as I have said, not only set out plans for elective recovery and further reforms to improve recruitment and support for our workforce, but announced yesterday the merger of Health Education England with NHS England, which we believe is an important next step in making sure that workforce needs can be considered in the round. The other key element is, as I say, the development, commissioned in July, of a robust, long-term—15-year—strategic framework for the health and social care workforce.

We are in no way complacent or resting on our laurels in the case of the workforce. Despite the significant progress we have made in recruiting more nurses and more doctors, there is clearly a lot more to do. We recognise that, and I believe it was a point well made by my hon. Friend the Member for Boston and Skegness (Matt Warman). He declared his interest. I do not know whether I need to, but his wife is a friend of mine; I should probably declare that too. He made some important points, a key point being that this is not just about projections for recruitment. It is absolutely right that we are focused, as we are, on the retention of our existing highly trained, highly skilled and highly experienced workforce. We look at what measures we can continue to take to address those challenges.

There is the need to recognise that that workforce—the workforce who are delivering on elective recovery and who are delivering on tackling those waiting lists—are the same people who have been working flat out throughout this pandemic, and emotionally and physically need the space and time to be able to recover. We recognise that and take it extremely seriously. I think it was my hon. Friend the Member for Peterborough (Paul Bristow)—he has jumped around the Chamber slightly in taking his seat—who made the point about reporting and monitoring mechanisms to know how the framework is working and that we are doing the right thing. While we are not, I have to say, fully convinced by the case made by my right hon. Friend the Member for South West Surrey, I take the point made by my hon. Friend the Member for Peterborough about that. I will continue to reflect very carefully on that, on what my right hon. Friend has tabled and on the points he made in debate and in his many meetings with me and other ministerial colleagues.

In the minute or so I have left, I want to briefly touch on the HSSIB amendments, which I know are important, particularly to the hon. Member for Central Ayrshire (Dr Whitford), but I think she reflects broader opinion in this House. As discussed in Committee, the definition given in clause 108(2) is intentionally broad. HSSIB will be carrying out a range of investigations, and we believe it would be impossible to prospectively identify the material that will be gathered and should therefore be protected by safe space. Similarly, while I take the point she makes about senior coroners and coroners’ involvement, we believe that we have struck the right balance in not extending the safe space exemptions more widely, but recognising the unique status that those judicial office holders have.

I hope I have been able to cover the main themes of the amendments tabled in this group. I hope I have been able to reassure hon. and right hon. Members on both sides of this House, particularly in respect of the workforce, just how seriously Her Majesty’s Government take that issue, and the points genuinely and sincerely made by Members on both sides of the House in that context.

Question put and agreed to.

New clause 36 accordingly read a Second time, and added to the Bill.

New Clause 37

Offence of offering to carry out virginity testing: England and Wales

‘(1) It is an offence under the law of England and Wales—

(a) for a person in England and Wales to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in England and Wales.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: England and Wales)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: England and Wales)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of England and Wales of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 38

Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales

‘(1) It is an offence under the law of England and Wales for a person who is in England and Wales, or for a person who is outside England and Wales but who is a United Kingdom national or habitually resident in England and Wales, to aid, abet, counsel or procure the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: England and Wales) of any rule of law relating to aiding, abetting, counselling or procuring.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: England and Wales)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: England and Wales)(2).’. —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing)

Brought up, read the First and Second time, and added to the Bill.

New Clause 39

Virginity testing offences in England and Wales: penalties

‘(1) A person who commits an offence under section (Offence of virginity testing: England and Wales), (Offence of offering to carry out virginity testing: England and Wales) or (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales), is liable—In subsection (1)(a) “the maximum summary term for either-way offences” means—

(a) on summary conviction, to imprisonment for a term not exceeding the maximum summary term for either-way offences or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

(c) in relation to an offence committed before the time when paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force, 6 months;

(d) in relation to an offence committed after that time, 12 months.’ —(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of England and Wales relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 40

Offence of virginity testing: Scotland

‘(1) It is an offence under the law of Scotland for a person to carry out virginity testing.

(2) “Virginity testing” means the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

(3) An offence is committed under subsection (1) only if the person—

(a) is in Scotland, or

(b) is outside the United Kingdom, and is a United Kingdom national or habitually resident in Scotland.

(4) “United Kingdom national” means an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 is a British subject, or

(c) a British protected person within the meaning of that Act.

(5) In subsection (2), “female genitalia” means a vagina or vulva.’

This new clause creates an offence under the law of Scotland of virginity testing.—(Edward Argar.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 41

Offence of offering to carry out virginity testing: Scotland

‘(1) It is an offence under the law of Scotland—

(a) for a person in Scotland to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in Scotland.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Scotland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Scotland)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of Scotland of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 42

Offence of aiding or abetting etc a person to carry out virginity testing: Scotland

‘(1) It is an offence under the law of Scotland for a person who is in Scotland, or for a person who is outside Scotland but who is a United Kingdom national or habitually resident in Scotland, to aid, abet, counsel, procure or incite the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: Scotland) of any rule of law relating to aiding, abetting, counselling, procuring or inciting.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Scotland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Scotland)(2).’ —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing).

Brought up, read the First and Second time, and added to the Bill.

New Clause 43

Virginity testing offences in Scotland: penalties and supplementary

‘(1) A person who commits an offence under section (Offence of virginity testing: Scotland), (Offence of offering to carry out virginity testing: Scotland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland), is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

(2) Where a person outside Scotland commits an offence under section (Offence of virginity testing: Scotland), (Offence of offering to carry out virginity testing: Scotland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland) the person may be prosecuted, tried and punished for the offence—

(a) in a sheriff court district in which the person is apprehended or in custody, or

(b) in a sheriff court district determined by the Lord Advocate,

as if the offence had been committed in that district.

Where subsection (2) applies, the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district.

(3) In this section “sheriff court district” is to be construed in accordance with section 307(1) of the Criminal Procedure (Scotland) Act 1995 (interpretation).’—(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of Scotland relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 44

Offence of virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland for a person to carry out virginity testing.

(2) “Virginity testing” means the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

(3) An offence is committed under subsection (1) only if the person—

(a) is in Northern Ireland, or

(b) is outside the United Kingdom, and is a United Kingdom national or habitually resident in Northern Ireland.

(4) “United Kingdom national” means an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 is a British subject, or

(c) a British protected person within the meaning of that Act.

(5) In subsection (2), “female genitalia” means a vagina or vulva.’ —(Edward Argar.)

This new clause creates an offence under the law of Northern Ireland of virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 45

Offence of offering to carry out virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland—

(a) for a person in Northern Ireland to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in Northern Ireland.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Northern Ireland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Northern Ireland)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of Northern Ireland of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 46

Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland for a person who is in Northern Ireland, or for a person who is outside Northern Ireland but who is a United Kingdom national or habitually resident in Northern Ireland, to aid, abet, counsel or procure the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: Northern Ireland) of any rule of law relating to aiding, abetting, counselling or procuring.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Northern Ireland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Northern Ireland)(2).’ —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing).

Brought up, read the First and Second time, and added to the Bill.

New Clause 47

Virginity testing offences in Northern Ireland: penalties

‘A person who commits an offence under section (Offence of virginity testing: Northern Ireland), (Offence of offering to carry out virginity testing: Northern Ireland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).” —(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of Northern Ireland relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 48

Virginity testing: consequential amendments

‘Schedule (Virginity testing: consequential amendments) contains consequential amendments.’—(Edward Argar.)

This new clause introduces a Schedule of consequential amendments relating to the new virginity testing offences.

Brought up, read the First and Second time, and added to the Bill.

16:30

Proceedings interrupted (Programme Order, 22 November).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

New Clause 12

Protection of the title of “nurse”

‘(1) A person may not practise or carry on business under any name, style or title containing the word “nurse” unless that person is registered with the Nursing and Midwifery Council and entered in sub part 1 or 2 of the register as a Registered Nurse or in the specialist community public health nursing part of the register.

(2) Subsection (1) does not prevent any use of the designation “veterinary nurse”, “dental nurse” (for which see section 36K of the Dentists Act 1984) or “nursery nurse”.

(3) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level four on the standard scale.’—(Edward Argar.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

16:31

Division 118

Ayes: 240

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Labour: 179
Scottish National Party: 38
Liberal Democrat: 9
Democratic Unionist Party: 5
Independent: 3
Social Democratic & Labour Party: 2
Plaid Cymru: 2
Alliance: 1
Conservative: 1
Green Party: 1
Alba Party: 1

Noes: 304

---

Conservative: 302
Independent: 1

Clause 34

Report on assessing and meeting workforce needs

Amendment proposed: 10, page 42, line 12, leave out from beginning to the end of line 17 and insert—

“(1) The Secretary of State must, at least once every two years, lay a report before Parliament describing the system in place for assessing and meeting the workforce needs of the health, social care and public health services in England.

(2) This report must include—

(a) an independently verified assessment of health, social care and public health workforce numbers, current at the time of publication, and the projected workforce supply for the following five, ten and 20 years; and

(b) an independently verified assessment of future health, social care and public health workforce numbers based on the projected health and care needs of the population for the following five, ten and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(3) NHS England and Health Education England must assist in the preparation of a report under this section.

(4) The organisations listed in subsection (3) must consult health and care employers, providers, trade unions, Royal Colleges, universities and any other persons deemed necessary for the preparation of this report, taking full account of workforce intelligence, evidence and plans provided by local organisations and partners of integrated care boards.”—(Jeremy Hunt.)

This amendment would require the Government to publish independently verified assessments every two years of current and future workforce numbers required to deliver care to the population in England, based on the economic projections made by the Office for Budget Responsibility, projected demographic changes, the prevalence of different health conditions and the likely impact of technology.

Question put, That the amendment be made.

16:46

Division 119

Ayes: 219

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Labour: 174
Conservative: 18
Liberal Democrat: 9
Democratic Unionist Party: 5
Independent: 4
Social Democratic & Labour Party: 2
Plaid Cymru: 2
Alliance: 1
Green Party: 1

Noes: 280

---

Conservative: 276

Clause 121

Interpretation of Part 4

Amendment proposed: 24, page 103, line 16, leave out “sections 112 and 113” and insert

“the case of an investigation mentioned in section 112(1)(b), 113 or 114”.

This amendment clarifies that the provisions of Part 4 of the Bill about investigations apply only to investigations carried out by the HSSIB in exercising its main investigation function (and not, for example, investigations carried out to assist NHS bodies or investigations carried out under an agreement with another person relating to Wales or Northern Ireland).

Clause 127

Regulation of health care and associated professions

Amendment proposed: 127, page 110, line 42, at end insert—

“(2A) In section 62 (regulations and orders), after subsection (10) insert—

‘(10A) If any provision made by an Order in Council by virtue of section 60(2ZZA) would, if it were included in an Act of Senedd Cymru, be within the legislative competence of the Senedd and is not merely incidental to, or consequential on, provision that (if so included) would be outside that competence, no recommendation is to be made to Her Majesty to make the Order unless the Welsh Ministers have consented to that provision.’”

This amendment requires the consent of the Welsh Ministers to an Order in Council made under section 60(2ZZA) that is within the legislative competence of Senedd Cymru.

Clause 137

Extent

Amendments proposed: 86, page 117, line 34, after “(2)” insert “(2A), (2B)”.—(Edward Argar.)

This amendment paves the way for the changes made by Amendment 87.

Amendment 87, page 117, line 41, at end insert—

“(2A) Sections (Offence of virginity testing: Scotland), (Offence of offering to carry out virginity testing: Scotland), (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland) and (Virginity testing offences in Scotland: penalties) extend to Scotland only.

(2B) Sections (Offence of virginity testing: Northern Ireland), (Offence of offering to carry out virginity testing: Northern Ireland), (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) and (Virginity testing offences in Northern Ireland: penalties) extend to Northern Ireland only.”

This amendment ensures that the new clauses relating to virginity testing in Scotland and Northern Ireland form part of the law of those jurisdictions and only those jurisdictions.

Question put (single Question on amendments moved by a Minister of the Crown), That amendments 24, 127, 86 and 87 be made.—(Edward Argar.)

Question agreed to.

Amendments 24, 127, 86 and 87 accordingly agreed to.

New Schedule 1

Virginity testing: consequential amendments

‘Police and Criminal Evidence Act 1984

1 In section 65A of the Police and Criminal Evidence Act 1984 (qualifying offences for the purposes of Part 5 of that Act), in subsection (2), after paragraph (t) insert—

“(u) an offence under section (Offence of virginity testing: England and Wales), (Offence of offering to carry out virginity testing: England and Wales) or (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales) of the Health and Care Act 2021 (offences relating to virginity testing).”

Police and Criminal Evidence (Northern Ireland) Order 1989

2 In Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (qualifying offences for the purposes of Part 6 of that Order), in paragraph (2)—

(a) the second sub-paragraph (t) (inserted by the Space Industry Act 2018) becomes sub-paragraph (u);

(b) after that sub-paragraph insert—

“(v) an offence under section (Offence of virginity testing: Northern Ireland), (Offence of offering to carry out virginity testing: Northern Ireland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) of the Health and Care Act 2021 (offences relating to virginity testing).”

Criminal Justice and Public Order Act 1994

3 (1) Schedule 7A to the Criminal Justice and Public Order Act 1994 (offences for which cross-border powers of arrest available) is amended as follows.

(2) After paragraph 25 insert—

“25A An offence under any of the following sections of the Health and Care Act 2021—

(a) section (Offence of virginity testing: England and Wales) (virginity testing);

(b) section (Offence of offering to carry out virginity testing: England and Wales) (offering to carry out virginity testing);

(c) section (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales) (aiding or abetting etc a person to carry out virginity testing).”

(3) After paragraph 43 insert—

“43A An offence under any of the following sections of the Health and Care Act 2021—

(a) section (Offence of virginity testing: Scotland) (virginity testing);

(b) section (Offence of offering to carry out virginity testing: Scotland) (offering to carry out virginity testing);

(c) section (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland) (aiding or abetting etc a person to carry out virginity testing).”

(4) After paragraph 67 insert—

“68 An offence under any of the following sections of the Health and Care Act 2021—

(a) section (Offence of virginity testing: Northern Ireland) (virginity testing);

(b) section (Offence of offering to carry out virginity testing: Northern Ireland) (offering to carry out virginity testing);

(c) section (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) (aiding or abetting etc a person to carry out virginity testing).”

Crime and Disorder Act 1998

4 In section 51C of the Crime and Disorder Act 1998 (notices in certain cases involving children), in subsection (3)—

(a) after paragraph (da) insert—

“(db) under section (Offence of virginity testing: England and Wales), (Offence of offering to carry out virginity testing: England and Wales) or (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales) of the Health and Care Act 2021 (virginity testing etc);”;

(b) for “paragraph (a), (b), (c), (d) or (da)” substitute “any of paragraphs (a) to (db)”.

Modern Slavery Act 2015

5 In Schedule 4 to the Modern Slavery Act 2015 (offences to which defence in section 45 does not apply), after paragraph 36A insert—

“Health and Care Act 2021

36B An offence under any of the following provisions of the Health and Care Act 2021—

(a) section (Offence of virginity testing: England and Wales) (virginity testing);

(b) section (Offence of offering to carry out virginity testing: England and Wales) (offering to carry out virginity testing);

(c) section (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales) (aiding or abetting etc a person to carry out virginity testing).”’—(Edward Argar.)

This new Schedule contains consequential amendments relating to NC36 to NC48 creating offences relating to virginity testing.

Brought up, and added to the Bill.

Schedule 13

The Health Services Safety Investigation Body

Amendment made: 88, page 217, line 20, at end insert “value added tax,”.—(Edward Argar.)

This amendment enables regulations under paragraph 23 of Schedule 13 to vary the way VAT would have effect in relation to transfer schemes under paragraph 22 of Schedule 13.

[Mr Deputy Speaker (Mr Nigel Evans)]

We are now coming on to the next group of amendments. As hon. Members can see, we have only an hour left, so can I plead to everyone who is participating, including the Front Benchers: short contributions, please, so we can get as many people in as we possibly can?

New Clause 62

Pharmaceutical services: remuneration in respect of vaccines etc

“(1) In section 164 of the National Health Service Act 2006 (remuneration for persons providing pharmaceutical services)—

(a) in subsection (8A) for ‘special medicinal products’ substitute ‘any of the following—

(a) drugs or medicines used for vaccinating or immunising people against disease,

(b) anything used in connection with the supply or administration of drugs or medicines within paragraph (a),

(c) drugs or medicines, not within paragraph (a), that are used for preventing or treating a disease that, at the time the regulations are made, the Secretary of State considers to be a pandemic disease or at risk of becoming a pandemic disease,

(d) anything used in connection with the supply or administration of drugs or medicines within paragraph (c), or

(e) a product which is a special medicinal product for the purposes of regulation 167 of the Human Medicines Regulations 2012 (S.I. 2012/1916).’;

(b) in subsection (8D)—

(i) for ‘special medicinal products are’ substitute ‘anything within subsection (8A)(a) to (e) is’;

(ii) in paragraph (b), for ‘special medicinal products’ substitute ‘that thing,’;

(c) subsection (8E), omit the definition of ‘special medicinal product’;

(d) after subsection (8E) insert—

‘(8F) Where regulations include provision made in reliance on subsection (8A)(c) or (d) and the Secretary of State considers that the disease to which it relates is no longer a pandemic disease or at risk of becoming a pandemic disease, the Secretary of State must revoke that provision within such period as the Secretary of State considers reasonable (taking into account, in particular, the need for any transitional arrangements).’

(2) In section 88 of the National Health Service (Wales) Act 2006 (remuneration for persons providing pharmaceutical services)—

(a) in subsection (8A) for ‘special medicinal products’ substitute ‘any of the following—

(a) drugs or medicines used for vaccinating or immunising people against disease,

(b) anything used in connection with the supply or administration of drugs or medicines within paragraph (a),

(c) drugs or medicines, not within paragraph (a), that are used for preventing or treating a disease that, at the time the regulations are made, the Welsh Ministers consider to be a pandemic disease or at risk of becoming a pandemic disease,

(d) anything used in connection with the supply or administration of drugs or medicines within paragraph (c), or

(e) a product which is a special medicinal product for the purposes of regulation 167 of the Human Medicines Regulations 2012 (S.I. 2012/1916).’;

(b) in subsection (8D)—

(i) for ‘special medicinal products are’ substitute ‘anything within subsection (8A)(a) to (e) is’;

(ii) in paragraph (b), for ‘special medicinal products’ substitute ‘that thing,’;

(c) in subsection (8E), omit the definition of ‘special medicinal product’;

(d) after subsection (8E) insert—

‘(8F) Where regulations include provision made in reliance on subsection (8A)(c) or (d) and the Welsh Ministers consider that the disease to which it relates is no longer a pandemic disease or at risk of becoming a pandemic disease, the Welsh Ministers must revoke that provision within such period as the Welsh Ministers consider reasonable (taking into account, in particular, the need for any transitional arrangements).’”—(Edward Argar.)

This amendment replicates the amendments currently made by clause 76 and makes corresponding provision for Wales. As a consequence clause 76 is left out by Amendment 115.

Brought up, and read the First time.

[Edward Argar]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 13—National self-care strategy—

“(1) The Secretary of State must prepare a National Self-Care Strategy to fully integrate self-care for minor ailments into the wider health system.

(2) The National Self-Care Strategy must have regard to the need to—

(a) address inequalities in health literacy;

(b) enhance the understanding of primary and secondary age children on how to self-care;

(c) introduce self-care modules in healthcare professionals’ training curricula and continuing professional development;

(d) make best use of, and expand, the Community Pharmacist Consultation Service;

(e) improve access to effective self-care treatments;

(f) enable community pharmacists to refer people directly to other healthcare professionals;

(g) ensure better support for primary care networks to deliver self-care;

(h) evaluate the use of technologies that have been developed during the COVID-19 pandemic to promote greater self-care; and

(i) accelerate efforts to enable community pharmacists to populate medical records.”

This new clause would ensure that the Secretary of State for Health and Social Care publishes a national self-care strategy to integrate self-care for minor ailments into the health system.

New clause 18—Secretary of State’s duty to report on access to NHS dentistry—

“(1) The Secretary of State must publish an annual report setting out levels of access to NHS dentistry across England and average waiting times for primary care dental treatment in each region, and describing the action being taken to improve them.

(2) NHS England and Health Education England must assist in the preparation of a report under this section, if requested to do so by the Secretary of State.”

This new clause would require the Secretary of State to report annually on the levels of access to NHS dentistry in England, setting out average waiting times for primary care dental treatment in each region, and describing action being taken to improve them as necessary.

New clause 19—Inclusion in the NHS mandate of cancer outcome targets—

“(1) Section 13A of the National Health Service Act 2006 (Mandate) is amended in accordance with subsection (2).

(2) After subsection (2), insert the following new subsection—

‘(2A) The objectives that the Secretary of State considers NHS England should seek to achieve which are specified in subsection (2)(a) must include objectives for cancer treatment defined by outcomes for patients with cancer, and those objectives are to be treated by NHS England as having priority over any other objectives relating to cancer treatment.’”

This new clause would require the Secretary of State to set objectives for the NHS on cancer treatment which are defined by outcomes (such as one-year or five-year survival rates), and would give those objectives priority over any other objectives relating to cancer treatment (such as waiting times).

New clause 20—Annual parity of esteem report: spending on mental health and mental illness—

“Within six weeks of the end of each financial year, the Secretary of State must lay before each House of Parliament a report on the ways in which the allotment made to NHS England for that financial year contributed to the promotion in England of a comprehensive health service designed to secure improvement—

(a) in the mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of mental illness.”

This new clause would require the Secretary of State for Health and Social Care to make an annual statement on how the funding received by mental health services that year from the overall annual allotment has contributed to the improvement of mental health and the prevention, diagnosis and treatment of mental illness.

New clause 23—NHS Good Governance Commission—

“(1) Regulations shall provide for the establishment of an NHS Good Governance Commission as a Special Health Authority.

(2) The Commission shall have responsibility for ensuring that anyone appointed to, or elected into, a non-executive role on an NHS Body—

(a) is a fit and proper person for that role; and

(b) has been appointed or elected by a process that the Commission considers appropriate.”

This new clause returns to the position prior to 2012 and ensures independent oversight of important NHS appointments.

New clause 24—Appropriate consent to transplantation activities when travelling abroad—

“The Human Tissue Act 2004 is amended as follows—

‘(1) Section 32 (Prohibition of commercial dealings in human material for transplantation) is amended as follows.

(2) In subsection (1), after paragraph (e) insert—

“(f) travels outside the United Kingdom—

(i) to a country with a system of deemed consent for the donation of controlled material which does not meet the criteria in subsection (1A) and receives any controlled material, for the purpose of transplantation, and

(ii) to a country with a system of explicit consent for the donation of controlled material and receives any controlled material for the purpose of transplantation where the material was obtained without—

(A) the free, informed and specific consent of a living donor, or

(B) the free, informed and specific consent of the donor’s next of kin, where the donor is unable to provide consent; and

(g) receives any controlled material for the purpose of transplantation for which, in exchange for the removal of controlled material—

(i) the living donor, or a third party, receives a financial gain or comparable advantage, or

(ii) from a deceased donor, a third party receives financial gain or comparable advantage.

(1A) The Secretary of State must publish an annual assessment of countries with a system of deemed consent for donation of controlled material determining whether each of those countries—

(a) provides a formal, publicly funded scheme for opting out of deemed consent for donation of controlled material, and

(b) provides an effective programme of public education to its population on the deemed consent system and the opt-out scheme which delivers a high level of public understanding of both.

(1B) For the purposes of paragraphs (f) and (g) in subsection (1), it is immaterial whether the offence of dealing in controlled material for transplantation is caused by an act or an omission.

(1C) For the purposes of paragraph (g) in subsection (1), it is immaterial whether the acts or omissions which form part of the offence take place in the United Kingdom or elsewhere.

(1D) In paragraph (g) in subsection (1), the expression “financial gain or comparable advantage” does not include compensation for loss of earnings and any other justifiable expenses caused by the removal or by the related medical examinations, or compensation in case of damage which is not inherent to the removal of controlled material.

(1E) Subsection (1F) applies if—

(a) no act which forms part of an offence under subsection (1) takes place in the United Kingdom, but

(b) the person committing the offence has a close connection with the United Kingdom.

(1F) For the purposes of subsection (1e)(b), a person has a close connection with the United Kingdom if, and only if, the person was one of the following at the time the acts or omissions concerned were done or made—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British National (Overseas),

(d) a British Overseas citizen,

(e) a person who under the British Nationality Act 1981 was a British subject,

(f) a British protected person within the meaning of that Act,

(g) an individual ordinarily resident in the United Kingdom,

(h) a body incorporated under the law of any part of the United Kingdom,

(i) a Scottish partnership.

(1G) In such a case, proceedings for the offence may be taken in any criminal court in England and Wales or Northern Ireland.”

(3) In subsection (3), after “subsection (1)” insert “(a) to (e)”.

(6) In subsection (4), after “subsection (1)” insert “(a) to (e)”.

(7) After subsection (4) insert—

“(4A) A person guilty of an offence under subsection (1)(f) or (1)(g) shall be liable—

(a) on summary conviction—

(i) to imprisonment for a term not exceeding 12 months,

(ii) to a fine not exceeding the statutory maximum, or

(iii) to both;

(b) on conviction on indictment—

(i) to imprisonment for a term not exceeding 9 years,

(ii) to a fine, or

(iii) to both.”

(6) Section 34 (Information about transplant operations) is amended as follows.

(12) After subsection (2) insert—

“(2A) Regulations under subsection (1) must require specified persons to—

(a) keep patient identifiable records for all instances of UK citizens who have received transplant procedures performed outside the United Kingdom; and

(b) report instances of transplant procedures performed on UK citizens outside the United Kingdom to NHS Blood and Transplant.

(2B) Regulations under subsection (1) must require NHS Blood and Transplant to produce an annual report on instances of UK citizens receiving transplant procedures outside the United Kingdom.”’”

New clause 25—Regulation of the public display of imported cadavers—

“(1) The Human Tissue Act 2004 is amended as follows.

(2) In subsections (5)(a), (6)(a) and (6)(b) of section 1 (authorisation of activities for scheduled purposes) after ‘imported’ insert ‘other than for the purpose of public display’.”

New clause 26—Report on claims for reimbursement of the immigration health surcharge—

“The Secretary of State must publish and lay a Report before Parliament giving the numbers of completed claims that have been made under the immigration health surcharge reimbursement scheme within 6 weeks of the commencement of this Act.”

This new clause requires the Secretary of State to report the number of completed claims under the Immigration Health Surcharge for NHS and care workers from overseas.

New clause 27—Secretary of State’s duty to report on waiting times for treatment—

“The Secretary of State must prepare and publish a report annually on waiting times for treatment in England, disparities in waiting times for treatment in England and the steps being taken to ensure that patients can access services within maximum waiting times in accordance with their rights in the NHS Constitution.”

New clause 30—Problem drug use as a health issue—

“(1) The UK Government will adopt a cross-government approach to drugs policy which treats problem drug use as primarily a health issue (‘the health issue principle’).

(2) In accordance with the health issue principle, the Prime Minister must, as soon as reasonably practicable—

(a) make the Secretary of State for Health and Social Care responsible for leading drugs policy in England,

(b) lay before Parliament a report on the steps that will be taken to transfer responsibilities to the Department for Health and Social Care from other departments, and

(c) undertake a review of devolution and drugs policy in light of that transfer and in accordance with subsection (3).

(3) The review of devolution and drugs policy must consider—

(a) steps to transfer responsibility for drugs policy to the devolved administrations in a manner consistent with the health issue principle and the transfers of responsibilities in England in subsection (2), and

(b) the consistency of the devolution settlement, including the specific reservation of the misuse of drugs under paragraph B1 of Part II of Schedule 5 of the Scotland Act 1998, paragraph 54 of Schedule 7A of the Government of Wales Act 2006 and paragraph 9f of Schedule 3 of the Northern Ireland Act 1998 with the health principle and any associated recommendations for change.

(4) In undertaking that review, the Prime Minister must consult—

(a) the Scottish Ministers,

(b) the Welsh Ministers, and

(c) the Department of Health in Northern Ireland.

(5) A report on the findings of the review must be laid before Parliament within six months of the passing of this Act.”

This new clause would require the UK Government to approach problem drug use primarily as a health issue and, in so doing, to make the Secretary of State for Health and Social Care the lead minister for drugs policy in England. The Prime Minister would also be required to undertake a review of the devolution of responsibility over drugs policy in the new context of recognising problem drug use primarily as a health issue.

New clause 31—Reduction in upper gestation limit for abortion to 22 weeks’ gestation—

“(1) The Infant Life (Preservation) Act 1929 is amended as follows.

In section 1(2) for ‘twenty-eight’ substitute ‘twenty-two’.

(2) The Abortion Act 1967 is amended as follows.

In section 1(1)(a) for ‘twenty-fourth’ substitute ‘twenty-second’.”

This new clause would reduce the upper gestational limit for abortion in most cases to 22 weeks’ gestation.

New clause 32—Resolution of differences over the care of children with life-limiting illnesses—

“(1) This section applies where there is a difference of opinion between a parent of a child with a life-limiting illness and a doctor responsible for the child’s treatment about—

(a) the nature (or extent) of specialist palliative care that should be made available for the child, or

(b) the extent to which palliative care provided to the child should be accompanied by one or more disease-modifying treatments.

(2) Where the authorities responsible for a health service hospital become aware of the difference of opinion they must take all reasonable steps—

(a) to ensure that the views of the parent, and of anyone else concerned with the welfare of the child, are listened to and taken into account;

(b) to make available to the parent any medical data relating to the child which is reasonably required as evidence in support of the parent’s proposals for the child’s treatment (including obtaining an additional medical opinion);

(c) to refer the difference of opinion to any appropriate clinical ethics committee (whether or not within the hospital) or to any other appropriate source for advice.

(3) Where the responsible authorities consider that the difference of opinion is unlikely to be resolved informally, they must take all reasonable steps to provide for a mediation process, between the parent or parents and the doctor or doctors, which is acceptable to both parties.

(4) In the application of subsections (2) and (3) the hospital authorities—

(a) must involve the child’s specialist palliative care team so far as possible; and

(b) may refuse to make medical data available if the High Court grants an application to that effect on the grounds that disclosure might put the child’s safety at risk in special circumstances.

(5) Where the difference of opinion between the parent and the doctor arises in proceedings before a court—

(a) the child’s parents are entitled to legal aid, within the meaning of section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Lord Chancellor’s functions) in respect of the proceedings; and the Lord Chancellor must make any necessary regulations under that Act to give effect to this paragraph; and

(b) the court may not make any order that would prevent or obstruct the parent from pursuing proposals for obtaining disease-modifying treatment for the child (whether in the UK or elsewhere) unless the court is satisfied that the proposals—

(i) involve a medical institution that is not generally regarded within the medical community as a responsible and reliable institution, or

(ii) pose a disproportionate risk to the child of significant harm.

(6) Nothing in subsection (4) requires, or may be relied upon so as to require, the provision of any specific treatment by a doctor or institution; in particular, nothing in subsection (4)—

(a) requires the provision of resources for any particular course of treatment; or

(b) requires a doctor to provide treatment that the doctor considers likely to be futile or harmful, or otherwise not in the best interests of the child.

(7) Subsection (4)(a) does not prevent the court from making an order as to costs, or any other order, at any point in the proceedings.

(8) In this section—

‘child’ means an individual under the age of 18;

‘health service hospital’ has the meaning given by section 275 of the National Health Service Act 2006 (interpretation);

‘parent’ means a person with parental responsibility for a child within the meaning of the Children Act 1989; and

‘person concerned with the welfare of the child’ means a parent, grandparent, sibling or half-sibling.

(9) Nothing in this section affects the law about the appropriate clinical practice to be followed as to—

(a) having regard to the child’s own views, where they can be expressed; and

(b) having regard to the views of anyone interested in the welfare of the child, whether or not a person concerned within the welfare of the child within the meaning of this section.”

This new clause has a single purpose, which is to make provision about the resolution of differences of opinion between a child’s parents and the doctors responsible for the child’s treatment.

New clause 34—Visits to care homes—

“(1) Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 is amended as follows.

(2) After Regulation 9, paragraph (3), sub-paragraph (i), insert—

‘(j) facilitating face to face contact between the service user and persons significant to the service user so as to meet the service user’s needs and preferences, having particular regard to their emotional and psychological needs;

(k) where the registered person determines following an individualised risk assessment that unrestricted face to face contact between significant persons and the service user is not possible, facilitating face to face contact with the significant person or persons whom the registered person reasonably believes best meets the needs and preferences of the service user;

(l) where the registered person determines following an individualised risk assessment that no face to face contact between any significant persons and the service user is possible, facilitating contact with significant persons in such other ways as best meets the needs and preferences of the service user and is in accordance with the individualised risk assessment.’

(3) After Regulation 9, paragraph (6), insert—

‘(7) In this regulation

“face to face contact” means contact without fixed physical barriers between the service user and the significant person, but includes contact where the service user and/or relevant person or persons are wearing appropriate personal protective equipment if such is required to prevent or control the spread of infections, including those that are health care associated;

“an individualised risk assessment” means a risk assessment which considers—

(a) the risks to the health and well-being of the service user both of having and not having face to face to contact with either two or more significant persons (for purposes of paragraph 3, sub-paragraph (k)) or one relevant person (for purposes of paragraph 3, sub-paragraph (I));

(b) the risks to the health and well-being of other service users arising from the registered person facilitating face to face contact between the service user and a person or persons significant to that service user; and

(c) the risks to the health and well-being of the service user (and to other service users) of alternative options for contact to minimise the risks identified in (a) and (b).

“significant person” means any person falling within section 4(7) sub-paragraphs (a) to (d) of the 2005 Act (whether or not the service user lacks capacity for purposes of the 2005 Act to decide whether or not to have face to face contact with them) and “person significant to the service user” is to be read accordingly.’”

This new clause would give effect to the recommendation of the Joint Committee on Human Rights to require individualised risk assessments for care home residents, and to ensure procedures are in place for such assessments to be queried where adequate efforts have not been made to enable safe visits to care homes.

New clause 35—Visits to patients in hospital—

“(1) The Secretary of State must by regulations make provision to ensure that arrangements are made to allow visitors to patients staying in hospital.

(2) The regulations must ensure that any such arrangements observe the following principles—

(a) Safety – The approach to visiting must balance the health and safety needs of patients, staff, and visitors, and ensure risks are mitigated.

(b) Emotional well-being – Allowing visitors is intended to support the emotional well-being of patients by reducing any potential negative impacts related to social isolation.

(c) Equitable access – All patients must be given equitable access to receive visitors, consistent with their preferences and within reasonable restrictions that safeguard patients.

(d) Flexibility – The physical/infrastructure characteristics of the hospital, its staffing availability, the risks arising from any outbreak of disease in the hospital and the availability of personal protective equipment are all variables to take into account when setting hospital-specific policies.

(e) Equality – Patients have the right to choose their visitors.”

This new clause would require the Secretary of State to make regulations providing for rights to visit patients in hospital.

New clause 50—Amendment of the law relating to abortion—

“(1) The Offences Against the Person Act 1861 is amended as follows.

(2) In section 58 (administering drugs or using instruments to procure abortion)—

(a) omit the words from the beginning to ‘intent, and’;

(b) at the end insert ‘; but this section does not apply to a woman in relation to the procurement of her own miscarriage.’

(3) In section 59 (procuring drugs, etc. to cause abortion), at the end insert ‘; but this section does not apply to a woman in relation to the rocurement of her own miscarriage.’”

This new clause would have the effect that a woman could not be held criminally liable under the Offences against the Person Act 1861 in relation to procuring, or attempting to procure, her own abortion.

New clause 51—Termination of pregnancy on the grounds of the sex of the foetus—

“Nothing in section 1 of the Abortion Act 1967 is to be interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the foetus.”

This new clause would clarify that abortion on the grounds of the sex of the foetus is illegal.

New clause 52—Introduction of upper gestational limit on abortion on the grounds of disability—

“(1) The Abortion Act 1967 is amended as follows.

(2) In section 1 (Medical termination of pregnancy) at the beginning of sub-paragraph (d) to paragraph (1), insert—

‘that the pregnancy has not exceeded the gestational limit identified in sub-paragraph (a) and’”.

This new clause would introduce an upper gestational limit on abortion on the grounds of disability equal to the upper gestational limit on most other abortions

New clause 53—Review of effect on migrants of charges for NHS treatment—

“(1) Within six months of the passage of this Act, the Secretary of State must conduct a review of the effect on migrants of charges for NHS treatment, and lay a report of that review before Parliament.

(2) Before completing the review, the Secretary of State must consult representatives of groups subject to such charges.”

New clause 54—Equality impact analyses of provisions of this Act—

“(1) The Secretary of State must review the equality impact of the provisions of this Act in accordance with this section and lay a report of that review before the House of Commons within six months of the passage of this Act.

(2) A review under this section must consider the impact of those provisions on—

(a) households at different levels of income,

(b) people with protected characteristics (within the meaning of the Equality Act 2010),

(c) the Government’s compliance with the public sector equality duty under section 149 of the Equality Act 2010, and

(d) equality in different parts of the United Kingdom and different regions of England.

(3) A review under this section must include a separate analysis of each section of the Act, and must also consider the cumulative impact of the Act as a whole.”

New clause 56—Abolition of prescription charges—

“(1) Charges may not be made for NHS prescriptions.

(2) Within six weeks of the passage of this Act, the Secretary of State must exercise the relevant powers under the National Health Service Act 2006 to give effect to subsection (1).

(3) Subsection (1) does not apply to any charges which may be made before the action necessary to give effect to that subsection has been taken under subsection (2).”

New clause 60—Duty to consider residents of other parts of UK—

“For section 13O of the National Health Service Act 2006 substitute—

‘130 Duty to consider residents of other parts of UK

(1) In making a decision about the exercise of its functions, NHS England must have regard to any likely impact of the decision on—

(a) the provision of health services to people who reside in Wales, Scotland or Northern Ireland, or

(b) services provided in England for the purposes of—

(i) the health service in Wales,

(ii) the system of health care mentioned in section 2(1)(a) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)), or

(iii) the health service established under section 1 of the National Health Service (Scotland) Act 1978.

(2) The Secretary of State must publish guidance for NHS England on the discharge of the duty under subsection (1).

(3) NHS England must have regard to guidance published under subsection (2).’”

This new clause places a duty on NHS England to consider the likely impact of their decisions on the residents of Wales, Scotland and Northern Ireland, and to consider the impact of services provided in England on patient care in Wales, Scotland and Northern Ireland.

New clause 61—Interoperability of data and collection of comparable healthcare statistics across the UK—

“(1) The Health and Social Care Act 2012 is amended as follows.

(2) In section 250 (Powers to publish information standards)—

(a) in subsection (3), at the beginning, insert ‘Subject to subsection (3A)’;

(b) after subsection (3), insert the following subsection—

‘(3A) The Secretary of State may also exercise the power under subsection (1) so as to specify binding data interoperability requirements which apply across the whole of the United Kingdom, and an information standard prepared and published by virtue of this subsection may apply to any public body which exercises functions in connection with the provision of health services anywhere in the United Kingdom.’

(c) after subsection (6E) (inserted by section 79 of this Act), insert the following subsection—

‘(6F) The Secretary of State must report to Parliament each year on progress on the implementation of an information standard prepared in accordance with subsection (3A).’

(3) In section 254 (Powers to direct Information Centre to establish information systems), after subsection (2), insert—

‘(2A) The Secretary of State must give a direction under subsection (1) directing the Information Centre to collect and publish information about healthcare performance and outcomes in all parts of the United Kingdom in a way which enables comparison between different parts of the United Kingdom.

(2B) Scottish Ministers, Welsh Ministers and Northern Ireland Ministers must arrange for the information relating to the health services for which they have responsibility described in the direction made under subsection (2A) to be made available to the Information Centre in accordance with the direction.’”

This new clause would enable the Secretary of State to specify binding data interoperability standards across the UK, require the collection and publication of comparable information about healthcare performance and outcomes across the UK, and require Ministers in the devolved institutions to provide information on a comparable basis.

New clause 63—NHS duty to carers—

“NHS bodies must identify unpaid carers who come into contact with NHS services and ensure that their health and wellbeing is taken into account when decisions are made concerning the health and care of the person or people for whom they care.”

New clause 64—Review of public health and health inequalities effects—

“(1) The Secretary of State for Health and Social Care must review the public health and health inequalities effects of the provisions of this Act and lay a report of that review before the House of Commons within six months of the passing of this Act.

(2) A review under this section must consider—

(a) the effects of the provisions of this Act on socioeconomic inequalities and on population groups with protected characteristics as defined by the 2010 Equality Act,

(b) the effects of the provisions of this Act on life expectancy and healthy life expectancy in the UK,

(c) the effects of the provisions of this Act on the levels of relative and absolute poverty in the UK, and

(d) the effects of the provisions of this Act on health inequalities.”

Amendment 89, in clause 4, page 2, line 40, after first “the” insert “physical and mental”.

This amendment requires NHS England to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 67, page 3, line 7, at end insert—

“(d) health inequalities.”

This amendment would modify the triple aim to explicitly require NHS England to take account of health inequalities when making decisions.

Amendment 90, page 3, line 10, after “of” insert “physical and mental”.

This amendment requires NHS England to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 44, in clause 6, page 3, line 40, leave out “person” and insert “relevant public body”.

Amendment 45, page 4, line 1, leave out “person” and insert “public body”.

Amendment 46, page 4, line 4, after “employees”, insert

“, within their terms and conditions of employment,”.

Government amendments 83 and 84.

Amendment 70, page 48, line 34, leave out clause 39.

Amendment 93, in clause 44, page 49, line 31, after first “the” insert “physical and mental”.

This amendment will require NHS Trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 94, page 49, line 36, after first “of” insert “physical and mental”.

This amendment will require NHS Trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 71, page 49, line 39, at end insert—

“(d) health inequalities.”

This amendment would modify the triple aim to explicitly require NHS trusts to take account of health inequalities when making decisions.

Amendment 95, in clause 58, page 55, line 23, after first “the” insert “physical and mental”.

This amendment will require NHS foundation trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 96, page 55, line 28, after first “of” insert “physical and mental”.

This amendment will require NHS foundation trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 97, in clause 66, page 61, line 26, after first “the” insert “physical and mental”.

This amendment will require decisions on licensing of health care to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 98, page 61, line 32, after first “of” insert “physical and mental”.

This amendment will require decisions on licensing of health care to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Government amendment 115.

Amendment 60, page 71, line 6, leave out clause 80.

This amendment is to ensure that social care assessments take place prior to discharge from hospital.

Amendment 73, in clause 80, page 71, line 9, at end insert—

“(2A) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.

(2B) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.

(2C) Each integrated care board must ensure that—

(a) arrangements made for the discharge of any patient without a relevant social care assessment are made with due regard to the care needs and welfare of the patient, and

(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.

(2D) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including a figure of how many patients are readmitted within 28 days.”

Government amendments 116 to 121.

Government amendment 85.

Government amendments 122 to 126.

Government amendment 128.

Amendment 82, in clause 135, page 117, line 14, at end insert—

“(2A) Regulations may only be made under this Act with the consent of the—

(a) Scottish Ministers insofar as they make provision for any matter which falls within the legislative competence of the Scottish Parliament,

(b) Welsh Ministers insofar as they make provision for any matter which falls within the legislative competence of Senedd Cymru, and

(c) Northern Ireland Ministers insofar as they make provision for any matter which falls within the legislative competence of the Northern Ireland Assembly.”

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the relevant devolved government before powers to make regulations under the Act in an area falling within the legislative competence of a devolved institution, are exercised.

Government amendments 129 to 133.

Amendment 103, in schedule 6, page 186, line 4, at end insert—

“‘relevant Health Overview & Scrutiny Committee’ means any Health Overview and Scrutiny Committee in an area to which the proposal for a reconfiguration of NHS services relates.”.

Amendment 104, in schedule 6, page 186, line 31, at end insert—

“(c) must consult relevant Health Overview & Scrutiny Committees.”

Amendment 105, in schedule 6, page 186, line 43, at end insert—

“(aa) have regard to, and publish, the clinical advice of the Integrated Care Board’s Medical Director in relation to any decision under sub-paragraph (2)(a),

(b) publish a statement demonstrating that any decision made under sub-paragraph (2)(a) is in the public interest, and”.

Amendment 54, in schedule 10, page 204, line 7, after “(1),” insert

“not undermine an NHS provider’s ability to provide a service whilst maintaining the pay rates in Agenda for Change, pensions and the other terms and conditions of all eligible NHS staff and”.

This amendment aims to ensure that the pay rates of Agenda for Change, pensions, and other terms and conditions of all eligible NHS staff are not undermined as a result of the adoption of the NHS payment scheme.

Amendment 55, in schedule 10, page 204, line 39, after “following” insert

“on the likely impact of the proposed scheme”.

This amendment requires NHS England to consult stakeholders on the likely impact of the NHS payment scheme.

Amendment 56, in schedule 10, page 204, line 41, at end insert—

“(ba) all relevant trade unions and other organisations representing staff who work in the health and care sectors;”.

This amendment aims to ensure that all relevant trade unions and other organisations representing staff who work in the health and care sectors are consulted by NHS England on the likely impact of the proposed NHS Payment Scheme.

17:00

[Edward Argar]

Being conscious of the time, I will endeavour to be brief and try to scoop up in my winding-up speech any particular concerns expressed during the debate.

While this Bill is predominantly about the health service in England, and the majority of measures are England-only, a small number of provisions in the Bill will deliver benefits to residents in all four nations of the United Kingdom. The Government have worked with the devolved Administrations to improve services and outcomes for people across the country, and we have now agreed a package of amendments to some provisions in the Bill to address concerns raised by the DAs. Following that constructive engagement, we are pleased that DA Ministers supported our approach. On 15 November, the Northern Ireland Assembly voted to grant legislative consent motions for the provisions on reciprocal healthcare, medicine information systems and professional regulations.

This group of amendments contains the amendments negotiated with the DAs, and I extend my thanks not only to the DA Ministers and officials, but to the territorial Secretaries of State and offices of this United Kingdom in London for their work. There remain a small number of areas in which final agreement is needed, and one area where work is still ongoing. The group also contains technical Government amendments to ensure that no unintended tax consequences arise as a result of the powers in this Bill.

I will speak briefly to new clause 62 and amendments 115 and 129 and then I will pause to allow hon. Members on both sides to make their contributions and seek to address their points subsequently.

New clause 62 replicates the amendments currently made by clause 76 for England and makes corresponding provision for Wales and, as a consequence, clause 76 is removed by amendment 115, so that the changes made by it, together with the corresponding changes for Wales, can be set out in one place.

The new clause amends both the National Health Service Act 2006 and the National Health Service (Wales) Act 2006, enabling regulations to be made in respect of both England and Wales, allowing for further exemptions from the obligation to reimburse pharmacies under the standard NHS arrangements when centrally stocked products have been supplied free of charge to community pharmacies without the need to reimburse them. That will allow the respective Ministers to create limited additional exemptions to those that can already be created by the existing regulation-making powers introduced in 2017 for unlicensed medicines—more commonly known as “specials”. The additional exemptions are restricted to vaccinations and immunisations, medicinal products used for the prevention or treatment of disease in a pandemic, and associated products, such as diluents and syringes.

There are various reasons why we may seek to centrally procure vaccines or products used to treat a pandemic. When supplying products directly to pharmacies free of charge, we do not want to reimburse pharmacies as well as purchasing the stock itself. Currently, the Government would pay twice as the legislative framework makes provision for the reimbursement price paid to pharmacies to be set at zero only for specials and not for other products.

I am conscious that a considerable number of Members will want to speak either on the devolution aspect of this legislation, which was debated extensively in Committee and to which I will respond in my winding-up speech if I have time. I am also conscious that other right hon. and hon. Members have amendments to which they wish to speak at some length—well, hopefully not at some length, but clearly—to put their points across on important issues, because this group of amendments covers a wide variety of matters. With your permission, Mr Deputy Speaker, I will pause now to allow maximum time for Back Benchers and others to speak and then try to pick up any points in my winding-up speech.

[Several hon. Members rose—]

[Mr Deputy Speaker (Mr Nigel Evans)]

Fantastic. I am grateful to the Minister for his brevity; he can see how many people are trying to catch my eye.

[Justin Madders]

Thank you, Madam Deputy Speaker—[Interruption.] It has been a long day, Mr Deputy Speaker, but we will get there.

I will speak to the amendments tabled in my name and those of my right hon. and hon. Friends. As the Minister said, this group of amendments covers a large range of important areas, so I will be brief.

New clause 27 flags up the issues around waiting times. Passing any amendment requiring a report is, of course, not a total solution, but it might be a source of focus. As Labour has said many times since 2010, winter pressures, waiting times and the flight into private healthcare to get earlier treatment have exacerbated the issues.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

Many of my constituents find it increasingly difficult to book an appointment with an NHS GP or dentist, forcing them either to go private or to suffer without treatment. Does the shadow Minister agree that, after a decade of failure and misguided policies, the Government must take urgent remedial action? However, the term “waiting time”, to which he has just referred, is not mentioned once in the Bill.

[Justin Madders]

My hon. Friend is right that one of the criticisms we have levelled against the Bill is that it does not address the issues and challenges facing the NHS. I will take no further interventions, because I am conscious that many Members have contributions to make.

I will move swiftly on to our two amendments dealing with inequality and to new clause 64 in the name of my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams). To show that this is an NHS and social care Bill, not just an NHS Bill, local authorities need to be more involved and more emphasis must be placed on wellbeing and better outcomes. We support the NHS triple aim—improving health, quality of care and cost control are, of course, important functions. Nevertheless, we live in a country where significant inequalities remain, and narrowing those gaps should be a national priority.

Research from the IPPR last month highlighted the 10-year gap in life expectancy between a person living in the poorest community and a person in the best off. That gap doubles when we talk about healthy life expectancy. Tackling that disparity must be a priority in the Bill. The Secretary of State for Health and Social Care said in his first speech that said he wanted to tackle the “disease of disparity”, so why is that missing?

Turning to clause 39—one of my favourites—why it remains in the Bill is a mystery given that the previous Secretary of State, the right hon. Member for West Suffolk (Matt Hancock), who requested these powers, is no longer in the role. Perhaps he will give us his insight into that later on. It is the absolute antithesis of the Lansley view that politicians should be distanced from NHS operational issues and makes a mockery of the overall thrust of this Bill, which is about encouraging local decision making. It is no exaggeration to say that, taken literally, clause 39 and its accompanying schedule 6 require the Secretary of State to be told if there are, or even if there might be, proposals to vary service—even moving a clinic from one location to another nearby.

As has been pointed out by wise heads, the power is not one that many Secretaries of State should want to get involved in. A Secretary of State who used it could be accused of favouring certain areas or decisions for political purposes. The well-articulated fear is that it will be used to block necessary but unpopular changes and that expediency will rule. Such decisions should be left to the clinicians or maybe the health economists but not politicians. Labour opposes this new power and would gently say to the Minister, “Be careful what you wish for.”

Finally, the issues around discharge to assess are complex. As we worked our way through in Committee, we heard evidence from many stakeholders, and it is fair to say that views on the matter were polarised. We are led to believe, and have some confirmation, that this development is working well for some acute settings, helping ease the perennial and disruptive issues around delayed transfers of care, but in other places we hear voices calling for much greater caution and for tougher safeguards or even, as amendment 60 requests, to stop it altogether. While we have sympathy with amendment 60, it would only pose more problems for the NHS if it was passed, so we have opted in our amendment 73 just to tighten up on safeguards.

Of course the real solutions are far more complex and would require higher investment both in the NHS and in social care. It should be mandatory that all aspects of ongoing care have been properly discussed and agreed with the patient and carers prior to discharge. An assessment should include carers with special attention if a child carer is involved, and there is a concern that unpaid carers will not be identified and consulted at the point of discharge.

The system for step-down care outside acute hospitals must be adequate, and there must be sufficient high-quality and funded places in care settings of all kinds. We are literally a whole generation away from having that kind of system, even if the funding started to become available today. On a related point, new clause 63 from the hon. Member for St Albans (Daisy Cooper) also deserves support.

I will leave my comments there, as I know many hon. Members want to speak.

[Mrs Theresa May (Maidenhead) (Con)]

I rise to speak in support of amendments 93 to 98, whose purpose is very simple.

The Health and Social Care Act 2012 established parity of esteem between physical and mental health in their treatment in the national health service. The Bill is silent on the issue. I know that Ministers have given assurances, in a variety of ways, that it is not the Government’s intention to move away from that parity of esteem, but if that is the case, the answer is simple: accept the amendments. The Government do not even have to write them; they have been written for them. There would then be absolutely no doubt about the continued commitment to ensuring parity of esteem between physical and mental health.

Mental health was clearly in the long-term plan for the national health service that I was pleased to see introduced. It was there because of the need to accept, as Members across the House do, that for too long mental health has not been given the attention that it deserves. People who were suffering with mental health problems were not getting the services that they need.

It will take time to ensure that we can provide for all, but sadly the issue has been exacerbated by the pandemic. In March 2021, there were 26% more referrals for mental health services than in March 2019, before the pandemic. The Centre for Mental Health reckons that 10 million additional people will need mental health care as a result of the pandemic. I am particularly concerned about the impact on young people; I am sure that Members across the House are seeing young people in their constituencies whose mental health may have been suffering anyway, but has suffered even more as a result of the pandemic.

More people now require mental health services. The Government talk a lot about dealing with the backlog that is a result of the pandemic, but it is only ever spoken about with reference to surgery or operations. The great danger is that in their focus on dealing with that backlog, which we all accept is necessary, the Government will push the issue of mental health services to one side.

The amendments stand in the name of my hon. Friend the Member for Broxbourne (Sir Charles Walker), in my name and in the names of Members across the House—there is cross-party concern. I say to the Minister once again: it is very simple. If the Government wish to maintain parity of esteem between physical and mental health and ensure that people with mental health problems are given the services and care that they need, they must put uncertainty to one side, accept the amendments and make it clear that physical and mental health will be treated with parity of esteem in our national health service.

[Dr Whitford]

I rise to speak to my amendment 82, which is on legislative consent if the Bill is used in the devolved aspects of healthcare in future. The bulk of healthcare—certainly its delivery through the Scottish NHS—is devolved. Having been on the Bill Committee, I was surprised that in the original version of the Bill there was not one mention in that context of the word “consultation”, let alone the word “consent”.

I do welcome amendments 118 and 121. I recognise that the Minister is trying to work constructively with the devolved Governments, but health is devolved. I am sorry, but after the United Kingdom Internal Market Act 2020, because of how the funds to replace EU funding post Brexit are being used to cut the devolved Governments out of decision making, there is a real fear among the public in Scotland that their health services could be changed in future. I ask anyone who supports devolution in principle to support amendment 82.

[Matt Hancock (West Suffolk) (Con)]

I rise to support new clauses 60 and 61, which relate, like the amendments that the hon. Member for Central Ayrshire (Dr Whitford) spoke about, to the UK-wide application of the Bill.

Health is rightly devolved, and as Secretary of State I worked very closely with Ministers in the three devolved nations, but there are nevertheless areas in which it is vital that the NHS, as a British institution, supports all our constituents right across this United Kingdom. Two areas in particular are critical and, in my view, need legislative attention.

The first area is the interoperability of data. As well as being vital for stronger research, it is necessary not least so that if you travelled to Caerphilly or Glasgow and were ill, Mr Deputy Speaker, the NHS could access your medical records to know how best to treat you. We can see right now, in the application of the NHS app for international travel, what happens without the data interoperability that new clause 61 would require.

[Geraint Davies (Swansea West) (Lab/Co-op)]

Is the right hon. Gentleman aware that there is concern in Wales, where we are protecting the private personal data of people receiving medicine and healthcare, that in England there will now be a gateway for the private sector to take people’s data and use it for its own reasons? That is one reason that we would not want to give the English our data.

17:09

[Matt Hancock]

On the contrary: data protection laws are UK-wide, so it is appropriate that this should be done UK-wide.

The second area is services. For instance, if a new treatment is available to Scottish patients in Edinburgh, which has one of the finest hospitals in the country, and if on rare occasions it is available to a Welsh person in Wales with a rare disease, should that person not be able to benefit from it? Likewise, if a treatment is available in one of the great London teaching hospitals and somebody from Stirling needs it, should they not be able to get it? At the moment, access to such specialist services is available on an ad hoc basis, but it is not broadly available. That is what new clause 60 seeks to address.

[Dr Whitford]

I simply point out that it is available; it is just that funding has to follow from the domestic health board to pay for it. I have sent patients to Leeds for MRI-guided biopsy, and patients used to come to Glasgow to have eye melanoma removed without losing their eye. That already exists.

[Matt Hancock]

It happens on an ad hoc basis, but it is not a right. The NHS is a great British institution, and access should apply right across the board.

Finally, in my last few seconds, may I simply say how strongly I agree with my right hon. Friend the Member for Maidenhead (Mrs May) about amendments 93 to 98?

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I rise to speak to amendment 73, which would introduce safeguards around the discharge-to-assess process.

The discharge-to-assess process may have been a necessary element of the NHS’s pandemic response, but it contains gaps in safeguarding that leave unpaid carers vulnerable to financial impact and risks to their health. Many unpaid carers have to begin caring overnight, when their relative or friend, who may be quite unwell, is discharged from hospital without a plan for their care at home. Without a carer’s assessment to check whether a person has the capability or capacity to take on such a commitment, weeks can pass before any plan is made, leaving carers and the people they care for struggling in a desperate situation.

The Government’s own impact assessment on discharge to assess states baldly:

“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this could require a reduction in workhours and associated financial costs.”

Organisations that support unpaid carers are outraged by that statement. The Government’s expectation that carers can just drop everything to take on a new caring burden is insulting, particularly given the extra caring burden that 3 million people have already taken on during the pandemic.

I recently queried that point with the Secretary of State at the Health and Social Care Committee. In response, the he wrote to the Committee to say that the Government do

“not expect unpaid carers to need to give up work or reduce their working hours to look after friends or family while their long-term health and care needs assessments are completed”.

When the impact assessment says one thing and the Secretary of State, after being questioned about it, says another, I have to question the understanding in the Department and among Ministers of the discharge-to-assess policy and its impact on the 13 million carers in the country.

[Daisy Cooper (St Albans) (LD)]

Does the hon. Member agree that it would be helpful if the NHS had a duty, as I have attempted to capture in new clause 63, to identify carers, so that their health and wellbeing is taken into account when decisions are made about the people for whom they care? Does she agree that it would be helpful if the Minister responded to new clause 63 in winding up?

[Barbara Keeley]

I do indeed. The hon. Member may not know that, a few years ago, I introduced a Bill to try to persuade the Government to accept that the NHS should have a duty to identify carers. I have tried to introduce it on two more occasions since then, and I will send her a copy. I hope that the Minister will respond to what she has said.

Carers UK has reported high levels of fatigue and stress among unpaid carers, three quarters of whom feel exhausted and worn out because of' caring responsibilities during the pandemic. It would constitute a poor recognition of the sacrifice and dedication of those carers if discharge to assess was left without adequate safeguarding measures for them. Although discharge guidance already states that unpaid carers must be involved in discharge planning decisions when a patient has new or additional care needs, more than one in four are not consulted prior to discharge, and 60% say that at the point of discharge they received insufficient support to protect the health and wellbeing of the patient, or their own health.

Amendment 73 would protect carers from being left waiting an indefinite amount of time for care plans it would ensure that integrated care boards held responsibility for monitoring and reporting on any failures. I support its inclusion in the Bill, and, like the hon. Member for St Albans (Daisy Cooper), I hope that the Minister will respond to these points when he sums up the debate.

[Mr John Baron (Basildon and Billericay) (Con)]

Thank you for calling me, Mr Deputy Speaker, and I thank Mr Speaker for selecting my new clause 19. I also thank all those who have kindly supported it.

It remains an inconvenient truth that although our cancer survival rates are improving, we continue to lag behind international comparators. The primary reason for this is that the NHS does not diagnose cancers early enough. New clause 19 seeks to put that right by placing improved outcomes—that is, survival rates—at the heart of the NHS.

[Jeremy Corbyn (Islington North) (Ind)]

I strongly support the new clause. Does the hon. Gentleman also recognise that there can be delays in obtaining GP appointments in the first place, and someone who feels that they may be suffering from some form of cancer often loses several days—if not, on some sad occasions, weeks— before they get into the NHS system for treatment?

[Mr Baron]

I tend to agree, and that is in part what the new clause is intended to address.

I chaired the all-party parliamentary group on cancer for nine years. We were painfully aware that the Government had once estimated that if the country matched the best survival rates in Europe, 10,000 lives a year would be saved. In 2013, the OECD confirmed that that our survival rates ranked near the bottom when compared to those of other major economies. As we have improved our rates, so have other countries, and we are not closing the gap. A more fundamental change is required.

Back in 2009, when I first became its chairman, the APPG conducted a major inquiry which showed that the main reason our survival rates lagged behind others was not that the NHS was any worse than other healthcare systems at treating cancer once it was detected, but that it was not as good at catching cancers in the crucial early stages. In other words, late diagnosis lay behind our comparatively poor survival rates. The APPG had some success in getting the one-year survival rates—rates of survival one year after diagnosis—into the NHS DNA.

A key advantage of focusing on this kind of “outcome measure” is that it gives healthcare professionals much greater freedom and flexibility to design their own solutions, which could include running wider screening programmes and better awareness campaigns, and establishing greater diagnostic capabilities at primary care. A further advantage of focusing on outcome measures is that it will better align NHS priorities with patient needs. Survival rates are what really matter to patients. However, clinical commissioning groups are too often focused on “process targets”—the 62-day wait for treatment being an example—because they are often linked to funding. The one-year survival rate measure was not.

Research produced by the House of Commons Library found that nine such process targets were applicable to cancer alone, such as the 62-day wait. Process targets have a role to play in improving the NHS, but all too often they are a blunt tool offering information without context, and they can be exclusive, especially when funding flows are attached. Also, I consider it unacceptable that, in the case of certain cancers at least, patients should have to wait for 62 days—two months, in effect—for treatment. That is simply not right. Furthermore, process targets can easily become a political football between the two Front Benches, and only short-term points are scored. All sides are guilty of this, but it rarely helps patients.

In addition, process targets are not the best way of helping those with rarer cancers, with often fall between the cracks because data on those cancer types have not been routinely collected. That is a real problem. If we want to drive up survival rates, we cannot exclude rarer cancers, if only because they account for more than half all cancer cases.

Given the advantages of outcome measures such as one-year survival rates, I have tabled my simple amendment, new clause 19. Its aim is to ensure that NHS England puts outcome measures above process targets.

[Dr Whitford]

Will the hon. Gentleman give way?

[Mr Baron]

I will not. I do apologise, but time is short.

New clause has been endorsed by the founding chief executive of Cancer Research UK, Professor Sir Alex Markham, who has commented that

“comparable health services abroad continue to outperform the NHS in terms of cancer survival. They all remain focused on cancer outcomes and the UK would be foolish not to do likewise.”

The new clause has also been endorsed by others, including the Teenage Cancer Trust. I assure those who are concerned that it will not detract from process targets; quite the opposite because, by implication, improved outcomes can only be facilitated by improved processes and inputs.

I urge the Minister to adopt the new clause. He will then have more time to assess its impact, and perhaps, following consultation, suggest amendments—if necessary —in the other place. I am confident that sufficient cross-party support could be achieved if acceptable nuances were required. If that is not possible, I intend to press the new clause to a vote, but I sincerely hope that I—we—can work with the Government and other parties to drive up survival rates in the NHS across the United Kingdom.

[Mr Deputy Speaker (Mr Nigel Evans)]

I must ask for brief contributions from now on. I call Margaret Greenwood.

[Margaret Greenwood]

Thank you, Mr Deputy Speaker.

The proposed NHS payment scheme in the Bill will, in effect, give private healthcare companies the opportunity to undercut NHS providers, and I believe we will then see healthcare that should be provided by the NHS increasingly being delivered by the private sector, with money going into the pockets of shareholders rather than being spent on patient care. If that happens, NHS staff may well find themselves forced out of jobs that currently provide Agenda for Change rates of pay, NHS pensions and other terms and conditions, and find that only private sector jobs with potentially lesser pay and conditions are available for them to apply for if they wish to continue working in the health service.

My amendments 54, 55 and 56, which are supported by the Royal College of Nursing, are intended to ensure that the pay rates of Agenda for Change, pensions, and other terms and conditions of all eligible NHS staff are not undermined as a result of the adoption of the NHS payment scheme, and that all relevant trade unions and other organisations representing staff who work in the health and care sectors are consulted by NHS England on the likely impact of the proposed scheme.

On hospital discharge, I have tabled amendment 60, which would remove clause 80 from the Bill. The hospital discharge proposals pose risks to patients and staff. In its written evidence given to the Bill Committee, the RCS said:

“In the context of current high vacancy rates across district and community nursing, and poor understanding of workforce shortages across the health service, public health and social care, along with chronic underfunding due to failure of the current service payment model to recognise community nursing, this legislation should not seek to demand a service delivery approach which transfers such disproportionate risk to nursing staff and patients.”

As of May this year, 4 million patients had been discharged since 2020 under discharge to assess and the temporary measures of the Coronavirus Act 2020. I asked the Government how many of those patients had been readmitted within 30 days but they told me that they did not hold the data. In effect, they did not know; they do not have that information. Back in June of this year, the Government told me that the national health service had commissioned an independent evaluation of the implementation of hospital discharge policy, and that the evaluation was under way. It was due to report in autumn 2021—that is, now. Yet the NHS told me last week that the report containing the evaluation had not yet been finalised. It is therefore a matter of extreme concern that the Government are pushing ahead with a policy that is risky to both patients and staff without properly understanding its clinical outcomes, and that they know they are doing so. I ask the Minister to withdraw clause 80 from the Bill.

17:30

[Fiona Bruce (Congleton) (Con)]

I would like to speak to new clause 31 in my name, which would reduce the upper gestational limit for abortion in most cases to 22 weeks gestation. This time limit amendment would replace the current 24-week time limit for abortions on the ground where there is a greater risk of injury to the physical or mental health of a pregnant woman or any of her children of proceeding with the pregnancy, under section 1(1)(a) of the Abortion Act 1967. The current 24-week limit law is based on an outdated understanding of the viability of premature babies, and it needs to be updated.

[Sir Edward Leigh (Gainsborough) (Con)]

Is it not absurd that in one ward of a hospital doctors can be fighting to save the life of a 22-week gestation baby while arguably, under the law, a 24-week baby can be aborted? That is ridiculous, and whatever anyone’s views on abortion, this is now the time to review this law, which is based on outdated technology and medical practices.

[Fiona Bruce]

My right hon. Friend makes exactly the right point.

Our law needs to be updated. The current 24-week limit was set over 30 years ago, in 1990. That legislation removed the previous time limit of 28 weeks. In 1990, 24 weeks was considered the point of viability outside the womb, but the scientific advances in those 31 years have been enormous. The latest guidance from the British Association of Perinatal Medicine establishes 22 weeks gestation to be the point of viability and enables doctors to intervene to save premature babies from 22 weeks. A study from a neonatal intensive care unit in London found that survival rates for babies born at 22 and 23 weeks gestation went from zero in the period from 1981 to 1985 to 19% in the period from 1986 to 1990, and then up to 54% in the years from 1996 to 2000. We would no doubt find that the figures had increased substantially since then, were those figures available. Just in the past few weeks, we have seen the incredible story from the American state of Alabama of the birth of a baby boy at just 21 weeks old. Weighing just 14.8 ounces, Curtis Means needs oxygen support and a feeding tube, but he is in good health. New clause 31 is a probing amendment, so I will not be pressing it to a vote on this occasion. However, I would welcome the Minister’s views and I look forward to a greater debate on this issue.

I also want to take a few moments to give my support to new clause 51, in the name of the hon. Member for Upper Bann (Carla Lockhart), which would clarify that abortion on the ground of the sex of the foetus is illegal. This relates to the truly awful exploitative practice whereby women can be pressurised into abortions based on the sex of their unborn child. I also support new clause 52, also in the name of the hon. Member for Upper Bann, which seeks to bring parity to the law in equalising time limits on abortions that take place on the ground of disability, so that they would be equal to the limits on most other abortions. The current law permits abortions up to birth if the baby is deemed likely to be born seriously handicapped. This is interpreted to include entirely non-fatal disabilities such as Down’s syndrome and easily surgically rectifiable conditions such as cleft palate and club foot. One of my sons was born with club foot, and I know how rectifiable it is. The law is plainly inconsistent with the disability discrimination legislation that applies after birth, and it sends a dreadful message to people who are living and thriving with disabilities about how little their lives are valued under abortion law. Again, I look forward to hearing the Minister’s views.

[Madam Deputy Speaker (Dame Rosie Winterton)]

In order to try to get as many people in as possible, I am going to put on a three-minute time limit.

[Ms Marie Rimmer (St Helens South and Whiston) (Lab)]

Forced organ harvesting in China is one of the worst crimes against humanity of the 21st century. That is why I wish to speak to new clauses 24 and 25 in my name. It is a crime that no British citizens should be taking part in, and a crime that humanity has a duty to stop. New clause 24 aims to put a dent in the forced organ harvesting trade. It would prohibit UK citizens from receiving a transplant abroad without the clear consent of the donor. The forced organ trade is a big money business. The organs of a young healthy adult are worth in the region of half to three quarters of a million US dollars. That is money that people would, and do, kill for.

China started with political prisoners, with the religious Falun Gong group being the main source. Now it has moved on to Uyghur Muslims, some Christians and other minority groups. Evidence was heard at the China and Uyghur tribunals that mass DNA testing is taking place in the internment camps in Xinjiang, enough to compile a Uyghur organ database and bank ready for withdrawals on demand. The world might believe that China had an ethnical organ donation system based on the World Health Organisation’s assessment, yet that assessment from the WHO is based on a country’s self-assessment—in this case by the Chinese Communist party. It is a barbaric practice, and every democracy in the world should be looking at what it can do to stop it.

I am grateful to Members from every party across this House for supporting my new clause. It will not stop the trade, but it will show that we in Britain are doing our part and helping to influence other countries to do the same. I thank my hon. Friend the Member for Nottingham North (Alex Norris) for raising these new clauses in Committee. The Minister sympathised, but expressed certain concerns. He was worried that countries could have a deemed consent system in which everyone was automatically a donor. Deemed consent is acceptable only if people can opt out. Under a new provision, the Secretary of State will assess the deemed consent of each country. The Minister was also concerned that the recipient of an organ could face criminal consequences. It is the duty of a Government to ensure that people are aware of what is a crime, and supporting or funding a crime against humanity must be illegal.

New clause 25 would make imported cadavers require the same consent as bodies sourced from within the UK. The Minister claimed that a revised code of practice covered this, but a code of practice is not law. Surely the sanctity and dignity of the human body demand the power of legislation. I call on the House and this Government to step up and do their part to stop this crime against humanity.

[Robin Millar (Aberconwy) (Con)]

I rise to speak to new clauses 60 and 61 in my name. Simply, they would put patients first. I am thankful to my right hon. Friend the Member for West Suffolk (Matt Hancock) for his comments on new clause 60, but as I do not seek to press it to a Division, I will mention no more of it now.

On new clause 61, let me simply say this: good data is needed for good services. Good data allows professionals and planners to assign resources and guide interventions where they are needed most. Good data allows patients to make informed decisions about where to be treated, or where to live. Good data allows politicians to be held to account when services fail. Therefore, new clause 61, at its simplest, is about collecting and comparing data. It would standardise the publication of a set of UK-wide NHS data and ensure the interoperability of that data.

In Wales, unfortunately, Welsh reporting standards mean that waiting list statistics are not available for most procedures. Before the pandemic, it took a journalistic investigation in north Wales to highlight that patients were waiting for more than two years for hip operations. Constituents now report that they are being told that they face a two-year wait just for a first out-patient clinical appointment. That is distressing and disappointing, and it is simply because data is not available.

We must ask the question, if for want of a nail, the shoe was lost, what are we losing for the want of good data? If the Government are to bring digital transformation into the heart of the NHS, the Minister must know that that heart can only be animated when good data courses through its veins.

In the months I have worked with colleagues on new clause 61, we have heard overwhelming support from patients—they agree. Healthcare professionals, IT experts and administrators have told us that they agree. In fact, I do not believe that the clause would divide the House, in compassion or common sense. I accept, however, that there is a challenge in delivering it and I know that the Government are exploring ways to address that.

I note the Minister’s comments at the start of the debate about close working with the devolved Administrations, and I welcome that.

[Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)]

I do not question that the hon. Gentleman’s new clause is well intentioned. Does he believe that the standardisation would happen in conjunction with the four Governments working together or, in his view, would the process be driven solely from Westminster?

[Robin Millar]

I thank the hon. Gentleman for his question, which is a good and relevant one, and it speaks directly to the heart of what the Minister said in his opening comments. There is good collaboration and an emerging consensus on this, so I am optimistic that that will be the case. In fact, my concluding remark is to say that I will not press new clause 61 to a Division, but I will listen carefully to the Minister’s response.

[Emma Hardy]

I will be brief, speaking to new clause 32 in my name. It is an amendment based on the proposed Charlie’s law. I thank my dear friend and colleague, my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous), who has been working on the issue with the Charlie Gard Foundation and the tireless campaigning of Charlie’s parents.

I will be as brief as I can be. In short, my new clause seeks to do five things: first, to require the Secretary of State to put in place measures to improve early access to mediation services in hospitals where conflict is in prospect; secondly, to provide for access to appropriate clinical ethics committees, so that both doctors and parents are supported in making difficult decisions by impartial ethical experts; thirdly, to provide the means necessary to obtain second medical opinions swiftly and to ensure that, when requested, parents receive access to their child’s full medical data, so that the second opinions are fully informed; fourthly, to provide access to legal aid to ensure that families are not forced to employ costly legal representation or to rely on outside interest groups to fund representation in court; and, finally, to create a new legal test of whether an alternative credible medical treatment would cause a child a disproportionate risk or significant harm in deciding whether a parent is able to seek that treatment for their child.

In essence, the provisions set out in the new clause would mitigate conflicts at the earliest stage, ensure that the voices and opinions of parents are listened to, save hundreds and thousands of pounds for parents, doctors and the NHS in protracted legal battles, and ensure that a critically ill child is given the best care and support available at a crucial time in that child’s life. No parent wants to spend time in court or in battle against the NHS when their child is critically ill. There must be a better way to resolve conflict. I hope that the Minister looks seriously at my new clause 32 and at ways to incorporate it into future legislation.

[Mrs Maria Miller (Basingstoke) (Con)]

I speak to new clause 50, tabled in my name and that of the right hon. Member for Kingston upon Hull North (Dame Diana Johnson).

We badly need a wake-up call, because at the moment we are allowing the criminal law as currently drafted to drive a fundamental wedge between Northern Ireland and Great Britain, treating women in Northern Ireland in a completely different way from women in England and Wales when it comes to abortion. Two years ago, the Government changed the law governing abortion in Northern Ireland after a vote in this place, removing criminal sanctions on abortions in Northern Ireland, while leaving women in England and indeed Wales facing the possibility of the harshest criminal sanctions for abortion in the world, under laws passed more than 50 years before any women was even able to vote for the people representing them in this place.

New clause 50 would change that. It would decriminalise abortion and ensure that women in England and Wales are treated in the same way as women in Northern Ireland when it comes to abortion. Our values and our rights are what unite our four nations. To treat women differently in those nations weakens those ties. That needs to be rectified. The new clause does just that, and it would change nothing about abortion services, access to abortion or the time limits on abortion.

The women most likely to be affected and governed by the criminal law are some of the most vulnerable in our society: victims of domestic abuse, of honour-based violence and of rape, and those who are too poor or marginalised to travel to a clinic to seek help. If a desperate woman attempts to end her pregnancy, do we really want her to not seek medical help for fear of arrest and prosecution? New clause 50 simply removes women from being subject to the criminal law for seeking an abortion, and it is fully supported by the medical experts, the Royal College of Obstetricians and Gynaecologists and the Royal College of General Practitioners.

17:45

I would like the Government to set out, perhaps when the Minister responds to the debate, what plans they have going forward. I hope that the new clause passes today, and I will be pressing it to a vote. It is no longer sufficient to say that changes such as this can come from the Back Benches—that got us where we are today, dividing our country. The Secretary of State for Health and Social Care has the responsibility for abortion policy in this country and he needs to act so that every women in this United Kingdom has the same rights when it comes to abortion, and the same protections too.

[Peter Dowd (Bootle) (Lab)]

Yesterday, regrettably, the Minister did not respond to my exhortations on self-care in his summing up, although to be fair it did not take Sherlock Holmes to work out that he had his mind occupied with more contentious issues. New clause 13 gives him the opportunity to formalise the role of self-care by introducing a national self-care strategy that is more than just a footnote or passing reference in the NHS plan. The new clause would ensure that the Secretary of State for Health and Social Care publishes a national care strategy, to integrate self-care for minor ailments into the national health system. Surveys by the Proprietary Association of Great Britain have shown that people have been more amenable to seeking health advice that is outwith the GP practice, the walk-in centre or accident and emergency. Why not build upon that behavioural change? As shown during the pandemic, self-care is a crucial element of our healthcare system and it reduces the strain on GPs and A&E, so that those with more serious conditions can be treated with greater efficiency.

As the NHS seeks to recover from the most recent waves of the pandemic, there will be a unique opportunity to integrate self-care behaviours into the NHS and people’s lives. So by developing and implementing a national care strategy, the Government can ensure that a vision for self-care is realised whereby individuals understand and are willing to practise self-care, knowing how to take care of themselves and where to go when they are feeling unwell. The system will also be supportive of self-care, with pharmacy being much more embedded into the primary care pathway. What is there not to like in this new clause?

Finally, may I mention new clause 18, on the Secretary of State’s duty to report on access to NHS dentistry and to which I am a signatory. Dentistry is a vital component in people’s health. It is not just about teeth; it is about overall health. It can be the first port of call for many people whose symptoms may appear to be related to their teeth but may in fact be symptomatic of another disease, such as oral cancer. So let us make sure that dentistry gets the recognition it deserve—

[Duncan Baker (North Norfolk) (Con)]

Will the hon. Gentleman give way?

[Peter Dowd]

I am afraid that I do not have time. Let the Secretary of State report on access to NHS dentistry and give it a seat at the table on integrated care boards and partnerships, along with other health professionals. In conclusion, these proposals are about a comprehensive national care strategy that will help both patients and the NHS, and giving dentistry the attention that it deserves. Those are the areas we need to focus our attention on. They need a bit of tender loving care.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

I will be exceptionally brief, Madam Deputy Speaker. I wish to speak on amendments 103 to 105. It seems clear to me that when a House has made a decision to impose statutory obligations on local authorities and other local bodies, we need to ensure that they are effectively consulted, in order to bring their expertise and local insight to bear in improving the quality of services that are offered to our patients. I hope that Ministers will be taking that on board in their response tonight.

[Carla Lockhart (Upper Bann) (DUP)]

I wish to speak to new clauses 51 and 52, both of which stand in my name. New clause 51 relates to the practice of abortion based on sex selection, and it seeks to clarify that abortion on the grounds of the sex of the foetus alone is illegal. Hon. Members from across the House would doubtless agree that aborting a baby on the basis of their sex is immoral, yet the status of this in law remains unclear.

Unfortunately, there is growing evidence that this horrible practice is taking place in Great Britain today. A 2018 BBC investigation found that non-invasive prenatal tests were being used on a widespread basis to determine babies’ sex early in pregnancy. We know that women are being coerced into having abortions based on sex selection. This was confirmed by a 2015 report from the Department of Health that detailed the awful testimonies of women who had been forced into a sex-selective abortion. The problem has been made much worse by the use of abortions pills to be taken at home. Abusive partners who do not want a particular sex of child—usually a girl—can more easily force their partner into having an abortion via telemedicine. The new clause seeks clarification that this practice is illegal, so provides an opportunity for the Government to do more to help women who are pressured into having an abortion on the basis of sex.

I wish briefly to touch on new clause 52—also tabled in my name—which would introduce an upper gestational limit on abortion on the grounds of disability that is equal to the upper limit on most other abortions. It would correct the current deeply discriminatory situation that permits abortion up to birth if

“there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

That has been interpreted as permitting abortions up to birth following the diagnosis of either a cleft lip, a cleft palate or a club foot. This is inconsistent with disability discrimination legislation, because it allows for abortion on the grounds of disability more widely than most abortions are allowed.

[Jim Shannon]

Does my hon. Friend share my concerns that a large number of people throughout the whole United Kingdom object to this? We have had hundreds and hundreds of emails from my constituents about this issue. I commend my hon. Friend and the hon. Member for Congleton (Fiona Bruce) and totally oppose new clause 50—

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. That intervention is quite long enough.

[Carla Lockhart]

I will not push either of my new clauses to a vote. However, legal clarification on sex-selective abortion is urgently needed for the sake of women and the missing girls who are the victims of this abhorrent practice.

I commend the hon. Member for Congleton (Fiona Bruce). As evidence changes, so should the law, and 22 weeks’ gestation is the point of foetal viability. At heart, this is a debate about human rights, and the most basic human right is the right to life.

[Sir Mike Penning (Hemel Hempstead) (Con)]

I support new clause 19, which I signed, and will wait to see what the Minister says about it.

I want to take issue with the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), who turned around and said to Ministers, “Be careful what you wish for.” Our constituents send us here to represent how their taxation is spent in the NHS. When trusts are refusing to build new hospitals in our constituencies when they have the money to do so, and they want to refurbish hospitals and ignore public opinion and their local MPs, that is where the system goes wrong. I am not saying we should go all the way back to the old system, but there should be accountability in trusts when they do not do what our constituents would expect from them. My constituents would expect me to stand up and say this, because we want a new hospital on a greenfield site to look after the people of west Hertfordshire and our trust is refusing. If the shadow Minister ever becomes a Minister, I hope he has those powers.

[Edward Argar]

This group of amendments has clearly been popular and it is a shame that more right hon. and hon. Members did not get to speak. My remarks will be relatively brief.

On the contributions by my hon. Friend the Member for Congleton (Fiona Bruce), my right hon. Friends the Members for Gainsborough (Sir Edward Leigh) and for Basingstoke (Mrs Miller) and the hon. Member for Upper Bann (Carla Lockhart), those are deeply emotive and important issues. I entirely respect the strength and sincerity of genuinely held feelings on both sides of the debate. It is important that such matters are aired in the House, but they quite rightly remain a matter of conscience for individual Members, so I shall say no more than that it is important that everyone recognises the genuine views on both sides of the debate.

I am grateful to my hon. Friend the Member for Basildon and Billericay (Mr Baron) for tabling his new clause 19 and am happy to say that the Government are content to accept it. I know that my hon. Friend’s first concern is the quality of cancer services in this country and the welfare of the patients that they serve. I am pleased that he is keen for us, in accepting the new clause, to explore ahead of the Lords stages of the Bill whether it may give rise to any unintended consequences, with a view to supporting any changes that might need to be made. I look forward to working with him on that in the coming weeks before the Lords stages.

[Mr Baron]

I thank the Minister and the Government for listening and for accepting the new clause in its entirety. It is a progressive step. I and the whole group behind the new clause look forward to working with him. If nuanced changes were required, then, by all means, we would consider them.

[Edward Argar]

I am grateful to my hon. Friend for his intervention.

Let me turn briefly to amendments 93 to 98 in the names of my hon. Friend the Member for Broxbourne (Sir Charles Walker) and my right hon. Friend the Member for Maidenhead (Mrs May). I can reassure all right hon. and hon. Members that the Government remain committed to supporting everyone’s mental health and wellbeing. I pay tribute to my right hon. Friend for the work that she did in advancing this agenda when she was Prime Minister.

Secondly, let me clarify that the current references in the Bill to illness and health cover mental and physical health and, therefore, the view taken was that it was not necessary to make that explicit.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

Will the Minister give way?

[Edward Argar]

I fear that I do not have time to cover the other amendments in the four minutes that I have left.

Although I appreciate that my right hon. Friend the Member for Maidenhead and my hon. Friend the Member for Broxbourne will continue to press this matter, may I offer them a meeting with me and the Mental Health Minister to discuss further what they are proposing in advance of the Lords stages? I cannot make any promises or say anything beyond that, but I will meet them to further discuss the sentiments that sit behind their amendments.

Let me turn to my hon. Friend the Member for Aberconwy (Robin Millar), who made his points powerfully and eloquently, as he always does. As a Government of the whole United Kingdom, we have a duty of care to all citizens in the UK, which is why I welcome the clauses already in this legislation that will bring benefit to residents across the UK.

[Bob Seely (Isle of Wight) (Con)]

Will the Minister take my intervention?

[Edward Argar]

If my hon. Friend can do it in 10 seconds.

[Bob Seely]

Please, Minister, do not forget the unavoidably small hospitals, of which there are 12 in isolated communities.

[Edward Argar]

My hon. Friend has made his point. He has made it to me before. I will not forget either him or unavoidably small hospitals, particularly in the Isle of Wight.

On the point made by my hon. Friend the Member for Aberconwy, we do recognise the importance of making sure that health and care data can be shared safely and effectively across the UK to support individual care and improve outcomes for people across the UK.

[Peter Aldous (Waveney) (Con)]

Will my hon. Friend give way?

[Edward Argar]

I am afraid that I cannot give way, because I literally have two minutes. Forgive me, but if my hon. Friend catches me afterwards, I will happily speak to him.

We are already committed to working with officials across the devolved Administrations, noting the devolved nature of health and care policy, but my hon. Friend the Member for Aberconwy is right and makes a very powerful case for data interoperability and clear data standards. I am happy to speak with him further on this issue if he feels that that would be helpful.

I ask the hon. Member for Bootle (Peter Dowd) to forgive me for yesterday. I heard what he said about self-care and I will continue to look carefully at that. I did not ignore him.

I fear that, in the time that we have, there is little more that I can say.

[Peter Aldous]

Will my hon. Friend give way on that point?

[Edward Argar]

Okay, my hon. Friend has 10 seconds.

[Peter Aldous]

The No. 1 issue in my inbox is access to NHS dentistry. New clause 18 provides a framework for addressing that. May I urge the Minister and the Government to consider accepting it?

[Edward Argar]

While we cannot accept that new clause as drafted today, I or the Minister for Dentistry will meet my hon. Friend, if that is helpful, to discuss in more detail the concerns sitting behind his intervention.

Question put and agreed to.

New clause 62 accordingly read a Second time, and added to the Bill.

17:58

Proceedings interrupted (Programme Order, 22 November).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

New Clause 19

Inclusion in the NHS mandate of cancer outcome targets

“(1) Section 13A of the National Health Service Act 2006 (Mandate) is amended in accordance with subsection (2).

(2) After subsection (2), insert the following new subsection—

‘(2A) The objectives that the Secretary of State considers NHS England should seek to achieve which are specified in subsection (2)(a) must include objectives for cancer treatment defined by outcomes for patients with cancer, and those objectives are to be treated by NHS England as having priority over any other objectives relating to cancer treatment.’” —(Mr Baron.)

This new clause would require the Secretary of State to set objectives for the NHS on cancer treatment which are defined by outcomes (such as one-year or five-year survival rates), and would give those objectives priority over any other objectives relating to cancer treatment (such as waiting times).

Brought up, and added to the Bill.

Clause 33

Transfer schemes under section 32: taxation

Amendment made: 83, page 42, line 4, after “capital gains tax,” insert “value added tax,”.—(Edward Argar.)

This amendment enables regulations under clause 33(1) to vary the way VAT would have effect in relation to transfer schemes under clause 32.

Clause 37

Power of direction: investigation functions

Amendment made: 84, page 46, line 30, at end insert “value added tax,”.—(Edward Argar.)

This amendment enables regulations under new section 7E(1) of the National Health Service Act 2006 to vary the way VAT would have effect in relation to transfer schemes under new section 7D of the National Health Service Act 2006.

Clause 39

Reconfiguration of services: intervention powers

Amendment proposed: 70, page 48, line 34, leave out clause 39.—(Justin Madders.)

Question put, That the amendment be made.

18:00

Division 120

Ayes: 191

---

Labour: 177
Liberal Democrat: 9
Independent: 2
Social Democratic & Labour Party: 1
Alliance: 1
Green Party: 1

Noes: 307

---

Conservative: 300
Democratic Unionist Party: 4
Independent: 1

Clause 76

Pharmaceutical services: remuneration in respect of vaccines etc

Amendment made: 115, page 67, line 1, leave out clause 76.—(Edward Argar.)

This amendment leaves out clause 76 so that the amendments made by it, together with corresponding amendments for Wales, can be set out in one place (see NC62).

Clause 87

Medicine information systems

Amendments made: 116, page 80, line 9, leave out from beginning to end of line 11 and insert—

“(a) the safety of human medicines, including the safety of clinical decisions relating to human medicines;

(b) the quality and efficacy of human medicines.”

This amendment narrows the purposes for which medicine information systems regulations can be made, so that they can make provision for purposes relating to clinical decisions only where there is a connection with the safety of such decisions.

Amendment 117, page 81, line 23, at end insert “, and

(b) in the case of a power exercisable in relation to Wales or Scotland, require the Secretary of State—

(i) where a proposed direction relates to Wales, to consult the Welsh Ministers before giving it, and

(ii) where a proposed direction relates to Scotland, to consult the Scottish Ministers before giving it.”

This amendment requires the Secretary of State to consult the Welsh Ministers or the Scottish Ministers where medicine information systems directions are relevant to Wales or Scotland.

Amendment 118, page 81, line 23, at end insert—

“(7A) Where regulations under subsection (1) include provision by virtue of subsection (4)(a) which requires, or enables the Information Centre to require, the provision of individual health information held for the purposes of the health service established under section 1 of the National Health Service (Scotland) Act 1978, the regulations must provide for the information to be collected by the Scottish Ministers, or a person designated by them, on behalf of the Information Centre, subject to specified exceptions.

(7B) Regulations by virtue of subsection (7A) may confer powers or duties (including discretions) on the Scottish Ministers, a designated person or the Information Centre.

(7C) Where regulations under subsection (1) include provision by virtue of subsection (4)(a) which requires, or enables the Information Centre to require, the provision of individual health information held for the purposes of the health service in Wales, the regulations must provide for the information to be collected by the Welsh Ministers, or a person designated by them, on behalf of the Information Centre, subject to specified exceptions.

(7D) Regulations by virtue of subsection (7C) may confer powers or duties (including discretions) on the Welsh Ministers, a designated person or the Information Centre.”

This amendment requires medicine information systems regulations to make provision for individual health information from Scotland and Wales to be collected by devolved authorities on behalf of the Information Centre, subject to exceptions in the regulations.

Amendment 119, page 81, line 33, at end insert—

“‘health service’, in relation to Wales, has the meaning given by section 206(1) of the National Health Service (Wales) Act 2006;”.

This amendment defines “health service” for the purposes of the reference to the health service in Wales in Amendment 118.

Amendment 120, page 81, line 35, at end insert—

“‘individual health information’ means information (however recorded) which relates to—

(a) the physical or mental health or condition of an individual,

(b) the diagnosis of an individual’s condition, or

(c) an individual’s care or treatment,

or is (to any extent) derived directly or indirectly from information relating to any of those matters;”.

This amendment defines “individual health information” for the purposes of Amendment 118.

Amendment 121, page 82, line 31, after “(consultation)” insert—

“(a) after subsection (1) insert—

‘(1A) In relation to proposed regulations under section 7A(1), the Secretary of State must—

(a) where the regulations relate to Wales, specifically consult the Welsh Ministers, and

(b) where the regulations relate to Scotland, specifically consult the Scottish Ministers.’;”.—(Edward Argar.)

This amendment requires the Secretary of State to consult the Welsh Ministers or the Scottish Ministers where medicine information systems regulations are relevant to Wales or Scotland.

Clause 93

Transfer schemes: taxation

Amendment made: 85, page 87, line 45, after “capital gains tax,” insert “value added tax,”.—(Edward Argar.)

This amendment enables regulations under clause 93(1) to vary the way VAT would have effect in relation to transfer schemes under clause 92.

Clause 122

International healthcare arrangements

Amendments made: 122, page 104, line 25, leave out “public authority” and insert

“relevant public authority or a Scottish or Welsh health board”.

This amendment paves the way for the changes made by Amendment 124.

Amendment 123, page 104, line 26, leave out “public authority” and insert

“relevant public authority or a Scottish or Welsh health board”.

This amendment paves the way for the changes made by Amendment 124.

Amendment 124, page 104, line 30, leave out subsection (7) and insert—

“(7) In this section “relevant public authority” means a person who exercises functions of a public nature other than—

(a) the Scottish Ministers,

(b) a Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998),

(c) the Welsh Ministers,

(d) a devolved Welsh authority as defined by section 157A of the Government of Wales Act 2006,

(e) a Northern Ireland department, or

(f) any other person whose functions—

(i) are exercisable only or mainly in or as regards Northern Ireland, and

(ii) relate only or mainly to transferred matters within the meaning of the Northern Ireland Act 1998.

(8) In this section—

‘Scottish health board’ means a Health Board established under section 2(1)(a) of the National Health Service (Scotland) Act 1978;

‘Welsh health board’ means a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.”

The effect of this amendment, together with Amendments 122 and 123, is to prevent the regulations about healthcare agreements from conferring functions etc on devolved public authorities apart from those specified in new subsection (8).

Amendment 125, page 104, line 32, at end insert—

“2A Healthcare agreements and payments: powers of devolved authorities

(1) A devolved authority may by regulations make provision for the purpose of giving effect to a healthcare agreement (including provision about payments).

(2) No provision may be made by a devolved authority under subsection (1) unless the provision is within the devolved competence of that devolved authority (and any applicable consent requirement under section 2B has been complied with).

(3) In this section “devolved authority” means the Scottish Ministers, the Welsh Ministers or a Northern Ireland department.

(4) For the purposes of this section—

(a) provision is within the devolved competence of the Scottish Ministers if it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament;

(b) provision is within the devolved competence of the Welsh Ministers if it would be within the legislative competence of Senedd Cymru if it were contained in an Act of Senedd Cymru (including any provision that could only be made with the consent of a Minister of the Crown);

(c) provision is within the devolved competence of a Northern Ireland department if it would be within the legislative competence of the Northern Ireland Assembly if it were contained in an Act of that Assembly.

(5) Regulations under this section may include provision about administrative arrangements (including provision about evidential requirements).

(6) Regulations under this section may—

(a) confer functions on a public authority (including discretions);

(b) provide for the delegation of functions to a public authority.

(7) A devolved authority may give directions to a person about the exercise of any functions exercisable by the person under regulations made by that devolved authority by virtue of subsection (6) (and may vary or revoke any such directions).

(8) In this section “public authority” means a person who exercises functions of a public nature.

2B Regulations under section 2A: consent requirements

(1) The consent of a Minister of the Crown is required before any provision is made by the Welsh Ministers in regulations under section 2A(1) so far as that provision, if contained in an Act of Senedd Cymru, would require the consent of a Minister of the Crown.

(2) The consent of the Secretary of State is required before any provision is made by a Northern Ireland department in regulations under section 2A(1) so far as that provision, if contained in an Act of the Northern Ireland Assembly, would require the consent of the Secretary of State.”

This amendment confers power on the devolved authorities to make regulations, within devolved competence, for the purpose of giving effect to international healthcare agreements. This power is concurrent with the power already conferred on the Secretary of State by clause 120.

Amendment 126, page 104, line 39, at end insert—

“(5A) In section 7 (regulations and directions)—

(a) in subsection (1), after ‘A power’ insert ‘of the Secretary of State or Welsh Ministers’;

(b) after subsection (1) insert—

‘(1A) A power of a Northern Ireland department to make regulations under section 2A is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).’;

(c) in subsection (5), for ‘this Act’ substitute ‘section 2’;

(d) after subsection (5) insert—

‘(5A) Regulations made by the Scottish Ministers under section 2A are subject to the negative procedure (see Part 2 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)).

(5B) Regulations made by a Northern Ireland department under section 2A are subject to negative resolution within the meaning given by section 41(6) of the Interpretation Act (Northern Ireland) 1954.

(5C) A statutory instrument which contains regulations made by the Welsh Ministers under section 2A is subject to annulment in pursuance of a resolution of Senedd Cymru.’”—(Edward Argar.)

This amendment provides for regulations made by a devolved authority under new section 2A (inserted by Amendment 125) to be subject to the negative resolution procedure in the relevant devolved legislature.

Clause 128

Medical examiners

Amendment made: 128, page 111, line 25, leave out from beginning to the end of line 33 on page 112 and insert—

“(1) After section 18 of the Coroners and Justice Act 2009 insert—

‘18A Medical examiners: England

(1) An English NHS body may appoint persons as medical examiners to discharge in England the functions conferred on medical examiners by or under this Chapter.

(2) The Secretary of State must take such steps as the Secretary of State considers appropriate for the purpose of ensuring—

(a) that enough medical examiners are appointed under subsection (1) to enable those functions to be discharged in England,

(b) that the funds and other resources that are made available to such medical examiners are enough to enable those functions to be discharged in England, and

(c) that the performance of such medical examiners is monitored by reference to any standards or levels of performance that they are expected to attain.

(3) For the purposes of discharging the duty in subsection (2), the Secretary of State may give a direction to an English NHS body—

(a) requiring the body to appoint or arrange for the appointment of one or more medical examiners,

(b) about the funds or other resources to be made available to a medical examiner employed by an English NHS body,

(c) about the steps to be taken by the body to monitor the performance of such a medical examiner, or

(d) about the steps to be taken by the body to monitor the performance of functions by an English NHS body in relation to such a medical examiner.

(4) In this section “English NHS body” means—

(a) NHS England,

(b) an integrated care board established under section 14Z25 of the National Health Service Act 2006,

(c) a National Health Service trust established under section 25 of that Act,

(d) a Special Health Authority established under section 28 of that Act, or

(e) an NHS foundation trust within the meaning of section 30 of that Act.

18B Medical examiners: Wales

(1) A Welsh NHS body may appoint persons as medical examiners to discharge in Wales the functions conferred on medical examiners by or under this Chapter.

(2) The Welsh Ministers must take such steps as the Welsh Ministers consider appropriate for the purpose of ensuring—

(a) that enough medical examiners are appointed under subsection (1) to enable those functions to be discharged in Wales,

(b) that the funds and other resources that are made available to such medical examiners are enough to enable those functions to be discharged in Wales, and

(c) that the performance of such medical examiners is monitored by reference to any standards or levels of performance that they are expected to attain.

(3) In this section “Welsh NHS body” means—

(a) a Local Health Board,

(b) a National Health Service trust established under section 18 of the National Health Service (Wales) Act 2006, or

(c) a Special Health Authority established under section 22 of that Act.’

(2) In section 19 of that Act (medical examiners)—

(a) in the heading, after “examiners” insert “: supplementary”;

(b) omit subsections (1) and (2);

(c) in subsection (5)—

(i) after “Nothing in” insert “section 18A or 18B or”;

(ii) for “a local authority or a Local Health Board” substitute “an English NHS body (as defined by section 18A) or a Welsh NHS body (as defined by section 18B)”.

(3) In section 20 of that Act (medical certificate of cause of death), in subsection (5), for “a local authority or Local Health Board” substitute “an English NHS body (as defined by section 18A) or a Welsh NHS body (as defined by section 18B)”.

(4) In section 48 of that Act (interpretation: general), in subsection (1), in the definition of “medical examiner”, for “section 19” substitute “section 18A or 18B”.

(5) In section 41 of the Births and Deaths Registration Act 1953 (interpretation), in subsection (1), in the definition of “medical examiner”, for “means a person appointed under section 19” substitute “has the meaning given by section 48(1)”.”—(Edward Argar.)

This amendment replaces the duty on Local Health Boards in Wales to appoint medical examiners with a power for a “Welsh NHS body” (as defined) to do so. The changes that the amendment makes in relation to England replicate the effect of clause 128 but involve some restructuring.

Clause 135

Regulations

Amendment proposed: 82, page 117, line 14, at end insert—

“(2A) Regulations may only be made under this Act with the consent of the—

(a) Scottish Ministers insofar as they make provision for any matter which falls within the legislative competence of the Scottish Parliament,

(b) Welsh Ministers insofar as they make provision for any matter which falls within the legislative competence of Senedd Cymru, and

(c) Northern Ireland Ministers insofar as they make provision for any matter which falls within the legislative competence of the Northern Ireland Assembly.”—(Dr Philippa Whitford.)

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the relevant devolved government before powers to make regulations under the Act in an area falling within the legislative competence of a devolved institution, are exercised.

Question put, That the amendment be made.

18:16

Division 121

Ayes: 239

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Labour: 182
Scottish National Party: 39
Liberal Democrat: 9
Independent: 4
Plaid Cymru: 2
Social Democratic & Labour Party: 1
Alliance: 1
Green Party: 1
Alba Party: 1

Noes: 311

---

Conservative: 304
Democratic Unionist Party: 4
Independent: 1

Clause 138

Commencement

Amendments made: 129, page 118, line 4, at end insert—

“(1A) Section (Pharmaceutical services: remuneration in respect of vaccines etc)(2) comes into force on such day as the Welsh Ministers may by regulations appoint.”

This amendment gives the Welsh Ministers a regulation-making power to bring into force subsection (2) of NC62.

Amendment 130, page 118, line 7, after “(1)” insert “, (1A)”.

This is consequential on Amendment 129.

Amendment 131, page 118, line 9, after “appointed” insert

“under subsection (1A) or (3)”.

This is consequential on Amendment 129.

Amendment 132, page 118, line 11, at end insert—

“(5A) The Welsh Ministers may by regulations make transitional or saving provision in connection with the coming into force of section (Pharmaceutical services: remuneration in respect of vaccines etc)(2).”

This amendment confers power on the Welsh Minsters to make transitional provision in connection with a provision that they have power to bring into force.

Amendment 133, page 118, line 12, after “(5)” insert “or (5A)”.—(Edward Argar.)

This is consequential on Amendment 132.

Third Reading

18:29

[The Secretary of State for Health and Social Care (Sajid Javid)]

I beg to move, That the Bill be now read the Third time.

For years, colleagues in health and social care have worked hard and as one to deliver for the benefit of their patients, but their ambition has not always been matched by the structures they have had to work with. This Bill provides the framework in legislation to help them to achieve just that.

We are not only recovering from the pandemic but learning from it, and the principles that underpin the Bill—embedding integration, cutting bureaucracy, boosting accountability—have never been more important. I am hugely encouraged by the support that the Bill has received from so many quarters, from the NHS Confederation to the King’s Fund, the Health Committee and even those on the Opposition Front Bench.

[Margaret Greenwood]

rose—

[Sajid Javid]

Talking of the Opposition, I give way to the hon. Lady.

[Margaret Greenwood]

Will the Secretary of State comment on the discharge-to-assess proposals? I am concerned, because his Department told me that a report about how the process goes was meant to be published in autumn. His Department told me back in May that 4 million people have been discharged under discharge to assess—that is, having their care needs assessed after they have left hospital rather than before—but the same Department did not know what the clinical outcomes were and it did not know how many people had been readmitted to hospital within 30 days. I would have thought that it was essential that MPs were provided with that information and with a full outline of the clinical outcomes of that policy. Will he comment on that and tell us what he can do about it, so that we really understand what is happening?

[Sajid Javid]

I listened carefully to the hon. Lady and I will look into the specifics of what she said, but it is clear—I hope she agrees—that if people are clinically ready to be discharged, it is better that they are discharged rather than staying in hospital a moment longer.

I take this opportunity to thank everyone who has helped us to shape this important legislation, including hon. Members across the House and colleagues in Wales, Scotland and Northern Ireland, whose engagement will help us ensure that the Bill delivers for the four nations of the United Kingdom. I also thank members of the Public Bill Committee for their constructive scrutiny. The Bill is a lot better for it.

Let me draw the House’s attention to some of the changes that we have considered since Second Reading.

[Jim Shannon]

The Secretary of State referred to how the Bill delivers for the four regions of the United Kingdom. I just put it on the record that 60% of people in Northern Ireland are opposed to abortion on demand, so when it comes to representing the views of those in Northern Ireland—elected representatives and the local people—I am afraid that Westminster and the House do not relate to the people of Northern Ireland on abortion.

[Sajid Javid]

I heard what the hon. Gentleman said. He will know that there are strong feelings on the issue of abortion across the House, on all sides of that issue. If legislation does ever come to the House, it is important that it is always a matter of conscience, and that is how MPs are expected to receive such legislation.

[John Redwood (Wokingham) (Con)]

Will the Secretary of State confirm that, when carrying through this rather extensive national health service reorganisation, value for money and keeping the costs of reorganisation down will be at the forefront of his mind?

[Sajid Javid]

Yes, absolutely, I can confirm that. My right hon. Friend is absolutely right to stress the importance of that. The NHS will be spending the best part of £150 billion a year, and it is vital that the best value is achieved with every penny that is spent.

[Sir Charles Walker (Broxbourne) (Con)]

May I thank my right hon. Friend and his ministerial team for taking into account my concerns about parity of esteem between mental health and physical health? Although I was unsuccessful in amending the Bill at this stage, I thank him for being willing to look at that, or to have colleagues look at it in the other place. I really do appreciate that level of engagement.

[Sajid Javid]

I am happy to give my hon. Friend the commitment that we will look at that. I think everyone in the House agrees that the principle is vital, and I am sure it is supported across the House.

Let me briefly highlight the changes that we have made. First, we have heard the desire of the House to rate and strengthen the safety and performance of the integrated care systems. Working with members of the Health Committee, we have introduced an amendment that gives the Care Quality Commission a role in reviewing ICSs.

Secondly, we have heard concerns about the independence of integrated care boards. While it has never been our intention that anyone with significant involvement or interests in private healthcare should be on an ICB, following a productive meeting with the hon. Members for Nottingham North (Alex Norris) and for Ellesmere Port and Neston (Justin Madders) we tabled an amendment that ensures we write that principle into the constitution of ICBs.

Thirdly, we heard concerns from hon. Members about the potential impact of our proposed restrictions on advertising less healthy food and drink. We must, of course, do that in a pragmatic way, so we have introduced amendments to ensure we do not unintentionally impact UK businesses when they advertise to overseas audiences. Further, we will consult with stakeholders on any further changes to the nutrient profiling model.

Fourthly, and very importantly, the Bill now reflects our commitment to end the crisis in social care and the lottery of how we all pay for it. It is not right and not fair that the heaviest burdens often fall on those who are least able to bear it, so we are introducing a cap on the costs of care so that no one will have to pay more than £86,000 over their lifetime. That cap that will be there for everyone, regardless of any conditions they have, how old they are, how much they earn, or where they live. We will introduce a far more generous testing system, so that everyone will be better off under the new system.

We move a Health and Care Bill that is stronger than before, with those three underpinning principles reinforced: embedding integration, cutting bureaucracy and boosting accountability. On integration, it is not about simply telling the NHS, local authorities and others to work together; it is about helping them to do it by doing things like merging NHS England and NHS Improvement into a single statutory body and establishing integrated care boards to deliver as one.

[Dr Poulter]

I declare an interest as a practising NHS doctor. On integration, my slight disappointment with the Bill is that while it pulls people together in joined-up commissioning boards, there is no commitment to put the money into the same place. If we want to drive joined-up commissioning, we need to put the money into the same place. Will the Secretary of State consider that and how true integration can be achieved as the Bill goes to the House of Lords?

[Sajid Javid]

My hon. Friend makes a very important point and he speaks with deep experience. What I can tell him is that we will shortly be publishing an integration White Paper, which, given what he has just said, I am sure he will welcome.

[Dr Murrison]

I declare an interest similar to that of my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter). Does the Secretary of State agree that there is an opportunity with integrated care boards and panels to ensure the end of the awful spectacle of people at end of life and frail elderly people coming towards the end of their days being expected to live out those days in an acute hospital ward, when they should be looked after in more homely settings in the community? That has gone on for too long and consecutive pieces of legislation have failed to address it. We have an opportunity here, probably with the help of the other place, to sculpt the measure we are considering today to ensure that stops. It must stop now, so that our frail elderly can have a future that does not involve an end as grisly and as sad as so many are forced to endure.

[Sajid Javid]

I absolutely agree with my right hon. Friend, who also speaks with deep experience. I very much agree with what he has just shared with the House.

On bureaucracy, we are removing the rules and regulations that make sensible decision making harder. On accountability, our healthcare must be accountable to democratically elected Members of this House. We spend well over £140 billion pounds of taxpayers’ money on our healthcare system, so it is right that there is more accountability to this place.

In closing, the unprecedented challenges of the pandemic have only deepened our affection for everyone working in health and care. They have been the very best of us. It is on us in this place, and on everyone who can make a difference, to give them the best possible foundation to work together to meet the challenges of the future. The Bill does that and a lot, lot more.

[Several hon. Members rose—]

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. Before I call the shadow Secretary of State, I should say that I will probably introduce a three-minute time limit after the shadow Secretary of State and that I am unlikely to call anybody who intervened on the Secretary of State during his opening speech.

18:39

[Jonathan Ashworth (Leicester South) (Lab/Co-op)]

I start by thanking all those who served on the Bill team and the Clerks, the Library and all the staff of the House who supported them. I also thank the hon. Member for Wellingborough (Mr Bone), my hon. Friends the Members for Sunderland Central (Julie Elliott) and for Birmingham, Selly Oak (Steve McCabe) and the hon. Member for South East Cornwall (Mrs Murray) who chaired the Committee deftly. I put on the record Labour’s thanks to the Minister for Health, the hon. Member for Charnwood (Edward Argar)—my constituency neighbour in Leicestershire—who both in Committee and over the past two days in the House has been courteous and patient in responding to the various amendments and in how he conducted himself across the Dispatch Box. We are grateful for that.

Equally, I thank my hon. Friends the Members for Nottingham North (Alex Norris) and for Ellesmere Port and Neston (Justin Madders) for working so hard on this Bill and making the case for our amendments. My hon. Friend the Member for Ellesmere Port and Neston had his birthday yesterday—there is no greater place to celebrate one’s birthday than at the Dispatch Box—and I am told that he may well be putting in an appearance at the Strangers’ Bar after tonight’s vote. I am sure that hon. Members from both sides of the House may want to join him in his celebrations.

Of course, Labour welcomed parts of this Bill. It did indeed scrape some of the worst remaining vestiges of the Lansley reorganisation off the boots of the NHS. The compulsory competitive tendering of contracts, which we warned against nearly 10 years ago, are finally put in the dustbin. Of course, it was this Secretary of State, as an enthusiastic and loyal Back Bencher, who spoke in those debates supporting that reorganisation, but we welcome the ending of section 75.

We also welcome some of the provisions around public health, particularly those on childhood obesity and advertising, but we wish the Bill had gone further on smoking cessation and alcohol. Madam Deputy Speaker, I know it is not the convention to praise Members on Third Reading as one does on Second Reading, but I praise the hon. Member for Bury South (Christian Wakeford)—the constituency in which I grew up and went to school—who spoke with great eloquence, emotion and very personally about the impact of alcohol addiction on his family. It has also had an impact on my own family, as some hon. Members know. Although the Secretary of State did not accept either the hon. Gentleman’s amendments or ours, perhaps he will be prepared to meet us on a cross-party basis to discuss how we can take that agenda forward.

In saying all that, however, we are not minded to support the Bill in the Lobby tonight. We remain unconvinced by the arguments put forward by the Minister for Health in the past 48 hours. We still believe that this is the wrong Bill at the wrong time. As the right hon. Member for Wokingham (John Redwood) said in his intervention on the Secretary of State, this is an extensive reorganisation of the national health service at a time when we are still in a pandemic and when NHS staff are exhausted and facing burnout. We should be prioritising the monumental waiting lists, the huge referrals for mental health treatment, the crisis in A&E, and the huge pressures on ambulance services and general practice. This Bill is not only a distraction, but it contains provisions that Labour thinks are deeply damaging.

Yesterday, the House focused on the care cap amendment. It represents a change to existing policy and differs from the position outlined in the “Build Back Better” document, under which the House was asked to endorse a national insurance rise. The change means that those with wealthier estates and more expensive houses will see a greater proportion of their assets protected. Somebody with a £1 million house will have 90% of that asset protected, but somebody with an £80,000 house in Barrow, Mansfield or Hartlepool will lose nearly everything. That cannot be fair.

The Secretary of State, who was working the phones yesterday, may have won the battle, but I dare say that there are further skirmishes ahead. I suspect that Members in the other place—certainly those on the Labour Benches —will return to the matter, and I hope that they send the Bill back to us so that we can look at it again.

There are other provisions in the Bill with which we are uncomfortable. We are not convinced about the prohibitions on the private sector’s role in sitting on integrated care boards; we do not think that the Government’s amendment is strong enough. We will return to that point at a future opportunity.

Although the Bill gets rid of the Lansley competitive tendering requirements, it still allows the Secretary of State to hand contracts out to the private sector without proper scrutiny. We have seen a £10 billion contract going to the private sector to use 8,000 beds. That money would have been better spent on elective treatment in the national health service.

In conclusion, the Opposition cannot support the Bill, so we will divide the House tonight. On the care issue, I know that the Secretary of State thinks that he got his policy through the House yesterday and that it is all over, but I am afraid that it most certainly is not.

18:44

[Matt Hancock]

I welcome the passage of the Bill and congratulate all those who have been involved in bringing it to this place and getting it to Third Reading: the Secretary of State; the Minister, who has worked on it for an awfully long time; and the official Bill team, who were the best team I ever worked with in government. I am not saying that just because they are sitting in the Box.

The Bill gives the NHS what it needs. Critically, it learns the lessons of the pandemic and embeds them in legislation by removing bureaucracy and silos. I can see that the Secretary of State is already acting on that to merge parts of the NHS so that they can work better together.

I want to make a specific point in response to a comment from the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), about accountability. Although the Bill rightly devolves decision making and discretion more locally to the new integrated care boards and panels, it also gives Ministers the right to make sure that the NHS is accountable to them; it removes the so-called independence. That is right, and it is surprising not to see Labour Members supporting it, because it was in the Labour party’s manifesto as well as the Conservative party’s.

When £150 billion of taxpayers’ money is at stake, imposing apparent independence is not just impractical, but wrong. The NHS should be accountable to Ministers so that they can be accountable to the House, which is accountable to taxpayers through the ballot box. That is right constitutionally, morally and practically, which is why it was in both major parties’ manifestos. It is how the NHS operates anyway in practice, but the Bill will remove some of the unnecessary friction in the senior relationships that resulted from the attempt at independence.

Of course clinical voices should always be listened to, but as we saw during the pandemic, we can listen to clinical voices and then make a decision that is held to account on a democratic basis. The Bill will therefore strengthen not just the running of the NHS, but how we constitutionally govern the huge amount of taxpayers’ money that is spent on it. For that reason alone, it is worth supporting the Bill.

18:48

[Peter Aldous]

I am grateful to you for giving me time to speak, Madam Deputy Speaker. I would have liked to speak on new clause 18 on Report, but that was not possible.

Access to NHS dentistry is a problem that has been brewing for a long time and has been exacerbated by covid. There are now parts of the country, particularly in rural and coastal areas, that have dental deserts. It is invariably children from poorer backgrounds and vulnerable adults who suffer the most. The crisis is acute in Suffolk and Norfolk, but is not confined to East Anglia. Sir Robert Francis, who chairs Healthwatch England, commented:

“Every part of the country is facing a dental care crisis, with NHS dentistry at risk of vanishing into the void.”

There are five issues that need to be tackled to address the problem. The Bill can provide the framework to ensure that that happens without delay or prevarication. First, funding must be increased. Secondly, it is vital for the new NHS dental contract, which has been being developed for more than a decade, to be rolled out next April. There are rumours that it will be kicked into the long grass, and I should be grateful for confirmation that that will not happen. Thirdly, we need to step up the recruitment and retention of dental professionals. Fourthly, it is important to highlight the role that water fluoridation can play in improving the oral health of future generations, and in that context clauses 132 and 133 are to be welcomed. Finally, there is a need for greater accountability, and for dentistry to have a voice on integrated care boards and partnerships.

People are currently pulling out their own teeth, while children are having whole-mouth replacements and early signs of cancer are going undetected. We need to act now to put in place an NHS dentistry system that is fit for the 21st century, instead of reversing into the 19th. My hon. Friend the Minister has advised that the Government will not accept new clause 18, and I should therefore be grateful if, without delay, my right hon. Friend the Secretary of State could ensure that his Department comes up with a clear plan for addressing a crisis that is affecting people throughout the country.

18:51

[Bob Seely]

Let me start by thanking my hon. Friend the Member for Waveney (Peter Aldous) for that superb speech. We have a huge problem with NHS dentistry on the Isle of Wight, and also with independent pharmacies. I have written to the Health Minister about that several times, and there is an ongoing conversation, for which I thank him very much.

In the short time that I have, I want to speak about fairness and equality. The Secretary of State spoke eloquently—as he always does—about equality between the four nations. I want to see equality between isolated and non-isolated communities as well, specifically in relation to unavoidably small hospitals. There are about a dozen in England and Wales, and for obvious reasons they tend to be in isolated areas. The most isolated of those hospitals is St Mary’s on the Isle of Wight, which has a 100% isolation factor because it is separated from everywhere else by sea. Such areas tend to have populations of less than 200,000.

Unavoidably small hospitals find it difficult to achieve the economies, and the economies of scale, that are possible elsewhere in the NHS, because they do not receive tariff payments. They have to provide baseline services at a certain cost, but they do it for many fewer people. It is therefore likely that fewer people will use the services of that particular surgeon or those particular nurses, and as a result they are under permanent pressure. On the Island, our additional costs are estimated, at 2019 prices, to be some £12 million a year. That covers acute services, ambulances—including helicopters, for us—and travel to other destinations, which may involve ferries.

The NHS long-term plan—pre covid, back in January 2019, almost a lifetime ago—set out a 10-year strategy, stating that it would develop a standard model for delivery for smaller hospitals. May I ask the Secretary of State and the Health Minister what has happened to that plan and to the community services formula, which we hoped would support unavoidably small hospitals?

I am, however, delighted that, thanks to the excellent work of Maggie Oldham, the superb chief executive of the Isle of Wight NHS Trust, St Mary’s Hospital has been taken out of special measures and is now good. I would welcome either of the Ministers if they came to see us on the Island, not only to congratulate Maggie but to understand the pressure that one of the 12 unavoidably small hospitals in the United Kingdom is under, so that they can work with me to provide a better funding model for it and the other 11.

18:54

[Jim Shannon]

It is a pleasure to be able to make some comments on Third Reading. The Secretary of State and the Minister will know my position on these matters. I should like to commend the hon. Member for Congleton (Fiona Bruce) and my hon. Friend the Member for Upper Bann (Carla Lockhart) for their dedication to these issues. Their passion in this House is matched by many in my constituency who, despite the fact that their view is constantly disregarded, still urge me in their hundreds—I received hundreds of emails yesterday and hundreds today—to do what I can to speak for life. That is what I do here today. I care about the life of the woman and I care about the life of the unborn child. I am starting from the position that both lives matter, and it is one on which I stand firm.

In this House, there is a large number of MPs who are opposed to abortion on demand and who have an opinion on that. They include those who represent Northern Ireland and other parts of the UK in this House. I want to reiterate my position on the last vote that took place in Northern Ireland. An opinion poll found that 60% of constituents were opposed to abortion on demand. I am sure that I am far from being alone in recognising the double standards that our medical guidelines currently endorse, fighting for a life at 22 weeks in one case and ending it at 22 weeks in another case.

There are those who advocate that choice comes above viability, but that view is not replicated even by the many who support abortion in principle. It is a pity that clause 31 and clauses 51 and 52 were not brought to the House today. We expressed our concern some time ago that this House making the decision for Northern Ireland over and above the views of its elected representatives, its constituents and a majority of people across Northern Ireland would have an impact on the abortion rules in this House. We would have had an example of that today if new clause 50 had been approved, which it was not. It would have removed vital safeguards for women and girls seeking abortions up to 28 weeks of pregnancy, such as the requirement for two doctors, or even any medical professional, to be involved. The law change that was agreed in this House for Northern Ireland could have the shocking impact of placing at risk women and girls in abusive situations. It could legalise abortions that women and girls would carry out on themselves up to 28 weeks of pregnancy, for any reason.

[Mrs Miller]

Will the hon. Gentleman give way?

[Jim Shannon]

I have almost finished my speech.

The Health and Care Bill is an opportunity to improve health and wellbeing, and it should not be usurped to remove essential safeguards such as contact with a medical professional, counselling and referral to appropriate care pathways. This House must be mindful, whatever decisions it takes here, that those decisions will have an impact on Northern Ireland. We in Northern Ireland are very concerned, and there is great disappointment at where we are.

Question put, That the Bill be now read the Third time.

18:57

Division 122

Ayes: 294

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Conservative: 290
Independent: 1

Noes: 244

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Labour: 178
Scottish National Party: 41
Liberal Democrat: 9
Independent: 4
Democratic Unionist Party: 4
Conservative: 3
Plaid Cymru: 2
Social Democratic & Labour Party: 1
Alliance: 1
Green Party: 1
Alba Party: 1

Bill accordingly read the Third time and passed.

Business without Debate

Tuesday 23rd November 2021 Commons Chamber

Delegated Legislation

[Madam Deputy Speaker (Dame Rosie Winterton)]

With the leave of the House, we shall take motions 3, 4 and 5 together.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Food

That the draft Eggs (England) Regulations 2021, which were laid before this House on 19 October, be approved.

Financial Services

That the Money Laundering and Terrorist Financing (Amendment) (No. 3) (High-Risk Countries) Regulations 2021 (SI, 2021, No. 1218), dated 1 November, a copy of which was laid before this House on 1 November, be approved.

Local Government

That the draft Local Audit (Appointing Person) (Amendment) Regulations 2021, which were laid before this House on 21 October, be approved.—(Andrea Jenkyns.)

Question agreed to.

Pine Trees Development

Tuesday 23rd November 2021 Commons Chamber

19:10

[Mr Steve Baker (Wycombe) (Con)]

The residents of Pine Trees in High Wycombe bought their homes on the basis that the council would adopt open spaces—indeed, they have supplied evidence that the council’s original intention was that a planning obligation should secure just that—but it has not happened. I am therefore pleased to have received a petition signed by three but accompanying a much longer petition signed by 524 residents.

The petition states:

The petitioners therefore request that the House of Commons urge the Government to legislate to ensure in future if planning is granted on particular conditions, and these are not carried through by a council, then that council is responsible for remediation and to ask the relevant Member to seek to broker a solution.

I will of course seek to broker a solution to this problem.

Following is the full text of the petition:

[The petition of residents of the constituency of Wycombe,

Declares that planning permission for Pine Trees was granted by the local authority (now Buckinghamshire Council) on the condition that the developer, Taylor Wimpey, paid a commuted sum to support the upkeep of the open spaces and play areas known as Bobcat Park, allowing for the local authority to adopt the park; notes that the local authority failed to include any mention of said commuted sum in the Section 106 planning conditions for the development; notes that the developer sold, and continued to sell, homes at Pine Trees on the basis that Bobcat Park would be adopted by the local authority and that residents would not need to pay anything towards upkeep of the park; notes that in connection with a separate planning condition, the developer has paid to the local authority more than £2 million for the creation of a bus link scheme which has since been abandoned, leaving funds available to support adoption of the park; and notes that in the absence of a commuted sum, the local authority has indicated its opposition to adopting the park, leaving the costs of maintenance to be borne by the residents at the development, conflicting directly with what they had been told.

The petitioners therefore request that the House of Commons urge the Government to legislate to ensure in future if planning is granted on particular conditions, and these are not carried through by a council, then that council is responsible for remediation and to ask the relevant Member to seek to broker a solution.

And the petitioners remain, etc.]

[P002698]

Ickford: Flood Risk

Tuesday 23rd November 2021 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Andrea Jenkyns.)

19:11

[Greg Smith (Buckingham) (Con)]

I wish to make the case for a complete and total overhaul of the way in which flood risk is assessed and taken seriously in the planning process, using the circumstances of the village of Ickford in my constituency as a case study to highlight the horrendous deficiencies in the system as it stands.

I need not remind the House that the devastating effects of flooding can be seen year on year. The Environment Agency’s October 2021 report projects that double the number of properties in England will be on floodplains by 2065. New build housing increases the risk, further exacerbating the issue. Four million people and £200 billion-worth of assets are at risk of flooding from rivers or the sea. The effect of flooding, not only economically but traumatically, on individuals, families and businesses is both terrible and long-lasting. Flooding goes right to the heart of our communities. It is a risk that must be taken seriously and that I know the Government want to take it seriously.

Acting ahead of a flood event is the most effective way to reduce the risk of flood-water damage. Typical improvements include low-cost resilience measures such as upgrades to plaster and flooring, self-closing air bricks, the sealing of brickwork and the installation of flood doors—all proven to reduce damage from flooding. Fundamentally, though, we must ask ourselves how on earth new build homes are granted planning permission in areas where literally everyone—other than, it seems the authorities—sees that it is obvious they will flood or exacerbate the risk of flooding to existing homes and businesses.

We need—in fact, communities across my constituency demand—much greater consideration of flood risk in the planning process. That is principally what I am arguing for: amendments to planning laws that will force the system properly to undertake flood risks, and changes that mean decisions on development are taken as locally as possible and that make flood risk a central principle in any new planning legislation.

We need to ensure that developers and the construction industry do not add to the problem and that local authorities do not see building on flood-prone areas as an easy way to meet housing quotas. This need was made urgently apparent to me as a result of events in the village of Ickford in my constituency.

In August 2020, a development of 66 properties in the village of Ickford, now being built out by Deanfield Homes, but started by CALA Homes, was given permission by the planning inspector. It was an absolutely ridiculous decision given that part of the rationale was a totally bogus and irrational claim that flooding would not be an issue. Residents of Ickford were told that flooding would be a once-in-100-year occurrence, which was an offensive claim given the number of times that the village has flooded in the past 18 months alone. Indeed, when I visited the site in January this year, half the site was substantially under water. I am not talking about a couple of small puddles or a patch of lakeing, but widespread, deep flooding.

More than 80 residents of this beautiful small Buckinghamshire village objected to the development, and their main objections were all consistent. Their primary complaint was flood risk. As I have said, the village already floods frequently during periods of heavy rain due to surface water run-off, and the development site is higher than most of the village. Much of the lower areas are in the flood plain of the River Thame. Even now, quite amazingly, Deanfield Homes, the developer, has not accepted the indisputable proof that the development site floods. Or has it? For when I was standing in the flooded waters of Ickford, I was not the only one seeking a solution. Of course, my solution was simple—do not build on this field, but the developer seemingly had different ideas. “If you build it, they will come” has suspiciously become, “If you raise it up, they will still sell.” A field of dreams is becoming a field of nightmares for the villagers.

Indeed it is beyond parody that, while continuing the public “It’ll be fine” narrative on flooding, the developer is in fact now building those homes 1.1 metres higher than planning permission was previously given for, and we can all guess why. Residents have told me—and I have witnessed it—that lorries full of aggregate and hardcore are being delivered throughout the day, mounting curbs and putting children on their way to school in danger. Building that site so much higher means that Ickford has a new development on an island, which makes the threat of flooding to the rest of the village, especially properties on Worminghall Road and Golders Close, extremely high.

The developer’s new sparkly CGI graphics boards on the entrance to the development even show the rear gardens with huge grass slopes, which means that all surface water will now flow directly towards the existing housing. It is not even trying to hide it. I have suggested to the developer that if it is so confident that flooding will not be a problem, it should build a tanked brick wall around the development, but so far there has been no response and no agreement to my request for a meeting.

What the developer has done is to alleviate the situation for itself but compound it for the rest of the village. This is equally all part of the blatant disregard it has for the village that it is devastating. The impact on biodiversity, for example, has been equally staggering. Residents have shared with me images of trees being cut down and hedges removed despite being protected, and the developer is not willing to hear their concerns.

Compounding the issues, the village also has an inadequate sewerage system. During periods of heavy rain, the Thames Water network simply cannot cope due to surface water ingress, so raw sewage bubbles up into the roads. I have been pushing Thames Water for a solution. To be fair, it agrees that something needs to be done, but no works have yet taken place. I am sorry to say that the chief objections about flooding and sewage were laid aside as part of the planning process.

I have been told by residents who attended that the inspector’s hearing was conducted in such a way that the inspector failed almost completely to control the hectoring by the developer. At the outset, residents were allowed only to make brief speeches in support of their objections, and were shouted down. The residents who attended left the hearing in a state of shock at such an undemocratic process, and went home utterly disheartened. The inspector did visit the village on the last day of the hearing and talked to a few residents, but from his report it is clear that he paid scant regard to their concerns, although he did pay lip service to them.

Surely when any planning application comes forward we must put local people at the heart of flood risk assessment. Those who live and work in an area know exactly what happens in heavy rainfall or even light rainfall—not some bureaucrat perusing Google Maps.

Sadly, the inspector’s report, which was published in August, granted permission for the development. Residents who had opposed the development launched a campaign to protect the village; they called it the Ickford Residents Group. The group sought legal advice, but learned that because their main objections had been set aside, they could not challenge the inspector’s decision with any hope of success. Since that time, the group has been proved right, beyond any shadow of a doubt; all its objections were valid. Thames Water has accepted that its advice at the time was wrong and is carrying out reviews, but despite constant pressure from myself and residents, we have seen no action. The group has also campaigned to obtain reforms to the processes so that other localities may not suffer as Ickford’s residents have done.

On behalf of Ickford residents—and indeed all communities threatened by flooding and rogue developers —I am today calling for the way in which flood risk is assessed as part of the planning process to be seriously beefed up. My view is simple: we cannot keep building homes in areas liable to flooding. It will just keep making matters worse. Change is needed, and needed urgently.

First, the Government should, as part of its review of planning policy, establish to what extent flood risk is increased by the lack of scrutiny given to the cumulative impacts of smaller and permitted developments. A stronger and direct presumption against developments in floodplains is also needed. This requires changes to the national planning policy framework to close loopholes that allow developments in flood risk areas.

Consideration must also be given to future insurance costs in planning and development decisions. Mortgage lenders in the UK generally require mortgage holders to purchase buildings insurance that includes cover for flooding. Therefore, if new homes do not provide an appropriate standard of genuine and real flood mitigation, the ability to get insurance cover, and for people to become homeowners, will be diminished.

New standards could be set through building regulations that build on the industry code of practice for property flood resilience. Other measures, such as flood performance certificates, should also be considered to incentivise responsible development planning and property flood resilience measures. I fear that additional spending on flood risk management will equally be required, and flood resilience measures need to be incentivised.

The village of Ickford illustrates the incredible inequality that is created when developers with very deep pockets come up against councils and local residents. Unless proposed reforms can overcome this undemocratic situation, the unfairness will continue unabated. The setting aside of Ickford’s residents’ chief concerns was due to an almost complete lack of local knowledge, or testing of that knowledge, by the authorities involved. We simply must make improvements.

As I said earlier, every single one of the concerns residents set out has proved to be real. Ickford was devastated by floods last winter and part of the land that developers are building on was flooded. The claim of a once-in-100-years occurrence almost became once a week in reality. We simply have to look at this again. We have to learn the lessons of what we have seen in the village of Ickford, understand the threat that the existing home owners and existing properties in that village now face from this new development, and ensure that it can never happen to any other village—or town, city or hamlet—in our country ever again.

19:25

[The Minister for Housing (Christopher Pincher)]

I congratulate my hon. Friend the Member for Buckingham (Greg Smith) on securing this Adjournment debate on a very important topic to all residents of Buckinghamshire but particularly to his constituents. He is a doughty and industrious campaigner on behalf of the people of Buckingham, and tonight, the people of Ickford. I congratulate him on his speech.

I am sure that my hon. Friend will appreciate that because I have a quasi-judicial role as planning Minister, it would not be appropriate for me to discuss in any detail individual planning applications or individual local plans. However, I am concerned to hear from him that the developer in question has not engaged sufficiently with the local community, or with him. I encourage that developer—indeed, all developers—to make sure that they do engage effectively and properly with elected representatives, as well as the communities concerned.

The Government recognise that flooding presents a risk to people and to their homes, villages, towns and cities, as my hon. Friend says. The devastating effects of flooding can be seen every year and the Government take it very seriously. The national planning policy framework is very clear that flood risk assessments are needed for all areas where development is proposed that are at risk of flooding from all sources, both now and in the future. Appropriate design and risk considerations that include allowance for climate change need to be included in any flood risk assessment. Allowances that consider future impacts of climate change on flood risk incorporate a precautionary risk-based approach for more vulnerable areas. This means that increased levels of resilience are—indeed, must be—factored in.

The national planning policy framework sets out a clear, overarching policy on flood risk. It states that inappropriate development in areas at risk of flooding, whether an existing or a potential risk, should be avoided, and alternative locations at lower flood risk should be identified where possible; this is known as the sequential test. Where development is necessary and there are no suitable sites available in areas at less risk of flooding, the proposed development should be made safe without increasing flood risk elsewhere; this is called the exception test. Where these strict tests are not met, new development should not be allowed.

Three national flood zones are identified by the Environment Agency’s flood map for planning. I encourage my hon. Friend to raise his concerns about this matter with the Environment Agency, and specifically about its flood map. Flood zone 3, which is commonly referred to as high risk, is split by a local council into two separate zones, 3a and 3b, where 3b is classified as functional floodplain and has the highest likelihood of flooding. Large parts of many major towns and cities comprise land classified as flood zone 3. Sub-category 3a covers land having a one in 100 or greater annual probability of river flooding, or land having a one in 200 or greater annual probability of sea flooding—possibly not something that my hon. Friend’s constituents in Buckingham are at particular risk of, but I understand his broader concerns.

I must stress that building on land assessed as high risk is not the same as building on functional floodplain. Even then, building in flood zone 3 is not common, as less than 0.2% of land use in flood zone 3 is residential. Flood zone 2 is classed as a medium possibility of flooding, and flood zone 1 is classed as a low probability of flooding and covers land having a less than one in 1,000 annual probability of flooding from rivers or the sea. Areas at the lowest risk of flooding can still experience localised flooding—for example, following a very heavy downpour. That is why we have prioritised the use of sustainable drainage systems for all developments in areas at risk of flooding. The framework is also clear that sustainable drainage should be incorporated in all major developments—commonly schemes of 10 or more homes—unless there is clear evidence that it would be inappropriate.

The framework is also clear that a site-specific flood risk assessment should accompany all proposals in flood zone 1—the lowest risk—that involve sites of 1 hectare or more, land which has been identified by the Environment Agency as having critical drainage problems, land identified in a strategic flood risk assessment as being at increased flood risk in future, or land that may be subject to other sources of flooding, where its development would introduce a more vulnerable use.

Lead local flood authorities must be consulted on surface water drainage considerations in applications for all major new developments. Their comments and advice should inform the local council’s decisions on planning applications and ensure those applications are in line with the NPPF on flood risk. That ensures that local councils have access to appropriate expert advice on the sustainable management of drainage and localised sources of flooding.

For any major developments within flood zones 2 and 3 where the EA raises objections on flood risk grounds, the local council is required to consult the Secretary of State if it is minded to grant planning permission against the agency’s objections. This provides the Secretary of State with an opportunity to call in the decision.

My hon. Friend asked what we have done and called for a major overhaul of the system. I can tell him that we updated the NPPF in July this year to ensure that planning policies support climate change mitigation and adaptation, and that includes tackling flood risk. As part of the update, the framework was amended to require that all sources of flood risk are considered—including includes areas at risk of surface water flooding due to drainage problems—and that future flood risks are taken into account to ensure that any new development is safe for its lifetime, without increasing the risk of flooding elsewhere. The framework is clear that areas at little to no risk of flooding from any source should always be developed in preference to areas at a higher risk of flooding, as I have said.

The framework must be taken into account in the preparation of local plans, and it is a material consideration in planning decisions. My hon. Friend will know that as part of our wider planning reform considerations, we want to put local plan making at the heart of development and ensure that we engage more local people and stakeholders. I assure him that we will be looking at that and the issues he raised as we advance those proposals.

I should also tell my hon. Friend that, as can be seen from the recent update to the NPPF, the Government are not standing still on the issue of flood risk. Last year we published a policy statement setting out the Government’s long-term ambition to create a nation more resilient to future flood and coastal erosion risk. The policy statement outlines five ambitious policies and more than 40 supporting actions, which will accelerate progress to better prepare and better protect our country against flooding and coastal erosion in the face of more frequent extreme weather as a result of climate change. We want to ensure that we are better protected, to reduce the likelihood of flooding and to increase resilience.

This year the Government also published their review of policy development in areas at flood risk, examining key elements of planning policy relating to flood risk and development. It concluded that the Government have robust measures in place to protect people and property from flooding, which all local planning authorities are expected to follow. The review outlines the findings and sets out the actions the Government will take and have already taken, which includes further clarifications of policy.

Mindful of what my hon. Friend has already said, as part of our wider ambitions for an improved planning system we intend to review the NPPF to ensure that it contributes as fully as possible to climate change mitigation and adaptation. I will take careful note of his suggestions in that regard. We are also in the process of reviewing the planning practice guidance section on flood risk to provide further clarification.

We are also investing to improve our country’s resilience to existing flood risk. This year we have made a record investments in flood and coastal defences, doubling the size of the flood and coastal defence programme in England to £5.2 billion, providing around 2,000 new defence systems to better protect a further 336,000 properties. The aim is to reduce national flood risk by up to 11%, helping to avoid £32 billion of wider economic damage and benefiting every region of the country, including his own.

Furthermore, the Government have committed to undertake a review of the case for implementing schedule 3 to the Flood and Water Management Act 2010 concerning sustainable drainage systems. The review will look at the benefits and effects of implementation, as well as alternative methods for ensuring that sustainable drainage systems are incorporated in future developments. It will engage a range of stakeholders, and I encourage my hon. Friend and his friends to be some of them. As well as providing for statutory build standards for sustainable drainage systems on new developments, the schedule would make the right to connect surface water to foul water conditional on local planning approval of the developer’s proposed drainage system. The review commenced in October this year and we expect to publish the outcome in August next year.

I again congratulate my hon. Friend on his persistence in pursuing this very important matter on behalf of his constituents. I hope it is clear to him that the Government take the issue of flooding very seriously and expect it to be an important consideration in the planning system. We also take his views and his concerns very seriously too.

The NPPF is clear that inappropriate development in areas at risk of flooding should be avoided. Where development is necessary, as I say, it should be made safe and resilient, without increasing flood risk elsewhere. National planning policy applies to all sources of flood risk, including surface water, overwhelmed sewers and drainage systems, as well as future risk. We are committed to reducing the risk that flooding poses to our communities. We acknowledge that climate change will increase the risk of flooding, and that is why we have strong protections in place, including the £5.2 billion of investment that I referred to, and we will work hard on our further reforms to ensure that we further protect our communities against flood risk.

I congratulate my hon. Friend on his work on behalf of his constituents in Ickford and elsewhere. I trust that the developer to whom he referred is listening and will engage with him and the communities that are affected at the earliest opportunity. I congratulate him on his debate, and I look forward to working with him in future to ensure that flood risk in all of our communities is effectively mitigated.

Question put and agreed to.

19:39

House adjourned.

Ministerial Correction

Tuesday 23rd November 2021 Ministerial Corrections

Tuesday 23 November 2021

Transport

Tuesday 23rd November 2021 Ministerial Corrections

Integrated Rail Plan: North and Midlands

The following is an extract from the statement on 18 November 2021 by the Secretary of State for Transport on Integrated Rail Plan: North and Midlands:

[Grant Shapps]

On the environmental advantages, it will interest the House to know that HS2 is being built in as an environmentally friendly a way as possible. Section 2B west is intended to be a net positive carbon contribution, not just in its running but in its entire life cycle, which will be very important.

[Official Report, 18 November 2021, Vol. 703, c. 742.]

Letter of correction from the Secretary of State for Transport, the right hon. Member for Welwyn Hatfield (Grant Shapps):

Errors have been identified in the response I gave to my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones).

The correct response should have been:

[Grant Shapps]

On the environmental advantages, it will interest the House to know that HS2 is being built in as an environmentally friendly a way as possible. Section 2B west is intended to be a net gain for biodiversity, which will be very important.

Judicial Review and Courts Bill (Eleventh sitting)

Tuesday 23rd November 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: Sir Mark Hendrick, † Andrew Rosindell

† Barker, Paula (Liverpool, Wavertree) (Lab)

† Cartlidge, James (Parliamentary Under-Secretary of State for Justice)

† Crawley, Angela (Lanark and Hamilton East) (SNP)

Cunningham, Alex (Stockton North) (Lab)

† Daby, Janet (Lewisham East) (Lab)

† Fletcher, Nick (Don Valley) (Con)

† Hayes, Sir John (South Holland and The Deepings) (Con)

† Higginbotham, Antony (Burnley) (Con)

† Hunt, Tom (Ipswich) (Con)

† Johnson, Dr Caroline (Sleaford and North Hykeham) (Con)

† Longhi, Marco (Dudley North) (Con)

† McLaughlin, Anne (Glasgow North East) (SNP)

† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)

† Marson, Julie (Hertford and Stortford) (Con)

† Moore, Damien (Southport) (Con)

† Slaughter, Andy (Hammersmith) (Lab)

† Twist, Liz (Blaydon) (Lab)

Huw Yardley, Seb Newman, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 23 November 2021

[Andrew Rosindell in the Chair]

Judicial Review and Courts Bill

Clause 47

Commencement and transitional provision

The Chair

We resume with clause 47 and amendment 30. I would like to be able to call Anne McLaughlin, but she is not here.

The Parliamentary Under-Secretary of State for Justice (James Cartlidge)

- - Excerpts

On a point of order, Mr Rosindell. On behalf of all colleagues, may I say how grateful we are that you allowed us to attend the funeral this morning, instead of sitting in Committee? I thought it was a profoundly moving occasion, and your words were very moving in particular. It showed Parliament at its best.

I just said to the Doorkeepers that I thought the moment when they walked behind the coffin was one of the most moving I have seen as an MP. I thought it appropriate to put on record my thanks for the adjournment this morning, and that we all dearly miss our great friend. It was a very fitting and beautiful service.

The Chair

I thank the Minister for his comments on a very sad day for us all.

Sir John Hayes (South Holland and The Deepings) (Con)

- - Excerpts

Further to that point of order, Mr Rosindell. I do not want to prolong our proceedings unduly, but I think it is important to amplify the Minister’s remarks. Without wishing to embarrass you, you were a very close friend of Sir David. We were all his friends, but you were particularly close to him. We are grateful for your being here this afternoon, and I think we would all agree that it was a fitting final farewell to a much-valued parliamentarian, a dear friend and, most importantly, a husband and father.

Marco Longhi (Dudley North) (Con)

- - Excerpts

Further to that point of order, Mr Rosindell. I echo the previous comments. As a member of the new intake, I had the good fortune of having an office on the same floor as Sir David Amess in 1 Parliament Street. As the lift doors open, his office door is immediately in front. It has been a terrible sadness, as you can well imagine, every time I have seen that door with a candle lit in front of it in recent days and weeks.

As a colleague and a fellow Catholic, I felt today’s mass and funeral celebrations were a very fitting goodbye to someone I did not really get to know that well but someone who, as an elder statesman who had been round the block a few times, if I can put it that way, made me feel very welcome. He made a point of coming to say, “Hello. Who are you? Where are you from?” in his indescribable, unique way.

Tom Hunt (Ipswich) (Con)

- - Excerpts

Further to that point of order, Mr Rosindell. Extending on that theme, I was also very honoured to be at Westminster Cathedral this morning. I know how close you were to the late Sir David, and I am lucky to class you as a close friend of mine.

Sir David was somebody who was very visible in the Chamber. I remember in my first few weeks after being elected that I wanted to figure out how to do the job effectively, and I went around to canvass some names of people I should talk to about how to do the job effectively as a constituency MP. Sir David’s name came up almost as many times, and perhaps more times, than yours, Mr Rosindell. He was incredibly characterful, and I will always remember the summer and Christmas Adjournment debates when he would fire off 30 or 40 points within two or three minutes, when I would have mentioned barely one or two. It is with some sadness, though, that I say that he was somebody whom I always assumed I would meet and get to know very well, but that I was not given that opportunity. Like my hon. Friend the Member for Dudley North, who is a fellow Catholic, I was very moved by the incredibly powerful mass. I was lucky enough to take communion today—I have had my first holy communion and Father Pat has been trying to get me to have a confirmation: he is keeping his eye on me. It was incredibly moving today, and it might have done the job. I think that I will do that.

Andy Slaughter (Hammersmith) (Lab)

- - Excerpts

Further to that point of order, Mr Rosindell. May I associate the Labour party with the remarks of the Minister and Conservative Members about Sir David? I commiserate with the Members of the 2019 intake—because of covid, they probably did not get a chance to know him. But they would have got to know him pretty quickly, with us all being back here. As somebody from a very different political tradition, I worked very closely with him for the last five years through his chairmanship of all-party parliamentary fire safety and rescue group, which was astonishing. We all know that all-party parliamentary groups have a multitude of successes and failures. That was an astonishingly powerful and well-organised body, particularly in the wake of Grenfell. It really was a pleasure not only to know him but to see how effective he was as an operator in Parliament. We will all miss him. I know that you will particularly, Mr Rosindell, as a friend. We will all miss him as a friend, a colleague and a wonderful parliamentarian.

The Chair

Thank you all very much for those words. I hope that we might send a copy of the report of these remarks to Lady Amess and the family, so that they are aware of some of the kind words that have been spoken this afternoon about Sir David, who, as many have commented, was a very dear friend to me and to many in this room. I am only sorry that some were not able to get to know him as well as I knew him, because he was somebody very special—a fantastic Member of Parliament, a fine constituency MP and a very dear friend to so many. I thank you all for your very kind words this afternoon.

Fortunately, Anne McLaughlin is now with us, so we can move to clause 47 and amendment 30.

Anne McLaughlin (Glasgow North East) (SNP)

- - Excerpts

I beg to move amendment 30, in clause 47, page 54, line 34,  at end insert—

“(7) Notwithstanding the provisions above, this Act shall not come into force until the Lord Chancellor has laid before Parliament a written statement confirming that no provision in this Act contravenes Article 6 or Article 13 of the European Convention on Human Rights.

(8) The statement under subsection (7) must be laid before Parliament within three months of this Act being passed.”

This amendment would prevent any Act resulting from this Bill from coming into force until the Lord Chancellor confirms, via a written statement to Parliament, that none of its provisions contravene ECHR Article 6 (right to fair trial) or ECHR Article 13 (right to effective remedy).

I thank everybody on the Committee for their forbearance during the last week, while I was struggling to move, and today, when I underestimated how long a usually seven-minute walk to get here would take me. Thankfully, I have an X-ray on Thursday, and I hope that something will come of that.

May I also associate myself and my hon. Friend the Member for Lanark and Hamilton East with the remarks on Sir David Amess? I did not know him; I knew exactly who he was, though. There was that smile that made him stand out—a really genuine smile that reached his eyes. I always noticed that. I did not know him personally, but listening to people speak about him, including many people in the SNP group, who knew him really well and are really hurting, makes me wish that I had. Maybe that can teach us something in this place: that there are people who we can identify with and befriend who have different views from our own. Thank you for allowing me to say that.

I sure that Conservative Members and Opposition Members will agree with the fundamental principles that we should all be afforded the right to a fair trial and effective remedy. There can be little dispute that those are the cornerstones of a justice system that respects the rule of law and principles of natural justice. Amendment 30 seeks confirmation from the Lord Chancellor that any provision in the Bill will be prevented from coming into force if it contravenes article 6 or article 13 of the European convention on human rights: the right to a fair trial and the right to an effective remedy.

We have already debated how provisions in the Bill, such as the presumption for using prospective-only quashing orders, could risk breaching article 6.1 of the European convention on human rights on the right to a fair trial, which requires an effective judicial remedy. The amendment would ensure the Government had the opportunity to make cast-iron guarantees that that will not happen. That would be expressed via a written statement from the Lord Chancellor, laid before Parliament within three months of the Bill being passed.

The Minister may wish to point out that article 13 does not apply to the Human Rights Act 1998, but it could be applicable in the European Court of Human Rights in Strasbourg and that is why we felt it appropriate to include it in the amendment. Strasbourg does not recognise the practice of failing to give human rights without an effective remedy. Rather than stripping away rights, the Government should consider in any proposed review of the Human Rights Act that the right to effective remedy be added. As the Minister has assured us that the Bill will furnish the courts with a broader set of tools, with no risk of restricting individual claimants’ rights, he will surely consider the amendment a gift from me to him to help clarify his position.

James Cartlidge

- - Excerpts

Thank you for your generosity in allowing us to pay our tribute, Mr Rosindell, following this morning’s very moving mass at Westminster Cathedral.

The amendment would prevent any measure in the Bill from coming into force until the Lord Chancellor has provided a written statement to say that no provision in the subsequent Act contravenes article 6 on the right to a fair hearing and article 13 on the right to effective remedy of the European convention on human rights. I assure hon. Members that none of the measures in the Bill contravenes either article 6 or article 13.

The hon. Member for Glasgow North East mentioned remedies. We have the new remedies relating to quashing orders, which are a key part of how the Bill improves judicial review. In clause 1, there are adequate safeguards to ensure that any individual exercise of the new remedial discretions provides an effective remedy in cases concerning violations of convention rights. That is because the measures do not limit the availability of any existing right for such a breach and their use remains open to the court’s discretion. Presumption in favour of any of the remedial discretions only operates in circumstances where its exercise would

“offer adequate redress in relation to the relevant defect”

and it may be rebutted where there is good reason to do so. Further, the court is required to consider the interests or expectations of persons who would benefit from quashing of the impugned Act, as well as considering other factors.

On clause 2, regarding Cart judicial review, our position is that article 6 does not require a further right of judicial review in relation to decisions concerning permission to appeal from the first-tier tribunal to the upper tribunal and therefore considers that the measure does not interfere with an individual’s right under article 6.

When the Bill was introduced, the Lord Chancellor at the time signed a statement under section 19(1)(a) of the Human Rights Act 1998 to confirm his view that the provisions in the Bill are compatible with the convention rights. When the Bill passes to the other place, a second statement will be made, as required under section 19, taking into account any amendments. Should any Government or non-Government amendments be made that we felt contravened those statements, we would inform Parliament. It would be a breach of the ministerial code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.

In addition, ahead of introducing the Bill, the Government carried out a full ECHR analysis and published a memo for the Joint Committee on Human Rights setting out that analysis on parliament.uk. The previous Lord Chancellor wrote to the Committee’s Chair when the Bill was introduced and we will engage with the Committee fully should it choose to publish a report on the Bill. In summary, the Bill currently does not contravene either article 6 or article 13, and appropriate measures are in place should that no longer be the case at any point during its passage. I therefore urge the hon. Lady to withdraw the amendment.

Anne McLaughlin

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In the light of what the Minister has said about the potential breach of the ministerial code, and knowing how seriously almost everyone takes that, I hope that what he tells me is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Anne McLaughlin

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I beg to move amendment 31, in clause 47, page 54, line 34, at end insert—

“(7) Notwithstanding the provisions above, nothing in this Act relating to Scotland shall come into force without a consenting resolution being passed by the Scottish Parliament.”

This amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland for those provisions to come into force.

As I am sure the Minister is aware, under the Sewel convention the Scottish Parliament should have the final say over any attempt by the UK Parliament to legislate in devolved areas. In recognition of the separate and distinct nature of Scotland’s legal system, article 19 of the Treaty of Union protects the authority and privileges of Scotland’s Court of Session. This is a fundamental part of the UK constitution and this amendment would ensure that the UK Government respect the principles of the Sewel convention and the constitutional arrangements.

Without an amendment specifically guaranteeing the requirement of consent from the Scottish Parliament to any provisions in the Bill that relate to Scotland, we risk interference with Scottish legal processes. The Faculty of Advocates, which was represented at the evidence sessions of this Committee, has said that in Scotland

“judicial review does not suffer from a lack of clarity, and any attempt to codify it is likely to undermine the very flexibility that renders it effective.”

Furthermore, Liberty has also commented on the situation and has said that

“the Act of Union does not serve to enable the UK Government to reshape the jurisdiction of the Court of Session. These are not technical or procedural points. In any event, the administration of the courts and the justice system in Scotland clearly falls within devolved competence.”

I am certain the Minister and Members opposite will be aware that this amendment is not only a reminder that this convention exists, but that it too must be respected in statute.

James Cartlidge

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The amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland. I am emboldened to say that the word “relate” is in bold in my text, as that word is very important. I have a number of constitutional concerns about the amendment.

To reassure the hon. Members for Glasgow North East and for Lanark and Hamilton East, the measures in this Bill relate wholly to reserved matters. Ministers and officials have been engaging with the devolved Administrations over the course of the Bill, and we will continue to do so when the provisions in the Bill come into force.

I believe we are in agreement that chapter 2, “Online procedure,” and chapter 3, “Employment tribunals and the Employment Appeal Tribunal,” of the Bill relate to matters outside the competence of the Scottish Parliament. Yet this amendment would still apply to the clauses in those chapters and require the consent of the Scottish Parliament before they could come into force.

The majority of the criminal procedure measures also relate only to England and Wales, although, as I have previously noted in Committee, we are aware that the Scottish Government’s position may be that the new automatic online procedure, introduced by clause 3, engages the legislative consent process. Furthermore, we believe that this is outside the competence of the Scottish Parliament, which, in the Government’s view, does not engage the legislative consent process.

With regard to removing Cart JR, I should make clear that the unified tribunal system is a reserved matter, where it relates to matters of reserved policy. Our measures on Cart will apply to the whole of the UK, but only in respect to the matters heard in that tribunal system that fall outside the competence of the Scottish Parliament. The provisions relating to remedies apply to England and Wales only.

If it came into force, the amendment would actually lead to decisions in reserved areas operating differently across the UK, thereby reducing the clarity the Bill currently provides. In line with the memorandum of understanding on devolution, we will continue to engage with the devolved Administration at a ministerial and official level to ensure that we have time to fully understand any implications for the Scottish court system.

On that basis, I cannot accept this amendment and I urge the hon. Lady to withdraw it.

Anne McLaughlin

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I am not sure what I am supposed to say, but I do not wish to withdraw the amendment.

Question put, That the amendment be made.

Question negatived.

Question proposed, That the clause stand part of the Bill.

James Cartlidge

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This is one of those long ones, Mr Rosindell. This clause sets out when the measures will come into force. While some measures will come into force two months from when the Act is passed, including the coroner’s provisions and two of the criminal provisions, in clauses 14 and 15 and schedule 1, the remainder of the Bill will come into force by regulation.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Clause 48

Short title

Question proposed, That the clause stand part of the Bill.

James Cartlidge

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I just need to check I have enough water for this one. The clause is the short title of the Bill.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

The Chair

We now come to new clauses. I understand that the Opposition do not intend to press new clauses 1 and 2, which have already been debated, to a Division, so we will begin with new clause 3.

New Clause 3

Exclusion of review of the Investigatory Powers Tribunal

(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.

(2) Leave out subsection (8) and insert—

“(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.

(9) In particular—

(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and

(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.

(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—

(a) has a valid case before it;

(b) is or was properly constituted for the purpose of dealing with the case; and

(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.

(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.”

(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”—(Sir John Hayes.)

Brought up, and read the First time.

Sir John Hayes

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I beg to move that the clause be read a Second time.

The new clause addresses the issue of the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000 and more especially circumventing the role of the Investigatory Powers Tribunal. It would restore Parliament’s choice in enacting section 67 of the Act so that the decisions of the Investigatory Powers Tribunal would not be subject to judicial review.

As Security Minister at the Home Office, I addressed these matters in an important piece of legislation that established the principle of a double lock in respect of the warranting of powers in the case of both suspected terrorists and serious and organised criminals. That is to say that tech companies are obliged to maintain a record of electronic communications that can be interrogated on application to the Home Secretary for a warrant. I introduced the double lock, so that as well as satisfying the Home Secretary of the validity of the case made by the police or the security services, a warrant must also pass the same test when put before a member of the Investigatory Powers Tribunal or a judge. That was a safeguard to ensure that those powers are used only when necessary and proportionate. It is that test of necessity and proportionality that lies at the heart of the exercise of powers in respect of security and related matters.

The problem—it is a challenge that we have considered on previous occasions in the scrutiny of the Bill: indeed, it has punctuated our consideration—is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in that context. The supremacy of Parliament is fundamental to protecting the interests of the people, and Parliament’s particular role in our constitutional settlement is not a matter—as was suggested by one of those who gave evidence to us—of mutuality.

Anybody who understands constitutional theory and practice will know of the work of Dicey. It is clear that parliamentary sovereignty, as Dicey argued, confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together, and therefore:

“The principle of Parliamentary sovereignty means neither more nor less than this”.

In Dicey’s words, Parliament has

“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”

Those are the words of A. V. Dicey in affirming the principle of sovereignty. He goes on to say that parliamentary sovereignty must be thus described:

“Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies existing law, will be obeyed by the courts…Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation.”

Legally, sovereign power is assuredly maintained by Parliament. It is quite wrong for the courts to be used as a way to perpetuate debate. We heard that from the Minister in particular respect of the way that judicial review has metamorphosised over time to perpetuate debate in particular cases that have been settled previously. The Minister described it as having several bites of the cherry. That is not the role of judicial process, and the Bill goes a considerable way to addressing that, but it does not go far enough.

The purpose of the new clause is to probe and press the Minister—I will not put it more strongly than that—to go further in affirming the sovereign role of Parliament described by A. V. Dicey. The power of Parliament has been drawn into question, particularly in respect of the Investigatory Powers Tribunal, as I said. The Supreme Court, in a perverse judgment, effectively set aside Parliament’s lawmaking choice in May 2019 in the landmark judgment of Privacy International v. Investigatory Powers Tribunal. Hon. Members will remember that the case was raised in the first oral evidence session by Professor Ekins, and addressed by him in his paper for Policy Exchange. I once again thank Policy Exchange for publishing that paper, which has added to our understanding of and insight into these matters.

In essence, the new clause, tabled in my name and that of my hon. Friend the Member for Ipswich, and supported by other Committee members—I say that with some timidity and hesitation, because I cannot presuppose that support until I have persuaded them by the power of my oratory; none the less, I am confident that it has some sympathy of other Committee members—is an opportunity for the Government to do what the Attorney General recommended and advertised in her recent speech in Cambridge, in which she identified the problem I describe of the courts taking a more incursive role into the business of high politics than is their proper place to do. The new clause, in respect of the Regulation of Investigatory Powers Act 2000, attempts to do just that.

The new clause would reverse the Supreme Court’s judgment and reinstate the law that Parliament clearly made. Before the Privacy International case, the courts had taken section 67 of the 2000 Act to be a clear, unambiguous ouster clause that excludes the jurisdiction of the courts in relation to the Investigatory Powers Tribunal. For 19 years, there has been no possibility of judicial review. In recent court judgments, including others such as the Adams case and the Miller case, we have seen the creeping role of the courts into those areas, with judicial review being used as the mechanism to allow that mission creep. It is important that the Government recognise that—from what the Minister has said, I think they do—and take effective action to address it.

I suppose what I am saying is that the Bill could have been a bigger piece of legislation. As you will know from your long experience in the House, Mr Rosindell, new clauses are sometimes a way of encouraging the Government during the further consideration of the Bill to listen to the arguments that have been made during scrutiny and to allow it to do more than was originally intended. The alternative would be to bring in another Bill, but it is always difficult to secure time in the legislative programme. The likelihood of another Bill in the same subject area is small, so this may be our chance. It is a rare and special chance for the Minister to become something of a star, if I might put it that way, in the battle to affirm the constitutional place and historic role of Parliament in relation to the courts.

The then Lord Chancellor, my right hon. and learned Friend the Member for South Swindon (Robert Buckland), made a powerful critique of the Privacy International judgment and of the 2015 Evans judgment, which concerned the disclosure of the Prince of Wales’s letters, which was a similar case of the courts taking unusual—I would say exceptional—power with an undesirable outcome. In the Evans case, a Supreme Court majority effectively overturned part of the Freedom of Information Act 2000.

The constitutional problems with the Supreme Court’s reasoning in that case are set out in a previous Policy Exchange paper written by Professor Ekins and Professor Forsyth of the University of Cambridge. Their argument was strongly endorsed by Lord Hoffmann and Lord Brown, two of the country’s most senior judges, and by Lord Faulkes, who chaired the independent review of administrative law last year.

Speaking about that case, the then Lord Chancellor said:

“when enacting the provisions at issue in Privacy International and Evans Parliament did not believe that it was infringing the rule of law (and indeed the judges in the minority in both cases agreed). It was also perfectly clear, as the minority recognised, what Parliament actually intended. Provided Parliament’s assessment was not wholly unreasonable, it does not appear to me to be right to frustrate that intention”.

That is a powerful critique. Even if Parliament had been wrong to enact section 67(8) of the Regulation of Investigatory Powers Act 2000, it was a decision for Parliament to make.

A fundamental issue is at stake here. We are answerable to the people and our legitimacy is derived from the people. Although it is important that an independent judiciary plays its part in our constitutional settlement, it is not a matter of reciprocity or mutuality; it is not about alternative sources of power. This place is the source of legitimate democratic power because we, as I say, draw that authority from the people. We speak for the people and are answerable to the people. That is the point. It is not right for that mission creep to allow others to exercise power, who are not directly accountable in the way that I have described.

The new clause focuses on the important Privacy International case, but it also speaks to those other wider and deeper matters. By accepting the new clause, as I am confident the Minister will with good grace and alacrity when he rises to speak, the Government will be doing a great service not only in their own interests, because the new clause is entirely in keeping with the essence of the legislation’s intention, but in recognising that the Bill provides a special, unusual, perhaps even a unique opportunity to right these wrongs.

Without wishing to delay the Committee further, I say to my colleagues on the Conservative Benches and, by the way, to those across the House, that the Bill has been debated in good spirit, and with appropriate care. I paid tribute in an earlier session to the hon. Member for Hammersmith, but I do not want to do so again, else we will start getting the reputation of being too friendly with each other. I do not want to give the impression that I am in the thrall of the hon. Gentleman. The Bill has been debated in the right spirit and in a sensible and positive way. To Opposition Members, I say that it is important for all Members of the House to recognise the authority of this place, as I have described, for that is our mission and purpose. I am disturbed by the increasing judicial activism that has led through series of cases—I could talk about the Miller case, and I referred briefly to the Adams case—which is changing the balance of our constitution from this place to elsewhere.

In summary, I was proud to take security legislation through the House that gave the Security Service and the police the powers that they need to protect us from those who seek to do us harm. We have put into place safeguards and protections in earlier security legislation and in the legislation that I took through myself. We are clear that there have to be those safeguards, and of course it is right that all the agencies on which we confer extensive powers are themselves accountable. But it is not right for the courts to frustrate the will of this House.

To that end, I am pleased and proud to propose the new clause in my name. Of course, needless to say, at this stage I will not say that I am going to push it to a vote; that would be quite wrong, because it would suggest that the Minister could just say anything. I do not want to let the Minister off the hook. He knows that I am a supportive and friendly member of the Committee; but none the less, I am expecting him to at very least say that he is minded to consider these matters, or the full power of the Back-Bench Members of the Committee could be felt and heard, to the distress of my great friend who sits on the Front Bench next to the Minister, namely my hon. Friend the Member for North Cornwall. As I said to him last week, were that to happen, he would have a grey mark against him, next to my black mark.

I say to the Minister, persuade me otherwise, or agree at least to consider the matters addressed by the new clause because it is very much inspired by the message that he has broadcast to the Committee: the Government want to get things right in respect of the power of courts alongside the power of Parliament.

Andy Slaughter

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The right hon. Member for South Holland and The Deepings takes us back into the important constitutional territory with which he started his consideration of the Bill. He also, knowingly or not, revealed something about his taste in curry. For those who are looking slightly amiss about that, I refer to the opening paragraph of the article concerning the Bill that appeared in The Mail on Sunday, which said:

“The Justice Secretary, Dominic Raab, regards himself as a spicy ‘Vindaloo’ politician compared to the bland ‘korma’ represented by his predecessor, Robert Buckland, sources in his new ministry have told the Mail on Sunday.

The bizarre comparison was made in the context of the Judicial Review Bill, inherited by Mr Raab from Mr Buckland, which aims to clip the wings of the Judiciary over the extent to which they can rule on political decisions, such as Boris Johnson’s suspension of Parliament during Brexit negotiations in 2019.”

I will not go on, partly because the article contains some unparliamentary language, and in fairness to the Justice Secretary it ends with the immortal line:

“A source close to Mr Raab denied that he had ever compared himself to a vindaloo curry.”

The right hon. Member for South Holland and The Deepings puts himself more in the vindaloo than the korma camp with his comments, but I note that the new clauses that he has tabled are a subset of those in the Policy Exchange document, to which he referred, by Professor Ekins, who was one of the witnesses who gave evidence to the Committee. That document was a very powerful concoction indeed, because it contained 20 suggested new clauses or amendments, which were whittled down to seven on the amendment paper. After excluding those that were not in scope, we are down to two.

None the less, the import of what the right hon. Gentleman intends is still there, so I will respond to new clause 3 and, in due course, to new clause 5, and say to the Minister that it would be wrong to accept the new clauses, partly because of what they say and partly because of the way they are being introduced at this stage; they should really have come through the usual processes. That is to say nothing about the right of the right hon. Gentleman to table them now to raise the issue. Nevertheless, the provisions are being put to the Committee at a very late stage. The way in which they were tabled leaves no time for substantial parliamentary engagement or the required serious consideration of their merits.

Of course, Parliament is supreme, and there may be a case for looking at the propriety of certain Supreme Court decisions or changing the way that judicial review works, but this is not the proper way to enact measures of such constitutional significance. The bottom line is that if Parliament wishes to modify or overturn legal decisions as significant as those highlighted here, it should do so through a proper and full debate, with a full consultation beforehand, so that it can benefit from a wide range of expert views. Parliamentarians should be empowered to make proper, informed decisions. These rushed provisions undermine the parliamentary process and threaten ill-considered constitutional reforms, with unknown consequences.

Sir John Hayes

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On the timing, the hon. Gentleman makes a fair point. He will know how the House works; he has been in it a long time. Clearly there will be opportunities for further consideration of the matters that I have raised, both on Report and during the Bill’s passage in the other place, so we are at the beginning of a very long journey.

As I said, I have not decided whether to press the new clauses to a vote, but I am putting down a marker. The hon. Gentleman will have seen that happen many times; indeed, he has done the same during scrutiny of the Bill, and I hope that some of his arguments will be heard. On the character of the marker, the new clause respects new clause 2 in terms of exceptional cases where the tribunal has acted in a perverse way, so it allows legal consideration of any exceptional, ambiguous or improper decision by the tribunal.

Andy Slaughter

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I am grateful to the right hon. Gentleman, who made several points there. I am coming on to deal with each of them. I suspect that his new clauses and comments are directed as much—if not more—to his own Front Benchers as to me in putting that marker down, but the Government must have taken some care with the long title of the Bill, which is tightly drawn.

Obviously, I do not question the wisdom of the Clerks, but the two new clauses we are debating this afternoon have squeaked through because the long title clearly identifies what is in clauses 1 and 2. With all respect to the other place, and there are more stages still to go, it is not just the deliberation in both Houses that is important when discussing constitutional matters.

We heard from some, but only some, of the experts in the field. I concede there was a significant consultation process; perhaps the Government did not get the responses they wanted the first time, so they went back and had another go. Nevertheless, they have had at least two bites of the cherry in the consultation.

James Cartlidge

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Ah! That’ll do.

Andy Slaughter

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That is enough, apparently—according to the Minister.

Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.

The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.

The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.

The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.

The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.

Dr Caroline Johnson (Sleaford and North Hykeham) (Con)

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The hon. Gentleman is talking about constitutional balance, as did my right hon. Friend the Member for South Holland and The Deepings. The important question is: who is ultimately in charge of making the laws of the country? Parliament has the right, given by the electorate, to decide the law. The principle of the judgment said that should be limited by the judiciary in some cases, which throws up an important constitutional question that we need to look at.

Andy Slaughter

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Absolutely. Parliament is supreme and can will what it likes. That is very clear. Where the balance lies is what is in dispute here. The question is the appropriate role of the judiciary, which is exactly how the doctrine of judicial review has developed.

Dr Johnson

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With respect, that point is not in debate. What Lord Carnwath said is:

“In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.”

What I understand is being said—the hon. Gentleman can correct me if I am wrong—is that in some cases the legislature does not have the right to pass particular laws.

Andy Slaughter

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No, and even the vindaloo version—the full Ekins version—does not attack the doctrine of judicial review. It is saying that the courts sometimes resolve matters procedurally and sometimes, in relation to specific judgments, the court has got it wrong and it is Parliament’s job to overrule, which Parliament is entitled to do. At the end of this legislative process, Parliament will have made those decisions. What we are debating now is what is or is not appropriate. Specifically, we are debating two discrete issues. The first is the decision in the Privacy International case against the Investigatory Powers Tribunal and whether an ouster should be imposed, and the second is about rather more widespread issues to do with disclosure and witness evidence. I am perfectly open to arguing those issues, but the point is that we happen to disagree: these measures are wrong, and that is what we are going to debate this afternoon.

Let me talk more specifically about new clause 3. The new clause would effectively overturn the decision in the Privacy International case by excluding judicial review of the Investigatory Powers Tribunal subject to a number of limited exceptions that broadly, although not exactly, mirror those in clause 2. That means that judicial review would be excluded except where the High Court must consider whether the tribunal had a valid case before it; was properly constituted to hear the case; or acted in bad faith, with actual bias, corruption or some other fundamental procedural defect.

As I have said, this would insert a second ouster clause in the Bill and would be a concerning addition to the restriction of Cart judicial reviews. The new clause includes similar exceptions—bad faith, fundamental procedural defect and so forth—to the ouster in Cart, but crucially they are even narrower than those in clause 2, in that the exception of where the court has acted

“in fundamental breach of the principles of natural justice”

has been removed. The more restrictive exception of where the court acts in a way

“that constitutes a fundamental procedural defect”

has been added. The trend suggested is extremely concerning and risks having a serious impact on the ability of individuals to retain redress, not to be subject to unlawful exercise of power, and to hold the Executive to account.

The first thing to note is that there is immediate uncertainty around those exceptions and how they might operate. There is already a problem with the Cart ouster in the main section of the Bill, and I have spoken at length about that in previous sittings. That uncertainty would only be multiplied by this new clause.

Judicial review is an essential constitutional remedy, and attempts to introduce and proliferate ouster clauses, as this new clause seeks to do, risk undermining the UK’s constitutional framework and the protection against abuses of Executive power. Judicial review is generally available only where there is no other recourse to an alternative remedy. The effect of ouster clauses is therefore often to shut down all routes to challenge a decision, even if the decision has been based on a misinterpretation of the law.

Furthermore, judicial review is an integral part of the UK constitution based on parliamentary sovereignty, ensuring that there is a means to address injustices and abuses of power. It exists separately and in addition to the Executive’s political accountability to Parliament. Ouster clauses risk undermining the effectiveness of judicial review as a means of legal scrutiny of the Executive. No matter how unpopular the cause or the claimant, the rule of law still applies and the Executive should not be able to go beyond their legal limits without the potential for accountability in the courts. In fact, it is precisely for such claimants that judicial review is so crucial.

Sir John Hayes

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I rise to sort of correct the hon. Gentleman but not in an antagonistic way. He will understand that this new clause—and, indeed, the Bill—do not supersede section 67A of the Regulation of Investigatory Powers Act 2000, which does indeed say that the tribunal can be challenged on a point of law. Contrary to his argument, there remains in existing legislation an additional safeguard if the tribunal acts in a way that is contrary to proper legal practice, and a point of law is the ground for an appeal.

Andy Slaughter

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I am grateful for that intervention. I will come in a few moments to the powers of the Investigatory Powers Tribunal, so let us see whether that satisfies the right hon. Gentleman.

In relation to the ouster in clause 2, I spoke about judicial review’s role in ensuring good and lawful administration, but as that issue has arisen again I wish to emphasise the point in this new context. Judicial review is an incentive to maintain high standards in public administration by public bodies, because the possibility of judicial review motivates decision makers to ensure that their decisions are lawful. Ouster clauses such as this one remove such motivation and, coupled with the removal of the means through with such decisions could be challenged, risk a decrease in the quality of Executive decision making.

Decisions and guidance from the courts can also help to improve policy development and decision making in Government. Judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making, and decision making in Government. Indeed, judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making and then also gives guidance on improving the processes in the future and encouraging good governance.

The same applies to the Investigatory Powers Tribunal. The decisions of the Investigatory Powers Tribunal relate to potentially very significant Executive powers in the area of surveillance and privacy rights. In this context especially, the risk of a breach of the fundamental rights of individuals is high. It is therefore crucial that Parliament has sufficient time to carefully consider the consequences of restricting judicial review in this context, and this last-minute amendment does not afford that.

Fundamentally—regardless of what anyone thinks about the merits of the Privacy International case—this is not the way to go about amending it, or even thinking about amending it. Parliamentarians will be asked to vote on what is in effect a very significant legal change, without any real appreciation of the possible effects and consequences and, as above, without the benefit of expert input through consultation and parliamentary examination. A provision such as this should be the headline measure in any Bill; it should be considered and debated seriously and properly; and anyone voting on it should have a full understanding of the issues. It should not be introduced as a last-minute addendum to an otherwise unrelated set of measures concerning judicial review remedies. This new clause as drafted will generate serious uncertainty.

There is also a substantive argument here. In the Privacy International case, the Supreme Court essentially held that it is very difficult for the Government to completely close off judicial review—in this case, concerning decisions of the IPT. The Government should be very careful about reversing that decision: the immediate consequence would be to close off judicial review. If it is thought that the Privacy International decision should be revisited in the future, it should be ensured that parliamentarians are fully aware of any consequences of doing that, and perhaps some middle-ground solution that preserves access to justice could be tried.

The amendment takes a sledgehammer to what should be a carefully crafted and sensitively considered issue. That, in my submission, is not the appropriate way to do good law making.

Tom Hunt

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I will keep my remarks fairly brief; I see myself very much as a secondary signatory to these amendments from my right hon. Friend the Member for South Holland and The Deepings: my much wiser, senior colleague. However, at one point last week I did think that I would be spearheading these particular amendments myself. Fate has meant that I have assumed a less significant role today.

Most of the comments that I would like to make are in relation to new clause 5, so I will hold off from making those comments now. All I will say is this. I take the point that new clause 3 is significant and Parliament needs more time to look at it. That was not the case when the change occurred after the Privacy International case. Actually, something very significant happened there. There was a major change in relation to the powers tribunal, its role and the role of judicial review in reviewing its decisions, and Parliament had no say at all in supervising that or debating it. I would be grateful if the hon. Member for Hammersmith let me know whether he agrees with my view on that. If he is concerned that Parliament might not have more time to debate the significant change suggested now, surely he would consider it inappropriate for Parliament not to have had a role back when the role of judicial review in relation to that tribunal changed so significantly.

I think that there are two debates here. If we are asking our intelligence services to carry out incredibly unique and peculiar work and we have to have a tribunal that is very specialist in reviewing and taking into account work that they do, there is one debate there, but there is a second debate. Even if someone does not agree with that and they think that there should be a right of review, surely it is only right and proper that Parliament should be in a place to debate and decide on that. It should not just happen; the court should not just decide for itself that this is the right thing to do.

As I said, I am keeping my comments brief. I will return on new clause 5, on which I have more points to make.

Anne McLaughlin

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I will be brief. Basically, I agree with the hon. Member for Hammersmith and share the concerns about this being the second ouster clause in the Bill. I feel it is a bit early to use the legal framework to oust Cart already.

I hope the Government will wait for the Bill to be enacted before trying that. I agree that the new clause is not the way to go about amending this. Such a provision should be a headline measure in a Bill; I think the right hon. Member for South Holland and The Deepings—that is a lovely constituency name—said himself that this would ordinarily be in a new Bill. I understand the argument that there is not an awful lot of time for new legislation, but I think this measure needs to be debated seriously and properly. Parliament needs a full understanding of the issues, following a full consultation.

I would argue an awful lot harder and longer than that, first, if I thought the Government were about to support the new clause, and secondly, if I thought anybody would listen. [Interruption.] I do not mean if they would listen to me; I mean if I thought we would ever win a vote in this place. The Government should be very careful in reversing that decision and should think about the consequences of it. I agree with everything that the hon. Member for Hammersmith has said.

Sir John Hayes

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I am grateful to the hon. Lady for being so kind to me and my constituency, and my constituents by extension. It is clear that the Attorney General supports the new clause because she drew particular attention to the character of the Privacy International case in her recent speech on these matters. Inasmuch as she is the most senior Law Officer of the Government, whatever the Minister might say today—I appreciate that he may want to hold fire, to some degree—it is clear that the Attorney General understands and supports my argument.

Anne McLaughlin

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I am not sure whether the right hon. Gentleman’s intervention was aimed at me or the Minister. If he was aiming it at me, all I will say is that it would not be the first, second, third, fourth or fifth way in which I disagreed with the Attorney General in her reckoning. I will sit down and allow others to speak.

James Cartlidge

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This has been a good debate on the new clause, which is interesting in many ways from a constitutional point of view, both theoretically and practically. My hon. Friend the Member for Ipswich does not have a secondary role. I am his constituency neighbour. He has a fantastic role that he is fulfilling as a brilliant constituency MP. It was a great honour to campaign with him in the general election, and I see a return on that investment, as he is a vocal spokesman for people of all political shades in the fine county town of Suffolk.

The hon. Member for Glasgow North East may have, shall we say, come here through the use of a crutch, but she should not downplay the role that her speeches could play. Of course we listen. We listen to all sides. Indeed, I have listened intently to the debate on the new clause. I will say one thing to the hon. Member for Hammersmith: although I completely understand where he was coming from, and his points made political sense, he appeared at one point to suggest that it almost was not necessarily relevant to debate the new clause. The new clause is about judicial review, and we know the first two words of the Bill’s title. In fact, we just agreed to the clause on the short title, which includes the phrase “judicial review”; I think my speech on that was the shortest I have ever made, by the way.

My right hon. Friend the Member for South Holland and The Deepings made some important contributions, which I am grateful for. I hope he received the letter we sent him, which I believe has been circulated to other Committee members, containing the response on the important matter of the most vulnerable children—those in care. I hope that reassures him on the safeguards. Secondly, on the make-up of the coronial stakeholder group in administrative justice, which introduces a broad umbrella because of the nature of the engagement, I hope that the letter has persuaded my right hon. Friend. I am therefore tempted to eke out the general thread of my argument and hope to encourage him that I am someone who is generally able to persuade people of things. The sword of Damocles that he holds over this speech with the threat to vote can be dealt with.

I should pay tribute to my right hon. Friend for his former role as Security Minister, which he referred to. He was involved in important proceedings when our country, as was proudly illustrated this morning, faced great threats, not least terrorist threats. He was also a Transport Minister, and I met him to discuss roads in my constituency. The essence of his argument was that the Bill does not go far enough, so he wants to debate important probing amendments. I will come back to that wider point.

On the specifics, as has been explained, new clause 3 would amend section 67 of the Regulation of Investigatory Powers Act 2000 by replacing the wording in subsection (8) and adding three additional subsections. Subsection (8) was originally drafted as an ouster clause—we have already debated ouster clauses in relation to clause 2— to ensure that certain decisions of the Investigatory Powers Tribunal would not be subject to judicial review by the High Court. A right of appeal on a point of law was later introduced by the Investigatory Powers Act 2016 and is set out in what is now section 67A.

The tribunal was intended to be the highest authority concerning matters such as the conduct of intelligence services. However, a 2019 judgment of the UK Supreme Court rendered the ouster clause of limited effect in what we have all referred to today as the Privacy International case. The Supreme Court found that while subsection (8) was effective at excluding judicial review of IPT decisions on their merits or jurisdictional decisions involving issues of fact, it did not have the effect of wholly ousting the High Court’s supervisory jurisdiction.

The new clause would amend the ouster clause in section 67 by clarifying and adding to the text in that section so as to meet the objection of the Supreme Court in Privacy International. That is an interesting idea, and I am sure my right hon. Friend is aware that the Government’s consultation, published in March, expressed concern around the uncertainty that exists as to whether, or in what circumstances, ouster clauses will be upheld by the courts. We therefore consulted on options to try to add some clarity with a broad framework for the interpretation of ouster clauses, but, having reflected on the many useful responses we received, we concluded that although our intention was to add clarity, the effect may in fact be to muddy the waters yet further.

As an alternative approach, we are pursuing the ouster clause in clause 2, which is designed to overturn Cart, seeks to learn the lessons from unsuccessful ouster clauses of the past, and is drafted in a clear and explicit way. We have been open in saying that if that approach is successful, we may consider whether it can be used as a model for ousters in other areas, where it is appropriate to do so. At least conceptually, I see the link between ousting the High Court from reviewing permission to appeal decisions of the upper tribunal and ousting the High Court from reviewing decisions of the Investigatory Powers Tribunal. They are both essentially concerned with which court ultimately should have the final say on an issue.

Sir John Hayes

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I am going to give the Committee the benefit of my further wisdom in a few moments, but on that particular issue, the point about the Investigatory Powers Tribunal is that it is a specialist court, and the intention of the House in establishing that court—the Minister made reference to the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016; the 2016 Act was the one that I took through the House, as he knows—was to indicate that had Parliament decided that the tribunal’s important work, which essentially gives authority as well as supervision to the security services, should not be questioned in an ordinary court. The Supreme Court countered Parliament’s will in that respect. That is why this is so significant. It draws into question whether the Supreme Court might do the same in respect of other primary legislation that has ouster clauses in it, which is why it is important to act now in respect of this Bill.

James Cartlidge

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I pay tribute to my right hon. Friend’s legislative prowess in taking that Bill through the House at the time. It is precisely because of his point that in paragraph 55 of our consultation response document, published in July, the example we give of a case where we may look at using a Cart-like model of ouster clause in future is exactly this one—the Investigatory Powers Tribunal. We have made clear that we are looking at that. The Government are not closed-minded to the possibility of going further on judicial review. In a recent interview with The Sunday Telegraph, the Deputy Prime Minister spoke of the importance of restoring power to Parliament, while recognising the need for reform of judicial review to be an iterative process. I am sure he will have heard today’s debate and the many forceful points made, but the Government will keep an open mind on whether that tribunal might be a candidate for an ouster clause in future.

Our focus in the Bill is to tackle the two particular issues identified by the independent review of administrative law: the efficiency of Cart JRs and the lack of remedial flexibility in judicial review. I know my right hon. Friend the Member for South Holland and The Deepings is sympathetic on this point. There is a good reason for prioritising Cart—we have a judicial backlog, and the resource implication of it is immediate and credible. [Interruption.] My right hon. Friend says from a sedentary position that he understands. It will be important to ensure that before an ouster clause is proposed in any particular context, careful thought is given to what will be achieved by doing so and to considerations germane to that context. One size does not necessarily fit all, but we are open minded.

A key point I wanted to communicate is that my right hon. Friend invited me to become a star. His invitation to stellarhood is one I cannot begin to match, but I will at least attempt to do so by offering him an invitation to attend the Ministry of Justice to discuss with officials present some of these ideas in depth—especially given his expertise from his time as a Minister, talking in that neat language of Ministers and officials who know their Bill—and to talk through some of the technicalities. We do see the merit in what he says; it is more a question of timing.

In summary, my right hon. Friend says we do not go far enough; I would say that we go this far at this time. I hope that reassures my right hon. Friend and other colleagues that this is an issue to which the Government are already alive and to which I am sure future consideration will be given. But for now, for the specific purpose of the Bill, I respectfully request that he withdraw his new clause.

Sir John Hayes

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When I said the Minister could become a star, I should have said a brighter star, because he has already shone in his response, particularly his generous invitation to meet with and discuss these matters with his officials in his Department. I take his point, of course, about the characteristics of the Bill, the need to address Cart in particular, and its relationship to the backlog in the courts. However, the Bill is about principle as well as practice. There is a practical reason for introducing the Bill, but a principle underpins it, which he has articulated a number of times during our deliberations: it is not right that the court system should be gamed to frustrate the will of the House.

My hon. Friend the Member for Ipswich spoke about his constituents wanting to see the will of the House as a manifestation of their will being delivered. The disturbing rise in judicial activism and judge-made law raises fundamental questions of parliamentary sovereignty. Mr Rosindell, whether you are or are not convinced of that I do not know, as you are the impartial Chair in our affairs, but the witnesses who gave evidence to the Committee are certainly convinced. Professor Ekins said that the Privacy International case did constitute a “very serious attack” on some fundamental questions of the constitution. He stated:

“The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute”.

In oral evidence, Sir Stephen Laws said:

“If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 9-15.]

That is pretty damning criticism of Privacy International and other recent cases.

There is an argument that at that time there was a particular group of Supreme Court judges—I am hesitating so as to choose the right words—who took eccentric decisions, and that things have now returned to normal, but that is not good enough. As the Attorney General said in her recent speech,

“the mould has been broken.”

Precedent was set, and that is the problem with ouster clauses. As the hon. Member for Hammersmith will know, other Acts of Parliament, including the Intelligence Services Act 1994, Security Service Act 1989 and the Police Act 1997, contain ouster clauses that could be challenged on the basis of the Privacy International case.

Tom Hunt

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Does my right hon. Friend agree that the key issue in relation to new clause 3 is the Investigatory Powers Tribunal, the complexity of the things it will deal with, and the complexity of the roles of the organisation and people it is overseeing? That complex debate should be dealt with only by Parliament. We are best placed to have that debate and to come to the right conclusion. Decisions about whether judicial review will apply to that or not should be for this place, not for the judiciary.

Sir John Hayes

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I agree. Indeed, when I proposed the Investigatory Powers Act 2016, to which the hon. Member for Hammersmith referred and which built on the Regulation of Investigatory Powers Act 2000, which Privacy International specifically dealt with, there was a genuine spirit of co-operation across the House. I worked closely with my then shadow, who went on to become Leader of the Opposition. I often say to him these days, “You learned your trade under me.” In fact, I think he said that to me, but we worked closely on those matters and it was detailed scrutiny, as my hon. Friend has just described, that led to that Bill becoming an Act.

Indeed, we undertook extensive pre-legislative scrutiny, and one of the people I appointed to that task is now Attorney General. The scrutiny, under Lord Murphy, looked at the Bill in some detail, as the hon. Member for Hammersmith suggested, and there were long debates in the House and in the other place before it became law. As I emphasised earlier, we were determined that there should be proper safeguards.

The essence of this, Mr Rosindell, is that in these difficult, delicate and challenging matters of security, Parliament has to legislate—I would not say regularly, but as often as necessary—to allow our security services and the forces of law to stay ahead of those who wish to do us harm. The problem is that the capabilities of malevolent elements are dynamic, so the legal powers of those with the mission to keep us safe must match that dynamism. That is always challenging to Parliament, because there is a balance to be struck between the maintenance of law and the protection of liberty. That debate is the context for many of these considerations. It is not the place of the courts of make up the law as they go along, but that is exactly what has occurred.

I referred to the Attorney General earlier. She could not have put that case more plainly in the speech she made a few weeks ago at Cambridge University:

“The Supreme Court’s judgment in the case of Privacy International was also profoundly troubling for a number of reasons. A decision by Parliament to limit the judicial review jurisdiction of the Courts should only be taken after the most serious consideration by the legislature. And there may well be circumstances where Parliament does consider that to be appropriate. In such circumstances, the Court should be very slow to deprive legislation of its proper meaning”.

That is essentially what the Court did in the case of Privacy International. It deprived legislation of its proper meaning. The most generous way to describe it is that the Court interpreted the decision made by Parliament in what I regard as a perverse way, and, in the words of the Attorney General, a “profoundly troubling” way.

The new clause, which the Minister will know is in scope—it is not for me to gauge that; our expert Clerks judged it, so there is no doubt about whether it is appropriate to add it to the Bill—would address that concern about creeping judge-made law in what is, as my hon. Friend the Member for Ipswich said, a very sensitive area. I am grateful to the Minister, who made a generous offer and rightly drew attention to his helpful letter on issues raised by me and other hon. Members in our earlier consideration. I am particularly grateful to him for fully taking into account the case that I made on behalf of disadvantaged court users; his letter is most welcome in that respect. With the offer that he made of further discussion, the open-mindedness that he has shown and his clear understanding of why the new clause was tabled, I will—hesitatingly and to some degree reluctantly—beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Evidence in judicial review proceedings

“(1) Unless there are compelling reasons to the contrary, no court shall—

(a) permit oral evidence to be elicited in judicial review proceedings; or

(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings,

(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—

(a) the proceedings concern a matter that is non-justiciable, or

(b) that an enactment excludes or limits judicial review,

(3) In subsection (2), “evidential duty” means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.

(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”—(Sir John Hayes.)

Brought up, and read the First time.

Sir John Hayes

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I beg to move, That the clause be read a Second time.

This new clause deals with evidence. Again, it has been deemed by the Clerks to be in scope and it would therefore be an appropriate addition to the Bill. It is very much in the spirit of my previous remarks.

It is important to understand that the new clause has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence and a resolution disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because it is a supervisory jurisdiction that should focus on questions of law rather than questions of fact. That was its well-understood basis for a considerable period of time.

As well as the changing character of the courts’ role in relation to the legislature, there has also been a change in the application of judicial review in respect of evidence. The courts ought to be focusing on the legality of decisions taken and whether it stands up to appropriate levels of scrutiny. That is the business of a judicial review. Allowing disclosure and cross-examination could lead to litigation becoming an exercise whereby new material is introduced on a fishing expedition. Rather than testing the proper exercise of powers, as judicial review is supposed to do, it could lead to the whole character of a case being revisited and perhaps the introduction of new evidence that was not pertinent to the original decision or even known to the original decision makers. That is not its role, and the Bill is a perfect opportunity to address that distortion of its original character and purpose.

As the Minister has told us a number of times, the Bill aims to tighten the judicial review process and essentially re-establish its pertinence, salience and purpose. The new clause would do exactly that. The change in practice has arisen partly because of overarching legislation such as the Human Rights Act 1998. There is a case for the wholehearted reform of the Human Rights Act, or its abolition altogether. However, this is not the place to have that debate—although, I understand that the Lord Chancellor has spoken on those matters and is considering addressing them in the House in due course. The point to be made here and now is that the Act has spilled over into judicial review decisions. It is clear that in recent years judicial review using the Act has become an opportunity to have a much wider debate and discussion than this legal mechanism originally intended—the original purpose was to check the correctness of decision making.

Subsection (2) of new clause 5 addresses the problem that arises when judicial proceedings are used to force public bodies to disclose information even in contexts where the public body argues that the law forbids judicial review. If a matter is non-justiciable, or if legislation ousts judicial review, the public body will not be compelled to disclose evidence simply because litigation is threatened or initiated. The clause will require courts to decide whether the matter is justiciable or whether legislation permits judicial review before the public body will have any duty to disclose information relevant to litigation.

New clause 5 would not stop any litigation that should proceed from proceeding. Those are cases in which the matter is justiciable and no ouster clause forbids judicial review. It would require courts to make decisions in the right order, avoiding the risk that was apparent in the Supreme Court’s Prorogation judgment: that the courts are led astray by the evidence before them rather than focusing squarely on the question of law that they should decide. The Miller judgment was exceptional and, in my judgment, perverse. It is fundamental to our constitution that the appointment of Ministers, the Dissolution of Parliament and, by extension, Prorogation are matters for the Executive and not the courts.

One might argue that when the Supreme Court was established—it was a sorry day, Mr Rosindell, but you will not allow me to debate that at great length here, and nor will I—this was almost bound to happen: that the very existence of the Supreme Court would encourage those who sit on it to extend their powers into matters of what the Attorney General called “high politics”. That apart, the Prorogation judgment was a naked example of the courts making a constitutional decision in a way that is appropriate only for this elected House, our Parliament—both because we are answerable to the people and because, as I said earlier, our legitimacy derives from the people. This is about proper process, but it touches on the broader issue of the respective roles of the judiciary, the Executive and the legislature—the separation of powers to which I referred in an earlier sitting.

The Minister will again, I hope, recognise that the new clause is very much in the spirit that he set out when he made it clear that the Government want judicial review to be what it was always intended to be and has been for most of its life, rather than something very different, which is what it has become. With that in mind, I hope that he will give the new clause, which is significant but not in any way out of keeping with the Bill’s intent, a fair wind. Rather than, as last time, offering me a meeting—although I was very grateful for that meeting—I hope that this time he will say that the Government accept it, and will at a later stage introduce a Government amendment.

I do not necessarily expect the Minister to accept the new clause as drafted; he will want his draftsmen to take a close look at it, and often parliamentary draftsmen are able to a better job than I ever could, even with the assistance of my cerebral hon. Friend the Member for Ipswich. The Minister may want to look at the detail of this, but I hope that he will at the very least give it wholehearted consideration, perhaps with a view to the Government coming back with their own thoughts on how we might look at the issue of evidence, and how it is properly used in judicial review.

Andy Slaughter

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I give full credit to the right hon. Gentleman, who has taken the new clause, important and substantial though it is, and turned it almost into a Queen’s Speech. We will have a second judicial review Bill, a repeal of the Human Rights Act 1998, and then a repeal of the Constitutional Reform Act 2005. The Minister will be a very busy man in the new year.

Sir John Hayes

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It is only a matter of time, Andy.

Andy Slaughter

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We will see. Unfashionably, I will confine my comments to new clause 5, which restricts disclosure by public bodies and the use of oral evidence in judicial review proceedings to circumstances where there are “compelling reasons”. In addition, under subsection (2), if a public body argues, or indicates its intention to argue, in relation to or in anticipation of any judicial review proceedings, that the proceedings concern a matter that is non-justiciable or that review is excluded by an enactment, the public body will not be subject to any evidential duty at all until a court regards the matter to be reviewable.

Subsection (1) relates to disclosure orders, which are already limited by the courts. Additional legislative provision is unnecessary and may reduce clarity and cause unnecessary litigation. Oral evidence is rarely used in judicial review proceedings. However, the courts retain a discretion to permit oral evidence where it is considered necessary to do so. Judges use that discretion appropriately and frequently deny requests to adduce oral evidence unless it would, in fact, be necessary for the case at hand. Applications for oral evidence can be made by claimants and defendants in judicial review claims, and there is no indication that the impact on public authorities has been thought through. The system works well, generally respecting the unique nature of judicial review while allowing parties—both claimants and public bodies—to adduce oral evidence in rare cases where it is necessary to do so. There is no indication that there is a problem with the system that the proposals seek to address.

The new clause goes beyond oral evidence and imposes a bar on judges ordering disclosure of evidence. There is no formal disclosure duty on parties in judicial review proceedings, unless the court orders otherwise. Such orders are already rare and there are many examples of courts refusing applications for disclosure on the basis that they are not necessary. Indeed, the court will not countenance fishing expeditions, where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of finding something to use to fashion a possible challenge. Where the disclosure power is used by courts, however rarely, it is vital: a judge will only ever order disclosure where it is necessary for the fair resolution of the case.

It is unclear what adding a requirement of “compelling reasons” for ordering disclosures of evidence would do to the existing position. The current test, as set out by Lord Bingham in Tweed v. Parades Commission for Northern Ireland, is:

“whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.”

On one reading, that would be just an alternative translation of the existing position: a “compelling reason” for adducing oral evidence would be that it is “necessary” to do so. If that is the case, the proposed additional clause is a clear waste of time. However, if it is intended to be a stricter test to raise the threshold for which evidence is admissible, that is problematic in that it would operate to preclude disclosure of evidence required to resolve the case fairly and justly. That would clearly be to the detriment of the parties and the wider public, and therefore should be resisted.

It is also important to note that disclosure of evidence benefits not only the claimant but often the public body, by allowing the defendant public body to show that the decision taken was lawful. Defendant public bodies may also make applications for disclosure and/or oral evidence. Subsection (1) would reduce the ability for claimants to obtain disclosure, which is crucial for claimants to be able to bring a case as well as for defendants to be able to defend it.

Sir John Hayes

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I understand that the hon. Gentleman is setting out what the new clause does, but he will understand that at its heart is the determination that judicial review should look at the specifics of an individual case, rather than a systemic consideration of the whole administrative system. In recent times, because of the courts’ willingness to draw on all kinds of evidence, they have tended to broaden the scope of their work in a systemic fashion. What does he think about that and what should we do about it?

Andy Slaughter

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With respect to the right hon. Gentleman, I do not agree that that is what is happening. Even if he had a point there, I am trying to make the point, by looking at the changes that his new clause would make, that there are already safeguards in the system to prevent that and that the rules are tightly drawn in relation to evidence and disclosure. The courts do have discretion, but they use that appropriately and reservedly.

Any limitation of the disclosure of evidence, as well as oral evidence, beyond the current test risks undermining the effectiveness of judicial review proceedings for all parties. The current form of judicial review, which has limited disclosure requirements on the parties, works only because the parties are subject to duties of candour. In many respects, the disclosure obligations, where parties must submit all relevant evidence and information relating to the case to the court, ensure that the duty of candour is complied with. In the vast majority of cases, both parties comply fully with the duty of candour, but on the rare occasions when they do not, the judge’s disclosure powers can be used to ensure proper compliance.

In cases where the duty of candour would be limited by the proposals in subsection (2), which I will come to, the basis for limited disclosure requirements falls away. The combination of subsections (1) and (2) may mean that a claimant in a case is faced with the inability to obtain any disclosure at any point from a public body.

In effect, weakening those disclosure powers weakens the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies feel that they do not need to comply with the duty, it will severely weaken the position of claimants, contribute to an inequality of arms in judicial review proceedings and risk completely barring, in practice, the ability for the claimant to bring a judicial review. For all sorts of reasons, including funding, the tight restrictions on bringing claims and the difficulties of bringing claims, there are already substantial problems for any claimant in beginning judicial review proceedings.

Subsection (2) would enable a public authority to effectively disapply the evidential duties, including the duty of candour, by indicating its intention to argue that the matter is not justiciable. That would make many cases completely un-triable. As I have said, the current form of judicial review, with limited fact-finding and disclosure requirements, works only because the parties are subject to a duty of candour. The duty requires a “cards on the table” approach and, as has been noted,

“the vast majority of the cards will start in the authority’s hands”.

For claimants to have the ability to get over the starting line and bring judicial review proceedings, the defendant body must be subject to the duty of candour. The duty ensures that all relevant information and material facts are before the court, and that any information or material facts that either support or undermine their case are disclosed.

As the “Administrative Court Judicial Review Guide” recognises, compliance with the duty of candour is “very important”. It helps to resolve matters efficiently and effectively. By requiring both parties to undertake full disclosure of relevant information early on in proceedings, it allows for a proper assessment of the merits of the case. That can help public bodies show claimants early on evidence that the decision was taken lawfully, which can lead to an early settlement, withdrawal of the challenge or at least the narrowing of the issues in dispute. That avoids substantial unnecessary costs and use of court time.

New clause 5 should have no place in the Bill. Subsection (2) would enable public authorities to disapply the duty of candour where they indicate their intention to argue that the matter is not justiciable. When this is combined with increased difficulty with accessing evidence through disclosure orders, set out by subsection (1), claimants will be denied access to evidence required to advance their case, making many cases unworkable. I therefore hope that the Minister will also resist the new clause.

Tom Hunt

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It is a pleasure to grace this Committee again through a contribution, and to support my right hon. Friend the Member for South Holland and The Deepings on new clause 5. It is obviously not related to new clause 3. We did attempt to table other new clauses, but we were unsuccessful because they were deemed to be out of scope, but many of those new clauses were, in fact, not dissimilar to or disconnected from new clauses 3 and 5.

In terms of whether different Lord Chancellors are mild korma or vindaloo, I am usually a korma man, but when it comes to review, I am perhaps more vindaloo, because I think that we do need some significant changes in this area.

I very much welcome the Bill, which, with or without these new clauses, is a significant step in the right direction. I have been pleased to sit through all our sittings in support of the Bill, and I think that the Minister has led proceedings very effectively. It has been quite interesting, because although I do not profess to be a lawyer—I am not a trained lawyer or professional—I am an elected Member of Parliament who cares about my constituents and my constituency, but also about this country and the relationship between the Executive, the legislature and the courts, which is vitally important. I make no apology for commenting on these matters and getting involved, because I think it is very important that elected Members of Parliament do so.

We are very lucky to have our judiciary, and the rule of law in this country is respected all over, but some of these figures can be remarkably prickly—and I have noticed that many seem invariably to have the EU flag on their Twitter profiles. I think there is almost a view that elected Members of Parliament are knuckle-draggers who are not entitled to have a view on a lot of these issues. Well, I disagree. I think that when it comes to matters such as sentencing and the operation of the courts, we as elected Members of Parliament, regardless of our specific views, should absolutely be confident to air them and should not be intellectually intimidated by certain individuals.

I sympathise with the broader view about judges assessing law and procedure, rather than getting sucked into contested facts, and about how evidence sessions can sometimes draw them away from their core function and into dangerous waters. There are many cases. The Adams case is connected to new clause 6 so we will not discuss that, but there is an obvious connection between it, the Miller case and the Privacy International case, which we discussed earlier, and that is the creeping role of the courts beyond their brief and scope, and I think that that has damaging consequences. In the Adams case, in terms of the debate on whether it is enough for a Minister or a Secretary of State to make a decision, I really struggle to agree that it is for judges to decide what is appropriate against established Acts of Parliament. That does not make any sense to me. I think that clarity in this area—and Parliament, through legislation, clarifying the relationship between the Executive, the legislature and the courts—is vitally important.

I go back to this point. I do not see anything that I or my right hon. Friend the Member for South Holland and The Deepings have said as being anti the judiciary or the rule of law. We appreciate that they are vitally important and how skilled and learned those individuals are. But I think we were all quite disturbed by some of the Brexit debates. We had the Miller cases in relation to triggering article 50 and Prorogation, and that Daily Mail front page with members of the Supreme Court under the headline, “Enemies of the People”. I think that many of us were disturbed by that, and that is what we want to avoid going forward. We do not want that to be the case again. The danger is that unless there is great clarity about what is and is not appropriate for the courts to get involved in, that could happen again, and we do not want that. This is not about us pointing at the judiciary and the courts and blaming them for any of this. We need to be conscious that we need a clear framework that gets that balance right.

I will leave my comments there. It has been a great pleasure to be part of this Bill Committee, which is now coming to a close, and to support this Bill and my right hon. Friend the Member for South Holland and The Deepings.

Anne McLaughlin

- - Excerpts

Encouraged by the Minister, I have decided that I will say a few words, even if none of them are original. Most of what I have to say is in agreement with the hon. Member for Hammersmith, but it is good to put the opposition of the SNP on the record.

What would this new clause do? Unless there are compelling reasons to the contrary, this new clause would prohibit the use of oral evidence in judicial review and would also prevent courts from ordering any public body to disclose evidence in anticipation or during the course of judicial review proceedings. As we have heard, oral evidence is already rarely used in judicial review proceedings, but the courts retain a discretion to permit oral evidence where it is considered essential to the case. My understanding is that judges use that discretion appropriately, and frequently deny requests to cite oral evidence unless, as I have said, it is considered essential to the case. I am not aware of any indication that the system has the problem that the proposals seek to address.

I wonder what adding a requirement for compelling reasons would do to the existing position. It could be that that is just an alternative translation of the existing position. One compelling reason for adducing oral evidence would be that it is necessary to do so. If that is the case, the new clause is not needed. If the proposed compelling reasons requirement is seen to raise the threshold for which oral evidence is admissible, I think we should all find that problematic. Judges are already only allowing such evidence when it is considered necessary to do so. The clear result of the proposed change would be that oral evidence that is necessary for the fair resolution of the case would not be admitted. That surely cannot be acceptable to the Minister.

New clause 5 would also bar judges from ordering disclosure of evidence. Again, such disclosure is used only when absolutely essential. Judges order disclosure only when that disclosure is vital to resolve the case fairly. In many respects, the disclosure obligations act as a way of ensuring that the duty of candour is complied with where parties must submit to the court all relevant evidence and information relating to the case. In the vast majority of cases, both parties will comply, but where they do not the judge can ensure compliance by using disclosure powers. Weakening those disclosure powers would, in effect, weaken the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies and Governments believe that they do not need to comply with that duty, the position of claimants would be severely weakened in judicial review proceedings. We should increase access to justice, not make it increasingly pointless.

James Cartlidge

- - Excerpts

It is a pleasure to follow the hon. Lady, who made some perfectly reasonable points. It is disappointing that she did not rise to the bait by entering into the curry-labelling discussion instigated by the hon. Member for Hammersmith. I am not sure that my hon. Friend the Member for Ipswich is a vindaloo—I think he is a phaal. Anyone who googles that will find that it is the hottest curry there is. Maybe my right hon. Friend the Member for South Holland and The Deepings is a phaal as well. It is inevitable, then, that they all think the Bill does not go phaal enough. As a great fan of curry, I generally go for the specials on the à la Cart menu. [Laughter.] That was not a reference to clause 2, by the way.

In new clause 5, my right hon. Friend is probing in his uniquely penetrating way of gaining the Committee’s attention and focusing on some important points. I will try to set out why, although there is merit in what he says, it is not right for this precise moment—perhaps with further work, not least as there may be other potential routes to achieving his end.

The new clause would amend the Bill to include some specific rules relating to disclosure and the duty of candour in judicial review cases. The clause would do three things. First, it would remove the ability of the court to permit oral evidence to be given unless there are compelling reasons to the contrary. Secondly, it would remove the ability of the court to order a public authority to disclose evidence at all, either in anticipation of proceedings or during proceedings, unless there are compelling reasons to the contrary. Thirdly, in cases where a public authority is arguing that the subject matter is non-justiciable altogether or judicial review jurisdiction has been ousted, it would remove any evidential requirement on the public authority until the court has ruled on the subject of justiciability or jurisdiction.

The duty of candour is a common law concept that obliges parties in judicial review proceedings to disclose information relevant to the case. The independent review of administrative law examined that duty when it conducted a call for evidence last year. Legal practitioners and other stakeholders identified issues relating to a lack of clarity surrounding the exact extent and precise nature of the obligations arising from the duty. The independent review concluded that the duty of candour may have previously been interpreted in a way that causes a disproportionate burden on public authorities, and that there would be benefit in clarifying the parameters of the duty. The Government would like to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would have otherwise been kept confidential.

I reassure my right hon. Friend and my hon. Friend the Member for Ipswich that this remains very much a live issue for the Government. The difference here, I suspect, is not a question of objective, but of how best to achieve it. The independent review recommended that the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is, of course, a matter for the Treasury Solicitor, the advantage to using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation.

As I have already indicated, the Government remain open-minded about the possibility of going further on judicial review reform in time. Although my instinct continues to be that any issues with the operation of the duty of candour are better addressed through other means, and not through primary legislation, I will reflect on the arguments that my right hon. Friend has made for a legislative response. We have already discussed the point of the meeting. I am quite clear that that could be wide-ranging and could include this discussion, too. They all fit within the same theme, which he has painted with a broad brush today. I am quite happy to look at it in those terms, but also in more specific terms, particularly with the benefit of officials and so on.

In the light of the complexity of the issues at stake, and the importance of getting the legislation right, I cannot accept my right hon. Friend’s new clause. I hope that, with my reassurance that that the Government will continue to actively consider the matter, he will agree to withdraw it.

Sir John Hayes

- - Excerpts

I am grateful to the Minister for again offering further discussion on these subjects. I am also pleased that he is considering other means to achieve the objectives that I set out. He is right that the independent review addressed these matters and, by the way, did so on the basis that I described: that by taking wide evidence judicial review was rehearsing decisions rather than checking on the exercise of them. Judicial review is about ensuring that, in the exercise of decision making, all has been done properly. It is not about reheating wide-ranging contextual arguments.

The problem with collecting oral evidence in a permissive way is that it is bound to lead to just that. That was identified by Professor Ekins and others, in the evidence that they gave us and beyond. The Minister is right to consider through guidance how that could be altered. Statutory guidance would be a very effective way of doing it, providing that his officials and others are confident that it is sufficient. There is always a balance to be struck between primary legislation and guidance, and we need to be clear that it will be sufficient in this case.

We talked a little about how jurisprudence has moved on, and in particular the Miller case. In the end, the decision of the Supreme Court in that case meant that it, in the words of the Attorney General,

“stepped into matters of high policy in which the UK courts have historically held themselves to have no constitutional role.”

That is a direct quote from the Government’s most senior Law Officer. In the two new clauses, and in those that were not selected because they were deemed not to be in scope, and which I will therefore not discuss, I have tried to make the case that the Bill is very welcome, but it is a korma rather than a vindaloo. It is certainly not a madras. It can be more varied and hotter, to develop the metaphor. I can match the Minister blow for blow in terms of my grasp of Indian cuisine.

James Cartlidge

- - Excerpts

On a point of information, my right hon. Friend must be aware that a madras is technically milder than a vindaloo, but a vindaloo is certainly milder than a phaal.

Sir John Hayes

- - Excerpts

That is true, but I see the Minister as something between the two. He is more of a jalfrezi—spicy, lively and deeply satisfying, in terms of his response to my new clauses at least.

It is worth drawing attention to the remarks of Lord Sumption, who of course commented on exactly these matters in his Reith lecture. Jonathan Sumption is the judge who, perhaps more than any other, set out the proper functions of the courts in relation to Parliament in his Reith lecture, when he said:

“It is the proper function of the courts to stop Government exceeding or abusing their legal powers.”

That is exactly the role of judicial review, by the way. He continued:

“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens.”

He went on to say in that lecture that it was about developing the right kind of political culture. It is appropriate that the political culture that underpins our deliberations in this place is a means by which views can be mitigated and ameliorated, where necessary, in a way that courts cannot do because of their character and function. I remain of Jonathan Sumption’s view that much needs to be done to put right what the courts have got wrong in recent years, and I stand alongside the Attorney General in her determination to do that.

Although I understand that the Bill is not sufficiently wide-ranging to do all that I want it to do, there is scope for the Government to do more in respect of the new clause and new clause 3. I am grateful that the Minister has implicitly acknowledged that by welcoming further discussion.

On the new clause that stands in my name and that of my hon. Friend the Member for Ipswich—I will just say, as the Minister did, that my hon. Friend is an outstanding Member of Parliament and the people of Ipswich should be proud to have him—I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 10

Publicly funded legal representation for bereaved people at inquests

‘(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(2) In subsection (1), after “(4)” insert “or (7).”

(3) After subsection (6), insert—

“(7) This subsection is satisfied where—

(a) The services consist of advocacy at an inquest where the individual is an Interested Person pursuant to section 47(2)(a), (b), or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and

(b) One or more public authorities are Interested Persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.

(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.”’—(Andy Slaughter.)

This new clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

Andy Slaughter

- - Excerpts

On a point of order, Mr Rosindell. Before we conclude our proceedings on the Bill, I wonder whether it might be appropriate to offer my thanks, on behalf of me and my colleagues, to everyone who has contributed to making this, certainly compared with other Bills that I have done in the past, a smooth-running and not unenjoyable process, if I may put it that way. I will not take up a lot of time, but I would particularly like to thank you, Mr Rosindell, and Sir Mark for the efficient and not indulgent, but certainly sympathetic, way in which you have chaired these proceedings. I know that that has been difficult, particularly today, because we had Sir David Amess’s memorial service this morning. We all respect the fact that you and Sir Mark have chaired the Committee with your usual great skill and attentiveness.

I thank the Clerks, who have given us extraordinary assistance on technical matters relating to the Bill, for the way in which they have helped us, and helped me, with my rustiness, to get through the first Bill that I have done in this capacity for a number of years. I also thank everyone else who makes this a smooth-running process. That includes the Doorkeepers, Hansard and everyone else on whom we rely to ensure that these things go as smoothly and efficiently as possible.

May I say thank you to a few other people? I thank the Minister and his colleagues for the way in which they have approached the Bill. There are some fundamental differences between us. We voted against the Bill’s Second Reading and, sadly, we have not managed to carry many votes here to improve the Bill. There are a number of improvements and amendments within the changes to the courts procedure that we would fully support, but there is, at the heart of the Bill, something that we find worrying, which is a further attempt by the Executive to encroach on the discretion of the judiciary, which is one of the great sacred parts of our constitution, so I am glad that at least we have resisted today any further attempts to do that.

Notwithstanding that, this Committee has undertaken a good-natured, but at the same time thorough, investigation of the provisions. I thank all my colleagues for their assistance and prompting—even when I go on for a long time—but I would particularly like to thank my hon. Friend the Member for Stockton North, who, seeing me just beginning my role and being thrown in at the deep end with the Bill, stepped up, notwithstanding having just been a shadow Minister on the Police, Crime, Sentencing and Courts Bill, to carry the burden of dealing with the substantial bulk of the provisions here. Sadly, he is not with us today because he has tested positive for covid. Therefore, I have been told to go off and get a PCR test as well; we probably all have as a consequence of that. I gather that my hon. Friend is tired but otherwise in good spirits. He is an extremely kind and courteous gentleman at all times, and I am sure that we all wish him a speedy recovery.

We have come almost to time on the Bill. We thought that we might go short; we have taken our time, but we have not taken more time. All I will say in conclusion is that there has been a culinary theme to the Bill. We had cherries on the first day, and ended with curries on the last, but I hope that, in looking at the transcripts, those who scrutinise us will not think we have made too much of a meal of it.

James Cartlidge

- - Excerpts

Further to that point of order, Mr Rosindell. May I echo the remarks made by the hon. Member for Hammersmith, particularly in thanking you and Sir Mark for your dual chairmanship, which has operated effectively and efficiently, together with your officials and the Clerks? May I particularly thank the Doorkeepers? As I said earlier—I really meant it—what we saw from them today, walking behind Sir David’s coffin, was incredibly moving.

I thank all members of the Committee, on both sides. No one goes into proceedings expecting that we will all agree on all points, but that does not matter; conduct is different from that. I think we have seen effective debate, proceeding at reasonable speed most of the time, but with that combination of depth and rigour that is important in a Bill Committee. That is the point: we are going through a Bill line by line. I am grateful to SNP and Labour colleagues. I particularly thank those on my side of the Committee. We heard many excellent speeches and contributions, but they also knew when to keep their own counsel, so that we could keep the ship of the Bill sailing in the right direction.

This is an important Bill. The context is difficult. The post-pandemic situation is challenging, with a significant backlog of cases, and we are doing everything we can to deal with that. The Bill contains some significant measures on that front. It also contains the important reform of judicial review—more for another time.

It remains only for me to thank everybody for their participation. I am grateful that we have managed to move to this stage, and that we now move onwards and upwards.

Sir John Hayes

- - Excerpts

Further to that point of order, Mr Rosindell. On behalf of the Back-Bench Members on this side of the Committee—and I hope others too—I thank the Minister and the shadow Minister. I served as a shadow Minister and a Minister for 19 years and I know how hard it is, particularly from the other side of the Committee, to maintain the progress of debate and to retain the calibre and character of scrutiny.

I thank the Minister for the way he has gone about his business, and the shadow team for the way they have gone about theirs. I wish the hon. Member for Stockton North well, as he has now fallen ill. I also thank you, Mr Rosindell, and your fellow Chairman, and all others who have made the Bill proceedings possible.

Anne McLaughlin

- - Excerpts

Further to that point of order, Mr Rosindell. I want to reiterate what everybody else has said and thank everybody involved. I wish the hon. Member for Stockton North well and I hope that he recovers by a week today, St Andrew’s day, because he will be wanting to celebrate.

I thank my hon. Friend the Member for Lanark and Hamilton East—I have finally got the constituency name. That is not as great a constituency name as South Holland and The Deepings, however. I am going to visit, and I will let the right hon. Gentleman know when I do.

This has been a really interesting Bill Committee. I used to resist going on Bill Committees, but I came from the Nationality and Borders Bill Committee straight to this one, and they are the best bit of the job, because they are probably the only time we really get an in-depth understanding of what we are doing. A lot of the time, we have to skim through things because there is so much to consider. I look forward to the next Bill Committee.

I thank the Clerks and everyone involved, including the Doorkeepers. For those who are not speaking and are not involved in the debates, it must be really boring having to sit there and listen to it all. There are no nods of agreement there, but I can pick the answer up telepathically. If I have missed anyone in my thanks, I am sorry—oh, the Chairs. Thank you very much; thank you again for your forbearance, Mr Rosindell, when I was injured. I am still injured, but am recovering.

James Cartlidge

- - Excerpts

Further to that point of order, Mr Rosindell. I did not mention the hon. Member for Stockton North; I hope he recovers. I also wish to thank my officials, who have been excellent—very high quality—for my first Bill Committee. I hope we keep up the good work as we move forward. I am grateful to everyone who has helped us to reach this point.

The Chair

I add my thanks to the Committee for its deliberations over the past few weeks; to my colleague, Sir Mark, for co-chairing the Committee with me; and to Clerks, officials, Doorkeepers and all concerned in ensuring the passage of the Bill through Committee.

Bill, as amended, to be reported.

Committee rose.

Written evidence reported to the House

JRCB16 Professor Jason Varuhas (supplementary)

JRCB17 Northern Ireland Human Rights Commission

Nuclear Energy (Financing) Bill (Fifth sitting)

Committee stage
Tuesday 23rd November 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: † Yvonne Fovargue, James Gray

Baker, Duncan (North Norfolk) (Con)

† Blackman, Kirsty (Aberdeen North) (SNP)

† Brown, Alan (Kilmarnock and Loudoun) (SNP)

Browne, Anthony (South Cambridgeshire) (Con)

† Cairns, Alun (Vale of Glamorgan) (Con)

† Crosbie, Virginia (Ynys Môn) (Con)

† Doyle-Price, Jackie (Thurrock) (Con)

† Duffield, Rosie (Canterbury) (Lab)

Fletcher, Mark (Bolsover) (Con)

† Hands, Greg (Minister of State, Department for Business, Energy and Industrial Strategy)

† Jenkinson, Mark (Workington) (Con)

† Owen, Sarah (Luton North) (Lab)

† Pennycook, Matthew (Greenwich and Woolwich) (Lab)

† Wallis, Dr Jamie (Bridgend) (Con)

† Whitehead, Dr Alan (Southampton, Test) (Lab)

Whitley, Mick (Birkenhead) (Lab)

† Whittaker, Craig (Lord Commissioner of Her Majesty's Treasury)

Sarah Ioannou, Rob Page, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 23 November 2021

[Yvonne Fovargue in the Chair]

Nuclear Energy (Financing) Bill

14:00

[The Chair]

Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food and drink is permitted during sittings of the Committee except for the water that is provided. I encourage Members to wear masks when they are not speaking in line with current Government guidance and that of the House of Commons Commission. Please also give one another and members of staff space when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members emailed their speaking notes to [e-mail].

May I have declarations of interest first, please?

[Mark Jenkinson (Workington) (Con)]

I draw the Committee’s attention to my entry in the Register of Members’ Financial Interests. It is a matter of public record that I was employed in the nuclear sector prior to my election to this place.

[The Chair]

Thank you.

Clause 15

Regulations about revenue collection contracts

Question proposed, That the clause stand part of the Bill.

[The Minister of State, Department for Business, Energy and Industrial Strategy (Greg Hands)]

Welcome back to the Chair, Ms Fovargue. For the benefit of colleagues, I will speak briefly on the clause, which introduces part 2 of the Bill, and what that is all about. The clause gives a power to the Secretary of State to make regulations about revenue collection contracts, which operate between a revenue collection counterparty and a designated nuclear company, referring back to part 1. Contracts will require the revenue collection counterparty to collect payments from Great Britain electricity suppliers and pass them to the licensee nuclear company so that it can receive its allowed revenue. Subject to consent being given, we expect the Low Carbon Contracts Company to take on the role of the counterparty.

Clauses 16 to 24 set out in further detail what the regulations may cover in relation to the contracts. They could include, for example, the duties of the counterparty, the amounts that electricity suppliers must pay and how the authority will enforce the contract. The legislation will enable payments to flow in the opposite direction if necessary, such as in circumstances where the nuclear company receives more than its allowed revenue. The regulations will ensure that the nuclear company can receive its allowed revenue in a consistent and stable flow. Importantly, the regulations throughout this part are based on existing regulations governing the revenue model under the contracts for difference regime, taking precedent from the Energy Act 2013. Regulations relating to clauses to 16 to 22 and the first regulations made under clauses 23 or 24 will be made using the affirmative procedure. They will therefore be subject to a greater level of scrutiny, as we know, as such statutory instruments must be approved by a resolution of both Houses of Parliament.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Fovargue. Like the Minister, I would like to spend a moment announcing, as it were, this part of the Bill, which I hope we can get through in an orderly and suitably speedy fashion. It is however important to share an understanding of what we think this part is about. As the Minister said, it concerns the setting-up of revenue collection contracts; the setting-up of a counterparty to hold the revenue collected from suppliers to underpin action by the nuclear company in terms of construction; and, importantly, as he said—he seemed a little concerned when I mentioned this in our previous sitting—revenue collection and distribution during both the construction and production phases of a nuclear project.

My understanding is that during the production phase, the nature of the revenue collection changes. During the construction phase, within the overall allowable costs architecture, the nuclear company is likely to absorb whatever comes its way from the counterparty for the purposes of underpinning the construction costs of the nuclear plant. Obviously, there are debates to be held on that and further regulations to be put in place concerning how the revenue stream for a nuclear company is carried out and the requirements of the construction at various phases.

We have debated to some extent the instance whereby the allowable costs ceiling is breached because of rising costs, particularly during production; whether the regulator would have the opportunity to revisit the allowable costs ceiling; and what effect that would have on the run through the regulated asset base process to customer bills as a result of those recalculations. However, there are issues with what revenue stream goes into the nuclear company, and at what stage during construction, but that is within the overall costs ceiling, or should be, in the first instance.

During the production phase of a nuclear plant, the relationship between collection, distribution and re-disbursement becomes a little more complicated. I would be obliged if the Minister could shed a little light on some of the things that happen during the production process, which are still slightly unclear. That is important because, in the production process, the receipt of funding under the RAB process becomes a comparative issue. The company is making money and producing electricity, and one would expect that, as a result of the RAB model, the money that is being made by the company would sit within the parameters of what has been agreed for the regulated rate of return under the RAB model. If the company is making more money from its production of electricity than is allowed within the overall model’s parameters, that money starts coming back to the counterparty or, at least indirectly, through to customers.

Conversely, if the company is making less money from its production than is allowed within the RAB model for production purposes, money continues to come in under the allowable costs ceiling. The best explanation is given on page 21 of the consultation document on a RAB model for nuclear, which suggests:

“Suppliers could pass the cost of the payment obligation onto their consumers, as they do with other regulated costs and could likewise reimburse their consumers (as happens under a CfD) in periods where suppliers receive payments from the project company (e.g. when the Allowed Revenue is lower than the project company’s revenue from power sales). The design process would need to consider how these charges could be made in more detail, in consultation with suppliers and consumer representatives.”

That is essentially the model during the production phase: it is potentially a two-way process.

That issue reflects, at least to some extent, the amendments that we wish to discuss this afternoon —an understanding of how the money goes into the counterparty, what the counterparty does with the money, what the counterparty does when the money is held, and what the counterparty does if that money may not be needed, or money has been paid back into it by the nuclear company during the production phase. Consideration of how that happens, where that money goes and what sort of requirements one should place on that process are at the heart of some of our amendments.

I thought it important to check whether we have a shared understanding with the Minister of how the process works. Assuming that we do, we can discuss the amendments on the basis of that shared understanding of what this part of the Bill sets out to do. That is essentially a contribution to the clause stand part debate, but I hope that it clarifies how we will proceed with part 2 as a whole, and that it will be helpful to the Committee.

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

It is a pleasure to serve under your chairmanship again, Ms Fovargue. It was interesting that the hon. Member for Southampton, Test spoke about a shared understanding. I wish I had one; I do not think that the Bill is good enough to have any shared understanding of what it is about. Part 1 is clearly all about the definition of designating a nuclear company, and then a blank cheque in terms of defining costs. It seems to me that part 2 is all about how the blank cheque moneys are recouped in revenue collection.

I have one point to put to the Minister. Explanatory note 119 states:

“The terms of a revenue collection contract will be bilaterally negotiated between the Secretary of State and an eligible nuclear company to be designated under Part 1.”

Would he enlighten me on what expertise the Secretary of State has in negotiating a revenue collection contract for a new nuclear power station, how that will be undertaken in a transparent manner, and what options are available for scrutiny of that?

[Greg Hands]

I thank both hon. Gentlemen for their contributions. I will try to be as helpful as I can. Rather than setting any hares running, it is essentially a very similar process to how contracts for difference work under the Energy Act 2013. There is nothing essentially different here, other than the fact that it is about nuclear power generation and has the RAB model. What we are talking about in this part of the Bill is essentially the same process that is being used for contracts for difference under the 2013 Act. I am always slightly reluctant when an Opposition Member asks whether we have a shared understanding. It strikes me as often being slightly dangerous to give a blank cheque on that. My understanding of the process, and I think the Opposition would agree, is that it is essentially the same process that we have been using for contracts for difference through the collection company.

[Dr Whitehead]

I substantially agree that that is essentially how the process works, except that of course with CfDs the customer contribution does not change at all once the CfD has been implemented because there is a constant price. The difference is in the company getting the difference between the reference and the strike price, not what the customer pays for electricity bills or pays into the process itself.

[Greg Hands]

Here there will be a frequent resetting, which is likely to be twice yearly, in terms of the amount of money that has been collected, followed by a reconciliation at the end of the period, but a lot of the detail will be set out in the draft regulations. The hon. Member for Kilmarnock and Loudoun asked what expertise the Secretary of State has to negotiate such a deal. As I said, this has been a tried-and-tested methodology over the past eight years. When we say “the Secretary of State”, we mean that the individual who is the Secretary of State is the decision maker, but acts with the advice of a group of excellent officials at the Department for Business, Energy and Industrial Strategy. That is the normal way in which any reference to a Secretary of State is made in primary legislation. As I say, the legislation is very much based on the Energy Act 2013 and how it looks at the contracts for difference regime.

14:15

[Alan Brown]

The other point that I was making was about transparency. What options are available for the likes of me, an opposition MP, to scrutinise and challenge what is being signed off as a good deal?

[Greg Hands]

The regulations will be subject to the affirmative procedure, which, as the hon. Gentleman knows, will mean a debate in a Committee Room like this, and the potential to take the legislation to the Floor of the House and have a Division of the House of Commons. In that sense, the scrutiny available to Members of Parliament—if that is what he is referring to—is considerable. That is why the regulations will be subject to the affirmative procedure. I think it is reasonable for Parliament to see the regulations when they are made, although we do not envisage that further technical changes to those regulations will be subject to the affirmative procedure. As laid out in later clauses, those changes will be subject to negative procedure. I hope that the Committee will agree to clause stand part.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16

Designation of a revenue collection counterparty

Question proposed, That the clause stand part of the Bill.

[Greg Hands]

The power in clause 16 will enable the Secretary of State to designate an eligible and consenting company or public authority to be the revenue collection counterparty for revenue collection contracts. As stated earlier, the Government intend that the Low Carbon Contracts Company should fill that role. The counterparty will be responsible for collecting payments from electricity suppliers and making payments to the relevant licensee nuclear company, as well as collecting any payments from the licensee and making payments back to electricity suppliers.

Unlike contracts for difference, the authority will be solely responsible for determining amounts to be paid to or by the revenue collection counterparty, and would be responsible for communicating that to the counterparty. That responsibility is facilitated by regulations making provision to require information to be shared by the authority, a revenue collection counterparty, and the national system operator under clause 23, on information and advice. The power to designate a counterparty will commence at the point of Royal Assent to support the Government’s aim of bringing at least one large-scale nuclear project to the point of final investment decision within this Parliament.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17

Duties of a revenue collection counterparty

[Dr Whitehead]

I beg to move amendment 14, in clause 17, page 14, line 31, leave out “may” and insert “must”.

Although I have set out some of the shared under- standings that I think necessary for the three amendments that we will move this afternoon, this is not one of them. Amendment 14 addresses the text of the Bill, and puts in place small question marks about what that text means for the Secretary of State’s responsibilities, particularly in relation to the duties of a revenue collection counterparty.

At the moment, clause 17(1) states:

“A revenue collection counterparty must act in accordance with…any direction given by the Secretary of State”

and

“any provision included in revenue regulations.”

That theme of “must” continues in subsection (4), which states:

“A revenue counterparty must exercise the functions conferred by or by virtue of this Part so as to ensure that it can meet its liabilities under any revenue collection contract”.

It is an imperative. And subsection (5) states:

“Revenue regulations must include such provision as the Secretary of State considers necessary so as to ensure that a revenue collection counterparty can meet its liabilities under any revenue collection contract to which it is a party.”

Clearly, those “musts” are imperatives for the revenue collection counterparty to undertake. It “must” act in accordance with directions given by the Secretary of State; it “must” ensure that it can meet its liabilities; and it “must” meet its liabilities under any revenue collection contract.

Then we go to subsection (2) and look at the provision for the regulations themselves, which logically should follow on from the imperatives that I have set out, but we see this statement:

“Revenue regulations may make provision”.

The regulations that carry out the imperatives of the other provisions of the clause do not appear to have the same imperative applied to them.

I appreciate that the word “may” in legislation is a perfectly reasonable and acceptable term where something can be done as part of a series of powers that perhaps a Secretary of State has. A Secretary of State may decide to do various things under those powers. Indeed, we get some enlightenment on that in subsection (3), which refers to the

“provision that may be made by virtue of subsection (2)”.

That is a proper use of the word “may”.

However, in this case, what the word “may” appears to suggest is that the regulations that follow from the imperatives do not have to make provision for these particular things; they “may” make provision. There is no direction from the senior Bill to secondary legislation to actually follow the imperatives in the Bill. If the regulations do not happen to make provision, they simply do not, because they “may” make provision; they do not have to do so. That appears to me to be not a very good way of ensuring that the things that should happen under this clause actually do happen.

I know that we are all good Members of the House—I am sure that if legislation suggested that we should do particular things, we would do them—but that is not quite the point. Legislation from this place is supposed to stand the test of time, cope with the vicissitudes of Administrations as they come and go, and ensure that what the legislation intended will actually be done, so either this legislation intends that these regulations do not have to be made or the word “may” is a little less than robust, hence the very modest and small amendment that we have suggested. It would replace the word “may” in subsection (2) with the word “must”, so that there was consistency throughout the clause. It would not be a major change to the Bill, but might strengthen it a little and give a little more certainty about its operation.

[Greg Hands]

As the hon. Gentleman outlined, the amendment addresses what the regulations relating to revenue collection contracts may or must contain. The amendment relates to the duties of the revenue collection counterparty in clause 17. The counterparty will be the body responsible for channelling funds between the designated nuclear company and suppliers. Currently, the Bill gives a discretionary power to make regulations that can ensure that the revenue collection counterparty, first, enters arrangements or offers to contract for the purpose of a revenue collection contract; secondly, must, may or may not do certain actions; and thirdly, undertakes or does not undertake actions specified in the regulations or the direction by the Secretary of State. The legislation further clarifies, for example, that the directions may cover, among other things, the enforcement, variation or exercise of right under a revenue collection contract. Amendment 14, moved by the hon. Member for Southampton, Test, seeks to make it obligatory that the revenue collection contracts will cover these areas whenever they are made. I welcome the hon. Member’s engagement with the detail of the revenue collection regulations, which will play a key role in the functioning of the RAB. However, I do not believe that the approach suggested by the amendment improves our arrangements for the regulations.

First, it is the Government’s intention that the regulation made to establish the RAB revenue stream would likely contain all of the topics set out. Obliging them to be included would be unnecessarily restrictive at a point where we are still developing the structure of the regulations, which will be brought forward by the affirmative procedure in due course. It is therefore important that the power remains discretionary, to allow for sufficient flexibility as we progress the policy. Secondly, the amendment seeks to override the original intention of the clause, which was to provide an indicative, non-exhaustive list of what the regulations may cover. That approach is precedented by the Energy Act 2013, particularly in section 21, as well as in other clauses in this Bill. It is entirely regular to use the word “may” for things that we think will be likely to be included.

Finally, as currently drafted, the amendment appears to be in conflict with subsection (3), because the change from “may” to “must” is not reflected there—subsection (3) builds on the subsection that amendment 15 addresses. That leads to an inconsistency in drafting, where subsection (2) would state that the topics “must” be covered, whereas subsection (3) limits it to “may”. I welcome the hon. Member’s scrutiny of, and engagement with, the detail of the revenue provisions in part 2 of the Bill; I recognise the Opposition’s concerns around ensuring that regulation is sufficiently robust. However, I do not believe that the amendment is the way to achieve that, and I hope that hon. Members will withdraw it.

[Dr Whitehead]

I appreciate that this is a habitual piece of drafting in legislation, found not just in this Bill but in a number of others. One of my hopes with legislation has always been that a group of Members might be courageous enough on one occasion to say, “This is lax writing of legislation and we should not put up with it. We should have what it means included in the Bill.” I appreciate that the lax writing of the legislation may not be lax at all—it may be deliberately giving the Secretary of State a lot more leeway where things are not entirely sorted out. When we look at this clause, we can see that there already is, in subsection (2)(c), substantial leeway for the Secretary of State to take

“further powers to direct a revenue collection counterparty to do, or not to do, things specified in the regulations or the direction.”

That is pretty wide leeway for the Secretary of State to have in the Bill already.

What the “may” does in this subsection is to cast further uncertainty on what sort of things the Secretary of State may do. I am sure that the Secretary of State will actually want, on this occasion, a “must” for what is conferred on the Secretary of State with further powers. That is very helpful to the Secretary of State for precisely the reasons that the Minister outlined a moment ago. The “may” that is in subsection (3) is a different sense of the word “may”. How it would read fully is, “the provision that may well be made by virtue of subsection (2).” It is used in the conditional, whereas the “may” in subsection (2) is a dilution of the imperative. I am sure that the Minister will be pleased to know that that is the case, but I am afraid that it does not accord with what he had to say about the use of “may” and “must” in this provision.

I am not going to press the amendment to a Division, but I think we need to be more careful about how we draft our legislation overall, to make sure that it does what it says on the outside. I am sure this will not be the last opportunity to raise this issue in the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18

Direction to offer to contract

14:30

Question proposed, That the clause stand part of the Bill.

[Greg Hands]

Clause 18 builds on clause 17. Subsection (1) explicitly gives the Secretary of State the power to direct a revenue collection counterparty to offer to contract with a designated nuclear company on terms specified in the direction. Those terms will be the outcome of negotiations between the Government and the project company. This power is again replicated from the contract for difference, namely section 10 of the Energy Act 2013, but has been adapted to account for the nature of the revenue collection contracts as a bespoke arrangement.

Regulations can set out the circumstances in which a direction to contract can or must be made, as well as the terms that may or must be attached to the direction. If the Secretary of State does not have the ability to specify when a contract should be offered under the legislation, there could be delays in the offering of a contract to a project company. That could damage investor confidence and slow progress on the project at a crucial time.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Clause 19

Supplier obligation

[Dr Whitehead]

I beg to move amendment 15, in clause 19, page 16, line 11, at end insert—

“(4A) Revenue regulations may make provision to prevent electricity suppliers from recovering the costs of paying a revenue collection counterparty from customers who qualify for the Warm Home Discount Scheme.”

This amendment would mean that electricity bill payers who qualify for the Warm Homes Discount scheme would not be liable for levies on their bills that pay into the RAB revenue collection fund.

Amendment 15 relates to the latter end of clause 19. Hon. Members will see that the clause suggests that revenue regulations may make provision for electricity suppliers to pay a revenue collection counterparty for a number of purposes, including

“to hold sums in reserve; to cover losses in the case of insolvency or default of an electricity supplier.”

According to our shared understanding of how the RAB would work, the regulations would require electricity suppliers to pay into a revenue collection counterparty for those purposes. Thereby, as the RAB consultation makes clear, if that company has been required to pay into the revenue collection counterparty, the company could make restitution for the money it had paid into the revenue collection counterparty by adjusting its bills to reflect that fact.

We are in exactly the same territory as contracts for difference, where there is a levy on customers and the supply company recovers the money that it has paid into the levy fund by passing that levy on to customers in their bills. We have a problem with placing additional levies on already sky-high bills, but that is how this arrangement will work. We question how that process will work. As hon. Members will also know, we currently have within our electricity supply arrangements a warm home discount scheme, which provides for a number of bill payers to get £140 off their bills each year if they qualify. There are some issues about the size of the company relating to that obligation but, in principle, pretty much all customers on a low income or a guaranteed credit element of pension credit will, or should, receive that warm home discount.

The energy company has to supply that discount to its customers. It may socialise the costs through its overall bills as a sort of secondary levy, but it gives a proportion of electricity customers a permanent reduction in their bills due to their particular circumstances, such as—as the discount suggests—particular fuel poverty-type issues in heating their homes and meeting their fuel bills.

The effect of a levy—in this instance, quite a substantial levy—to customers under these circumstances, particularly during the construction phase of a regulated asset base operation, would be to put, say, an extra £10 on the bill of someone who is already receiving a warm home discount, so that their fuel bills go up. A number of people would be placed in fuel poverty as a result of that difference, and therefore, ironically, it is quite possible that more people would be eligible for the warm home discount as a result.

When and if this levy comes on stream, we do not think that the process should include the supply company passing on that increase to those people who are already paying their bills but have a warm home discount. Those companies should not be able to recover the cost of payment into the revenue collection counterparty by passing it to those people receiving warm home discount. This would mean a socialisation of that cost to other bill payers, but the warm home discount would nevertheless remain at the right proportion of the bill, not diminish in value because that person was required to pay that levy to the energy company so that it could recoup its costs related to the revenue collection counterparty.

This is quite a simple amendment to try to return that warm home discount to the position that it would have been in before that levy was introduced. I would suggest that it is in line with what the Government intended for that warm home discount in the first place. Although other customers may pay a little more on their bills, it would maintain the relative billing position for the poorest and most vulnerable customers, including those in receipt of a guaranteed credit element of pension credit, helping those who have considerable difficulties in paying bills and are perhaps in fuel poverty as a result. We would like this power to ensure that energy companies do not incorporate those customers into the arrangements for collection and distribution of money coming into the revenue collection counterparty.

[Alan Brown]

I will just say a couple of things. I was listening to the arguments and if the amendment goes to a vote, I will be happy to support it and do anything I can to try to support the most vulnerable and not create any more fuel poverty. Listening to the arguments, they seem to confirm that the concept as a whole is a costly burden on consumers. As the shadow Minister said, it creates a levy that will put more people into fuel poverty. The levy will not just last for a few years; it starts with a construction period of 10 to 15 years in all likelihood and then a 60-year contract. Rather than tinkering at the edges, protecting some people and pushing other people into fuel poverty, the heart of the matter is that this is a costly white elephant exercise. That said, I would still support the amendment for what it aims to do.

[Greg Hands]

As has been stated, amendment 15 looks to make provision to exclude from the RAB charge those consumers who are eligible for the warm home discount scheme. I understand the good motive and the effect of what the hon. Member for Southampton, Test is proposing. For background, the warm home discount is a Government initiative to take £140 from the energy bills of consumers who receive the guarantee credit element of pension credit, or who are on a low income and receive certain means-tested benefits. We have already proposed increasing the value of the rebate to £150 per annum in any case.

As we have discussed, if a new project is funded through the RAB model, suppliers will be obliged to pay towards it. It is expected that the suppliers will pass these costs on to consumers. While I do not intend to go back over the arguments in favour of the RAB model, we believe the arrangement will facilitate private investment while also reducing the costs of delivering new nuclear projects. I understand the Opposition’s desire to protect consumers on the lowest incomes, which is what the Government are already doing. The Opposition are proposing to increase that element of protection. Of course, these consumers can spend a disproportionate amount of their income on energy costs. As we all know, energy bills are regressive.

However, a large-scale project funded under the scheme will add, at most, a few pounds a year to typical household energy bills during the early stages of construction and less than £1 per month on average during the full construction phase of the project. The Government have taken a number of actions to protect low-income households from energy costs, as laid out in our updated fuel poverty strategy. That includes not only the warm home discount but cold weather payments and the household support fund.

[Alan Brown]

Isn’t the problem with some of the schemes aimed at protecting the most vulnerable that they are paid for by other consumers? By default, the schemes are always creating another cohort to move into fuel poverty, because actual schemes to help people are paid for by other consumers.

[Greg Hands]

The hon. Gentleman makes an interesting point, but I do not think the amendment in any way answers his question. In fact, if I have understood the amendment correctly, it would probably make those who are not on the warm home discount pay even more, so I am afraid he is making a speech against the amendment, however inadvertently.

As set out in the heat and buildings strategy late last month, we will also publish a fairness and affordability call for evidence to set out the options for energy levies and the obligations to help rebalance electricity and gas prices and to support green choices, with a view to taking decisions in 2022. We are looking at the totality of how these schemes work, then looking at the consultation and then taking decisions on the wider nature of these schemes next year. It is right that broader conversations about how to deal fairly with customers’ bills are dealt with as part of this process, rather than by taking a narrower approach for each technology and funding scheme, which the amendment seeks to do.

As we know, the legislation obliges the Secretary of State to have regard to consumer interests and costs when setting up the RAB. As part of that, the Secretary of State will monitor any cumulative impact from multiple RABs being in operation.

14:44

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

The Minister has just mentioned the obligation on the Secretary of State that is in the Bill. My hon. Friend the Member for Southampton, Test made the point that this levy may be £10 a year on average, or it may be more. Have the Government made any assessment of the number of customers that that increase will potentially tip into a qualifying benefit, therefore making them eligible for the warm home discount? Have they assessed what a nuclear RAB might do to the number of people who are eligible for that discount? The argument we are trying to make is that there is potentially a saving for Government here by socialising the risk among non-warm home discount consumers when it comes to funding these types of projects.

[Greg Hands]

The hon. Gentleman asks a fair question, which I would answer in a couple of ways. First, this issue is best considered in the round as part of the process we have outlined, with the consultation and decisions to be made next year. Secondly, the actual amount would depend very much on the nuclear project in question. What we have shown is that we believe the RAB model will make bills overall less expensive to the consumer by roughly £10 a year for an average dual-fuel bill payer, as the hon. Gentleman has rightly pointed out. However, that amount will ultimately depend on the size and scope of the nuclear plant that is proposed. I think a better way to deal with this issue is to deal with it in the round, in the way the Government are proposing. I stress that the RAB is designed to save consumers money over the life of the plant; that is one of the key reasons why we are proposing it.

I am grateful to the hon. Member for Southampton, Test for tabling this carefully considered amendment and for raising the important issue of energy costs for low-income households. Nevertheless, I hope that I have shown both that the Government are already taking action to help this group and that this clause forms part of a wider conversation about how we transition our energy system away from fossil fuels in a way that is fair and affordable for all. I therefore hope that the hon. Gentleman will withdraw his amendment.

[Dr Whitehead]

I am not sure that the Minister quite gets this. The warm home discount was introduced in 2011 and has been at the level of £140 since then, so the Government suggesting that it should be increased to £150 is not an action of unparalleled generosity: it actually just catches up with inflation over the period that the warm home discount has been in place. That discount has been decreasing in value in real terms over the years, so increasing it is simply a matter of reasonable housekeeping, rather than innate generosity.

[Kirsty Blackman (Aberdeen North) (SNP)]

I thank the hon. Gentleman for giving way; apologies to my hon. Friend the Member for Kilmarnock and Loudoun for getting in first. Does the hon. Gentleman agree that, given the massive increases in energy prices that we have seen—way outstripping inflation—this increase does not touch the sides of what is needed?

[Dr Whitehead]

The hon. Member is absolutely right. I am sure that we could do some back-of-a-fag-packet calculations about what we are going to need from the warm home discount, given the rises that are likely to occur under the fuel price cap in the coming spring and over the next six months, but it will certainly be rather more than £10.

[Alan Brown]

Does the hon. Gentleman agree that another odd aspect of the Minister’s argument is that raising the warm home discount to £150—an extra £10—is really significant and helps people, but an extra £10 on their bill is okay and something we do not need to worry about? The two cannot both be right.

[Dr Whitehead]

The hon. Member makes a very interesting point, which I was rather slower than him to get to. He is quite right: if this is going to be £1 a month during the construction phase, therefore adding only £10 to £12 to the bill per year, it is contradictory to say that one is insignificant while the other is very significant.

There is also the fact that £12 a year, or £10 a year or whatever, will affect different people’s bills in different ways, because the bill for a large family, or someone with a large house, will be higher in total, and the £12 nuclear levy will be a smaller proportion of it than for someone who is eligible for the warm home discount—perhaps a single pensioner living in a small house, with a lower bill but nevertheless without the wherewithal to pay it. That £12 would be a higher imposition on their bill than it would on other people’s bills.

I think we all agree that the warm home discount is an important actor in combating fuel poverty and ensuring that the most vulnerable people in our society as far as energy costs are concerned do not have it even worse than they do at the moment and are given some assistance with their bills. We all ought to be very mindful of that when we put levies on people’s bills. What the Minister says about who we do and do not put into fuel poverty when we change levies on fuel bills is true, but that is an argument for better indexation, not for continuing with the warm home discount in the way that we are.

I am sorry to say that we will have to divide the Committee, because we think that this is an important principle that ought to be upheld. We do not want to the effects of the levies, which of course may be much more than £12, depending on how the allowable costs ceiling goes, to directly affect the warm home discount, which we think is a very important part of the energy landscape and the battle to combat fuel poverty. We would like it to be on the record that we did not simply allow this to be brushed under the carpet, and therefore wish to vote on the amendment.

Question put, That the amendment be made.

Division 3

Ayes: 6

---

Labour: 4
Scottish National Party: 2

Noes: 7

---

Conservative: 7

[Alan Brown]

I beg to move amendment 20, in clause 19, page 16, line 25, at end insert—

“(6B) Prior to making provisions by virtual of subsection (4), the Secretary of State must consider—

(a) the number of customers the supplier has;

(b) the level of bad debt from customers;

(c) the liabilities of the electricity supplier including any renewables obligations due and what levels of collateral will risk the supplier’s operations as a going concern;

(d) the impact on consumer bills of upfront payments to the revenue collection company; and

(e) the value and extent of forward hedging the supplier has in the market.”

This amendment would require the Secretary of State to consider the matters listed before requiring electricity suppliers to provide financial collateral to a revenue collection counterparty.

The other day, the Minister challenged us in the SNP to table amendments, so in that spirit of co-operation—given that I am fundamentally against the Bill but have still tabled amendments to improve it—I look forward to him accepting them.

Clause 19 further confirms the Government’s desperation to provide unlimited guarantees and support mechanisms to get nuclear projects—as we know, that means Sizewell C —off the ground. For me, the clause is further proof of how ill-thought through the Bill is, and how loosely many clauses have been drafted. This clause will be blindly accepted by Government MPs without further thought or debate apart from some challenge from this side of the Committee.

Yesterday, energy supplier Bulb Energy, which has 1.7 million customers, effectively went into administration. Given that 23 energy suppliers have gone bust since August of this year, it beggars belief that the UK Government have introduced clause 19, which may require energy suppliers to pay money up front. Cash flow insolvency is a major issue in the energy supply market at the moment, but the Bill could place further demands on suppliers.

The clause will allow the revenue collection counterparty to set the form and terms of the financial collateral that it demands from electricity suppliers. There is no guidance or controls; there is simply the concept of a nuclear project being so important that revenues must be guaranteed for the nuclear company. Subsection (2) is the start of what I have no doubt will be an accountant’s field day. Subsection (2)(a) is a typical catch-all, as it states that revenue may be collected under

“such…descriptions of its costs as the Secretary of State considers appropriate”.

As an aside, will the Minister tell us whether it is really the Secretary of State who will make those assessments, as the clause states, or will it actually be the regulator?

Subsection (2)(b) and subsection (4) refer to holding sums in reserve and to suppliers providing financial collateral. The kicker with the financial collateral is that subsections (6)(a) and (b) state that the revenue collection counterparty may

“determine the form and terms of any financial collateral”

and may “calculate” the payments that are due. There seems to be no independent scrutiny and no way to challenge those demands. Then, for good measure, subsections (8) and (9) provide for the revenue collection counterparty to make demands on interest, debt collection and further add-ons. That certainly seems very balanced towards the assessments that the revenue collection counterparty makes.

Paragraphs (c) and (d) of subsection (8) mention “references to arbitration” and “appeals”, but what will those processes and procedures look like? Yet again, there is too little detail. Without suitable protections and considerations, the clause and its consequences could damage well-run energy suppliers and those that are struggling to get by, and that is if they get through the ongoing crisis.

Why should energy suppliers pay up front to cover RAB payments? It might suit the Government to have clauses to protect funding for new nuclear, but that could lead to massive cash flow issues for the electricity supply companies that I mentioned earlier. As they would be paying in advance of receiving income from customers, they would need to manage that credit issue by servicing debt costs. Those costs would then be passed on to consumers, further raising the cost of our bills.

I have already stated my opposition to the Bill and to a new nuclear power station, but from my perspective as a consumer, the Government want me to tie into the construction costs payments for 10 to 15 years in a 60-year RAB contract, which will go beyond my lifetime. Then, just to be on the safe side, my electricity company, to which I pay money, will possibly have to provide money up front, which will cost me, as a consumer, more money. That is a ridiculous concept; it just does not make sense.

Although I am against the principle and poor drafting of the Bill, it is important that we debate clause 19, which is why I have tabled the amendment. I hope that paragraph (a) of the amendment is self-explanatory: any collateral or money that is asked for would need to be pro rata based on the energy supplier’s ability to pay, which would be based on its customer base. In paragraph (b), I highlight that bad debt needs to be considered, because some companies have much higher numbers of vulnerable customers, which means that they are likely to carry more bad debt. That dynamic could change further with the collapse of so many energy supply companies.

15:00

Paragraph (c) says that the revenue counterparty needs to look at the other liabilities that companies might be carrying. It is interesting that, when we have been debating the energy retail market and energy supplier crisis, the Secretary of State at the Dispatch Box accepted that companies go bust every year and said that part of that was that suppliers tend to go bust at the time their renewables obligations become due. I thought that that was a very flippant attitude, and that is not right. It also seems bizarre to accept that companies will go bust rather than pay their renewables obligations, when the Bill demands that payments be taken from companies up front to ensure that the RAB payments are secured for the nuclear company.

Paragraph (d) further highlights and forces consideration of the cashflow and credit costs that will be imposed on customers by the demand for any up-front collateral. Finally, paragraph (e) looks at forward hedging. The whole point of hedging forward for, say, a year in advance is to secure energy at a given price so that companies know that they have stability in terms of what they have paid and that they can pass that price certainty on to the customer. If a company is hedging forward and has to use its cashflow and securities to do that, that needs to be taken into account before any other moneys are demanded up front to cover the RAB payments.

I hope that I have again made my concerns about aspects of the Bill clear. There are genuinely unintended consequences that could flow from the operation of clause 19 and demanding collateral up front. As I said in my optimistic opening sentences, I look forward to the Minister accepting the amendment and saying, “Well done and thank you.”

[Dr Whitehead]

I am very sympathetic to the amendment, although I do not think that it will do exactly what the hon. Member for Kilmarnock and Loudoun would like. It would be helpful to have some clarification from the Minister as to exactly how the payments will be organised by the revenue counterparty body.

Although those payments are up front, in that the electricity supply companies would be required to make a payment on behalf of the customer into the counterparty before the power station had been built, that does not mean that the payment would all be up front. It means that the payment would be staggered over a period, which might be the whole of the production period of the nuclear power plant, according to what was required at particular times of the construction, so that the counterparty had sufficient funds to meet those calls from its revenues at any one time, but did not have a large surplus against calls. The counterparty would therefore have to modulate and regulate its calls on the energy supply companies as the process of construction continued.

Presumably, then, a company’s health would not be set against an overall up-front payment in that instance. All companies would be required to pay into that levy arrangement regularly, so there would not be a greater demand on one company than another or a large amount of money demanded in one go. That is my understanding of how the system would work, but I appreciate what the hon. Member for Kilmarnock and Loudoun said about the 23 companies that have gone bust recently. As the energy market stabilises, I think there will not be many companies to take a levy from in the first place. Those companies that are able to pay a levy will by and large be those that were in sufficiently robust health in the first instance to weather the storm of high gas prices and high energy costs—there are a number of other reasons why companies may or may not be reasonably robust but that is a debate for another day.

Overall, I do not think that the amendment does exactly what it is intended to do.

[Alan Brown]

I think I understand the point that the hon. Gentleman is making, but subsection (4) says:

“Revenue regulations may make provision to require electricity suppliers to provide financial collateral to a revenue collection counterparty (whether in cash, securities or any other form).”

I still read that as meaning that cash could be asked for to be paid up front.

[Dr Whitehead]

Indeed, and that is why we need better clarification from the Minister. Is there a distinction between cash up front in general—that is, one pays before getting any result from a nuclear plant that is being built—or cash up front in the sense of taking all the stuff in the agreed revenue allowance? Would that be taken either mostly up front, all in one go, or at level that an energy company would find unaffordable during particular elements of the process? There is still some uncertainty about exactly how that process would work.

I have a lot of sympathy with the argument of the hon. Member for Kilmarnock and Loudon. If the revenue counterparty decided that it was going to take a very large amount of levy early in the process to have lots of money in the bank and to be able to cover any eventualities connected with the construction process, that would be a pretty unreasonable imposition on energy companies, particularly in the present circumstances. However, I think there are least implied elements of regulation in the Bill that would prevent that from easily happening, and I would be interested to hear whether the Minister thinks that is the case. If he does, where in the Bill is that, and which arrangements would be preferrable in terms of the revenue collection counterparty operating on a more equitable basis as the construction period progressed?

[Greg Hands]

I thank the hon. Members for Kilmarnock and Loudoun and for Aberdeen North for tabling their amendment. Of course the Government welcome all Opposition parties tabling amendments; that does not necessarily mean that we will agree with the aforementioned amendments, but it is a useful process to test and probe the Bill, and I think our publics would like to see a process whereby all Opposition parties tabled amendments to test the Government’s proposition. I fully buy into that process, but I do not happen to agree with this amendment.

The amendment addresses how the interests of suppliers and their customers should be considered when making provision in regulations for the supplier to pay the revenue collection counterparty. It would also require the Secretary of State to have regard to the other liabilities of electricity suppliers—the hon. Member for Kilmarnock and Loudoun talked with topicality about that—as well as to the impact that collateral requirements will have on a supplier’s operation. I thank the hon. Gentleman and the hon. Lady for ensuring that the Government consider the impact on suppliers and consumers when establishing the RAB revenue stream.

I reassure Members that the Government intend to act in a way that effectively manages the payment obligations on suppliers and, through them, consumers. We do not believe, however, that the amendment is the best way of ensuring that. First, the provision of collateral by electricity suppliers is a form of security that has been administered very successfully in the contract for difference regime. As I said on clause 15, the regime seeks to replicate that tried-and-tested regime, which has functioned effectively to bring investment into new energy projects for the last eight years.

We have been clear that in designing the RAB revenue stream we are seeking to replicate many of the provisions of contracts for difference to help to provide a familiar and workable framework for suppliers, but it is not just about supporting investment. We will protect suppliers from paying unreasonable amounts of collateral and ensure that overpayment of collateral is returned to suppliers.

[Alan Brown]

What is there in the Bill that protects suppliers from having to pay too much collateral?

[Greg Hands]

The protection in the Bill is through the regulation of the process and the oversight, for example by the authority, in this case Ofgem, which will ensure that any amounts paid to the generation company are reasonable. The hon. Gentleman is right to ask who will set the parameters, the Secretary of State or the regulator. The Secretary of State sets the initial licence conditions; however, it is the authority, in this case Ofgem or its equivalent, that will ensure that any amounts are reasonable and in the interests of existing and future consumers. That is very much in the Bill.

[Kirsty Blackman]

Could the Minister provide more information on that, in the form of a letter perhaps? We have raised concerns on how companies, and therefore consumers, will be protected. I appreciate what he says, but that was not obvious to us, so a response in writing would be hugely helpful.

[Greg Hands]

That is a reasonable request. I am saying that this is a tried-and-tested process that has been there throughout the contract for difference regime. Paying in collateral, and the way that collateral operates, is something that has been around for decades, but if it is helpful I am happy to write to the hon. Lady and copy in members of the Committee to explain in more detail how it works in the CfD regime and the Energy Act 2013. I should also make it clear that the Bill provides a framework for the RAB revenue stream and requires that the detail of suppliers’ payment obligations is set out in the secondary regulations that will need approval from both Houses. Ahead of that, and as required by the Bill, we will publish and consult on the draft regulations. We will include British energy suppliers within the consultation, so they will have the opportunity to feed in any views from an energy supplier perspective.

In the context of protecting our most vulnerable energy consumers, which was the subject of the previous amendment, I refer Members to my comments in that debate setting out the numerous actions that the Government are taking to help low-income households, including the warm home discount, cold weather payments and the household support fund. I hope that I have assured the hon. Member for Kilmarnock and Loudoun that the design of the RAB revenue stream will ensure that the interests of consumers are protected and that mechanisms are in place to protect suppliers from disproportionate requirements that would affect their ability to operate. As such, I believe that the amendment is unnecessary, and I hope that he will withdraw it.

[Alan Brown]

It was no surprise that the Minister did not accept the amendment. It will be no surprise to him that he has not completely satisfied me either with his explanation. We keep hearing the argument that we are trying to replicate the CfD model, which is interesting considering that we are introducing the RAB model. It was said that CfD would not work for nuclear, but now we are trying to replicate certain things. He said that there will be consultation and secondary legislation, but there are no guarantees on what the Government will do or how they will respond to any consultation. Secondary legislation can easily get steamrollered through this place anyway. Given that, I would prefer to press my amendment to a vote.

Question put, That the amendment be made.

Division 4

Ayes: 2

---

Scottish National Party: 2

Noes: 7

---

Conservative: 7

15:16

[Dr Whitehead]

I beg to move amendment 16, in clause 19, page 17, line 2, at end insert—

“(10) Persistent non-payment of sums owed to the counterparty by an electricity supplier may be referred to OFGEM, which may in such circumstances place the electricity supplier’s licence under review.”

This amendment would allow cases of persistent non-payment of sums owed to the counterparty by an electricity supplier to be referred to OFGEM.

The amendment follows on quite well from our previous debate. Although the issue is not entirely certain, the collateral expected to be paid by energy supplier companies would be required in a measured way. The Secretary of State would make sure that the revenue collection counterparty did not try to scoop up huge funds in one go—not that I think that very likely—and would regulate the collateral so that it was more or less allied with the calls on it by the nuclear company at that stage.

If the revenue collection counterparty had a large pot of money sitting in its bank account at any stage, one would expect that money to be redistributed to the supplier companies from which it had been collected, and one would hope that in the end it would be redistributed back to customers. I think that there is still some way to go in deciding how exactly the regulation is to be set up, but I welcome the Minister’s statement that that is roughly how the Government assume the process will be undertaken. That being the case, there is then the question of what happens if supplier companies do not pay what the revenue collection counterparty has required of them, assuming that it is a reasonable payment. That leads on to some existing issues with how levies are collected by counterparties.

There has already been some mention of what happens with Ofgem’s collection of the renewables obligation, and of the collective obligations of energy companies to supply the right amount in buy-outs, renewables obligation payments or whatever. For those who think that the renewables obligation is done and dusted and that it came to an end in 2017, I should mention that it is still alive in a ghostly fashion and is collecting money until 2027, I think, so the obligations continue.

If one were being very unkind, one might say that a barometer of the health of some of the smaller energy companies that have recently been involved in the struggle to stay afloat has often been whether their renewables obligation payments were outstanding at the time of closure, which I think is the end of each October. There were reports from Ofgem, I think in September, that x number of companies had not paid their renewables obligation levies, and that if they did not do so by the closure date, it is conceivable that action would be taken—which could include, in the end, the removal of the company’s licence to operate.

One could say that that is what happened over the recent period, in that companies that knew they were in some difficulty with their renewables obligation payments at the end of October folded pretty soon afterwards because they were not going to pay them. That has had the unfortunate side effect that that non-payment has had to be socialised among other energy companies in order to ensure that the fund is the right amount to meet the renewables obligation certificates going around. Nevertheless, the regime appears to have a sanction relating to an energy company’s licence, so that we can ensure that payments are brought in, or that there is fairly swift closure relating to the outstanding amount, so we at least know roughly where we are regarding the payment pool at a future date.

As the Bill stands, that does not appear to be the procedure that will be adopted regarding levies into the revenue collection counterparty. Indeed, the Bill states that if payment is not received, collection will be a civil matter. In the amendment, we suggest that we adopt a similar procedure to that which is in place with Ofgem concerning non-payment of renewables obligation payments. In the case of persistent non-payment, a sanction should be available regarding the continuation of the company’s licence. The Minister may say that going through the civil courts is just as good. What concerned me about the arrangements in respect of renewables obligations was that some energy companies were borrowing their payments in order to stay in business. That is not what a healthy energy company should do, long term; it will not result in a secure landscape as regards collateral inputs to a counterparty.

A better way of proceeding would be to have in place the sort of regime that we have for the RO. The amendment would allow the Secretary of State to introduce that kind of arrangement, if he thought it a good idea for the stability of collateral payments. It gives him an extra option, and goes beyond the regime set out in the Bill, so that we can ensure that payments are properly levied, paid on time, and not resisted.

[Greg Hands]

As the hon. Gentleman outlined, amendment 16 addresses how the obligations of suppliers under revenue collection contracts should be enforced. Clause 19 deals with suppliers’ obligations in relation to the RAB. It lays out what the revenue collection regulations may provide for. This includes how the obligations placed on suppliers by RAB revenue collection contracts can be enforced by the revenue collection counterparty. The powers in clause 19 are supported by clause 22, entitled “Enforcement”, which states:

“regulations may make provision for”

obligations under revenue collection contracts to be enforced

“by the Authority as if they were relevant requirements…for the purposes of section 25 of the Electricity Act 1989.”

This means that a breach of such a contract can be treated as if it were a breach of a licence condition, and this allows the authority to obtain an order to secure compliance and impose financial penalties.

The amendment would set up a different enforcement route, outside the regulations, by allowing the revenue collection counterparty to refer suppliers who persistently fail to meet their obligations to the authority—that is, to Ofgem. Ofgem could then consider whether to remove a supplier’s licence. Of course, I welcome the Opposition’s focus on ensuring adequate protection from non-compliance. Creating strong enforcement procedures will be vital to give investors confidence that the RAB will function and that the project will receive the funds to which it is entitled. However, the amendment leaves out much of the detail necessary for a clear understanding and the smooth functioning of the enforcement procedure. For example, it does not clarify what should be classed as “Persistent non-payment”, or the process for referral. It also does not make clear what Ofgem would take into account when reviewing a supplier’s licence, or the process for appeal.

The hon. Gentleman feels that a supplier’s failure to make payments to the counterparty should have consequences for their licence, but those concerns are adequately addressed by clause 22, which states that the regulations may make provision to treat non-compliance as if it were a breach of a licence condition, and to allow the imposition of suitable penalties against suppliers through tried-and-tested, long-standing legislation. This will ensure compliance, and will mean that obligations under revenue collection contracts are met.

I welcome the hon. Gentleman’s constructive contributions, his proposing the amendment, and his recognition of the need for strong enforcement provisions, but I hope I have convinced all hon. Members of the appropriateness of the Government’s approach, which already treats non-compliance in the way that is suggested in the amendment, but in a far more watertight way, and that the hon. Gentleman therefore feels able to withdraw his amendment.

[Dr Whitehead]

The Minister talks about taking action in a more watertight way, and suggests that we look at clause 22, which relates to clause 25, which relates to a series of clauses relating to the Electricity Act 1989. It is a sort of Marx brothers’ “A Day at the Races” form guide arrangement, whereby in order to understand a guide, a person needs another one, and so on endlessly—and they end up missing the race.

The Minister will be aware that there are a number of instances in which we are asked to go way back, via regulations, into Acts such as the Utilities Act 2000 and the Electricity Act, and we are reluctant to do that. Indeed, there are a couple of quite incomprehensible repeals at the end of the Bill, to which I might draw the Committee’s attention; one has to go through four or five stages before one can understand what on earth those are about.

In this instance, it is possibly true that we could, by regulation, apply the provisions of section 25 of the Electricity Act 1989 relating to licence modification or removal; but that provision is not in the Bill, but possibly applied by regulation. In the Bill there is one remedy, and one remedy only. The Minister may say, “Trust us; we may produce regulations that have the effect that I have suggested.” However, it probably would have been wiser for some of those things to be in the Bill. Of course, the amendment does not do all those things that the Minister mentioned. I fully accept that it is deficient from that point of view, because it does not mention the four or five other pieces of legislation that have to be taken into account, amended or consequentially changed. It merely allows us to make the point that these things ought to be in the Bill, so it is a probing amendment.

I hope that the Minister will think about whether there are better ways of getting those different forms of regulatory certainty than this extended process of referring to other pieces of legislation, which may become more or less opaque as one reads them. It would be much more straightforward for this provision to be in the Bill and clear for everyone to see. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clause 20

Payments to electricity suppliers

Question proposed, That the clause stand part of the Bill.

[Greg Hands]

Clause 20 seeks to ensure that electricity suppliers can be reimbursed in cases where the counterparty has overcharged suppliers or overpaid a licensee nuclear company. The clause is similar to the approach in section 17 of the Energy Act 2013. It is proposed that suppliers will be charged their share of a RAB payment based on their expected market share. Where their actual market share is less than expected, reconciliation processes will be carried out and the revenue collection counterparty will repay them the difference.

Likewise, when the relevant nuclear licensee company’s forecasted market revenue exceeds its allowed revenue over a given period, the counterparty could be required to repay any overpayments to suppliers. Again, that would replicate the approach used in contracts for difference. Subsections (1) and (2) allow regulations to be made requiring the counterparty to make payments to suppliers in such instances. Regulations made will be subject to the affirmative procedure, given the effect they will have on electricity suppliers and other relevant bodies.

[Dr Whitehead]

I do not oppose the clause, but I want to ask the Minister about what it actually says. At first sight, it appears to say—this was the shared understanding that we established—that there were circumstances where a revenue collection counterparty could pay collateral back to electricity suppliers. We are not clear over how long a period the collateral might be repaid, or at what point it might be considered that there was sufficient additional collateral in the funds of the counterparty to warrant a repayment.

The funds might be held for quite a long time while consideration is given to whether the nuclear company is likely to overperform on its revenue generating activities in the production phase so consistently that the money can be safely restored to the supply company. The counterparty might hold the money over a considerable period, thinking there would be variations or fluctuations in the revenue stream obtained by the nuclear power company, and that the money might therefore need to be called on, if it dipped below the range implied by the overall allowed costs arrangements. There is that question of the likely length of the period over which repayments take place.

However, the second question, which is also quite important, is what would happen to that money once the counterparty had restored it to the electricity supplier. There is nothing in this clause that says anything other than, “That money is restored to the electricity supplier, and the electricity supplier is very pleased about that and puts the money in its bank account.”

However, the electricity supplier has collected that money from the customers—albeit at the direction of the counterparty—in the form of an additional levy placed on their bills. If the electricity supply company is getting that money back again, then as night follows day, the company should give that money back to the customers and not just hold it in its bank account. There is nothing in this clause to ensure that that happens. I would be interested to hear whether the Minister thinks that such a requirement ought to be added to the regulatory procedure that will be undertaken. He may want to go away and think about whether he can at least indicate to the Committee that it will be assumed, and probably will happen, that as long as the surplus funds can be distributed back to suppliers by the counterparty, they should be given back to the customers.

Essentially, we have a couple of questions, but we do not oppose this clause standing part. I am sure that the Minister will be able to reassure us about his intentions with regard to making this clause operate as well as it can.

[Greg Hands]

I will try to deal with the two questions that the hon. Gentleman raised. First, he asked whether the funds can be held for a long time, and about the period over which they can be held. Obviously, the regulations will be laid before Parliament in due course, and will be subject to the affirmative procedure. However, I point him to how the contract for difference regime works under the 2013 Act. My belief is that in this case, the reconciliation takes place after a period of months—that is probably the best way to describe it. It depends on what the hon. Gentleman means by somebody holding on to funds, or indeed having a shortfall of funds, for “quite a long time”, but we always have to strike the balance between what is operationally straightforward and what prevents somebody from holding on to funds, or from having a shortfall of funds over a period of time. However, the workings of the contract for difference regime might give the hon. Gentleman the most likely pointers as to what the regulations may look like; they will obviously be subject to consultation in due course anyway.

The hon. Gentleman also asked what happens to the money, and whether the supplier is obliged to return the money to the customer. He raises a fair point. The difficulty is that there is no obligation on the supplier to take the money for the RAB from the customer in the first place. The assumption is that the supplier will bill the customer for the cost of the RAB, but there is not an obligation to do so, so I am not sure that creating an obligation in this legislation to send back money the other way would be appropriate. Again, I refer the hon. Gentleman to the workings of the contract for difference under the 2013 Act.

[Matthew Pennycook]

That raises an interesting, and quite concerning, point: what in the legislation prevents a supplier from overcharging its customers on the basis that it is levying the RAB? Is there a limit to which a supplier can levy the customer? On the basis of what the right hon. Gentleman has just said, the supplier could overcharge the customer, make the payment owed to the counterparty and find itself with additional funds raised from those customers.

[Greg Hands]

First, the whole process will be regulated by the authority—in this case Ofgem—which would have oversight. Secondly, that would also be a matter for the regulations that are to be published in due course. Thirdly, the frequent reconciliations would obviate risk of that happening in the way the hon. Gentleman describes.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Clause 21

Application of sums held by a revenue collection counterparty

[Dr Whitehead]

I beg to move amendment 17, in clause 21, page 17, line 34, leave out from ‘are’ to end of line and insert ‘not to be paid into the Consolidated Fund unless there is no other alternative.’

This amendment would require the Government to consider alternatives to the absorption into the consolidated fund of sums held by a revenue collection counterparty on behalf of energy bill payers.

Amendment 17 takes aim at a different part of the undergrowth we are dealing with in the often fairly complex arrangements related to the revenue collection counterparty and all that goes with it. In this instance, we have two subsections in italics because they include a Treasury implication. Clause 21(5) says:

“The provision that may be made by virtue of subsection (4) includes provisions that sums are to be paid, or not to be paid, into the Consolidated Fund.”

In that regard, subsection (4) states:

“Revenue regulations may make provision about the application of sums held by a revenue collection counterparty.”

Effectively, that subsection allows regulations to be made about the sums held by a revenue collection counterparty. We have already discussed how long they may be held for and the circumstances under which they may be paid back—[Interruption.] The Minister and his Whip are discussing when we will finish, I suspect. They must not worry; we will finish on time.

The clause adds a new dimension to the question of where the sums held by the revenue collection counterparty may go and, indeed, suggests where they might go, presumably, after the process outlined by the Minister. At a certain stage, the existence of surplus amounts held by the revenue collection counterparty is established and then there is an issue as to where that money goes. Clause 21(5) says that the money may be paid into the Consolidated Fund, which is the Treasury. It therefore gives rise to the idea that money could have been raised from customers and paid into the revenue collection counterparty by suppliers. Levies are raised on customers and possibly overpaid, as my hon. Friend the Member for Greenwich and Woolwich has just said. The money sits in the account of the revenue collection counterparty for a time and then, when the decision is made about what to do with the money, the Treasury nicks it. That is not right and it is not what should be done. As we have established, if there are surpluses in those funds, they should certainly be returned to the supplier and the supplier should make sure that they are returned to the customer.

As we have said on a number of occasions, the customer is at the heart of the process as they are funding it through their bills. They are not paying free money into the Treasury but paying into the process on a reasonable basis of allowed costs. If those allowed costs prove to be more than is required, the least they should reasonably expect is to get their money back.

There should be no talk of the Consolidated Fund in the Bill; I do not think it is right that it should be in the Bill. We have sought to suggest in the amendment that only if there are no other recourses for the payment of those funds should it even be considered that money go into the Consolidated Fund. I can conceivably imagine circumstances in which nothing else could be done with the money but put it into the Consolidated Fund, but it is a real squeeze for me to think that.

The Secretary of State must be able to think of better purposes for the money than for it to go in that direction. The amendment strengthens the Secretary of State’s ability to do that. I hope that the Secretary of State—the Minister; I am promoting him again—will be happy to accept it as a clear understanding of what we want to do with the money unless absolutely pressed to do otherwise.

15:45

[Matthew Pennycook]

I rise to speak briefly to amendment 17, because it relates to an important matter that builds on our earlier discussions. I listened to the Minister and heard what he said about the revenue collection contracts arrangement seeking to replicate the tried and tested CfD arrangement, as he put it. The thing that makes what we are talking about different is that there has never been a CfD arrangement of the size of the RAB nuclear model. The scale of the capital commitment involved in a nuclear project dwarfs anything that we have seen before. The changes in total nominal amounts that are likely to happen from year to year in the scale of that capital value could mean that we have large fluctuations in the amounts being collected by the counterparty.

The Minister has said that regulations will address that and are forthcoming via the affirmative procedure. He expects that the reconciliation process of attempting to ensure that the revenue stream matches the allowed expenditure will happen twice a year, but there is the possibility that very large sums will sit within the counterparty, even if just for months. The amendment tries to address the possibility of those funds, or a proportion of them, finding their way into the Consolidated Fund.

It surely has to be the case, and I assume that it is the Minister’s intention via regulations, that the reconciliation process should be as frequent as possible so that the revenue stream matches the allowed expenditure at any point in the construction. I foresee circumstances in the production phase, however—perhaps not in the construction phase, because it is unlikely that a future nuclear project will come in under budget given their history—in which a company’s revenue from power sales might exceed the allowed revenue. There is a chance that we could see large mismatches and, therefore, lots of funds being stored up in the counterparty.

The central thrust of what the Opposition are trying to do with the Bill is to protect consumers and ensure that they pay the lowest possible amount to get a project such as the one that we are talking about onstream. It is therefore really important that we ensure that the Treasury cannot in any circumstances, unless it has exhausted all other options, take part of the funds that may sit with the counterparty for relatively brief periods. The Treasury could decide to take sizeable amounts, and it is important that they flow back to suppliers and, ultimately, to customers. That is the thrust of the amendment.

[Greg Hands]

As the hon. Members for Southampton, Test and for Greenwich and Woolwich laid out, amendment 17 addresses the situation in which funds held by the counterparty may be paid into the Consolidated Fund, which of course is the Government’s general bank account at the Bank of England. Currently, the legislation allows the revenue regulations to provide for sums to be paid into the Consolidated Fund. The intention of the amendment is to narrow the scope of that so that the regulations can provide for sums to be paid into the Consolidated Fund only where there is no alternative.

I thank the hon. Members for the amendment, which they explained well. It certainly echoes my sentiment that consumer funds should not generally go into Government accounts. I reassure Members that we envisage the power to have limited but important uses. For example, it could be used to ensure that the counter- party repays a loan given by the Government—by the taxpayer—to respond to an emergency. That is not a hypothetical situation. We saw the importance of it quite recently in the course of covid, when the Government did indeed have to provide a loan to the counterparty for the contract for difference regime: to the Low Carbon Contracts Company.

The taxpayer should be able to be repaid that loan, but the amendment provides that sums cannot be paid into the Consolidated Fund where there is an alternative. I could see a number of people making an argument that different things that could be done with that money would provide alternatives to what is being envisaged: in this case, repaying the taxpayer. If passed, the amendment would unnecessarily narrow the scope of the power in a way that would limit its use. I hope that my explanation has shown Members the importance of the power, which is in my view unlikely to be used. However, I have given a real example from the last couple of years of where exactly such a situation arose.

[Alan Brown]

The Minister has given the example of an emergency loan, but surely the regulation is all about

“apportioning sums…received by a revenue collection counterparty from electricity suppliers under provision made by virtue of section 19”.

Clause 19 is about collecting money from electricity suppliers; ergo, the example of a loan does not equate to what this is about.

[Greg Hands]

I disagree with the hon. Gentleman. My understanding is that the loan would not be repayable if an alternative were there. The ambiguity of an alternative would unnecessarily narrow the scope of the power, though I appreciate where he is coming from.

[Alan Brown]

I ask the Minister to read clause 21(1)(a), which contains the reference I quoted to clause 19, which I do not think covers the emergency loan situation.

[Greg Hands]

We will just have to agree to disagree. I think the amendment unnecessarily narrows the scope of the power in a way that we would not wish to see in terms of protection of the taxpayer. I therefore ask the hon. Member for Southampton, Test to withdraw it.

[Dr Whitehead]

I thought that this was the most reasonable amendment by far that we have tabled. I am sorry that the Minister has responded in the way that he has. He made the point that some money that had come from the taxpayer might be sitting in the funds of the revenue collection counterparty, and should therefore be paid out of it. That would actually be covered by the amendment, which would insert:

“not to be paid into the Consolidated Fund unless there is no other alternative.”

If someone were trying to pay back a loan that they effectively got from the Consolidated Fund in the first place, there is no alternative other than to pay it back to the Consolidated Fund, so the amendment would cover that. We want circumstances in which the Treasury—I am sure that the Minister does not particularly want to be a high-ranking Treasury Minister in the future—

[Greg Hands]

Again!

[Dr Whitehead]

Again—indeed. I think the Minister will know from his previous experience that the Treasury is not above, shall we say, treating all Government money as essentially its own. In circumstances in which the Treasury thinks that it can get hold of certain amounts of money, it may well do so. Obviously, the purpose of Bills is not to be written to keep the Treasury’s hands off money that it really should not have, but it might not be such a bad idea at least to put that in regulation so that it would be fairly hard for that to happen. As the amendment is drafted, however, it is not a prohibition; it just says that there needs to be a pretty good argument—the argument made by the Minister about the loan, for example—for that money to be paid into the Consolidated Fund. That, really, is all the amendment says, and I think that is a wholly better construction than what is in the Bill.

[The Chair]

Dr Whitehead, are you pressing the amendment to a vote?

[Dr Whitehead]

Given the circumstances, I think I will.

Question put, That the amendment be made.

Division 5

Ayes: 6

---

Labour: 4
Scottish National Party: 2

Noes: 7

---

Conservative: 7

Clause 21 ordered to stand part of the Bill.

Clause 22

Enforcement

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 23 to 30 stand part.

[Dr Whitehead]

The Labour party accepts that the clauses cover important technical matters relating to how the rest of this part of the Bill holds together, and we therefore have no objection to their being taken together.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clauses 23 to 30 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Craig Whittaker.)

15:59

Adjourned till Thursday 25 November at half-past Eleven o’clock.

Judicial Review and Courts Bill (Eleventh sitting)

Committee stage
Tuesday 23rd November 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: Sir Mark Hendrick, † Andrew Rosindell

† Barker, Paula (Liverpool, Wavertree) (Lab)

† Cartlidge, James (Parliamentary Under-Secretary of State for Justice)

† Crawley, Angela (Lanark and Hamilton East) (SNP)

Cunningham, Alex (Stockton North) (Lab)

† Daby, Janet (Lewisham East) (Lab)

† Fletcher, Nick (Don Valley) (Con)

† Hayes, Sir John (South Holland and The Deepings) (Con)

† Higginbotham, Antony (Burnley) (Con)

† Hunt, Tom (Ipswich) (Con)

† Johnson, Dr Caroline (Sleaford and North Hykeham) (Con)

† Longhi, Marco (Dudley North) (Con)

† McLaughlin, Anne (Glasgow North East) (SNP)

† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)

† Marson, Julie (Hertford and Stortford) (Con)

† Moore, Damien (Southport) (Con)

† Slaughter, Andy (Hammersmith) (Lab)

† Twist, Liz (Blaydon) (Lab)

Huw Yardley, Seb Newman, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 23 November 2021

[Andrew Rosindell in the Chair]

Judicial Review and Courts Bill

Clause 47

Commencement and transitional provision

14:00

[The Chair]

We resume with clause 47 and amendment 30. I would like to be able to call Anne McLaughlin, but she is not here.

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

On a point of order, Mr Rosindell. On behalf of all colleagues, may I say how grateful we are that you allowed us to attend the funeral this morning, instead of sitting in Committee? I thought it was a profoundly moving occasion, and your words were very moving in particular. It showed Parliament at its best.

I just said to the Doorkeepers that I thought the moment when they walked behind the coffin was one of the most moving I have seen as an MP. I thought it appropriate to put on record my thanks for the adjournment this morning, and that we all dearly miss our great friend. It was a very fitting and beautiful service.

[The Chair]

I thank the Minister for his comments on a very sad day for us all.

[Sir John Hayes (South Holland and The Deepings) (Con)]

Further to that point of order, Mr Rosindell. I do not want to prolong our proceedings unduly, but I think it is important to amplify the Minister’s remarks. Without wishing to embarrass you, you were a very close friend of Sir David. We were all his friends, but you were particularly close to him. We are grateful for your being here this afternoon, and I think we would all agree that it was a fitting final farewell to a much-valued parliamentarian, a dear friend and, most importantly, a husband and father.

[Marco Longhi (Dudley North) (Con)]

Further to that point of order, Mr Rosindell. I echo the previous comments. As a member of the new intake, I had the good fortune of having an office on the same floor as Sir David Amess in 1 Parliament Street. As the lift doors open, his office door is immediately in front. It has been a terrible sadness, as you can well imagine, every time I have seen that door with a candle lit in front of it in recent days and weeks.

As a colleague and a fellow Catholic, I felt today’s mass and funeral celebrations were a very fitting goodbye to someone I did not really get to know that well but someone who, as an elder statesman who had been round the block a few times, if I can put it that way, made me feel very welcome. He made a point of coming to say, “Hello. Who are you? Where are you from?” in his indescribable, unique way.

[Tom Hunt (Ipswich) (Con)]

Further to that point of order, Mr Rosindell. Extending on that theme, I was also very honoured to be at Westminster Cathedral this morning. I know how close you were to the late Sir David, and I am lucky to class you as a close friend of mine.

Sir David was somebody who was very visible in the Chamber. I remember in my first few weeks after being elected that I wanted to figure out how to do the job effectively, and I went around to canvass some names of people I should talk to about how to do the job effectively as a constituency MP. Sir David’s name came up almost as many times, and perhaps more times, than yours, Mr Rosindell. He was incredibly characterful, and I will always remember the summer and Christmas Adjournment debates when he would fire off 30 or 40 points within two or three minutes, when I would have mentioned barely one or two. It is with some sadness, though, that I say that he was somebody whom I always assumed I would meet and get to know very well, but that I was not given that opportunity. Like my hon. Friend the Member for Dudley North, who is a fellow Catholic, I was very moved by the incredibly powerful mass. I was lucky enough to take communion today—I have had my first holy communion and Father Pat has been trying to get me to have a confirmation: he is keeping his eye on me. It was incredibly moving today, and it might have done the job. I think that I will do that.

[Andy Slaughter (Hammersmith) (Lab)]

Further to that point of order, Mr Rosindell. May I associate the Labour party with the remarks of the Minister and Conservative Members about Sir David? I commiserate with the Members of the 2019 intake—because of covid, they probably did not get a chance to know him. But they would have got to know him pretty quickly, with us all being back here. As somebody from a very different political tradition, I worked very closely with him for the last five years through his chairmanship of all-party parliamentary fire safety and rescue group, which was astonishing. We all know that all-party parliamentary groups have a multitude of successes and failures. That was an astonishingly powerful and well-organised body, particularly in the wake of Grenfell. It really was a pleasure not only to know him but to see how effective he was as an operator in Parliament. We will all miss him. I know that you will particularly, Mr Rosindell, as a friend. We will all miss him as a friend, a colleague and a wonderful parliamentarian.

[The Chair]

Thank you all very much for those words. I hope that we might send a copy of the report of these remarks to Lady Amess and the family, so that they are aware of some of the kind words that have been spoken this afternoon about Sir David, who, as many have commented, was a very dear friend to me and to many in this room. I am only sorry that some were not able to get to know him as well as I knew him, because he was somebody very special—a fantastic Member of Parliament, a fine constituency MP and a very dear friend to so many. I thank you all for your very kind words this afternoon.

Fortunately, Anne McLaughlin is now with us, so we can move to clause 47 and amendment 30.

[Anne McLaughlin (Glasgow North East) (SNP)]

I beg to move amendment 30, in clause 47, page 54, line 34,  at end insert—

“(7) Notwithstanding the provisions above, this Act shall not come into force until the Lord Chancellor has laid before Parliament a written statement confirming that no provision in this Act contravenes Article 6 or Article 13 of the European Convention on Human Rights.

(8) The statement under subsection (7) must be laid before Parliament within three months of this Act being passed.”

This amendment would prevent any Act resulting from this Bill from coming into force until the Lord Chancellor confirms, via a written statement to Parliament, that none of its provisions contravene ECHR Article 6 (right to fair trial) or ECHR Article 13 (right to effective remedy).

I thank everybody on the Committee for their forbearance during the last week, while I was struggling to move, and today, when I underestimated how long a usually seven-minute walk to get here would take me. Thankfully, I have an X-ray on Thursday, and I hope that something will come of that.

May I also associate myself and my hon. Friend the Member for Lanark and Hamilton East with the remarks on Sir David Amess? I did not know him; I knew exactly who he was, though. There was that smile that made him stand out—a really genuine smile that reached his eyes. I always noticed that. I did not know him personally, but listening to people speak about him, including many people in the SNP group, who knew him really well and are really hurting, makes me wish that I had. Maybe that can teach us something in this place: that there are people who we can identify with and befriend who have different views from our own. Thank you for allowing me to say that.

I sure that Conservative Members and Opposition Members will agree with the fundamental principles that we should all be afforded the right to a fair trial and effective remedy. There can be little dispute that those are the cornerstones of a justice system that respects the rule of law and principles of natural justice. Amendment 30 seeks confirmation from the Lord Chancellor that any provision in the Bill will be prevented from coming into force if it contravenes article 6 or article 13 of the European convention on human rights: the right to a fair trial and the right to an effective remedy.

We have already debated how provisions in the Bill, such as the presumption for using prospective-only quashing orders, could risk breaching article 6.1 of the European convention on human rights on the right to a fair trial, which requires an effective judicial remedy. The amendment would ensure the Government had the opportunity to make cast-iron guarantees that that will not happen. That would be expressed via a written statement from the Lord Chancellor, laid before Parliament within three months of the Bill being passed.

The Minister may wish to point out that article 13 does not apply to the Human Rights Act 1998, but it could be applicable in the European Court of Human Rights in Strasbourg and that is why we felt it appropriate to include it in the amendment. Strasbourg does not recognise the practice of failing to give human rights without an effective remedy. Rather than stripping away rights, the Government should consider in any proposed review of the Human Rights Act that the right to effective remedy be added. As the Minister has assured us that the Bill will furnish the courts with a broader set of tools, with no risk of restricting individual claimants’ rights, he will surely consider the amendment a gift from me to him to help clarify his position.

[James Cartlidge]

Thank you for your generosity in allowing us to pay our tribute, Mr Rosindell, following this morning’s very moving mass at Westminster Cathedral.

The amendment would prevent any measure in the Bill from coming into force until the Lord Chancellor has provided a written statement to say that no provision in the subsequent Act contravenes article 6 on the right to a fair hearing and article 13 on the right to effective remedy of the European convention on human rights. I assure hon. Members that none of the measures in the Bill contravenes either article 6 or article 13.

The hon. Member for Glasgow North East mentioned remedies. We have the new remedies relating to quashing orders, which are a key part of how the Bill improves judicial review. In clause 1, there are adequate safeguards to ensure that any individual exercise of the new remedial discretions provides an effective remedy in cases concerning violations of convention rights. That is because the measures do not limit the availability of any existing right for such a breach and their use remains open to the court’s discretion. Presumption in favour of any of the remedial discretions only operates in circumstances where its exercise would

“offer adequate redress in relation to the relevant defect”

and it may be rebutted where there is good reason to do so. Further, the court is required to consider the interests or expectations of persons who would benefit from quashing of the impugned Act, as well as considering other factors.

On clause 2, regarding Cart judicial review, our position is that article 6 does not require a further right of judicial review in relation to decisions concerning permission to appeal from the first-tier tribunal to the upper tribunal and therefore considers that the measure does not interfere with an individual’s right under article 6.

When the Bill was introduced, the Lord Chancellor at the time signed a statement under section 19(1)(a) of the Human Rights Act 1998 to confirm his view that the provisions in the Bill are compatible with the convention rights. When the Bill passes to the other place, a second statement will be made, as required under section 19, taking into account any amendments. Should any Government or non-Government amendments be made that we felt contravened those statements, we would inform Parliament. It would be a breach of the ministerial code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.

In addition, ahead of introducing the Bill, the Government carried out a full ECHR analysis and published a memo for the Joint Committee on Human Rights setting out that analysis on parliament.uk. The previous Lord Chancellor wrote to the Committee’s Chair when the Bill was introduced and we will engage with the Committee fully should it choose to publish a report on the Bill. In summary, the Bill currently does not contravene either article 6 or article 13, and appropriate measures are in place should that no longer be the case at any point during its passage. I therefore urge the hon. Lady to withdraw the amendment.

[Anne McLaughlin]

In the light of what the Minister has said about the potential breach of the ministerial code, and knowing how seriously almost everyone takes that, I hope that what he tells me is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

14:14

[Anne McLaughlin]

I beg to move amendment 31, in clause 47, page 54, line 34, at end insert—

“(7) Notwithstanding the provisions above, nothing in this Act relating to Scotland shall come into force without a consenting resolution being passed by the Scottish Parliament.”

This amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland for those provisions to come into force.

As I am sure the Minister is aware, under the Sewel convention the Scottish Parliament should have the final say over any attempt by the UK Parliament to legislate in devolved areas. In recognition of the separate and distinct nature of Scotland’s legal system, article 19 of the Treaty of Union protects the authority and privileges of Scotland’s Court of Session. This is a fundamental part of the UK constitution and this amendment would ensure that the UK Government respect the principles of the Sewel convention and the constitutional arrangements.

Without an amendment specifically guaranteeing the requirement of consent from the Scottish Parliament to any provisions in the Bill that relate to Scotland, we risk interference with Scottish legal processes. The Faculty of Advocates, which was represented at the evidence sessions of this Committee, has said that in Scotland

“judicial review does not suffer from a lack of clarity, and any attempt to codify it is likely to undermine the very flexibility that renders it effective.”

Furthermore, Liberty has also commented on the situation and has said that

“the Act of Union does not serve to enable the UK Government to reshape the jurisdiction of the Court of Session. These are not technical or procedural points. In any event, the administration of the courts and the justice system in Scotland clearly falls within devolved competence.”

I am certain the Minister and Members opposite will be aware that this amendment is not only a reminder that this convention exists, but that it too must be respected in statute.

[James Cartlidge]

The amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland. I am emboldened to say that the word “relate” is in bold in my text, as that word is very important. I have a number of constitutional concerns about the amendment.

To reassure the hon. Members for Glasgow North East and for Lanark and Hamilton East, the measures in this Bill relate wholly to reserved matters. Ministers and officials have been engaging with the devolved Administrations over the course of the Bill, and we will continue to do so when the provisions in the Bill come into force.

I believe we are in agreement that chapter 2, “Online procedure,” and chapter 3, “Employment tribunals and the Employment Appeal Tribunal,” of the Bill relate to matters outside the competence of the Scottish Parliament. Yet this amendment would still apply to the clauses in those chapters and require the consent of the Scottish Parliament before they could come into force.

The majority of the criminal procedure measures also relate only to England and Wales, although, as I have previously noted in Committee, we are aware that the Scottish Government’s position may be that the new automatic online procedure, introduced by clause 3, engages the legislative consent process. Furthermore, we believe that this is outside the competence of the Scottish Parliament, which, in the Government’s view, does not engage the legislative consent process.

With regard to removing Cart JR, I should make clear that the unified tribunal system is a reserved matter, where it relates to matters of reserved policy. Our measures on Cart will apply to the whole of the UK, but only in respect to the matters heard in that tribunal system that fall outside the competence of the Scottish Parliament. The provisions relating to remedies apply to England and Wales only.

If it came into force, the amendment would actually lead to decisions in reserved areas operating differently across the UK, thereby reducing the clarity the Bill currently provides. In line with the memorandum of understanding on devolution, we will continue to engage with the devolved Administration at a ministerial and official level to ensure that we have time to fully understand any implications for the Scottish court system.

On that basis, I cannot accept this amendment and I urge the hon. Lady to withdraw it.

[Anne McLaughlin]

I am not sure what I am supposed to say, but I do not wish to withdraw the amendment.

Question put, That the amendment be made.

Question negatived.

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

This is one of those long ones, Mr Rosindell. This clause sets out when the measures will come into force. While some measures will come into force two months from when the Act is passed, including the coroner’s provisions and two of the criminal provisions, in clauses 14 and 15 and schedule 1, the remainder of the Bill will come into force by regulation.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Clause 48

Short title

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

I just need to check I have enough water for this one. The clause is the short title of the Bill.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

[The Chair]

We now come to new clauses. I understand that the Opposition do not intend to press new clauses 1 and 2, which have already been debated, to a Division, so we will begin with new clause 3.

New Clause 3

Exclusion of review of the Investigatory Powers Tribunal

(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.

(2) Leave out subsection (8) and insert—

“(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.

(9) In particular—

(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and

(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.

(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—

(a) has a valid case before it;

(b) is or was properly constituted for the purpose of dealing with the case; and

(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.

(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.”

(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”—(Sir John Hayes.)

Brought up, and read the First time.

[Sir John Hayes]

I beg to move that the clause be read a Second time.

The new clause addresses the issue of the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000 and more especially circumventing the role of the Investigatory Powers Tribunal. It would restore Parliament’s choice in enacting section 67 of the Act so that the decisions of the Investigatory Powers Tribunal would not be subject to judicial review.

As Security Minister at the Home Office, I addressed these matters in an important piece of legislation that established the principle of a double lock in respect of the warranting of powers in the case of both suspected terrorists and serious and organised criminals. That is to say that tech companies are obliged to maintain a record of electronic communications that can be interrogated on application to the Home Secretary for a warrant. I introduced the double lock, so that as well as satisfying the Home Secretary of the validity of the case made by the police or the security services, a warrant must also pass the same test when put before a member of the Investigatory Powers Tribunal or a judge. That was a safeguard to ensure that those powers are used only when necessary and proportionate. It is that test of necessity and proportionality that lies at the heart of the exercise of powers in respect of security and related matters.

The problem—it is a challenge that we have considered on previous occasions in the scrutiny of the Bill: indeed, it has punctuated our consideration—is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in that context. The supremacy of Parliament is fundamental to protecting the interests of the people, and Parliament’s particular role in our constitutional settlement is not a matter—as was suggested by one of those who gave evidence to us—of mutuality.

Anybody who understands constitutional theory and practice will know of the work of A. V. Dicey. It is clear that parliamentary sovereignty, as Dicey argued, confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together, and therefore:

“The principle of Parliamentary sovereignty means neither more nor less than this”.

In Dicey’s words, Parliament has

“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”

Those are the words of A. V. Dicey in affirming the principle of sovereignty. He goes on to say that parliamentary sovereignty must be thus described:

“Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies existing law, will be obeyed by the courts…Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation.”

Legally, sovereign power is assuredly maintained by Parliament. It is quite wrong for the courts to be used as a way to perpetuate debate. We heard that from the Minister in particular respect of the way that judicial review has metamorphosised over time to perpetuate debate in particular cases that have been settled previously. The Minister described it as having several bites of the cherry. That is not the role of judicial process, and the Bill goes a considerable way to addressing that, but it does not go far enough.

The purpose of the new clause is to probe and press the Minister—I will not put it more strongly than that—to go further in affirming the sovereign role of Parliament described by A. V. Dicey. The power of Parliament has been drawn into question, particularly in respect of the Investigatory Powers Tribunal, as I said. The Supreme Court, in a perverse judgment, effectively set aside Parliament’s lawmaking choice in May 2019 in the landmark judgment of Privacy International v. Investigatory Powers Tribunal. Hon. Members will remember that the case was raised in the first oral evidence session by Professor Ekins, and addressed by him in his paper for Policy Exchange. I once again thank Policy Exchange for publishing that paper, which has added to our understanding of and insight into these matters.

In essence, the new clause, tabled in my name and that of my hon. Friend the Member for Ipswich, and supported by other Committee members—I say that with some timidity and hesitation, because I cannot presuppose that support until I have persuaded them by the power of my oratory; none the less, I am confident that it has some sympathy of other Committee members—is an opportunity for the Government to do what the Attorney General recommended in her recent speech in Cambridge, in which she identified the problem I describe of the courts taking a more incursive role into the business of high politics than is their proper place to do. The new clause, in respect of the Regulation of Investigatory Powers Act 2000, attempts to do just that.

The new clause would reverse the Supreme Court’s judgment and reinstate the law that Parliament clearly made. Before the Privacy International case, the courts had taken section 67 of the 2000 Act to be a clear, unambiguous ouster clause that excludes the jurisdiction of the courts in relation to the Investigatory Powers Tribunal. For 19 years, there has been no possibility of judicial review. In recent court judgments, including others such as the Adams case and the Miller case, we have seen the creeping role of the courts into those areas, with judicial review being used as the mechanism to allow that mission creep. It is important that the Government recognise that—from what the Minister has said, I think they do—and take effective action to address it.

14:30

I suppose what I am saying is that the Bill could have been a bigger piece of legislation. As you will know from your long experience in the House, Mr Rosindell, new clauses are sometimes a way of encouraging the Government during the further consideration of a Bill to listen to the arguments that have been made during scrutiny and to allow it to do more than was originally intended. The alternative would be to bring in another Bill, but it is always difficult to secure time in the legislative programme. The likelihood of another Bill in the same subject area is small, so this may be our chance. It is a rare and special chance for the Minister to become something of a star, if I might put it that way, in the battle to affirm the constitutional place and historic role of Parliament in relation to the courts.

The then Lord Chancellor, my right hon. and learned Friend the Member for South Swindon (Robert Buckland), made a powerful critique of the Privacy International judgment and of the 2015 Evans judgment, which concerned the disclosure of the Prince of Wales’s letters, which was a similar case of the courts taking unusual—I would say exceptional—power with an undesirable outcome. In the Evans case, a Supreme Court majority effectively overturned part of the Freedom of Information Act 2000.

The constitutional problems with the Supreme Court’s reasoning in that case are set out in a previous Policy Exchange paper written by Professor Ekins and Professor Forsyth of the University of Cambridge. Their argument was strongly endorsed by Lord Hoffmann and Lord Brown, two of the country’s most senior judges, and by Lord Faulkes, who chaired the independent review of administrative law last year.

Speaking about that case, the then Lord Chancellor said:

“when enacting the provisions at issue in Privacy International and Evans Parliament did not believe that it was infringing the rule of law (and indeed the judges in the minority in both cases agreed). It was also perfectly clear, as the minority recognised, what Parliament actually intended. Provided Parliament’s assessment was not wholly unreasonable, it does not appear to me to be right to frustrate that intention”.

That is a powerful critique. Even if Parliament had been wrong to enact section 67(8) of the Regulation of Investigatory Powers Act 2000, it was a decision for Parliament to make.

A fundamental issue is at stake here. We are answerable to the people and our legitimacy is derived from the people. Although it is important that an independent judiciary plays its part in our constitutional settlement, it is not a matter of reciprocity or mutuality; it is not about alternative sources of power. This place is the source of legitimate democratic power because we, as I say, draw that authority from the people. We speak for the people and are answerable to the people. That is the point. It is not right for that mission creep to allow others to exercise power, who are not directly accountable in the way that I have described.

The new clause focuses on the important Privacy International case, but it also speaks to those other wider and deeper matters. By accepting the new clause, as I am confident the Minister will with good grace and alacrity when he rises to speak, the Government will be doing a great service not only in their own interests, because the new clause is entirely in keeping with the essence of the legislation’s intention, but in recognising that the Bill provides a special, unusual, perhaps even a unique opportunity to right these wrongs.

Without wishing to delay the Committee further, I say to my colleagues on the Conservative Benches and, by the way, to those across the House, that the Bill has been debated in good spirit, and with appropriate care. I paid tribute in an earlier session to the hon. Member for Hammersmith, but I do not want to do so again, else we will start getting the reputation of being too friendly with each other. I do not want to give the impression that I am in the thrall of the hon. Gentleman. The Bill has been debated in the right spirit and in a sensible and positive way. To Opposition Members, I say that it is important for all Members of the House to recognise the authority of this place, as I have described, for that is our mission and purpose. I am disturbed by the increasing judicial activism that has led through series of cases—I could talk about the Miller case, and I referred briefly to the Adams case—which is changing the balance of our constitution from this place to elsewhere.

In summary, I was proud to take security legislation through the House that gave the Security Service and the police the powers that they need to protect us from those who seek to do us harm. We have put into place safeguards and protections in earlier security legislation and in the legislation that I took through myself. We are clear that there have to be those safeguards, and of course it is right that all the agencies on which we confer extensive powers are themselves accountable. But it is not right for the courts to frustrate the will of this House.

To that end, I am pleased and proud to propose the new clause in my name. Of course, needless to say, at this stage I will not say that I am going to push it to a vote; that would be quite wrong, because it would suggest that the Minister could just say anything. I do not want to let the Minister off the hook. He knows that I am a supportive and friendly member of the Committee; but none the less, I am expecting him to at very least say that he is minded to consider these matters, or the full power of the Back-Bench Members of the Committee could be felt and heard, to the distress of my great friend who sits on the Front Bench next to the Minister, namely my hon. Friend the Member for North Cornwall. As I said to him last week, were that to happen, he would have a grey mark against him, next to my black one.

I say to the Minister, persuade me otherwise, or agree at least to consider the matters addressed by the new clause because it is very much inspired by the message that he has broadcast to the Committee: the Government want to get things right in respect of the power of courts alongside the power of Parliament.

[Andy Slaughter]

The right hon. Member for South Holland and The Deepings takes us back into the important constitutional territory with which he started his consideration of the Bill. He also, knowingly or not, revealed something about his taste in curry. For those who are looking slightly amiss about that, I refer to the opening paragraph of the article concerning the Bill that appeared in The Mail on Sunday, which said:

“The Justice Secretary, Dominic Raab, regards himself as a spicy ‘Vindaloo’ politician compared to the bland ‘korma’ represented by his predecessor, Robert Buckland, sources in his new ministry have told the Mail on Sunday.

The bizarre comparison was made in the context of the Judicial Review Bill, inherited by Mr Raab from Mr Buckland, which aims to clip the wings of the Judiciary over the extent to which they can rule on political decisions, such as Boris Johnson’s suspension of Parliament during Brexit negotiations in 2019.”

I will not go on, partly because the article contains some unparliamentary language, and in fairness to the Justice Secretary it ends with the immortal line:

“A source close to Mr Raab denied that he had ever compared himself to a vindaloo curry.”

The right hon. Member for South Holland and The Deepings puts himself more in the vindaloo than the korma camp with his comments, but I note that the new clauses that he has tabled are a subset of those in the Policy Exchange document, to which he referred, by Professor Ekins, who was one of the witnesses who gave evidence to the Committee. That document was a very powerful concoction indeed, because it contained 20 suggested new clauses or amendments, which were whittled down to seven on the amendment paper. After excluding those that were not in scope, we are down to two.

None the less, the import of what the right hon. Gentleman intends is still there, so I will respond to new clause 3 and, in due course, to new clause 5, and say to the Minister that it would be wrong to accept the new clauses, partly because of what they say and partly because of the way they are being introduced at this stage; they should really have come through the usual processes. That is to say nothing about the right of the right hon. Gentleman to table them now to raise the issue. Nevertheless, the provisions are being put to the Committee at a very late stage. The way in which they were tabled leaves no time for substantial parliamentary engagement or the required serious consideration of their merits.

Of course, Parliament is supreme, and there may be a case for looking at the propriety of certain Supreme Court decisions or changing the way that judicial review works, but this is not the proper way to enact measures of such constitutional significance. The bottom line is that if Parliament wishes to modify or overturn legal decisions as significant as those highlighted here, it should do so through a proper and full debate, with a full consultation beforehand, so that it can benefit from a wide range of expert views. Parliamentarians should be empowered to make proper, informed decisions. These rushed provisions undermine the parliamentary process and threaten ill-considered constitutional reforms, with unknown consequences.

[Sir John Hayes]

On the timing, the hon. Gentleman makes a fair point. He will know how the House works; he has been in it a long time. Clearly there will be opportunities for further consideration of the matters that I have raised, both on Report and during the Bill’s passage in the other place, so we are at the beginning of a very long journey.

As I said, I have not decided whether to press the new clauses to a vote, but I am putting down a marker. The hon. Gentleman will have seen that happen many times; indeed, he has done the same during scrutiny of the Bill, and I hope that some of his arguments will be heard. On the character of the marker, the new clause respects new clause 2 in terms of exceptional cases where the tribunal has acted in a perverse way, so it allows legal consideration of any exceptional, ambiguous or improper decision by the tribunal.

[Andy Slaughter]

I am grateful to the right hon. Gentleman, who made several points there. I am coming on to deal with each of them. I suspect that his new clauses and comments are directed as much—if not more—to his own Front Benchers as to me in putting that marker down, but the Government must have taken some care with the long title of the Bill, which is tightly drawn.

Obviously, I do not question the wisdom of the Clerks, but the two new clauses we are debating this afternoon have squeaked through because the long title clearly identifies what is in clauses 1 and 2. With all respect to the other place, and there are more stages still to go, it is not just the deliberation in both Houses that is important when discussing constitutional matters.

14:45

We heard from some, but only some, of the experts in the field. I concede there was a significant consultation process; perhaps the Government did not get the responses they wanted the first time, so they went back and had another go. Nevertheless, they have had at least two bites of the cherry in the consultation.

[James Cartlidge]

Ah! That’ll do.

[Andy Slaughter]

That is enough, apparently—according to the Minister.

Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.

The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.

The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.

The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.

The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

The hon. Gentleman is talking about constitutional balance, as did my right hon. Friend the Member for South Holland and The Deepings. The important question is: who is ultimately in charge of making the laws of the country? Parliament has the right, given by the electorate, to decide the law. The principle of the judgment said that should be limited by the judiciary in some cases, which throws up an important constitutional question that we need to look at.

[Andy Slaughter]

Absolutely. Parliament is supreme and can will what it likes. That is very clear. Where the balance lies is what is in dispute here. The question is the appropriate role of the judiciary, which is exactly how the doctrine of judicial review has developed.

[Dr Johnson]

With respect, that point is not in debate. What Lord Carnwath said is:

“In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.”

What I understand is being said—the hon. Gentleman can correct me if I am wrong—is that in some cases the legislature does not have the right to pass particular laws.

[Andy Slaughter]

No, and even the vindaloo version—the full Ekins version—does not attack the doctrine of judicial review. It is saying that the courts sometimes resolve matters procedurally and sometimes, in relation to specific judgments, the court has got it wrong and it is Parliament’s job to overrule, which Parliament is entitled to do. At the end of this legislative process, Parliament will have made those decisions. What we are debating now is what is or is not appropriate. Specifically, we are debating two discrete issues. The first is the decision in the Privacy International case against the Investigatory Powers Tribunal and whether an ouster should be imposed, and the second is about rather more widespread issues to do with disclosure and witness evidence. I am perfectly open to arguing those issues, but the point is that we happen to disagree: these measures are wrong, and that is what we are going to debate this afternoon.

Let me talk more specifically about new clause 3. The new clause would effectively overturn the decision in the Privacy International case by excluding judicial review of the Investigatory Powers Tribunal subject to a number of limited exceptions that broadly, although not exactly, mirror those in clause 2. That means that judicial review would be excluded except where the High Court must consider whether the tribunal had a valid case before it; was properly constituted to hear the case; or acted in bad faith, with actual bias, corruption or some other fundamental procedural defect.

As I have said, this would insert a second ouster clause in the Bill and would be a concerning addition to the restriction of Cart judicial reviews. The new clause includes similar exceptions—bad faith, fundamental procedural defect and so forth—to the ouster in Cart, but crucially they are even narrower than those in clause 2, in that the exception of where the court has acted

“in fundamental breach of the principles of natural justice”

has been removed. The more restrictive exception of where the court acts in a way

“that constitutes a fundamental procedural defect”

has been added. The trend suggested is extremely concerning and risks having a serious impact on the ability of individuals to retain redress, not to be subject to unlawful exercise of power, and to hold the Executive to account.

The first thing to note is that there is immediate uncertainty around those exceptions and how they might operate. There is already a problem with the Cart ouster in the main section of the Bill, and I have spoken at length about that in previous sittings. That uncertainty would only be multiplied by this new clause.

Judicial review is an essential constitutional remedy, and attempts to introduce and proliferate ouster clauses, as this new clause seeks to do, risk undermining the UK’s constitutional framework and the protection against abuses of Executive power. Judicial review is generally available only where there is no other recourse to an alternative remedy. The effect of ouster clauses is therefore often to shut down all routes to challenge a decision, even if the decision has been based on a misinterpretation of the law.

Furthermore, judicial review is an integral part of the UK constitution based on parliamentary sovereignty, ensuring that there is a means to address injustices and abuses of power. It exists separately and in addition to the Executive’s political accountability to Parliament. Ouster clauses risk undermining the effectiveness of judicial review as a means of legal scrutiny of the Executive. No matter how unpopular the cause or the claimant, the rule of law still applies and the Executive should not be able to go beyond their legal limits without the potential for accountability in the courts. In fact, it is precisely for such claimants that judicial review is so crucial.

[Sir John Hayes]

I rise to correct the hon. Gentleman but not in an antagonistic way. He will understand that this new clause—and, indeed, the Bill—do not supersede section 67A of the Regulation of Investigatory Powers Act 2000, which does indeed say that the tribunal can be challenged on a point of law. Contrary to his argument, there remains in existing legislation an additional safeguard if the tribunal acts in a way that is contrary to proper legal practice, and a point of law is the ground for an appeal.

[Andy Slaughter]

I am grateful for that intervention. I will come in a few moments to the powers of the Investigatory Powers Tribunal, so let us see whether that satisfies the right hon. Gentleman.

In relation to the ouster in clause 2, I spoke about judicial review’s role in ensuring good and lawful administration, but as that issue has arisen again I wish to emphasise the point in this new context. Judicial review is an incentive to maintain high standards in public administration by public bodies, because the possibility of judicial review motivates decision makers to ensure that their decisions are lawful. Ouster clauses such as this one remove such motivation and, coupled with the removal of the means through with such decisions could be challenged, risk a decrease in the quality of Executive decision making.

Decisions and guidance from the courts can also help to improve policy development and decision making in Government. Judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making, and decision making in Government. Indeed, judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making and then also gives guidance on improving the processes in the future and encouraging good governance.

The same applies to the Investigatory Powers Tribunal. The decisions of the Investigatory Powers Tribunal relate to potentially very significant Executive powers in the area of surveillance and privacy rights. In this context especially, the risk of a breach of the fundamental rights of individuals is high. It is therefore crucial that Parliament has sufficient time to carefully consider the consequences of restricting judicial review in this context, and this last-minute amendment does not afford that.

Fundamentally—regardless of what anyone thinks about the merits of the Privacy International case—this is not the way to go about amending it, or even thinking about amending it. Parliamentarians will be asked to vote on what is in effect a very significant legal change, without any real appreciation of the possible effects and consequences and, as above, without the benefit of expert input through consultation and parliamentary examination. A provision such as this should be the headline measure in any Bill; it should be considered and debated seriously and properly; and anyone voting on it should have a full understanding of the issues. It should not be introduced as a last-minute addendum to an otherwise unrelated set of measures concerning judicial review remedies. This new clause as drafted will generate serious uncertainty.

There is also a substantive argument here. In the Privacy International case, the Supreme Court essentially held that it is very difficult for the Government to completely close off judicial review—in this case, concerning decisions of the IPT. The Government should be very careful about reversing that decision: the immediate consequence would be to close off judicial review. If it is thought that the Privacy International decision should be revisited in the future, it should be ensured that parliamentarians are fully aware of any consequences of doing that, and perhaps some middle-ground solution that preserves access to justice could be tried.

The amendment takes a sledgehammer to what should be a carefully crafted and sensitively considered issue. That, in my submission, is not the appropriate way to do good law making.

[Tom Hunt]

I will keep my remarks fairly brief; I see myself very much as a secondary signatory to these amendments from my right hon. Friend the Member for South Holland and The Deepings: my much wiser, senior colleague. However, at one point last week I did think that I would be spearheading these particular amendments myself. Fate has meant that I have assumed a less significant role today.

Most of the comments that I would like to make are in relation to new clause 5, so I will hold off from making those comments now. All I will say is this. I take the point that new clause 3 is significant and Parliament needs more time to look at it. That was not the case when the change occurred after the Privacy International case. Actually, something very significant happened there. There was a major change in relation to the powers tribunal, its role and the role of judicial review in reviewing its decisions, and Parliament had no say at all in supervising that or debating it. I would be grateful if the hon. Member for Hammersmith let me know whether he agrees with my view on that. If he is concerned that Parliament might not have more time to debate the significant change suggested now, surely he would consider it inappropriate for Parliament not to have had a role back when the role of judicial review in relation to that tribunal changed so significantly.

I think that there are two debates here. If we are asking our intelligence services to carry out incredibly unique and peculiar work and we have to have a tribunal that is very specialist in reviewing and taking into account work that they do, there is one debate there, but there is a second debate. Even if someone does not agree with that and they think that there should be a right of review, surely it is only right and proper that Parliament should be in a place to debate and decide on that. It should not just happen; the court should not just decide for itself that this is the right thing to do.

As I said, I am keeping my comments brief. I will return on new clause 5, on which I have more points to make.

15:00

[Anne McLaughlin]

I will be brief. Basically, I agree with the hon. Member for Hammersmith and share the concerns about this being the second ouster clause in the Bill. I feel it is a bit early to use the legal framework to oust Cart already.

I hope the Government will wait for the Bill to be enacted before trying that. I agree that the new clause is not the way to go about amending this. Such a provision should be a headline measure in a Bill; I think the right hon. Member for South Holland and The Deepings—that is a lovely constituency name—said himself that this would ordinarily be in a new Bill. I understand the argument that there is not an awful lot of time for new legislation, but I think this measure needs to be debated seriously and properly. Parliament needs a full understanding of the issues, following a full consultation.

I would argue an awful lot harder and longer than that, first, if I thought the Government were about to support the new clause, and secondly, if I thought anybody would listen. [Interruption.] I do not mean if they would listen to me; I mean if I thought we would ever win a vote in this place. The Government should be very careful in reversing that decision and should think about the consequences of it. I agree with everything that the hon. Member for Hammersmith has said.

[Sir John Hayes]

I am grateful to the hon. Lady for being so kind to me and my constituency, and my constituents by extension. It is clear that the Attorney General supports the new clause because she drew particular attention to the character of the Privacy International case in her recent speech on these matters. Inasmuch as she is the most senior Law Officer of the Government, whatever the Minister might say today—I appreciate that he may want to hold fire, to some degree—it is clear that the Attorney General understands and supports my argument.

[Anne McLaughlin]

I am not sure whether the right hon. Gentleman’s intervention was aimed at me or the Minister. If he was aiming it at me, all I will say is that it would not be the first, second, third, fourth or fifth way in which I disagreed with the Attorney General in her reckoning. I will sit down and allow others to speak.

[James Cartlidge]

This has been a good debate on the new clause, which is interesting in many ways from a constitutional point of view, both theoretically and practically. My hon. Friend the Member for Ipswich does not have a secondary role. I am his constituency neighbour. He has a fantastic role that he is fulfilling as a brilliant constituency MP. It was a great honour to campaign with him in the general election, and I see a return on that investment, as he is a vocal spokesman for people of all political shades in the fine county town of Suffolk.

The hon. Member for Glasgow North East may have, shall we say, come here through the use of a crutch, but she should not downplay the role that her speeches could play. Of course we listen. We listen to all sides. Indeed, I have listened intently to the debate on the new clause. I will say one thing to the hon. Member for Hammersmith: although I completely understand where he was coming from, and his points made political sense, he appeared at one point to suggest that it almost was not necessarily relevant to debate the new clause. The new clause is about judicial review, and we know the first two words of the Bill’s title. In fact, we just agreed to the clause on the short title, which includes the phrase “judicial review”; I think my speech on that was the shortest I have ever made, by the way.

My right hon. Friend the Member for South Holland and The Deepings made some important contributions, which I am grateful for. I hope he received the letter we sent him, which I believe has been circulated to other Committee members, containing the response on the important matter of the most vulnerable children—those in care. I hope that reassures him on the safeguards. Secondly, on the make-up of the coronial stakeholder group in administrative justice, which introduces a broad umbrella because of the nature of the engagement, I hope that the letter has persuaded my right hon. Friend. I am therefore tempted to eke out the general thread of my argument and hope to encourage him that I am someone who is generally able to persuade people of things. The sword of Damocles that he holds over this speech with the threat to vote can be dealt with.

I should pay tribute to my right hon. Friend for his former role as Security Minister, which he referred to. He was involved in important proceedings when our country, as was proudly illustrated this morning, faced great threats, not least terrorist threats. He was also a Transport Minister, and I met him to discuss roads in my constituency. The essence of his argument was that the Bill does not go far enough, so he wants to debate important probing amendments. I will come back to that wider point.

On the specifics, as has been explained, new clause 3 would amend section 67 of the Regulation of Investigatory Powers Act 2000 by replacing the wording in subsection (8) and adding three additional subsections. Subsection (8) was originally drafted as an ouster clause—we have already debated ouster clauses in relation to clause 2— to ensure that certain decisions of the Investigatory Powers Tribunal would not be subject to judicial review by the High Court. A right of appeal on a point of law was later introduced by the Investigatory Powers Act 2016 and is set out in what is now section 67A.

The tribunal was intended to be the highest authority concerning matters such as the conduct of intelligence services. However, a 2019 judgment of the UK Supreme Court rendered the ouster clause of limited effect in what we have all referred to today as the Privacy International case. The Supreme Court found that while subsection (8) was effective at excluding judicial review of IPT decisions on their merits or jurisdictional decisions involving issues of fact, it did not have the effect of wholly ousting the High Court’s supervisory jurisdiction.

The new clause would amend the ouster clause in section 67 by clarifying and adding to the text in that section so as to meet the objection of the Supreme Court in Privacy International. That is an interesting idea, and I am sure my right hon. Friend is aware that the Government’s consultation, published in March, expressed concern around the uncertainty that exists as to whether, or in what circumstances, ouster clauses will be upheld by the courts. We therefore consulted on options to try to add some clarity with a broad framework for the interpretation of ouster clauses, but, having reflected on the many useful responses we received, we concluded that although our intention was to add clarity, the effect may in fact be to muddy the waters yet further.

As an alternative approach, we are pursuing the ouster clause in clause 2, which is designed to overturn Cart, seeks to learn the lessons from unsuccessful ouster clauses of the past, and is drafted in a clear and explicit way. We have been open in saying that if that approach is successful, we may consider whether it can be used as a model for ousters in other areas, where it is appropriate to do so. At least conceptually, I see the link between ousting the High Court from reviewing permission to appeal decisions of the upper tribunal and ousting the High Court from reviewing decisions of the Investigatory Powers Tribunal. They are both essentially concerned with which court ultimately should have the final say on an issue.

[Sir John Hayes]

I am going to give the Committee the benefit of my further wisdom in a few moments, but on that particular issue, the point about the Investigatory Powers Tribunal is that it is a specialist court, and the intention of the House in establishing that court—the Minister made reference to the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016; the 2016 Act was the one that I took through the House, as he knows—was to indicate that had Parliament decided that the tribunal’s important work, which essentially gives authority as well as supervision to the security services, should not be questioned in an ordinary court. The Supreme Court countered Parliament’s will in that respect. That is why this is so significant. It draws into question whether the Supreme Court might do the same in respect of other primary legislation that has ouster clauses in it, which is why it is important to act now in this Bill.

[James Cartlidge]

I pay tribute to my right hon. Friend’s legislative prowess in taking that Bill through the House at the time. It is precisely because of his point that in paragraph 55 of our consultation response document, published in July, the example we give of a case where we may look at using a Cart-like model of ouster clause in future is exactly this one—the Investigatory Powers Tribunal. We have made clear that we are looking at that. The Government are not closed-minded to the possibility of going further on judicial review. In a recent interview with The Sunday Telegraph, the Deputy Prime Minister spoke of the importance of restoring power to Parliament, while recognising the need for reform of judicial review to be an iterative process. I am sure he will have heard today’s debate and the many forceful points made, but the Government will keep an open mind on whether that tribunal might be a candidate for an ouster clause in future.

Our focus in the Bill is to tackle the two particular issues identified by the independent review of administrative law: the efficiency of Cart JRs and the lack of remedial flexibility in judicial review. I know my right hon. Friend the Member for South Holland and The Deepings is sympathetic on this point. There is a good reason for prioritising Cart—we have a judicial backlog, and the resource implication of it is immediate and credible. [Interruption.] My right hon. Friend says from a sedentary position that he understands. It will be important to ensure that before an ouster clause is proposed in any particular context, careful thought is given to what will be achieved by doing so and to considerations germane to that context. One size does not necessarily fit all, but we are open minded.

A key point I wanted to communicate is that my right hon. Friend invited me to become a star. His invitation to stellarhood is one I cannot begin to match, but I will at least attempt to do so by offering him an invitation to attend the Ministry of Justice to discuss with officials present some of these ideas in depth—especially given his expertise from his time as a Minister, talking in that neat language of Ministers and officials who know their Bill—and to talk through some of the technicalities. We do see the merit in what he says; it is more a question of timing.

In summary, my right hon. Friend says we do not go far enough; I would say that we go this far at this time. I hope that reassures my right hon. Friend and other colleagues that this is an issue to which the Government are already alive and to which I am sure future consideration will be given. But for now, for the specific purpose of the Bill, I respectfully request that he withdraw his new clause.

[Sir John Hayes]

When I said the Minister could become a star, I should have said a brighter star, because he has already shone in his response, particularly his generous invitation to meet with and discuss these matters with his officials in his Department. I take his point, of course, about the characteristics of the Bill, the need to address Cart in particular, and its relationship to the backlog in the courts. However, the Bill is about principle as well as practice. There is a practical reason for introducing the Bill, but a principle underpins it, which he has articulated a number of times during our deliberations: it is not right that the court system should be gamed to frustrate the will of the House.

My hon. Friend the Member for Don Valley spoke about his constituents wanting to see the will of the House as a manifestation of their will being delivered. The disturbing rise in judicial activism and judge-made law raises fundamental questions of parliamentary sovereignty. Mr Rosindell, whether you are or are not convinced of that I do not know, as you are the impartial Chair in our affairs, but the witnesses who gave evidence to the Committee are certainly convinced. Professor Ekins said that the Privacy International case did constitute a “very serious attack” on some fundamental questions of the constitution. He stated:

“The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute”.

In oral evidence, Sir Stephen Laws said:

“If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 9-15.]

That is pretty damning criticism of the Privacy International judgment and other recent cases.

15:14

There is an argument that at that time there was a particular group of Supreme Court judges—I am hesitating so as to choose the right words—who took eccentric decisions, and that things have now returned to normal, but that is not good enough. As the Attorney General said in her recent speech,

“the mould has been broken.”

Precedent was set, and that is the problem with ouster clauses. As the hon. Member for Hammersmith will know, other Acts of Parliament, including the Intelligence Services Act 1994, Security Service Act 1989 and the Police Act 1997, contain ouster clauses that could be challenged on the basis of the Privacy International case.

[Tom Hunt]

Does my right hon. Friend agree that the key issue in relation to new clause 3 is the Investigatory Powers Tribunal, the complexity of the things it will deal with, and the complexity of the roles of the organisation and people it is overseeing? That complex debate should be dealt with only by Parliament. We are best placed to have that debate and to come to the right conclusion. Decisions about whether judicial review will apply to that or not should be for this place, not for the judiciary.

[Sir John Hayes]

I agree. Indeed, when I proposed the Investigatory Powers Act 2016, to which the hon. Member for Hammersmith referred and which built on the Regulation of Investigatory Powers Act 2000, which Privacy International specifically dealt with, there was a genuine spirit of co-operation across the House. I worked closely with my then shadow, who went on to become Leader of the Opposition. I often say to him these days, “You learned your trade under me.” In fact, I think he said that to me. In any case, we worked closely on those matters and it was detailed scrutiny, as my hon. Friend has just described, that led to that Bill becoming an Act.

Indeed, we undertook extensive pre-legislative scrutiny, and one of the people I appointed to that task is now Attorney General. The scrutiny, under Lord Murphy, looked at the Bill in some detail, as the hon. Member for Hammersmith suggested, and there were long debates in the House and in the other place before it became law. As I emphasised earlier, we were determined that there should be proper safeguards.

The essence of this, Mr Rosindell, is that in these difficult, delicate and challenging matters of security, Parliament has to legislate—I would not say regularly, but as often as necessary—to allow our security services and the forces of law to stay ahead of those who wish to do us harm. The problem is that the capabilities of malevolent elements are dynamic, so the legal powers of those with the mission to keep us safe must match that dynamism. That is always challenging to Parliament, because there is a balance to be struck between the maintenance of law and the protection of liberty. That debate is the context for many of these considerations. It is not the place of the courts of make up the law as they go along, but that is exactly what has occurred.

I referred to the Attorney General earlier. She could not have put that case more plainly in the speech she made a few weeks ago at Cambridge University:

“The Supreme Court’s judgment in the case of Privacy International was also profoundly troubling for a number of reasons. A decision by Parliament to limit the judicial review jurisdiction of the Courts should only be taken after the most serious consideration by the legislature. And there may well be circumstances where Parliament does consider that to be appropriate. In such circumstances, the Court should be very slow to deprive legislation of its proper meaning”.

That is essentially what the Court did in the case of Privacy International. It deprived legislation of its proper meaning. The most generous way to describe it is that the Court interpreted the decision made by Parliament in what I regard as a perverse way, and, in the words of the Attorney General, a “profoundly troubling” way.

The new clause, which the Minister will know is in scope—it is not for me to gauge that; our expert Clerks judged it, so there is no doubt about whether it is appropriate to add it to the Bill—would address that concern about creeping judge-made law in what is, as my hon. Friend the Member for Ipswich said, a very sensitive area. I am grateful to the Minister, who made a generous offer and rightly drew attention to his helpful letter on issues raised by me and other hon. Members in our earlier consideration. I am particularly grateful to him for fully taking into account the case that I made on behalf of disadvantaged court users; his letter is most welcome in that respect. With the offer that he made of further discussion, the open-mindedness that he has shown and his clear understanding of why the new clause was tabled, I will—hesitatingly and to some degree reluctantly—beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Evidence in judicial review proceedings

“(1) Unless there are compelling reasons to the contrary, no court shall—

(a) permit oral evidence to be elicited in judicial review proceedings; or

(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings,

(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—

(a) the proceedings concern a matter that is non-justiciable, or

(b) that an enactment excludes or limits judicial review,

(3) In subsection (2), “evidential duty” means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.

(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”—(Sir John Hayes.)

Brought up, and read the First time.

[Sir John Hayes]

I beg to move, That the clause be read a Second time.

This new clause deals with evidence. Again, it has been deemed by the Clerks to be in scope and it would therefore be an appropriate addition to the Bill. It is very much in the spirit of my previous remarks.

It is important to understand that the new clause has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence and a resolution disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because it is a supervisory jurisdiction that should focus on questions of law rather than questions of fact. That was its well-understood basis for a considerable period of time.

As well as the changing character of the courts’ role in relation to the legislature, there has also been a change in the application of judicial review in respect of evidence. The courts ought to be focusing on the legality of decisions taken and whether it stands up to appropriate levels of scrutiny. That is the business of a judicial review. Allowing disclosure and cross-examination could lead to litigation becoming an exercise whereby new material is introduced on a fishing expedition. Rather than testing the proper exercise of powers, as judicial review is supposed to do, it could lead to the whole character of a case being revisited and perhaps the introduction of new evidence that was not pertinent to the original decision or even known to the original decision makers. That is not its role, and the Bill is a perfect opportunity to address that distortion of its original character and purpose.

As the Minister has told us a number of times, the Bill aims to tighten the judicial review process and essentially re-establish its pertinence, salience and purpose. The new clause would do exactly that. The change in practice has arisen partly because of overarching legislation such as the Human Rights Act 1998. There is a case for the wholehearted reform of the Human Rights Act, or its abolition altogether. However, this is not the place to have that debate—although, I understand that the Lord Chancellor has spoken on those matters and is considering addressing them in the House in due course. The point to be made here and now is that the Act has spilled over into judicial review decisions. It is clear that in recent years judicial review using the Act has become an opportunity to have a much wider debate and discussion than this legal mechanism originally intended—the original purpose was to check the correctness of decision making.

Subsection (2) of new clause 5 addresses the problem that arises when judicial proceedings are used to force public bodies to disclose information even in contexts where the public body argues that the law forbids judicial review. If a matter is non-justiciable, or if legislation ousts judicial review, the public body will not be compelled to disclose evidence simply because litigation is threatened or initiated. The clause will require courts to decide whether the matter is justiciable or whether legislation permits judicial review before the public body will have any duty to disclose information relevant to litigation.

New clause 5 would not allow any litigation that should not. Those are cases in which the matter is justiciable and no ouster clause forbids judicial review. It would require courts to make decisions in the right order, avoiding the risk that was apparent in the Supreme Court’s Prorogation judgment: that the courts are led astray by the evidence before them rather than focusing squarely on the question of law that they should decide. The Miller judgment was exceptional and, in my judgment, perverse. It is fundamental to our constitution that the appointment of Ministers, the Dissolution of Parliament and, by extension, Prorogation are matters for the Executive and not the courts.

One might argue that when the Supreme Court was established—it was a sorry day, Mr Rosindell, but you will not allow me to debate that at great length here, and nor will I—this was almost bound to happen: that the very existence of the Supreme Court would encourage those who sit on it to extend their powers into matters of what the Attorney General called “high politics”. That apart, the Prorogation judgment was a naked example of the courts making a constitutional decision in a way that is appropriate only for this elected House, our Parliament—both because we are answerable to the people and because, as I said earlier, our legitimacy derives from the people. This is about proper process, but it touches on the broader issue of the respective roles of the judiciary, the Executive and the legislature—the separation of powers to which I referred in an earlier sitting.

The Minister will again, I hope, recognise that the new clause is very much in the spirit that he set out when he made it clear that the Government want judicial review to be what it was always intended to be and has been for most of its life, rather than something very different, which is what it has become. With that in mind, I hope that he will give the new clause, which is significant but not in any way out of keeping with the Bill’s intent, a fair wind. Rather than, as last time, offering me a meeting—although I was very grateful for that meeting—I hope that this time he will say that the Government accept it, and will at a later stage introduce a Government amendment.

15:29

I do not necessarily expect the Minister to accept the new clause as drafted; he will want his draftsmen to take a close look at it, and often parliamentary draftsmen are able to a better job than I ever could, even with the assistance of my cerebral hon. Friend the Member for Ipswich. The Minister may want to look at the detail of this, but I hope that he will at the very least give it wholehearted consideration, perhaps with a view to the Government coming back with their own thoughts on how we might look at the issue of evidence, and how it is properly used in judicial review.

[Andy Slaughter]

I give full credit to the right hon. Gentleman, who has taken the new clause, important and substantial though it is, and turned it almost into a Queen’s Speech. We will have a second judicial review Bill, a repeal of the Human Rights Act 1998, and then a repeal of the Constitutional Reform Act 2005. The Minister will be a very busy man in the new year.

[Sir John Hayes]

It is only a matter of time, Andy.

[Andy Slaughter]

We will see. Unfashionably, I will confine my comments to new clause 5, which restricts disclosure by public bodies and the use of oral evidence in judicial review proceedings to circumstances where there are “compelling reasons”. In addition, under subsection (2), if a public body argues, or indicates its intention to argue, in relation to or in anticipation of any judicial review proceedings, that the proceedings concern a matter that is non-justiciable or that review is excluded by an enactment, the public body will not be subject to any evidential duty at all until a court regards the matter to be reviewable.

Subsection (1) relates to disclosure orders, which are already limited by the courts. Additional legislative provision is unnecessary and may reduce clarity and cause unnecessary litigation. Oral evidence is rarely used in judicial review proceedings. However, the courts retain a discretion to permit oral evidence where it is considered necessary to do so. Judges use that discretion appropriately and frequently deny requests to adduce oral evidence unless it would, in fact, be necessary for the case at hand. Applications for oral evidence can be made by claimants and defendants in judicial review claims, and there is no indication that the impact on public authorities has been thought through. The system works well, generally respecting the unique nature of judicial review while allowing parties—both claimants and public bodies—to adduce oral evidence in rare cases where it is necessary to do so. There is no indication that there is a problem with the system that the proposals seek to address.

The new clause goes beyond oral evidence and imposes a bar on judges ordering disclosure of evidence. There is no formal disclosure duty on parties in judicial review proceedings, unless the court orders otherwise. Such orders are already rare and there are many examples of courts refusing applications for disclosure on the basis that they are not necessary. Indeed, the court will not countenance fishing expeditions, where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of finding something to use to fashion a possible challenge. Where the disclosure power is used by courts, however rarely, it is vital: a judge will only ever order disclosure where it is necessary for the fair resolution of the case.

It is unclear what adding a requirement of “compelling reasons” for ordering disclosures of evidence would do to the existing position. The current test, as set out by Lord Bingham in Tweed v. Parades Commission for Northern Ireland, is:

“whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.”

On one reading, that would be just an alternative translation of the existing position: a “compelling reason” for adducing oral evidence would be that it is “necessary” to do so. If that is the case, the proposed additional clause is a clear waste of time. However, if it is intended to be a stricter test to raise the threshold for which evidence is admissible, that is problematic in that it would operate to preclude disclosure of evidence required to resolve the case fairly and justly. That would clearly be to the detriment of the parties and the wider public, and therefore should be resisted.

It is also important to note that disclosure of evidence benefits not only the claimant but often the public body, by allowing the defendant public body to show that the decision taken was lawful. Defendant public bodies may also make applications for disclosure and/or oral evidence. Subsection (1) would reduce the ability for claimants to obtain disclosure, which is crucial for claimants to be able to bring a case as well as for defendants to be able to defend it.

[Sir John Hayes]

I understand that the hon. Gentleman is setting out what the new clause does, but he will understand that at its heart is the determination that judicial review should look at the specifics of an individual case, rather than a systemic consideration of the whole administrative system. In recent times, because of the courts’ willingness to draw on all kinds of evidence, they have tended to broaden the scope of their work in a systemic fashion. What does he think about that and what should we do about it?

[Andy Slaughter]

With respect to the right hon. Gentleman, I do not agree that that is what is happening. Even if he had a point there, I am trying to make the point, by looking at the changes that his new clause would make, that there are already safeguards in the system to prevent that and that the rules are tightly drawn in relation to evidence and disclosure. The courts do have discretion, but they use that appropriately and reservedly.

Any limitation of the disclosure of evidence, as well as oral evidence, beyond the current test risks undermining the effectiveness of judicial review proceedings for all parties. The current form of judicial review, which has limited disclosure requirements on the parties, works only because the parties are subject to duties of candour. In many respects, the disclosure obligations, where parties must submit all relevant evidence and information relating to the case to the court, ensure that the duty of candour is complied with. In the vast majority of cases, both parties comply fully with the duty of candour, but on the rare occasions when they do not, the judge’s disclosure powers can be used to ensure proper compliance.

In cases where the duty of candour would be limited by the proposals in subsection (2), which I will come to, the basis for limited disclosure requirements falls away. The combination of subsections (1) and (2) may mean that a claimant in a case is faced with the inability to obtain any disclosure at any point from a public body.

In effect, weakening those disclosure powers weakens the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies feel that they do not need to comply with the duty, it will severely weaken the position of claimants, contribute to an inequality of arms in judicial review proceedings and risk completely barring, in practice, the ability for the claimant to bring a judicial review. For all sorts of reasons, including funding, the tight restrictions on bringing claims and the difficulties of bringing claims, there are already substantial problems for any claimant in beginning judicial review proceedings.

Subsection (2) would enable a public authority to effectively disapply the evidential duties, including the duty of candour, by indicating its intention to argue that the matter is not justiciable. That would make many cases completely un-triable. As I have said, the current form of judicial review, with limited fact-finding and disclosure requirements, works only because the parties are subject to a duty of candour. The duty requires a “cards on the table” approach and, as has been noted,

“the vast majority of the cards will start in the authority’s hands”.

For claimants to have the ability to get over the starting line and bring judicial review proceedings, the defendant body must be subject to the duty of candour. The duty ensures that all relevant information and material facts are before the court, and that any information or material facts that either support or undermine their case are disclosed.

As the “Administrative Court Judicial Review Guide” recognises, compliance with the duty of candour is “very important”. It helps to resolve matters efficiently and effectively. By requiring both parties to undertake full disclosure of relevant information early on in proceedings, it allows for a proper assessment of the merits of the case. That can help public bodies show claimants early on evidence that the decision was taken lawfully, which can lead to an early settlement, withdrawal of the challenge or at least the narrowing of the issues in dispute. That avoids substantial unnecessary costs and use of court time.

New clause 5 should have no place in the Bill. Subsection (2) would enable public authorities to disapply the duty of candour where they indicate their intention to argue that the matter is not justiciable. When this is combined with increased difficulty with accessing evidence through disclosure orders, set out by subsection (1), claimants will be denied access to evidence required to advance their case, making many cases unworkable. I therefore hope that the Minister will also resist the new clause.

[Tom Hunt]

It is a pleasure to grace this Committee again through a contribution, and to support my right hon. Friend the Member for South Holland and The Deepings on new clause 5. It is obviously not related to new clause 3. We did attempt to table other new clauses, but we were unsuccessful because they were deemed to be out of scope, but many of those new clauses were, in fact, not dissimilar to or disconnected from new clauses 3 and 5.

In terms of whether different Lord Chancellors are mild korma or vindaloo, I am usually a korma man, but when it comes to review, I am perhaps more vindaloo, because I think that we do need some significant changes in this area.

I very much welcome the Bill, which, with or without these new clauses, is a significant step in the right direction. I have been pleased to sit through all our sittings in support of the Bill, and I think that the Minister has led proceedings very effectively. It has been quite interesting, because although I do not profess to be a lawyer—I am not a trained lawyer or professional—I am an elected Member of Parliament who cares about my constituents and my constituency, but also about this country and the relationship between the Executive, the legislature and the courts, which is vitally important. I make no apology for commenting on these matters and getting involved, because I think it is very important that elected Members of Parliament do so.

We are very lucky to have our judiciary, and the rule of law in this country is respected all over, but some of these figures can be remarkably prickly—and I have noticed that many seem invariably to have the EU flag on their Twitter profiles. I think there is almost a view that elected Members of Parliament are knuckle-draggers who are not entitled to have a view on a lot of these issues. Well, I disagree. I think that when it comes to matters such as sentencing and the operation of the courts, we as elected Members of Parliament, regardless of our specific views, should absolutely be confident to air them and should not be intellectually intimidated by certain individuals.

I sympathise with the broader view about judges assessing law and procedure, rather than getting sucked into contested facts, and about how evidence sessions can sometimes draw them away from their core function and into dangerous waters. There are many cases. The Adams case is connected to new clause 6 so we will not discuss that, but there is an obvious connection between it, the Miller case and the Privacy International case, which we discussed earlier, and that is the creeping role of the courts beyond their brief and scope, and I think that that has damaging consequences. In the Adams case, in terms of the debate on whether it is enough for a Minister or a Secretary of State to make a decision, I really struggle to agree that it is for judges to decide what is appropriate against established Acts of Parliament. That does not make any sense to me. I think that clarity in this area—and Parliament, through legislation, clarifying the relationship between the Executive, the legislature and the courts—is vitally important.

15:45

I go back to this point. I do not see anything that I or my right hon. Friend the Member for South Holland and The Deepings have said as being anti the judiciary or the rule of law. We appreciate that they are vitally important and how skilled and learned those individuals are. But I think we were all quite disturbed by some of the Brexit debates. We had the Miller cases in relation to triggering article 50 and Prorogation, and that Daily Mail front page with members of the Supreme Court under the headline, “Enemies of the People”. I think that many of us were disturbed by that, and that is what we want to avoid going forward. We do not want that to be the case again. The danger is that unless there is great clarity about what is and is not appropriate for the courts to get involved in, that could happen again, and we do not want that. This is not about us pointing at the judiciary and the courts and blaming them for any of this. We need to be conscious that we need a clear framework that gets that balance right.

I will leave my comments there. It has been a great pleasure to be part of this Bill Committee, which is now coming to a close, and to support this Bill and my right hon. Friend the Member for South Holland and The Deepings.

[Anne McLaughlin]

Encouraged by the Minister, I have decided that I will say a few words, even if none of them are original. Most of what I have to say is in agreement with the hon. Member for Hammersmith, but it is good to put the opposition of the SNP on the record.

What would this new clause do? Unless there are compelling reasons to the contrary, this new clause would prohibit the use of oral evidence in judicial review and would also prevent courts from ordering any public body to disclose evidence in anticipation or during the course of judicial review proceedings. As we have heard, oral evidence is already rarely used in judicial review proceedings, but the courts retain a discretion to permit oral evidence where it is considered essential to the case. My understanding is that judges use that discretion appropriately, and frequently deny requests to cite oral evidence unless, as I have said, it is considered essential to the case. I am not aware of any indication that the system has the problem that the proposals seek to address.

I wonder what adding a requirement for compelling reasons would do to the existing position. It could be that that is just an alternative translation of the existing position. One compelling reason for adducing oral evidence would be that it is necessary to do so. If that is the case, the new clause is not needed. If the proposed compelling reasons requirement is seen to raise the threshold for which oral evidence is admissible, I think we should all find that problematic. Judges are already only allowing such evidence when it is considered necessary to do so. The clear result of the proposed change would be that oral evidence that is necessary for the fair resolution of the case would not be admitted. That surely cannot be acceptable to the Minister.

New clause 5 would also bar judges from ordering disclosure of evidence. Again, such disclosure is used only when absolutely essential. Judges order disclosure only when that disclosure is vital to resolve the case fairly. In many respects, the disclosure obligations act as a way of ensuring that the duty of candour is complied with where parties must submit to the court all relevant evidence and information relating to the case. In the vast majority of cases, both parties will comply, but where they do not the judge can ensure compliance by using disclosure powers. Weakening those disclosure powers would, in effect, weaken the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies and Governments believe that they do not need to comply with that duty, the position of claimants would be severely weakened in judicial review proceedings. We should increase access to justice, not make it increasingly pointless.

[James Cartlidge]

It is a pleasure to follow the hon. Lady, who made some perfectly reasonable points. It is disappointing that she did not rise to the bait by entering into the curry-labelling discussion instigated by the hon. Member for Hammersmith. I am not sure that my hon. Friend the Member for Ipswich is a vindaloo—I think he is a phaal. Anyone who googles that will find that it is the hottest curry there is. Maybe my right hon. Friend the Member for South Holland and The Deepings is a phaal as well. It is inevitable, then, that they all think the Bill does not go phaal enough. As a great fan of curry, I generally go for the specials on the à la Cart menu. [Laughter.] That was not a reference to clause 2, by the way.

In new clause 5, my right hon. Friend is probing in his uniquely penetrating way of gaining the Committee’s attention and focusing on some important points. I will try to set out why, although there is merit in what he says, it is not right for this precise moment—perhaps with further work, not least as there may be other potential routes to achieving his end.

The new clause would amend the Bill to include some specific rules relating to disclosure and the duty of candour in judicial review cases. The clause would do three things. First, it would remove the ability of the court to permit oral evidence to be given unless there are compelling reasons to the contrary. Secondly, it would remove the ability of the court to order a public authority to disclose evidence at all, either in anticipation of proceedings or during proceedings, unless there are compelling reasons to the contrary. Thirdly, in cases where a public authority is arguing that the subject matter is non-justiciable altogether or judicial review jurisdiction has been ousted, it would remove any evidential requirement on the public authority until the court has ruled on the subject of justiciability or jurisdiction.

The duty of candour is a common law concept that obliges parties in judicial review proceedings to disclose information relevant to the case. The independent review of administrative law examined that duty when it conducted a call for evidence last year. Legal practitioners and other stakeholders identified issues relating to a lack of clarity surrounding the exact extent and precise nature of the obligations arising from the duty. The independent review concluded that the duty of candour may have previously been interpreted in a way that causes a disproportionate burden on public authorities, and that there would be benefit in clarifying the parameters of the duty. The Government would like to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would have otherwise been kept confidential.

I reassure my right hon. Friend and my hon. Friend the Member for Ipswich that this remains very much a live issue for the Government. The difference here, I suspect, is not a question of objective, but of how best to achieve it. The independent review recommended that the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is, of course, a matter for the Treasury Solicitor, the advantage to using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation.

As I have already indicated, the Government remain open-minded about the possibility of going further on judicial review reform in time. Although my instinct continues to be that any issues with the operation of the duty of candour are better addressed through other means, and not through primary legislation, I will reflect on the arguments that my right hon. Friend has made for a legislative response. We have already discussed the point of the meeting. I am quite clear that that could be wide-ranging and could include this discussion, too. They all fit within the same theme, which he has painted with a broad brush today. I am quite happy to look at it in those terms, but also in more specific terms, particularly with the benefit of officials and so on.

In the light of the complexity of the issues at stake, and the importance of getting the legislation right, I cannot accept my right hon. Friend’s new clause. I hope that, with my reassurance that that the Government will continue to actively consider the matter, he will agree to withdraw it.

[Sir John Hayes]

I am grateful to the Minister for again offering further discussion on these subjects. I am also pleased that he is considering other means to achieve the objectives that I set out. He is right that the independent review addressed these matters and, by the way, did so on the basis that I described: that by taking wide evidence judicial review was rehearsing decisions rather than checking on the exercise of them. Judicial review is about ensuring that, in the exercise of decision making, all has been done properly. It is not about reheating wide-ranging contextual arguments.

The problem with collecting oral evidence in a permissive way is that it is bound to lead to just that. That was identified by Professor Ekins and others, in the evidence that they gave us and beyond. The Minister is right to consider through guidance how that could be altered. Statutory guidance would be a very effective way of doing it, providing that his officials and others are confident that it is sufficient. There is always a balance to be struck between primary legislation and guidance, and we need to be clear that it will be sufficient in this case.

We talked a little about how jurisprudence has moved on, and in particular the Miller case. In the end, the decision of the Supreme Court in that case meant that it, in the words of the Attorney General,

“stepped into matters of high policy in which the UK courts have historically held themselves to have no constitutional role.”

That is a direct quote from the Government’s most senior Law Officer. In the two new clauses, and in those that were not selected because they were deemed not to be in scope, and which I will therefore not discuss, I have tried to make the case that the Bill is very welcome, but it is a korma rather than a vindaloo. It is certainly not a madras. It can be more varied and hotter, to develop the metaphor. I can match the Minister blow for blow in terms of my grasp of Indian cuisine.

[James Cartlidge]

On a point of information, my right hon. Friend must be aware that a madras is technically milder than a vindaloo, but a vindaloo is certainly milder than a phaal.

[Sir John Hayes]

That is true, but I see the Minister as something between the two. He is more of a jalfrezi—spicy, lively and deeply satisfying, in terms of his response to my new clauses at least.

It is worth drawing attention to the remarks of Lord Sumption, who of course commented on exactly these matters in his Reith lecture. Jonathan Sumption is the judge who, perhaps more than any other, has set out the proper functions of the courts in relation to Parliament. In his Reith lecture, he said:

“It is the proper function of the courts to stop Government exceeding or abusing their legal powers.”

That is exactly the role of judicial review, by the way. He continued:

“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens.”

He went on to say in that lecture that it was about developing the right kind of political culture. It is appropriate that the political culture that underpins our deliberations in this place is a means by which views can be mitigated and ameliorated, where necessary, in a way that courts cannot do because of their character and function. I remain of Jonathan Sumption’s view that much needs to be done to put right what the courts have got wrong in recent years, and I stand alongside the Attorney General in her determination to do that.

16:00

Although I understand that the Bill is not sufficiently wide-ranging to do all that I want it to do, there is scope for the Government to do more in respect of the new clause and new clause 3. I am grateful that the Minister has implicitly acknowledged that by welcoming further discussion.

On the new clause that stands in my name and that of my hon. Friend the Member for Ipswich—I will just say, as the Minister did, that my hon. Friend is an outstanding Member of Parliament and the people of Ipswich should be proud to have him—I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 10

Publicly funded legal representation for bereaved people at inquests

‘(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(2) In subsection (1), after “(4)” insert “or (7).”

(3) After subsection (6), insert—

“(7) This subsection is satisfied where—

(a) The services consist of advocacy at an inquest where the individual is an Interested Person pursuant to section 47(2)(a), (b), or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and

(b) One or more public authorities are Interested Persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.

(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.”’—(Andy Slaughter.)

This new clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

Division 19

Ayes: 4

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Labour: 4

Noes: 10

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Conservative: 10

[Andy Slaughter]

On a point of order, Mr Rosindell. Before we conclude our proceedings on the Bill, I wonder whether it might be appropriate to offer my thanks, on behalf of me and my colleagues, to everyone who has contributed to making this, certainly compared with other Bills that I have done in the past, a smooth-running and not unenjoyable process, if I may put it that way. I will not take up a lot of time, but I would particularly like to thank you, Mr Rosindell, and Sir Mark for the efficient and not indulgent, but certainly sympathetic, way in which you have chaired these proceedings. I know that that has been difficult, particularly today, because we had Sir David Amess’s memorial service this morning. We all respect the fact that you and Sir Mark have chaired the Committee with your usual great skill and attentiveness.

I thank the Clerks, who have given us extraordinary assistance on technical matters relating to the Bill, for the way in which they have helped us, and helped me, with my rustiness, to get through the first Bill that I have done in this capacity for a number of years. I also thank everyone else who makes this a smooth-running process. That includes the Doorkeepers, Hansard and everyone else on whom we rely to ensure that these things go as smoothly and efficiently as possible.

May I say thank you to a few other people? I thank the Minister and his colleagues for the way in which they have approached the Bill. There are some fundamental differences between us. We voted against the Bill’s Second Reading and, sadly, we have not managed to carry many votes here to improve the Bill. There are a number of improvements and amendments within the changes to the courts procedure that we would fully support, but there is, at the heart of the Bill, something that we find worrying, which is a further attempt by the Executive to encroach on the discretion of the judiciary, which is one of the great sacred parts of our constitution, so I am glad that at least we have resisted today any further attempts to do that.

Notwithstanding that, this Committee has undertaken a good-natured, but at the same time thorough, investigation of the provisions. I thank all my colleagues for their assistance and prompting—even when I go on for a long time—but I would particularly like to thank my hon. Friend the Member for Stockton North, who, seeing me just beginning my role and being thrown in at the deep end with the Bill, stepped up, notwithstanding having just been a shadow Minister on the Police, Crime, Sentencing and Courts Bill, to carry the burden of dealing with the substantial bulk of the provisions here. Sadly, he is not with us today because he has tested positive for covid. Therefore, I have been told to go off and get a PCR test as well; we probably all have as a consequence of that. I gather that my hon. Friend is tired but otherwise in good spirits. He is an extremely kind and courteous gentleman at all times, and I am sure that we all wish him a speedy recovery.

We have come almost to time on the Bill. We thought that we might go short; we have taken our time, but we have not taken more time. All I will say in conclusion is that there has been a culinary theme to the Bill. We had cherries on the first day, and ended with curries on the last, but I hope that, in looking at the transcripts, those who scrutinise us will not think we have made too much of a meal of it.

[James Cartlidge]

Further to that point of order, Mr Rosindell. May I echo the remarks made by the hon. Member for Hammersmith, particularly in thanking you and Sir Mark for your dual chairmanship, which has operated effectively and efficiently, together with your officials and the Clerks? May I particularly thank the Doorkeepers? As I said earlier—I really meant it—what we saw from them today, walking behind Sir David’s coffin, was incredibly moving.

I thank all members of the Committee, on both sides. No one goes into proceedings expecting that we will all agree on all points, but that does not matter; conduct is different from that. I think we have seen effective debate, proceeding at reasonable speed most of the time, but with that combination of depth and rigour that is important in a Bill Committee. That is the point: we are going through a Bill line by line. I am grateful to SNP and Labour colleagues. I particularly thank those on my side of the Committee. We heard many excellent speeches and contributions, but they also knew when to keep their own counsel, so that we could keep the ship of the Bill sailing in the right direction.

This is an important Bill. The context is difficult. The post-pandemic situation is challenging, with a significant backlog of cases, and we are doing everything we can to deal with that. The Bill contains some significant measures on that front. It also contains the important reform of judicial review—more for another time.

It remains only for me to thank everybody for their participation. I am grateful that we have managed to move to this stage, and that we now move onwards and upwards.

[Sir John Hayes]

Further to that point of order, Mr Rosindell. On behalf of the Back-Bench Members on this side of the Committee—and I hope others too—I thank the Minister and the shadow Minister. I served as a shadow Minister and a Minister for 19 years and I know how hard it is, particularly from the other side of the Committee, to maintain the progress of debate and to retain the calibre and character of scrutiny.

I thank the Minister for the way he has gone about his business, and the shadow team for the way they have gone about theirs. I wish the hon. Member for Stockton North well, as he has now fallen ill. I also thank you, Mr Rosindell, and your fellow Chairman, and all others who have made the Bill proceedings possible.

[Anne McLaughlin]

Further to that point of order, Mr Rosindell. I want to reiterate what everybody else has said and thank everybody involved. I wish the hon. Member for Stockton North well and I hope that he recovers by a week today, St Andrew’s day, because he will be wanting to celebrate.

I thank my hon. Friend the Member for Lanark and Hamilton East—I have finally got the constituency name. That is not as great a constituency name as South Holland and The Deepings, however. I am going to visit, and I will let the right hon. Gentleman know when I do.

This has been a really interesting Bill Committee. I used to resist going on Bill Committees, but I came from the Nationality and Borders Bill Committee straight to this one, and they are the best bit of the job, because they are probably the only time we really get an in-depth understanding of what we are doing. A lot of the time, we have to skim through things because there is so much to consider. I look forward to the next Bill Committee.

I thank the Clerks and everyone involved, including the Doorkeepers. For those who are not speaking and are not involved in the debates, it must be really boring having to sit there and listen to it all. There are no nods of agreement there, but I can pick the answer up telepathically. If I have missed anyone in my thanks, I am sorry—oh, the Chairs. Thank you very much; thank you again for your forbearance, Mr Rosindell, when I was injured. I am still injured, but am recovering.

[James Cartlidge]

Further to that point of order, Mr Rosindell. I did not mention the hon. Member for Stockton North; I hope he recovers. I also wish to thank my officials, who have been excellent—very high quality—for my first Bill Committee. I hope we keep up the good work as we move forward. I am grateful to everyone who has helped us to reach this point.

[The Chair]

I add my thanks to the Committee for its deliberations over the past few weeks; to my colleague, Sir Mark, for co-chairing the Committee with me; and to Clerks, officials, Doorkeepers and all concerned in ensuring the passage of the Bill through Committee.

Bill, as amended, to be reported.

16:13

Committee rose.

Written evidence reported to the House

JRCB16 Professor Jason Varuhas (supplementary)

JRCB17 Northern Ireland Human Rights Commission

Westminster Hall

Tuesday 23rd November 2021 Westminster Hall

Tuesday 23 November 2021

[Mr Laurence Robertson in the Chair]

Black Friday: Financial Products

Tuesday 23rd November 2021 Westminster Hall

14:30

[Mr Laurence Robertson (in the Chair)]

Before we begin, I remind Members that they are expected to wear face coverings when not speaking, in line with current Government guidance and that of the House of Commons Commission. Members are asked by the House to have a covid lateral flow test twice a week if coming on to the parliamentary estate, either at home or at the testing centre in the House. Will Members please also give each other and members of staff sufficient space when seated and when entering and leaving the room? I would also like to remind the Committee that today there was a mass for Sir David Amess, who was a distinguished member of the Panel of Chairs; he is much missed. I call Stella Creasy.

14:31

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I beg to move,

That this House has considered promotion and regulation of financial products on Black Friday.

It is a pleasure to serve under your chairmanship today, Mr Robertson. May I associate myself with your comments? I had the honour and pleasure of taking part in debates chaired by Sir David. He was always a fair and very fun Chair to have around; we shall miss him terribly.

I want to be clear from the start that I do not think that anybody in this room is green—green in the sense of being the Grinch. This is not a debate about whether people should be able to spend money, which is a personal decision. As we come up to Christmas, it is important to recognise that for many families this year will be an extra special one, given what we have been through over the past two years. I recognise that it is very easy, when we talk about consumer credit, to sound like the Grinch, as though we are saying it is all so complicated and difficult and that nobody should spend any money. Let me be clear that it is not my intention to come without good Christmas cheer.

Indeed, I note that many retailers are taking advantage to promote the idea that this is the year that one should really indulge and go all out. Tesco tells us, “Don’t stop me now,” when it comes to shopping. Argos tells us, “Baubles to last year,” and Debenham’s says, “Christmas like never before.” Aldi tells us not to be a Scrooge—at least, I think that is what they are telling us with the Christmas carrot. Sports Direct is more direct than ever, telling consumers to “Go all out!”

My point is more simple. We want families to be able to celebrate with their families and not be worried. One thing we know that causes the most worry to families is money. We are a nation that has not done as well in the G7 as some others, but we are second highest among the G7 countries for household debt. That is one competition we do not want to win as a nation—but we do. We have always been more comfortable with borrowing and credit than other nations.

My point in calling the debate on Black Friday and the run-up to Christmas is to recognise that this is a time when for many families getting into debt seems the right thing to do, because it is about being able to treat loved ones. When we have had so little time with our loved ones and been so apart—I hope we can be together this year—being able to do that feels even more important. As a result, the risks that families face are even higher.

I recognise that the Minister cares passionately about the subject and has done a lot of work on it. My call is about how we will help those families have a good Christmas, so that the new year is not a time of further worry and distress caused by debt. The honest truth is that as much as people talk about the pandemic as a time when some families have paid down debt and saved money, since they have not been able to go on expensive foreign holidays, for many others it has been a time of further financial distress. I used the word “further” critically, because we are a nation that has a problem with household debt, and has had that for some time prior to the pandemic.

Prior to the pandemic, Experian found that 40% of people would not be able to pay their mortgage or rent if it increased by £50 or more a month. Just an extra £50 and they were sunk. A total of 10% of this nation was constantly overdrawn, and that figure has remained pretty stable for many years. As many as 2.8 million people have persistent credit card debt, which means that they are paying more in interest fees and charges than in paying off the debt.

For some people in this nation, saving is a habit, while for others it will always be an ambition. Some 34% of adults have never had any savings or have savings of less than £1,000. There were many people in this country who were struggling financially before the pandemic. What the pandemic has done for that group of people—people for whom a foreign holiday was never a possibility —is throw into sharp relief just how difficult their finances were. Many of those are in precarious jobs, such as in retail or hospitality, and they were hit even harder when the pandemic came.

[Catherine West (Hornsey and Wood Green) (Lab)]

I thank my hon. Friend for giving way. I place on record her excellent background in holding to account Wonga and a number of other loan sharks through other Parliaments, as well as work on other topics she is well known for. This issue is particularly important right now, as we come out of coronavirus. Is my hon. Friend aware that Citizens Advice found that 40% of buy now, pay later customers have been unable to pay for essentials such as food, rent or bills? This is a particularly difficult time as people come back into work, with the insecurity of work underlined in many of our workplaces, and bills—particularly fuel bills—going through the roof.

[Stella Creasy]

My hon. Friend is absolutely right. If both Scrooge and the Grinch are misunderstood, I very much believe that buy now, pay later companies could become the true villains of Christmas rather than them —[Interruption.] It might be tenuous, Minister, but it is a link.

I recognise that during the pandemic, debt has become a lot worse for many people; when I say a lot worse, I mean it is less likely that they will ever be able to get out of it. Many people live with debt, and while sometimes it is a debt they can manage, an awful lot of people are drowning, not waving.

Data from StepChange is clear that as a consequence of the coronavirus lockdown period, 2.8 million people have fallen into arrears: most frequently on utilities, as my hon. Friend the Member for Hornsey and Wood Green (Catherine West) said. That is on fuel and water, on keeping the basics of the house going. Some 820,000 people have fallen into arrears on their council tax—a debt to the public sector—and about 500,000 people have fallen into arrears on their rent. We have seen a massive explosion in the number of people who will never own their own homes and will always be in the rental sector, particularly in areas where the cost of living is particularly high. My constituency has the 10th highest level of child poverty in the country, and that is because of the cost of living and the cost of renting in my local community. We know that those people, who have struggled to stay in our area, were particularly hit by the restrictions on their working practices in lockdown and have now found that they simply cannot afford the roof over their heads.

Little wonder that nearly 4 million of us have borrowed to make ends meet during the lockdown period, with 1.7 million often using a credit card, 1.6 million using an overdraft and nearly 1 million using a high-cost credit product. That borrowing is not, perhaps, the stereotype of borrowing in order to buy goods—going back to my original point about people wanting to treat a family member. Instead, people have borrowed during lockdown to keep things going: to keep food on the table; to keep their car working, so that when they can go to work, they can get to work; and, perhaps, to pay for heating, especially in the cold weather.

It is striking that there has been a 267% increase in the number of consumer county court judgments issued. Those numbers were depressed by the covid forbearance measures. I recognise that schemes such as the furlough scheme and the self-employment income support scheme helped to mitigate the impact of that. My point when talking about consumer debt and consumer credit is that we are coming out of a period when many people were vulnerable anyway because of long-standing household debts, and that those debts have been made a lot worse. Add into the mix the fact that we expect those people to spend money and help to get our economy back on track. It does not take a rocket scientist to recognise that at the heart of that mix is something very potent that could lead to real poverty and destitution for many people.

[Tulip Siddiq (Hampstead and Kilburn) (Lab)]

I congratulate my hon. Friend on all the work that she has done on this issue, as mentioned by my hon. Friend the Member for Hornsey and Wood Green (Catherine West). Let me pick up on the point my hon. Friend the Member for Walthamstow (Stella Creasy) is making very powerfully about people who get into debt and feel pressured into buying things for their family and friends, especially because this is the first time for a while that they can celebrate Christmas properly with family. Recent research by Citizens Advice, which I have seen, found that 39% of people who have opted to buy now, pay later online did so without realising that they were signing up to a high-interest loan. That lack of transparency is very concerning to me. Does she agree that with pressure on our constituents to make purchases online before the products are likely to rise in cost before Christmas, the Government should set out what they will do in the coming days and weeks to make sure that people know exactly what they are signing up for when they take out a buy now, pay later product?

[Stella Creasy]

My hon. Friend makes her point incredibly well and she will not be surprised to learn that, yes, I absolutely agree with her. Indeed, it is striking that just before the pandemic hit we had the first year in this country when more purchases were made online than in bricks-and-mortar shops, and of course during the pandemic people’s switch to shopping online has become even starker. The state of our high streets is a debate for another time, but we have all seen that change and I do not think that it will go backwards. People’s comfort with shopping online had already been set in place before the pandemic hit; now, for most people, that is the first place that they look, rather than the last.

In 2020, 9 million people were forced to increase their borrowing to cope with the pandemic. That is a phenomenal statistic. The press and media have been full of people paying down their debts, and the silent minority of people for whom debt has increased have not been heard. Today’s debate is about that group of people, and what support and advice we are giving them, because, as my hon. Friend the Member for Hampstead and Kilburn (Tulip Siddiq) said, being able to treat our family members, especially when we have been through such tough times, becomes even more important for everyone. That means that we must ensure that everybody can access credit in a fair and affordable way.

My argument with the Minister today—he will know it, because we have been having it for many years—is about what more we can do to ensure that there is a fair and level playing field, that consumers are armed with the best information and that companies cannot exploit the situation in which there are so many people in our communities who are drowning in debt and will never get out of it. They will always live with a level of debt that might be exacerbated so that one single thing can tip them over into a financial crisis, as opposed to just a financial meltdown, which is what they might be in right now without realising it. Indeed, many of us may have had the experience of talking to people in our constituencies who say, “Well, I don’t have any debt”, and then we ask them if they have a credit card and they say, “Yes, of course”, as if a credit card is not debt.

My hon. Friends the Members for Hornsey and Wood Green and for Hampstead and Kilburn are right to prefigure the particular type of debt that I am concerned about. The Minister knows that I am concerned about it and I know that he agrees with me that there is a problem with this type of credit, which needs to be regulated. My point today about the buy now, pay later industry is that there are echoes of previous examples in our communities where new, or relatively new, forms of credit that might have seemed niche when they first came to the UK market explode very quickly, become commonplace among millions of people and, without proper regulation or scrutiny, cause many more people to get into debt as a result. We saw that with the payday lending industry, which exploded in the UK in the early 2010s, and the honest truth is that it took politicians from all sides too long to recognise just how much damage could be done by a high-interest loan.

Those in the buy now, pay later industry will say that they are not a payday loan. Indeed, they are not—they are not capped, for a start, which is one of the things that helps to protect people from getting into debt through a payday loan. Buy now, pay later companies will say that they do not charge interest to consumers, so we should not view them in the same way as payday lenders—that this is apples and oranges. But both types of high-cost credit—they are high-cost credit, because they come with late fees if people do not pay them back on time—share a similar marketing tactic, which is about forming a habit. It is about getting people to see them as the main way to make ends meet; the main way for people to deal with having too much month at the end of their money.

Whereas the payday lender said, “We’ll give you a short-term loan and you’ll pay it back very quickly, and you’ll never notice, and it will just tide you over”, the buy now, pay later companies say, “Spread the cost. It will make it much more manageable, and you will be able to get the things that you need at the time that you want to.” Let me be very clear that for some people, there may well be a perfectly reasonable use of buy now, pay later, in the same way that for some people there is a perfectly reasonable use of a payday loan. The problem is that for many people buy now, pay later is a form of credit that they cannot afford, because they cannot afford the goods in the first place.

Experian data shows us that 30% of people using buy now, pay later say they use it for items that they otherwise could not afford, and in an environment where inflation might top 4%, where wages have struggled to keep up and where we have a cost-of-living crisis, that is pouring fuel on to the fire for many people and the debt problems that they face.

For those who may not be familiar with buy now, pay later, it is a simple premise. The payments are spread over a number of weeks or months with these companies, and there are variations of the same model. What does that mean for a consumer in practice? A £100 pair of trainers will, perhaps, suddenly become £25 at the point of sale, because the £75 will be paid off at later points throughout the year to recoup the cost. Crucially, the consumer is not officially paying the fees, because the retailer pays to use the service, although one innovation we have noticed in the market in the last year alone has been the move to be able to allow the company to have a direct relationship with the consumers. What they call a one-time card can be created and purchased from a website without the retailer ever being involved. That in itself is problematic, because it prompts the question of how they are deciding what someone can afford to pay.

Let us stick with the original business model. How these companies make their money is very simple. When a £100 pair of trainers suddenly looks as if it only costs £25, people think, “Well, I might buy the trousers and jacket to go with it, because I thought I was going to spend £100 today, and I’m only spending £25”. On average, consumers spend 20% to 30% more when they can spread the payments. For the retailers, it is worth paying the fees of these companies, because people will spend more and they will get more purchases from them.

Many retailers are very up front about that. It is a massive part of their forthcoming business strategy, particularly in relation to Black Friday and Christmas, to encourage consumers to use buy now, pay later because they will end up spending more than they would have done if they had used another form of credit. I reiterate: for some people, that may be perfectly reasonable. They are spending future money, but they have that future money, so it is an acceptable way to do it. They can splash out this Christmas knowing that pay packets in January, February and March will cover the cost. However, a large group of people is spending money that they simply do not have and getting into debt. As my hon. Friends the Members for Hornsey and Wood Green and for Hampstead and Kilburn have pointed out, because this is a new form of credit, many people do not realise it is a form of credit and what can happen if they do not pay back. The late fees, the credit checking, the credit reference agencies and the debt collection agencies are all part of the mix and experience of using these companies.

In the pandemic, spending on buy now, pay later has gone up 60% to 70%. For some age groups in this country now, buy now, pay later is used more than credit cards. It is a revolution in how we use credit in this country and it has gone relatively unnoticed, except by those who cannot afford to pay and have ended up with a big hole.

[Catherine West]

My hon. Friend is making an excellent argument. Does she agree that the quality of financial education in the UK is not what it should be? The 60% to 70% increase in debt from these sort of products would primarily affect a younger age group to begin with, because of their propensity to use the internet. Does she agree that much more needs to be done on financial education, hopefully led by the Treasury and spread across the appropriate level of education online?

[Stella Creasy]

My hon. Friend makes an important point about financial education. I am pleased to see it is now part of the curriculum. She is also right that a cohort of people who did not have financial education are absolutely at the forefront of using this form of credit. Half of all online shoppers aged 24 to 35 have used buy now, pay later. What is challenging is how often they are using it.

If people think that this is about a one-off purchase of a pair of shoes, a dress for a special occasion, or Christmas presents, looking at the one in 20 consumers who use it more than once a week should make us worry about what it is about their finances that means they need to spread payments because they cannot afford to make a payment in a week. Some 35% of consumers aged 18 to 35 report using buy now, pay later more than once a week.

Buy now, pay later is a game-changer in how debt is being created, generated, and maintained in our economy, but it is going under the radar. Little wonder that two-thirds of merchants are using this form of credit. It is now in over 20,000 major brands in the UK including Marks & Spencer, Pennies, Halfords, Asos, PrettyLittleThing, and I SAW IT FIRST.

Klarna was valued at £46 billion as a business in the last investment round—I believe that is more than several of our public services—and claims to have 13 million customers in the UK. That is across every single one of our constituencies, but disproportionately in the poorer constituencies where people are struggling, and people are being targeted.

Citizens Advice reports that 41% of buy now, pay later users have struggled to make a repayment, one in 10 have been chased by debt collectors, rising to one in eight for young people and 25% have fallen behind on another household bill in order to pay a buy now, pay later bill. It does not take a rocket scientist to work out that if there are debt collection agencies at the door, a person is probably going to pay them before their council tax, but we know the consequences that can have.

Time and time again, studies show that people do not realise what they are signing up for. Forty per cent. say that they used it without realising; 42% did not realise what they were signing up for; 26% regretted it. One in four people regretted using buy now, pay later because of the problems it created. As a consequence, many are generating late repayment fees.

The Financial Conduct Authority agrees. In January, the Woolard review called for the industry to be regulated as a matter of urgency. That regulation is critical. One of the things that most consumers do not realise is that, unlike any other form of credit, including a payday loan, there is no regulation of the buy now, pay later companies. In layman’s terms, if someone gets into difficulty, they can only appeal to the companies themselves to treat them fairly—and good luck with that. They cannot appeal to the Financial Ombudsman Service as can be done with a payday loan or a credit card.

There are many particular problems that need to be sorted out by regulation. First, there is conflict of interest. Many of these companies will tell you that they do credit checks. After all, they say, they do not want to lend to people who cannot afford to repay them. However, their definition of repayment is open to interpretation, just as it is for payday lenders. One of the things that worries me when I talk to the companies, which I have done substantially, is that they will let someone miss a payment, make a payment, and then continue to lend to them. They will let someone express behaviour showing that they have a problem with debt, and then carry on lending to them. As the companies rely on merchant fees, it is not about the consumer for them. It is all about the retailer, all about what they can get out of the retailer, and the retailer wants that 20% to 30% more in interest.

It is also about overspending. As I have said, there is 40% more spending—of course that means that consumers will spend more than they can afford. However, it also means that they can get multiple buy now, pay later loans, just as we saw with payday lenders—people going from company to company. Many people are not just going to Klarna, but also to Laybuy, Clearpay, and the buy now, pay later schemes that retailers have themselves. It is meaningless to suggest that they are doing soft credit checks, because they would not know who else had lent to an individual. They would not know if that person had £500 worth of debt with Klarna as well as £50 debt with Laybuy to inform whether they should be able to take out another £200 of debt with Clearpay.

Crucially, the fact that they are not required to report means that there is no clear assessment for affordability; they decide what a person can pay, rather than applying consistent affordability criteria. That is a particular concern of mine as we have seen this industry evolve so quickly over the past year, and we have seen banks start to offer buy now, pay later. The very people who manage our money are deciding how much of it we can pay out and how much they can then charge fees on. It could be argued that that is like an overdraft, but at least with an overdraft we know that it is one, and consumers can be aware of that. I would wager that people are much more aware of the risks of an overdraft than they are of buy now, pay later.

Little wonder that there was a call earlier this year for urgent regulation. That is why today I am asking the Minister what he is going to do, because we have not yet had that regulation. It is welcome that the consultation on what that regulation should be has been published, but it was only published this month. We have had eight or nine months now of those companies knowing that regulation is coming, but with no clarity as to what that regulation might be, or, crucially, when it might be enacted. Little wonder that many consumer groups are very worried.

A Which? investigation in October found that of 111 major retailers of fashion, baby and child and homewares, 62 offered at least one buy, now lay later scheme, and the majority did not provide any information about late fees. This afternoon I was looking at various websites to see what information these companies provide about the risks of the debt that people could get into—the sort of information that we would expect as standard from regulated companies. Very few provide that information.

We are still seeing the influx of advertising from these companies—we cannot avoid it—pressing and pushing buy now, pay later. Now it is linked to Black Friday, which is a relatively recent concept in the UK, but we are very keen on it and account for 10% of all global Black Friday searches. We are a nation who want to know whether we are going to get a good deal and when it will happen. It is a toxic mix, and one that we must address urgently.

It is right to consult on what the regulations should be, and I hope the Minister will confirm that it is crucial to regulate these companies as we regulate others. First, it is a form of credit, so why should these firms not have the special affordability rules that we ask of other companies? Secondly, if we start picking off various types of credit and offering them different types of regulation, we will quickly undo the regulation that we have and see a race to the bottom, rather than the standards that we all want for our constituents. He must also recognise that the length of time that it has taken to get to regulation has offered these companies an open goal, and it is one that they have taken through the evolution of offering immediate credit cards themselves direct to consumers to make purchases—Amazon may say that it does not accept Klarna, but people can use the Klarna app to buy from Amazon—and in the types of products that can be bought using buy now, pay later. Betting sites now offer buy now, pay later options. Food sites offer buy now, pay later. Zilch can be used to buy a Domino’s pizza.

Think about that for a moment. Spreading the cost of a pizza over months tells us something about the cost of living crisis and how desperate people must be if they have to spread payments for a pizza. This is not about buying fancy tellies any more; we are back in the territory that we got into with payday lending, where people use this form of credit to make ends meet because they have got too much month at the end of their money.

The Minister will say that a consultation is ongoing, but it closes after Christmas, so it is too late for Christmas this year. In this environment, it would be helpful to hear that he recognises the risk of Christmas. We know that one pound in every four spent last Christmas was on buy now, pay later, and it will be a lot more this year, so the risk of people getting into the difficulties that the CAB and Which? outlined so well is even higher. What will he do to warn people that such credit is unregulated, so they do not have the consumer protection that they might expect from other forms of credit? What is he doing to hold to account those retailers telling us to go out, spend money and treat our dearest and loved ones while creating websites on which it is practically impossible not to get into using buy now, pay later as the default option? What is he doing to ensure that advertising is clear about the risks of the debt that people could get into? When people look at the JD Sports site, which has six different options for buy now, pay later, they need to understand that all those options come with a higher risk than other forms of credit because they are not regulated.

The Minister will say that the Government want to make good legislation, and I agree, but he must take responsibility for the length of time it is taking to regulate these companies, because they have evolved and are exploiting people at the same speed at which the payday lending industry moved to exploit people. The problem with leaving these legal loan sharks to prey on our communities is that we will all pay the cost at a later date. We will all pay the cost when Government is slow and FinTech is quick, yet that is the situation that we are in.

Will the Minister join me in calling on responsible retailers to rejig their websites so that buy now, pay later is not the default option but one that comes with a severe financial health warning? Will he join me in asking major transport agencies not to take these companies’ adverts until their costs are clear and they admit that when they say, “No late repayment fees; no charges,” that will not necessarily be true? Will he set out a clear timetable for when he expects that the regulations will come in and these companies will have to abide by common rules on affordability and credit checking and treat our constituents fairly?

I am really worried about this Christmas and how many people will get into debt trying to do the completely understandable thing of not being the Grinch. However, I am even more worried about the message that we are sending. Just as Wonga came along and then came Klarna, so another FinTech will come in the future. Every single time we pause—every single time we as a nation say, “Well, there might be unintended consequences if we don’t act”—we are offering up our indebted constituents as guinea pigs for these industries, and I know that is not what the Minister wants to do. We have to be as quick as them, if not quicker, in recognising the risk and stamping down on it.

I hope the Minister understands where I am coming from and why I believe it is so important that Parliament sends the message that Black Friday should be a time when we are all very aware of our finances as well as the deals that we are offered. We should be warning everybody about buy now, pay later. I hope the Minister will agree that we have to get much quicker at dealing with these risks, for the benefit of all our constituents.

15:00

[Paul Maynard (Blackpool North and Cleveleys) (Con)]

It is a pleasure to serve under your chairmanship, Mr Robertson. I congratulate the hon. Member for Walthamstow (Stella Creasy) on securing the debate, and I congratulate Pip on taking the sensible decision to fall asleep during his mother’s speech. He had a nice long sleep, as we can all observe, which was perhaps a sensible decision by him. None the less, we heard a powerful contribution from the hon. Lady, most of which I strongly agree with. She clearly set out for us some of the challenges that we now face.

I of course welcome the fact that the Government are looking to regulate the buy now, pay later sector through the Financial Conduct Authority. I am pleased to see so many buy now, pay later companies falling over themselves, begging to be regulated—“Regulate us, please!”—but they might not be quite so happy when we get to see the detail. That will be the test of the buy now, pay later sector: not its good intentions now, but what it makes of the regulations at the end of the process.

I am concerned that the consultation fails to capture the true nature of the consumer detriment, focusing only on the absolute value of the goods but failing to capture how the market is changing with this type of credit. That is strange, given the wider policy environment. It was the Woolard review that first took us down the path of regulating buy now, pay later, but it had much more to say about improving access to lower-cost, short-term credit for the more financially vulnerable. Both issues need addressing in parallel, not separately, and I see no evidence—I might be wrong—that the Government are adequately progressing the wider agenda of the Woolard review on improving access to low-cost, short-term credit.

I know that some people out there believe that the BNPL type of product should be banished out of existence and is a fundamental evil that drives demand for fast fashion. It is a very easy target to strike. However, I represent a relatively deprived part of the country and believe that my constituents should not be denied access to the short-term, low-cost credit that more affluent constituents take for granted. That should not be one more example of the poverty premium that people face in their daily lives. At the moment, the least well-off are disproportionately penalised by the poverty premium, which sees them subjected to higher insurance premiums and offered a much smaller range of affordable credit products, if any at all exist for their particular financial circumstances.

That is my first reservation about the consultation: it views the consumer detriment as relatively small because of the low value of the goods overall. We know that, on average, low-income families have only £95 in savings, so even a single late payment fee can have a devastating impact on a household’s financial circumstances. We need to view these financial transactions in the same way as we see credit cards, loans or mortgages. The last time I had to remortgage, a few years ago, it was a six-hour epic, as every single line of my expenditure was gone through in great detail and I had to justify virtually everything that I spent.

It is the percentage of someone’s disposable income, not the overall amount, that matters when making such decisions, and assessing affordability must be based on maximum transparency between the buy now, pay later provider and the customer, but also between providers. As the hon. Lady said, people cannot rack up multiple debts with Klarna, Laybuy, Clearpay and all the other new companies that are coming on the market. We need to move the focus to the behaviour of the borrower over the lifetime of their financial activities, looking at all their borrowing rather than having just a single test for their credit risk or a single affordability assessment in isolation. It cannot just be a credit check that, if they fail, makes their ability to obtain credit in the future that bit harder, because that is the opposite of putting them on a pathway to more affordable credit. People might be able to afford a loan at a particular point in time but then be hit by a family bereavement that changes their financial situation. Allowing lenders to see a wider picture of spending habits requires much speedier progress on open banking than we have seen so far.

I am also interested in examining the future of the sector. The consultation on regulation cannot just meet the market as we see it at the moment; it must meet the market that we will see in years to come. Consider the issue of rent to own, on which both I and the hon. Member for Walthamstow attended debates well before 2015. That sector went on a long journey, from the relatively innocuous ubiquity of Radio Rentals, which many of our parents used to buy their first TVs back in the late ’70s, to the more problematic practices of BrightHouse and PerfectHome in the 21st century. We know where that journey ended. I still walk past the boarded-up BrightHouse shop on Abingdon Street in the centre of Blackpool, which I named the most dangerous place in Blackpool because it was sucking people in and trapping them in long loans of high-cost credit.

We are already hearing that buy now, pay later is being used not just for pizza but for the weekly food shop. That should really give us pause for thought. Higher-value goods are now being bought through buy now, pay later. It is not just fashion, which we automatically link with Klarna and the advertising that we see. I read in the paper just this week about a new market entrant, humm, from Australia, that specialises in much larger consumer goods—something that makes me go “humm” when I wonder whether that is desirable.

We must also think more about the retailers, as the hon. Member for Walthamstow said. They are as much the beneficiaries of this market as are the buy now, pay later providers themselves. The whole business model works only if it increases sales for the retailers; otherwise, why would they bother paying the buy now, pay later provider a percentage fee? That fee is what justifies this form of market.

If that becomes our default payment mechanism in a cashless society—which I am afraid that, as we debate here, we seem to be sleepwalking into—we may need to look again at how we monitor the internet shopping experience and the customer journey through a website. Will regulations that were framed around the idea of purchasing clothing work for goods that could cost thousands—much larger consumer goods and consumer electronics? Where do the retailers sit in all of this? There is a real commercial dynamic at work here.

I was speaking to ASOS just last night, at a reception in the Churchill Room. They said that they had worked with Alice Tapper of GoFundMe, a noted campaigner whom I am sure the hon. Member for Walthamstow has spoken with at length. She has worked with ASOS to redesign its website to ensure that it is a friction-filled—not frictionless—journey for the consumer, so that there are multiple occasions when consumers are asked to pause and consider what they are about to purchase, and so that buy now, pay later is not the default, pre-ticked option on the checkout form. Those are all very simple measures, but they are not measures that the Treasury can effect. They come under the Advertising Standards Authority and other types of regulation. The consultation on regulation will not solve everything; there are other agencies that have to take other steps.

None the less, there are better solutions out there, and the Government are committed to them—not least no-interest loans. I am at risk of reading out a paragraph from my previous speech, when the Minister was here and I did not get an answer, so let me have another go, if he is listening. I am obsessed with reforming local welfare assistance schemes so that people can access the white goods that they need. The Government have a very good idea: no-interest loans. Providing those should not be rocket science. The original idea came from Australia—the same place from where humm is now arriving on our shores, and where Good Shepherd Australia has been operating micro-finance for many years. Surely, to introduce them here must be cut-and-paste. Indeed, some of their regulations on buy now, pay later are a model of what we are planning to do here. Rather than building a programme from scratch, why not try to move faster by looking at what works in other jurisdictions? This matters, because the cost of replacing white goods is terrible for so many families, who fall into debt as a consequence. We need only listen to the Liverpool-based End Furniture Poverty campaign and look at the pilot schemes that Fair4All Finance is launching to tackle the concept of appliance poverty.

The hon. Member for Walthamstow also mentioned FinTech, perhaps in the sense that it is almost a risk that you never know what it will come up with next. Equally, I think that FinTech is actually part of the potential solution. There are companies out there and emerging—Auden Financial is one that I happen to know quite well—that are looking to use FinTech to provide the low-cost, short-term, ethical credit that I think has to be the end goal. We all talk in this place about FinTech. We all swoon, almost, at the wonderful thought of what a fantastic business it is. I am not sure that we as politicians always understand it terribly well, but we need to keep asking how we can work with that sector so that it does good and not bad.

There will always be disruptors, and I want to disrupt the business of high-cost, short-term credit; that is what I want to disrupt. There is a gap in the market for a new provider to come along and do things differently. No one should be denied the opportunity to own things. Everyone should have the ability to choose how they spend their money and to choose how they access a form of credit that is regarded as affordable to them and does not place them in greater difficulty. At the moment we are not in that position, but there are multiple ideas out there. Restricting access to buy now, pay later, properly regulating it, and treating it like any other form of credit and not least in a way comparable to how we treat consumer detriment from credit cards, has to be one step along the path. There is a much wider agenda that the Treasury needs to embark on to embrace the whole Woolard review, not just one small paragraph.

I commend what the Minister is doing. Like the hon. Member for Walthamstow, I know that he is on the side of the angels. But it is the job of those on the Back Benches to say, “Go further; go faster. Do it yesterday.”

15:12

[Claire Hanna (Belfast South) (SDLP)]

It is a pleasure to serve with you in the Chair, Mr Robertson. I thank the hon. Member for Walthamstow (Stella Creasy) very much for introducing the debate, and I congratulate her on having not only a genuinely good track record of action on consumer protection, but much better behaved infants than I have ever had, which is not to be sniffed at.

I associate myself with many of the remarks and proposals that the hon. Member and others have made, including about understanding that individuals and families are ready for a meaningful Christmas, and acknowledging that many are able to make, and are facilitated in making, difficult choices and balancing things this year and every year. However, we also have to acknowledge that Black Friday and the associated financing is not a generous offer and an attempt by retailers and financiers to make Christmas dreams come true. It is, in many ways, exploitation of those natural human instincts to try to provide for family. Black Friday is no longer just one day in November; it is a month-long—and often longer—bombardment of advertisements, deals and “ways to pay” that go far beyond traditional methods.

Research published today by Which? indicates that some 99% of Black Friday deals that it assessed were in fact available cheaper elsewhere in the calendar year. At the heart of this is driving people to make more purchases. We could spend this debate talking about the negative impacts of Black Friday alone on people, on the planet and on smaller retailers, which perhaps do not have the same marketing infrastructure as larger ones, but probably the most acute impact, as the hon. Member for Walthamstow outlined, is the results and the risks of predatory lending.

Citizens Advice has likened buy now, pay later to quicksand—easy to slip into and very, very difficult to get out of. As I said, at the heart of the concept is encouraging people to spend money that they do not have by putting the hard landing of any purchase on the long finger. The hon. Member for Walthamstow is correct to highlight the habit-forming tactics that mainstream this means of purchase and steepen the slippery slope by which many people slide into debt. She highlights the very interesting statistic that it increases sales by up to 30%. Evidence bears out the concerns that Members have expressed, with 75% of buy now, pay later users being under the age of 36—this tactic is clearly marketed particularly at Gen Z—and four out of 10 of them struggling to repay. That matches what we already know about the financial security of many in that demographic, who are already in or at risk from the gig economy, with its inadequate and unsustainable or unfixed incomes.

The services we are discussing are, in many cases, clearly harmful to the individual consumer, but also to the planet. Members outlined that the vast majority of buy now, pay later purchases relate to clothing, which drives the acutely unsustainable fast fashion market in which literally tonnes of clothing, often produced in dubious labour conditions, quickly ends up in landfill after a tiny number of wears—the product is often designed to be worn a small number of times. There is a wider impact. Fashion website Boohoo offers shoppers five different ways to pay for a £30 dress, which again underlines that this is not about facilitating a special Christmas purchase or a big purchase, such as a TV, that a household needs; this is about driving a pattern of spending that locks people into unsustainable purchasing habits.

As one investor in a buy now, pay later start-up explained:

“It increases the basket size and it also reduces dropped baskets”.

Some of that is marketing; it is what business does. It is the logical extension and development of the economy we have. However, as in many other areas of the market and the economy, we have an obligation to try to protect people from technologies and marketing techniques that are far beyond what any of us are used to.

This is a big and emerging problem and, like a lot that relates to technology and online, the market may be moving faster than regulation can, but it is not an unsolvable problem. The hon. Member for Walthamstow outlined many ways, alongside FCA regulation, to intervene and slow this down, including obligations on retailers to adequately display and explain the background of the products they serve. For example, in Sweden, the home of Klarna, it is already illegal to market buy now, pay later ahead of other types of up-front payment.

It is welcome that the Government acknowledge this issue and that regulation is required. It is important that we have forums such as this one to correct the view that this is not a widespread consumer problem, because it is. We know very well the depth of the debt problem. After all, credit is debt—that is what it is. As others have explained, people will always want to use credit, but in many cases it will be for a long-term purchase that will have benefits in life. In the vast majority of buy now, pay later cases, that does not apply. I support the motion and all efforts to regulate and protect.

[Mr Laurence Robertson (in the Chair)]

We come to the Front-Bench spokespeople. I would like to leave two or three minutes at the end for the mover of the motion to wind up the debate.

15:19

[Patricia Gibson (North Ayrshire and Arran) (SNP)]

I begin by paying tribute to the hon. Member for Walthamstow (Stella Creasy) for bringing the debate and for all her work in this area. As the Christmas shopping season gets fully under way, it is right that we debate debt, how consumers require protection in a fully regulated credit market, and the responsibility of Government to ensure that that is the case. The high cost of some credit options, especially buy now, pay later deals, is already causing untold misery for millions of consumers. So far this year, shoppers have racked up more than £4 billion of outstanding debt, averaging £538 for each user. Research shows that 10% of shoppers plan to use buy now, pay later options this Christmas. I am sure that option can be helpful for some people, to spread the cost of significant purchases, but it can also facilitate the building of unsustainable debt.

In order to protect consumers, the sector needs to be properly regulated. An exemption in the law as its stands means that these payment plans are not treated in the same way as traditional credit agreements, so they are not regulated by the Financial Conduct Authority. Therefore, as the Woolard review found earlier this year, many consumers do not see buy now, pay later options as a form of credit, so they do not consider arrangements as carefully as they might otherwise do. It is worth noting that the sector was comparatively small, but the value of transactions nearly quadrupled between January and December last year, to £2.7 billion. It is easy to understand why the Woolard review concluded that there is an urgent need to regulate all these products.

The Government’s consultation into the regulation of the buy now, pay later market will close in January. It must result in robust regulation of the sector, which must be brought into line with the regulation of other areas of the credit market, with interest at least no higher than that for pay-day loans, credit cards or overdrafts. It should also require credit checks similar to those for other credit products. It is appropriate to think about such things as we approach Black Friday and Cyber Monday, which is the commercial answer online to in-store shopping.

Recent research by the consumer organisation Which? is very worrying. It reveals that a strikingly high number of shoppers feel rushed into making Black Friday purchases. Many live to regret it, using credit or borrowing to make purchases that they could otherwise not afford. That must be seen against the background of the way that Black Friday is marketed, using the threat of regret, with banners such as “Hurry!”, “Don’t miss out!” and “Last chance!” plastered around these so-called deals. Shoppers who buy on credit pay extra for their purchases, regardless of how good the deal might look, once the extra cost of credit is factored in, which can build from month to month.

It is also worth noting that the seductive techniques used to encourage shoppers to splurge on Black Friday belie the fact that Black Friday deals are not always the best of the year. In fact, many products can be found cheaper in the months before and after November. According to Which?, that is all hidden behind the marketing used for Black Friday.

As we approach Christmas and talk about debt, there are some who say—and I have heard them—that people should live within their means. It is easy for those who are relatively well off to lecture those who do not have very much about living within their means. It is completely understandable that people, despite being financially pressured, still want to buy presents for their children at Christmas—of course they do. If they do, the Government have a duty to ensure that all consumers are buying in a fully regulated credit market, with all the protection they need, should they find themselves overwhelmed with debt. The Government have a duty to ensure that all aspects of the credit market are fully regulated and fit for purpose.

I need to say at this juncture that many families are not forced into debt because of Christmas shopping, but because their everyday household budgets are being squeezed more tightly every single day. We must not assume that unsustainable debt is down to non-essential purchases. Many households are falling into debt in order to pay for essentials, such as the gas bill or groceries. That applies not just to those who are unemployed but to that shameful phenomenon: the working poor. Those are people who go out to work every day to provide for their families but simply do not earn enough to make ends meet and pay for essentials, having been met with a cut of more than £1,000 a year in universal credit.

We are sitting on a debt time bomb, and it is not due to profligacy; it is because so many people have suffered an income shock through no fault of their own. Sadly, for those people, the idea of levelling up sounds very hollow as they face the destructive misery of debt, which every day threatens to engulf them. The cost of living is rising, and that is throwing many people into hardship, including many people who were always able to manage in the past. The UK household debt crisis is not going away; it is actually getting worse.

The Government must therefore ensure that the buy now, pay later market, which we have heard so much about today, including the difficulties with it, is subject to the robust regulation that consumers have a right to expect. That process must be expedited so that next year, at the next Black Friday, anyone who turns to any kind of credit can do so with much more protection and confidence than they are currently able to. Some people have estimated that the sector may not be properly regulated until as late as 2023. That prospect is deeply concerning, so I hope that the Minister will today commit to expediting regulation as soon as possible and as a matter of priority, so that we can save yet more people from experiencing the severe misery of debt without the protection that they should be entitled to expect.

15:24

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Robertson, and I begin by endorsing the remarks you made at the beginning of the debate. I attended the funeral mass this morning for Sir David Amess, and you are absolutely right that he is a colleague who will be greatly missed right across the House.

I thank my hon. Friend the Member for Walthamstow (Stella Creasy) for securing this debate. I also thank our youngest member, who has attended the debate and been as good as gold throughout; we will see how we get on for the next 20 minutes.

My hon. Friend has been a formidable campaigner for consumer rights and against high debt charges, particularly for those on modest incomes. We are focused this afternoon on the buy now, pay later sector, which has grown hugely in recent years. The Government consultation on the issue says that the use of that payment mechanism tripled last year, and that during the pandemic more than one in 10 consumers paid for goods in this way. We have heard other numbers in the debate that suggest that the true figure may be even higher. Whatever the exact figure is, I think we can all agree that the sector is growing fast.

During the pandemic and the lockdowns, we saw an accelerated trend towards online shopping, and indeed online everything else, which helped to spur the growth of buy now, pay later products. As for the overall financial impact of the pandemic, it is really a tale of two Britains. For those in good work, who were still being paid full pay, the impact was often the ability to save more money. Right across the country, and across the rest of the developed world, bank deposits increased markedly for that reason. People were still earning, but much normal spending was curtailed, so they had more money to save.

That is the story of one Britain, but there is another Britain in which earnings were cut as work was lost, and where incomes declined and debt grew. For many people in that group, their costs increased because they were stuck at home with the heating on, their food bills went up because children were off school, and they could not earn what they had earned before. Those were families who had never had much disposable income in the first place, and who were often struggling with and juggling significant amounts of debt. Many of those people fell between different Government help schemes and were left under huge financial pressure. It is really important to understand that while overall savings grew, that was not true for everyone, and for many people debt grew instead.

However buy now, pay later products are marketed, they are another form of consumer debt, pure and simple. The explosive growth in this type of debt in recent years, and the risks identified in the report that Chris Woolard wrote last year, mean that it is right that these products are properly regulated. That is in the interests of consumers, who have a right to know exactly how the products work and what the potential penalties for non-payment will be. Otherwise, regulation will fall behind innovation in the market and become hopelessly out of date.

The business model for buy now, pay later is a merchant fee for each purchase. The growth model is that more goods will be sold because payments can be spread over a period of time. Interest is not normally charged on the staggered payments, but that is not the end of the story, because the companies also raise revenue through late payment fees or penalties when consumers fail to meet payments. For some buy now, pay later providers, those late payment fees and penalties are a significant proportion of their overall revenue. We must remember that, in the end, this is a debt like any other, which attracts penalties if it is not paid in accordance with the agreed timescale.

Chris Woolard’s review concluded that the buy now, pay later market

“poses potential harms to consumers and needs to be brought within regulation to both protect consumers and ensure it is sustainable.”

To their credit, the Government acted fast at first, taking an initial power last March during proceedings on the Financial Services Act 2021. Then, after a long period, Ministers issued the consultation on detailed regulations only last month. That consultation is still open and does not close until January. Why was there a delay of seven months or so between the initial legislation and the publication of the consultation? Why is the tone of that consultation quite unenthusiastic about regulating, seeking to minimise the scope of the regulation? It gives the appearance that the Government have been dragged into this. This is a fast-growing market. New accounts are being opened every day, and there is no reason to delay. This delay will mean that significant time has elapsed between the initial decision and the Government’s approval of the Woolard report and introduction of the regulations.

My hon. Friend the Member for Walthamstow has spoken about the potential for the next few weeks to result in significantly more consumer debt, with both Black Friday and Christmas approaching. I endorse what she said: nobody here wants to dampen anyone’s enthusiasm for a bargain—although I caution people to check whether it really is a bargain—and of course, we want everyone to enjoy the festive season. In my house, it is pretty big business. We have lights on the inside, we have lights on the outside and, whether I like it or not, we have an awful lot of Michael Bublé. But it is no secret that the festive season can be an expensive time for people and that, for some, December spending can result in a January hangover. That makes this debate both timely and important.

Innovations such as buy now, pay later were not envisaged when the Consumer Credit Act 1974 was passed, and that is why this gap must be filled. When it comes to updating the regulation system, the Government need to act and get on with it. What might the new regulations cover? The slightly reluctantly worded consultation gave some clues, but there are obvious areas, and I want to name a few. The first is information to the borrower. Does the borrower understand that this is a debt, and that they may be subject to penalty charges and increased costs if payments are not kept up? As we have heard, that is often not made clear.

What is to stop consumers setting up multiple buy now, pay later products with multiple companies? How will one know about the other? Does the consumer’s bank know about the other products? What if the consumer is already heavily indebted to their bank? That featured in the Woolard review, which implied that about one in 10 buy now, pay later account holders might already be quite significantly indebted to their bank.

What should the rules be on advertising and promotion? As the Minister knows, the weakness of the FCA’s financial promotion rules has already been a factor in the case of London Capital & Finance, which we debated in relation to other legislation recently. How will the regulations ensure that advertisements and promotions convey sufficient information about the nature of the credit agreement being entered into and the risk of incurring debt and penalties? Will consumers be told, for example, that non-payment could result in their debt being transferred to a debt collection agency? That is quite important, and might give people pause for thought when they take out such a product. Also, how do we treat consumers who get into difficulty? Right now, there is a mix of late payment fees and the use of debt collection agencies. Will the regulator codify that properly, given the proportion of revenues that some companies are raising from that activity?

Finally, returning to the timescale, can the Minister ensure that once the consultation closes, there will be no further delays and the FCA will be able to act as soon as possible, whatever the outcomes of that consultation? Given that the Woolard review reported near the beginning of this year, we certainly do not want to roll all the way through next year with no regulation in place. This is a very fast-growing new form of consumer debt. Regulation has not kept up: it must do so, or else it will ossify and become out of date. Time has already been lost this year, and I will close by urging the Minister—I know he wants to help on this issue—to get on with it, so that in relation to these products, consumers have the protection and information that they have a right to expect.

15:36

[The Economic Secretary to the Treasury (John Glen)]

It is a pleasure to serve under your chairmanship, Mr Robertson. I associate myself with the remarks of a number of Members this afternoon concerning the death of Sir David Amess. He was a true blessing to this Parliament and a great character whom we all loved, and he will be sadly missed.

I have listened carefully to the various contributions this afternoon. As ever, this has been a very well-informed debate that I welcome very much. I pay particular tribute, as I have done previously, to the hon. Member for Walthamstow (Stella Creasy) for securing a debate on this important matter. I will be sure to give her some time to have another go at me in the last few minutes of the debate. She set the scene very well, explaining the context that we face in the run-up to Christmas: the inducements to consumption and the apparent savings for consumers; the evolution in new forms of credit; the need for regulation, which I fully accept at the outset; the risks around the use of buy now, pay later becoming habit-forming; the behavioural shifts we are seeing in the market; and the need to really think about the context of borrowers’ behaviour as we bring forward this regulation. As ever, we were treated to some sophisticated analysis of the wider consumer credit challenges, and the issues with making more affordable credit available, from my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard). I will address those points later.

It is important that we start this afternoon by understanding the Government’s position: we recognise that there is a potential risk to consumers from unregulated buy now, pay later products. I listened very carefully to the criticisms of the timeline, and over the next few minutes I will address the challenges we have encountered and present some of the solutions that we think may exist. It is extremely helpful for all parties to be represented in this debate; given the level of engagement from players in the market, there is a clear desire to address this significant area of concern in Parliament. There has been a massive explosion in this area, and it is important that we respond appropriately.

It is important to understand the nature of the risks. We should acknowledge that the use of buy now, pay later is growing rapidly: in fact, the number of transactions from the main providers using buy now, pay later more than tripled in 2020. That said, buy now, pay later is still estimated to have amounted to only 2% to 3% of the consumer credit market last year, and a recent study by the consultancy Bain & Company found that about 5% of online transaction volumes involved the use of buy now, pay later. I am very sensitive to the distribution of that additional use and the people who are increasingly reliant on buy now, pay later—that is something we must take account of—but it makes up a smaller proportion of the market than is sometimes believed. In addition, we have not seen substantial evidence of the risks that some have predicted materialising.

I will set the scene of the current state of regulation, because it certainly does not mean that the Government are turning a blind eye. A degree of regulation already provides protections for users of interest-free buy now, pay later products. The Consumer Protection from Unfair Trading Regulations 2008 make it a criminal offence for traders to give consumers misleading information. Firms are required to provide consumers with the information necessary to make informed decisions and not omit or hide material information that the average consumer needs. The FCA and the Competition and Markets Authority are designated enforcement bodies for these regulations. The Consumer Rights Act 2015 requires that the contract terms of buy now, pay later providers must be transparent and not contain unfair terms. When promoting buy now, pay later products, firms must also comply with the rules set out in the UK advertising codes, and offending firms can be referred to trading standards and Ofcom.

Last year, the Advertising Standards Authority published formal guidance about buy now, pay later, setting out its expectations of both providers and retailers when they offer these services. The ASA also banned harmful buy now, pay later adverts, stating that future advertising must not irresponsibly encourage the use of a product, particularly

“by linking it with lifting or boosting mood”.

That is something that the hon. Member for Walthamstow has highlighted and campaigned on. Some buy now, pay later agreements are also already subject to some aspects of the financial promotions regime. The FCA uses its existing powers to protect buy now, pay later users, for example by scrutinising marketing materials of authorised firms and the way these products are promoted. The FCA has wider consumer protection powers that it can apply to unauthorised firms where it sees poor practice.

Effective Government oversight of financial services is not just about imposing rules; it is also about engaging with industry. In the case of the buy now, pay later sector, that is something we have done extensively—as have Members here today. We have seen that reflected in the actions of the largest firms, with many voluntarily introducing credit-worthiness checks and making information more transparent at checkout. However, I fully concede that that is not universal, and not every firm has moved in the right direction.

Looking ahead, the fact that we have seen some progress does not mean that we are complacent. As Members have noted, the Woolard review into the unsecured credit market, which was published in February this year, identified a number of potential risks. They include how buy now, pay later is promoted to consumers and presented as a payment option. Consumers are sometimes left with an absence of information about the product and the features of the credit agreement, and there are no requirements to undertake affordability and credit-worthiness checks. As has been pointed out, that is particularly important when multiple transactions are taken up with different buy now, pay later providers.

Following the publication of the Woolard review the Government announced, with support from the Opposition —I am grateful for their support—our intention to regulate these products. On 21 October, we published a consultation document that sets out the proposed approach to regulation, and that consultation is open until 6 January. Prior to the publication of the consultation, I had a lot of engagement with my officials. One of them is sitting here today, and I have spoken to a number of them this afternoon and numerous times before that. It is through a desire to get this right that we have taken time over it. There is no desire to go slow. I recognise that there is an urgency to this, and we have to move forward as quickly as we can. During the consultation period, the Government are engaging with representatives from consumer groups and industry—indeed, there is a workshop going on this afternoon—to ensure that the final approach to regulation strikes the right balance on consumer protections. Debates such as this help to inform that approach.

We want to expand the evidence base about the risk to consumers, and Members from across the Chamber have made a lot of points about that this afternoon. As I have said, the Government recognise the potential risks, and that has been supported in recent studies by consumer groups, such as Which?, Citizens Advice and others. However, the Government’s view is that as an interest-free product, buy now, pay later is inherently lower risk than products that charge interest. Used properly, it can be a way for consumers to manage their finances, as my hon. Friend the Member for Blackpool North and Cleveleys mentioned, and to spread the cost of purchases—particularly when managing periods of higher household expenditure, such as Christmas, when Michael Bublé CDs are being purchased in the household of the right hon. Member for Wolverhampton South East (Mr McFadden). We should not forget that interest-free buy now, pay later offers, specifically around Black Friday, can allow consumers to take advantage of offers and discounts that they might not otherwise be able to benefit from.

Looking ahead, and in the context of the ongoing consultation, our overall objective is to ensure that buy now, pay later products can continue to be offered in a way that allows consumers to take advantage of the flexibility of the offer, while ensuring that the potential risks are managed. That means designing regulation that is proportionate to the level of risk and takes into account the way that the products are used.

For example, the Government believe that is it reasonable that buy now, pay later products use a bespoke approach to consumer disclosures, as well as to the form that the credit agreement must take. That is reflected in the proposals in the consultation, which I would characterise as not reluctant, but detailed, reflecting the fact that different issues come up with the evolution in the market and in the provision of different services. We cannot apply a single, one-size-fits-all approach. I see that the hon. Member for Walthamstow is adjusting her face mask, so I think she wants to intervene.

[Stella Creasy]

I thank the Minister for letting me intervene. He will understand that I am a little troubled because when the Woolard review said in February that there was an urgent need for regulation, we all agreed that urgency, as well as regulation, was a critical part of that conversation. Does he accept that in the absence of such regulation, one thing that we now need to tell people —it is on his list—is that they cannot go to the Financial Ombudsman Service if they feel they have been mis-sold a product? At the very least, in the intervening time before any regulation comes forward, the Government have a duty to ask retailers and companies to make that clear to people—a buyer beware warning. Does he at least accept that the Government should be doing that this Christmas?

[John Glen]

I fully accept the point that the hon. Lady makes, in that at the moment, those protections do not exist, and that is why we have to regulate appropriately and proportionately.

I want to say a bit more about what I think we should be doing. It is reasonable that buy now, pay later products use a bespoke approach to consumer disclosures, as well as to the form the credit agreement must take, and that is reflected in the consultation proposals. However, we need to think about the way that these products are used in the context of an online journey, the warnings that are inherently there during that journey and the fact that they are frequently used for much smaller sums than the traditional credit agreements for which these rules were originally developed.

When we think about how this facility is used, part of the challenge is the way additional payment smoothing mechanisms can inadvertently be sucked in. I do not want dental payment plans—essentially, for expenditure that is smoothed over 12 months—to incur an obligation to do some form of affordability check. Such issues make this more complex than it may have at first seemed.

I am determined that we get this right, that we recognise the distinct consumer risks that exist and that we bring forward regulation that deals with them. The Government’s view is that buy now, buy later information should not be long and detailed so that it becomes just another long set of terms and conditions, because frankly there is a significant risk that people would just make a cursory observation of such a list and tick the box. Instead, the information should be presented in a form that allows consumers to engage meaningfully, and I hope the hon. Member for Walthamstow would support that.

The Government also consider in the consultation whether the financial promotions regime, which already applies to a broad range of financial products, should be amended to ensure that all buy now, pay later promotions fall into that regime, further strengthening consumer protection. That would mean that all promotions made by merchants, such as a retailer, would have to be approved by an FCA-authorised firm. It is also important that consumers are lent to affordably. That is why the Government anticipate that the proportionate regulation of buy now, pay later would include the application of the FCA’s current rules on credit worthiness.

The Government recognise that these products are lower risk than other interest-bearing agreements and can help consumers to manage their finances. A study by Bain suggests that in 2020 consumers using buy now, pay later instead of credit cards in the UK saved £103 million in interest. I say that not to commend it over credit cards, but to recognise the segmentation of the credit market and the different behaviours and options that exist out there. That is why we believe it is right that regulation is balanced and proportionate, ensuring that customers are given the appropriate protections, without unduly limiting the availability and cost of useful financial products.

As hon. Members have mentioned, there is already precedent for imposing different regulatory requirements on different credit products, depending on the risk they pose. The Government and the FCA have previously implemented bespoke regulation for higher-risk products, such as the price cap rules for payday lenders and rent to own. Obviously, it would be difficult to apply that symmetrically in this context, but I sincerely welcome the hon. Lady’s comments later. Likewise, a more proportionate approach is right for buy now, pay later products, which we assess to be of a lower risk.

As new products enter the market, it is critical that the Government carefully consider not only how credit products are regulated, but where the boundaries of regulation should be. I note the concern that buy now, pay later may increasingly be used as a more mainstream form of credit, as has been mentioned this afternoon, and that even some banks are beginning to offer it.

Many different types of financial arrangement already make use of the same exemption, as I mentioned earlier, which currently allows interest-free buy now, pay later to operate outside consumer credit regulation—and has done so for decades. That includes arrangements used over many years by UK retailers to support the purchase of higher value items such as home furnishings and white goods, but also those arrangements which allow monthly payments for memberships to sports clubs, dental plans, other associations and certain invoicing arrangements.

In regulating buy now, pay later, we need to think carefully about all the arrangements that these changes could affect and avoid bringing activities into regulation which do not present the same risks to consumers. What is in play here is the cumulative application of the buy now, pay later product to a vulnerable group of consumers, and we need to make sure that that is where we focus the outcome. The Government must also ensure that their approach is future proof and cannot be gamed by firms operating on the margins of regulation. That is why we are engaging with consumer groups in detail to ensure that we get this right and capture the emerging products that are beginning to form.

I will give the hon. Lady several minutes to come back, but I want to mention personal debt more broadly, because it is a critical topic that comes into this discussion. I think everyone here has a desire to tackle problem debt and, as this afternoon has shown, we share an understanding of the complexity of the issue.

We need comprehensive solutions, which is why we are maintaining record levels of funding for free debt advice in England. The Money and Pensions Service this year has a budget of £96.4 million. We have launched the breathing space scheme, which gives a 60-day freedom from fees and payment requests. We are also expanding the availability of affordable credit, providing £96 million of dormant assets funding to Fair4All Finance.

My hon. Friend the Member for Blackpool North and Cleveleys talked about the Australian experience and the opportunity to cut and paste no-interest loan schemes. We have moved ahead with that, and I anticipate that it will move more quickly now. However, I want to be absolutely clear that it works in the UK context and can be scaled up quickly. I would rather it was on solid foundations, but I feel his frustration in my heart too.

I will sum up by reiterating that the Government’s view is that interest-free buy now, pay later has a legitimate role to play in the market, but its rapid growth throws up challenges. I think that consumers recognise that; they find it useful and easy to use. However, we are committed to getting regulation right and protecting consumers. The asymmetry of protections mentioned here needs to be addressed, but we want to do that without limiting the availability and cost of genuinely useful financial products.

We understand that there are concerns, which I have heard this afternoon, about the speed of the regulation. I will do this as quickly as I can, with my officials. We will report back to the House as quickly as possible, but I would welcome colleagues’ continued engagement in the weeks ahead. I recognise the risks that exist in the run-up to Christmas, and I acknowledge the legitimate warnings that the hon. Member for Walthamstow has raised.

15:56

[Stella Creasy]

We have had a very important debate today. I pay tribute to my hon. Friends the Members for Hampstead and Kilburn (Tulip Siddiq) and for Hornsey and Wood Green (Catherine West), the hon. Members for Blackpool North and Cleveleys (Paul Maynard) and for Belfast South (Claire Hanna), the SNP spokesperson—the hon. Member for North Ayrshire and Arran (Patricia Gibson)—my right hon. Friend the Member for Wolverhampton South East (Mr McFadden), speaking from my own Front Bench, and the Minister, for their contributions. I also acknowledge the work of my hon. Friend the Member for Makerfield (Yvonne Fovargue), who has been a fantastic champion on debt issues, but sadly could not be with us this afternoon.

I also pay tribute to the work of Alice Tapper from Go Fund Yourself, who has been a fantastic campaigner in raising concerns on this issue, as well as to Damon Gibbons from the Centre for Responsible Credit, Martin Lewis, of course—where would we be without Money Saving Expert?—Citizens Advice, Which?, and Step Change, all of whom have tried to sound the alarm about buy now, pay later, in particular.

Today, I want to give the Minister probably the best Christmas present of all, which is oddly enough not a subscription to Michael Bublé on Spotify, but the opportunity to prove me wrong. I want to be wrong about this industry. I want to see the parallels with the same problems that we had with the payday lending industry and be mistaken about this.

However, my concern is that Government are slow and FinTech is fast. Everything the Minister has said today has raised that concern for me. He recognises, rightly, that we need to regulate this industry, yet our ability to do so is hampered by the “what ifs”, which these companies do not recognise and, indeed, thrive in. They are predatory. They are preying on our constituents and evolving at a rate of knots. I am not surprised that they suddenly say that they are in favour of regulation, in the same way that turkeys would say that Christmas is overrated—if we are looking for our festive analogies.

I urge the Minister not to falter. We must move as quick as we can, if not quicker. I agree very much with the hon. Member for Blackpool North and Cleveleys; the role of Back Benchers is to say “Go faster; do it yesterday”. I also asked the Minister what we would do in the intervening period, because we have predators, such as Klarna, Laybuy or Clearpay in our communities. When Clearpay wrote to me to boast that it had 4,000 customers in my constituency, I felt physically sick, because for how many of those people is this actually a solution, and how many is it drawing into debt?

The Minister says that he recognises that we need to regulate and that the lack of the financial ombudsman is a real challenge for consumers, who genuinely would not know that they are not protected when they use buy now, pay later. The question of affordability is not about the product so much as the person. That is what concerns me when we start talking about different ideas of affordability for different products; it is still the same constituent who will end up in our surgeries, about to lose their home because they cannot pay their rent, not able to feed their kids, worrying about their debts, not able to sleep at night.

Regulation is always complicated, but there is a simple truth at the heart of this: the speed at which this industry will evolve and prey on our constituents is disproportionately linked to the slow pace of change in our financial regulation industry. That was the lesson of Wonga. This Christmas, we must learn the lesson of these companies.

While we wait for that regulation, I again repeat the call to the Minister. Use the Government education channels. Use the publicity channels. Warn people that this is not regulated. At least tell them, “Buyer beware”—that they do not have the same protection that they might with other forms of credit this Christmas—not just to check the details of those Black Friday deals carefully, but to check the kind of credit they are using. It is so easy on websites now to slip into buy now, pay later.

I promise the Minister that, this time next year, if he can prove me wrong, he will have the best Christmas ever, but I fear I may yet again be the Cassandra of the credit industry. That is not a position I want to be in, because all our constituents deserve better: not the Grinch, not the Scrooge, but a 2022 where they can look their family in the eye, knowing how they will pay for the food on their table and the roof above their head. That is what good consumer credit is about.

Motion lapsed (Standing Order No. 10(6)).

Hertfordshire Green Belt: National Planning Policy

Tuesday 23rd November 2021 Westminster Hall

16:01

[Daisy Cooper (St Albans) (LD)]

I beg to move,

That this House has considered Hertfordshire Greenbelt and the National Planning Policy Framework.

It is a pleasure to serve under your chairmanship, Mr Robertson. I especially welcome the opportunity to again bring threats to Hertfordshire’s green belt to the Minister’s attention. The importance of the green belt in my constituency and across Hertfordshire more broadly cannot be overstated. More than half of Hertfordshire is designated as being within the London metropolitan green belt.

Nationally, we have a housing crisis and an ecological crisis. When it comes to planning in the green belt, the answer is sustainable housing that responds to housing need, but that is not what the Government’s planning system delivers. It is developer-led, not community-led, it does not deliver the social homes that we need and it does not protect our green belt. Nationwide, of almost 18,000 homes built on the green belt, barely 10% were affordable. In my constituency, St Albans City and District Council is being asked to build more than 14,600 homes over the next 15 years. It can build 5,000 on brownfield land, so the remaining 9,000 will have to be built on the green belt. The neighbouring authority of Hertsmere wants to build 6,000 homes right on our border, removing the green belt altogether between two villages and creating a new monster-sized settlement, and the Conservative Government still want us to house a strategic rail freight interchange the size of 490 football pitches, which is also likely to attract thousands of lorries. Could this ever be described as sustainable development? No, it could not.

At the heart of the problem is the Government’s national planning policy framework. The Government have a standard methodology that produces top-down housing targets. Ministers have tried to tell me, in response to my many parliamentary questions on this matter, that their standard method for calculating housing does not produce targets per se, but is merely a starting point from which councils can start to work. I would be grateful if the Minister confirmed how many councils have submitted a successful local plan with a housing target that has been revised down from the standard method.

Those at the very top of Government tell us that the green belt will be protected. At the recent Conservative party conference, the Prime Minister himself promised that the homes we need will be built on brownfield sites and “not on green fields”. Indeed, the Under-Secretary of State for Levelling Up, Housing and Communities, the hon. Member for Harborough (Neil O’Brien), told the hon. Member for Watford (Dean Russell), who is present, in his debate last month that the national planning policy framework gives the necessary protections to green belt land when local authorities come to draw up their local plans, but I am afraid that that is simply not the case.

I give the example of Roundhouse Farm, near Colney Heath in my constituency. I understand, given the quasi-judicial role of the Secretary of State, that it is not appropriate for Ministers to comment on appeals under consideration, but this one has been concluded. St Albans District Council and Welwyn Hatfield District Council jointly refused permission for a development of 100 houses at Roundhouse Farm near Colney Heath, which is on the Hertfordshire green belt. Both councils, having regard to the national planning policy framework, considered that it would be damaging to the green belt to allow an inappropriate development such as that to proceed. The Minister’s planning inspector disagreed, and yet another chunk of precious green-belt land was given over to development. The inspector gave more weight to the calculation of housing need under the Government’s standard method than to the protection of the green belt.

In setting out the reasons for overturning the decision, the planning inspector said:

“I am aware of the Written Ministerial Statement of December 2015 which indicates that unmet need is unlikely to clearly outweigh harm to Green Belt and any other harm so as to establish very special circumstances. However”—

this is the critical line—

“I note that this provision has not been incorporated within the Framework which has subsequently been updated and similar guidance within the Planning Practice Guidance has been removed. I can therefore see no reason to give this anything other than little weight as a material consideration.”

That is to say that he gave little weight to the green belt. The inspector’s appeal decision went on to say:

“I afford very substantial weight to the provision of market housing which would make a positive contribution to the supply of market housing in both local authority areas.”

If the Government genuinely believe that there are sufficient protections for the green belt in the national planning policy framework, I would be grateful if the Minister explained to me and my constituents how that decision came to be overturned by the Secretary of State on the recommendation of the planning inspector. I would be grateful to know whether the Minister accepts the planning inspector’s conclusion that the provision to protect the green belt has not been incorporated within the national planning policy framework, and that similar protections within the planning practice guidance have been removed. If the Minister does accept those findings from the planning inspector, I would be grateful to hear whether the Government intend to rectify the situation.

Following the shock decision, I asked the Secretary of State to intervene and urgently issue guidance to the planning inspector on determining appeals. This would mean attaching greater weight to the objective of protecting green belt than to the standard housing need method of calculation. When I asked this question, I got the following reply from the Government:

“The Government is firmly committed to protecting and enhancing Green Belt land for future generations as set out in our manifesto. That is why, for decision-taking, local authorities should regard the construction of buildings in the Green Belt as inappropriate and refuse planning permission, unless there are exceptional circumstances as determined by the local authority.”

However, the two local authorities in this case did precisely that but had their refusal overturned anyway. I would be grateful to understand whether the Minister now accepts that the national planning policy framework is simply not fit for the purpose of protecting our precious green-belt land. It must be updated without further delay, and new guidance should be issued to the planning inspector. I have outlined just one example of local authorities doing everything within their power to protect our natural environment and having their decisions overturned by the same Government who profess to be its protector, but I am sure there are countless others.

Let me turn briefly to the standard method and the green belt weighting. At some stage, every council in Hertfordshire will have to make a judgment call. Either they have to come up with a local plan that meets central targets and they have to wave goodbye to the green belt, or they have to try to call the Government’s bluff, claim exceptional circumstances to protect the green belt, and wait and see what the planning inspector says. However, the problem is that the planning inspector may well take their powers away altogether. Council leaders accept that that would almost certainly leave communities in a weaker position than they are in now, and any canny developer would immediately put in an application for the sites that we most want to protect. The situation is deeply unsatisfactory.

As we have discovered, the Government’s repeated claim that the standard method of calculation does not produce centrally imposed targets just does not stand up to scrutiny. In fact, the planning inspector’s day-to-day interpretation of the national planning policy framework shows that that is exactly how the targets are being treated. I ask the Minister again: will he commit to urgently issue guidance to the planning inspector that has principles for protecting the green belt? Will he ensure that those principles are given more weight when deciding appeals and examining local plans, and that they are given more weight than the arbitrary numbers that are being reached through the standard method of calculation? I ask him to do so urgently, as yet another Hertfordshire district has just put out its draft local plan for consultation.

Hertsmere Borough Council proposes bulldozing over a substantial swathe of the green-belt land that sits between two villages in my constituency. The shocking proposal for Bowmans Cross would see the effective conjoining of London Colney and Colney Heath. The plan would mean that 6,000 houses fall slap bang in the middle of fields and natural habitats that currently surround and separate the two communities. The impact of that monster development would not be felt by the residents in Hertsmere; it would be felt by my constituents in St Albans. None the less, I cannot help but have some sympathy for yet another Conservative-led council that has felt the pressure from its Conservative Government to meet their huge top-down housing targets.

I am more than aware of the critical shortage of housing supply in the country. Liberal Democrats are absolutely committed to providing the truly affordable new homes that are so desperately needed, and in St Albans I am proud that the Liberal Democrat-run district council is driving ahead to build those social homes. However, across Hertfordshire, Liberal Democrat-run and Conservative-run councils alike are all in the same position. Conservative-led Broxbourne has given up 15% of its district’s total green-belt land. That is more green-belt land sacrificed than in any other council in England. Research by the Campaign to Protect Rural England recently found that, in addition to the 17,500 homes that have already been approved or are being built on Hertfordshire’s green belt, more than 50,000 extra have been proposed.

To be clear, I am not asking for the Government to stop building; I am asking for the Government to strike the right balance and create a planning framework that delivers sustainable development. It is in the Government’s gift to do that by updating the national planning policy framework and the guidance as I have described. I hope that the Government will take this up without any further delay.

16:12

[The Minister for Housing (Christopher Pincher)]

It is a great pleasure to serve under your chairmanship, Mr Robertson, I think for the first time. I congratulate the hon. Member for St Albans (Daisy Cooper) on bringing forward this important matter for debate. I am conscious that it is of concern and interest to her, as well as to other Members across Hertfordshire, including my hon. Friend the Member for Watford (Dean Russell) who is an industrious campaigner on behalf of his constituents, as of course is the hon. Lady for hers. They both strongly challenge what I believe can be challenging councils.

It is worth pointing out that the planning system to which the hon. Member for St Albans refers as the Government’s planning system is, in fact, England’s planning system, as it has existed since 1948 under successive Governments. It has grown in complexity and opacity during that period. Successive Governments have tried to make it clearer and more sensible, including the coalition Government of which the hon. Lady’s party was a part with the Conservatives. That Government contributed to the creation of the national planning policy framework some 10 years ago. It is England’s planning system, not the Government’s.

However, the hon. Lady is right to raise the issue of the green belt. Our commitment to the green belt is absolutely steadfast: the Prime Minister made that clear in his Conservative party conference speech last month. It is a manifesto commitment on which the Government were elected, to protect the green belt and associated countryside for future generations. The green belt in our country presently accounts for 12.4% of the land mass. In fact, it is larger now than when records began in 1997, taking into account that national parkland as categorised has been disregarded. In the hon. Lady’s constituency, it is somewhere in excess of 81% of the land mass.

We believe that the green belt is vital for preventing urban sprawl from towns and cities—it helps stop the advance of developments on to precious countryside—and national planning policies deliver strict protections for the green belt along with strong safeguards against development and changes to boundaries. Any proposals to release land from the green belt are subject to consultation with local people followed by a rigorous and independent examination of the revised local plan by a qualified planning inspector. Additionally, if a local authority finds that it cannot avoid releasing land from the green belt, it should offset that loss with environmental and access standards to land remaining in the green belt. As well as protecting the green belt, we must also look to other sites, such as brownfield land, that can be used to deliver new and beautiful homes of all types for people.

The national planning policy framework sets out national planning policy for England. It must be taken into account by local authorities in preparing their development plans. It is also a material consideration in all planning decisions. We believe that the NPPF ensures the protection of green-belt land by defining how most new buildings are inappropriate for the green belt and should be refused planning permission unless there are very special circumstances. Local authorities, through their planning policies and decisions, should show consideration of all relevant policies in the NPPF, including protection of the natural environment, irreplaceable habitats and valued landscapes.

Let me reiterate that green-belt land can change only in exceptional circumstances and that must be done in accordance with the NPPF and the local plan process, in consultation with local people, followed by rigorous examination of the revised plan. That is why the NPPF provides for two tests in safeguarding the green belt. The first prevents local authorities from changing a green-belt boundary unless there are exceptional circumstances and they have shown that they have examined every other option—using brownfield land, optimising the density of development and discussing whether neighbouring authorities can take some of the necessary development. The second test requires that most new buildings in the green belt are inappropriate and should be refused planning permission unless there are very special circumstances, as determined by the local authority.

As we improve the planning system, our existing policy for protecting the green belt will be upheld. Local authorities will be able to protect green-belt land using new digital local plans. I will take away the specific items raised by the hon. Lady and respond to her more fully. I stress that as we approach revisions to our planning framework and to the NPPF, we want to make sure that they work for the green belt as well as for brownfield sites, given the importance of developing those. I will say more about that in a moment.

Let me also point out that the Environment Act 2021, which received Royal Assent earlier this month, brings a mandatory biodiversity net gain requirement as a condition of most new development. That will make it quicker and simpler to assess environmental effects as well as speed up the decision making on and delivery of a development while continuing to protect and enhance the environment.

The hon. Lady mentioned local housing need and recognised the importance of providing housing for the people of our country who want and need it. We have a target of building 300,000 new homes each year by 2025. The Liberal Democrats, I believe, wish to out-do us, and to build 380,000 new homes each year in our country. I welcome their ambition. We want to help people rent or own their own homes. We know that we need to deliver more homes. To get more homes built in the places where people and communities need them, a crucial first step is determining the right number of homes in the right places. That is why, in 2018, we introduced the standard method for assessing local housing need, which makes the process of identifying the number of homes needed in an area as simple, quick and transparent as possible.

As the hon. Member for St Albans rightly says, that formula is a starting point; it is not an end point. It is for local authorities, working with the Planning Inspectorate, to determine the right number of homes based on the constraints or ambitions that they may have. I refer her to a letter that I circulated to Members of Parliament on, I think, 16 December of last year, which made it absolutely clear that local authorities are able to cite, to the Planning Inspectorate, constraints as reasons why the numbers into their plans are different from the local housing need number, which is the default calculation. As I have said, it is for local authorities to demonstrate and determine what the number should be. The constraints are outlined in footnotes 7 and 38, from memory, of the NPPF. In the local housing need calculations, we have also made it clear that none of the authorities outside of the 20 largest metropolitan authorities in England will see any changes to their local housing need numbers.

The challenge for all authorities, however, is to get an up-to-date plan in place. We might say that, in the land of no plan, the local housing need number is king. If there is no set number in an up-to-date local plan, it is quite possible for developers to submit speculative development applications to local authorities. The local authorities may choose to turn them down, but if they have no number in their plan, the local housing need number is the default that the Planning Inspectorate will look at. It is entirely possible that the Planning Inspectorate will overturn refusals sent down by local authorities that do not have up-to-date plans or targets, and will instead look at the local housing need target. It is incumbent on local authorities that wish to protect their communities and avoid speculative development to get up-to-date plans in place.

The hon. Member for St Albans asked me about the number of authorities that have revised their targets. A number have. Stoke, for example, has revised its target up, because it is an ambitious authority. Many others have been able to revise their numbers in other ways. However, having no up-to-date plan at all leaves communities open to speculative development. Of the authorities in our country, 91% have plans made to the 2004 standard. Of the 9% that remain, the hon. Lady’s own local authority is one. St Albans has not had an up-to-date plan since 1994. I would encourage her to encourage her authority to put that plan in place, to protect her community from speculative development.

We believe the green belt is of huge importance to our constituents and to our country. We want to make sure we do more to support it by building on brownfield sites, which we will look to achieve through our planning reforms. We have already made £5 billion, or as near as damn it, available to Homes England to support builders, particularly small and medium-sized enterprises, to develop brownfield-site opportunities. We made £400 million available to mayoral combined authorities last year to identify brownfield sites for regeneration in their geographies. We have only recently announced a further £58 million for 53 local authorities to identify small sites for regeneration that will contribute to their local numbers without the need to impinge on green spaces.

One reason why we have introduced permitted development rights is to encourage the development of unused or underused commercial premises, which can now be demolished more easily and be rebuilt as residential premises. Since 2016 that has seen the construction on brownfield and town-centre sites of some 70,000 additional residences that might not otherwise have been built, to the benefit of local communities, to the benefit of those high streets and to the benefit of the green belt and greener spaces that have not had to have greater strain placed upon them.

I assure the hon. Member for St Albans that we are committed to protecting and enhancing land for future generations and that we are committed to protecting the green belt, as we set out in our manifesto. We will continue to uphold those strong protections, and I look forward to further debates, whether in this Chamber or in the main Chamber, to demonstrate that our policies are biting.

Question put and agreed to.

16:26

Sitting suspended.

Multi-academy Trusts: Ofsted

Tuesday 23rd November 2021 Westminster Hall

16:30

[Jonathan Gullis (Stoke-on-Trent North) (Con)]

I beg to move,

That this House has considered the Ofsted inspection of multi-academy trusts.

There is much excitement, as we are expecting to hear the Division bell. I will speak slowly at the beginning of my speech, and say that it is a pleasure to serve under your chairmanship once again in a Westminster Hall debate, Mr Robertson. I am grateful to the Minister and welcome him to his new role. I spent time with him on the campaign trail, as well as working with him when he was in the Northern Ireland Office. I am delighted to see the new Parliamentary Private Secretary, my hon. Friend the Member for Wantage (David Johnston), with whom I served on the Education Committee for over a year and a half. He brings a lot of experience to the Department of Education. I also welcome the shadow Minister, the hon. Member for Hove (Peter Kyle)—I thoroughly enjoy exchanging a few heckles with him across the Floor of the House, but I also know the passion he has in this area and I am pleased to see him in the Chamber.

[Mr Laurence Robertson (in the Chair)]

Order. The sitting is suspended, as previously advised.

16:31

Sitting suspended for Divisions in the House.

16:56

On resuming—

[Mr Laurence Robertson (in the Chair)]

The debate can now run to 5.56 pm.

[Jonathan Gullis]

Thank you, Mr Robertson, for calling me to speak again, and I thank everyone else in Westminster Hall for coming back swiftly after the Divisions. I will not repeat all the love-ins that I gave before the Divisions; instead, I will go straight on to saying why we are having this very important debate.

When the people of Stoke-on-Trent North, Kidsgrove and Talke lent me their votes in 2019, it was because they wanted change after 70 years of Labour neglect. A Conservative-led council, Conservative MPs and a Conservative Government are finally levelling up our fantastic city and unleashing the boundless opportunity that it has to offer, while Labour Members are still trying to find Stoke-on-Trent on their Ordnance Survey maps.

As a former teacher, I believe that the most important way to continue levelling up our city is to transform education across Stoke-on-Trent North, Kidsgrove and Talke. It is unacceptable that children from Stoke-on-Trent simply cannot access the same standard of education that is on offer elsewhere in the country. Where we are today, in Westminster, there are eight secondary schools rated outstanding, with a further 16 outstanding schools in Camden, Kensington and Chelsea, and Southwood. By contrast, there is only one outstanding secondary school in Stoke-on-Trent, with another outstanding school shared between the neighbouring local authorities of Newcastle-under-Lyme, Staffordshire Moorlands and Stafford.

Such examples show why I firmly believe that if levelling up means anything, it means that each and every child, no matter where they live in our United Kingdom, has the chance to attend the best schools, where they can receive the education they need to attend first-class universities or gain skills via an apprenticeship or vocational training. As a former teacher who taught in academies for eight years, I think that academies are one of the keys to spreading educational opportunity around the country. Multi-academy trusts back great teachers and, most importantly, they enable our children to reach their potential.

As the “Lost Learning” report that I co-authored earlier this year with Onward and the New Schools Network year argued, we should

“much more aggressively use multi-academy trusts as the engine of school improvement, by…holding them to account for their ability to turnaround underperforming schools”.

Since 2010, the Conservative Government have invested in multi-academy trusts, and throughout my teaching career I saw at first hand how that investment acted as a vehicle for school improvement by advancing the education that our children receive.

That has been reflected in the Ofsted rating of schools. Between 2010 and 2020, the proportion of schools that Ofsted rated as good or outstanding rose from 66% to 86%, while 2018 figures showed that at converter academies open for one year, 65% of pupils reached the expected standards in reading, writing and maths—that figure rises to 71% in converter academies open for seven years or more.

Coupled with the drive for academisation, the free school agenda has been at the heart of the Government’s impressive record on education since 2010. At free schools, 10% more disadvantaged pupils achieve a pass between grades 5 and 9 in their English and maths GCSEs than their peers at other types of state school.

I firmly believe that free schools and academies are key to our mission to level up around the country, and therefore it is only right that pupils in Stoke-on-Trent North, Kidsgrove and Talke should benefit from a free school opening up in the community. I look forward to the Minister announcing that wave 15 is finally coming down the track, so that we can bid for a disruptor free school. I have very much enjoyed talking to Star Academies and to Michaela Community School, which has the fantastic Katharine Birbalsingh, to see if she will endeavour to come to Stoke-on-Trent and shake the apple tree.

On top of their role in driving up school standards, multi-academy trusts are vital in turning around failing schools. To take a local example, the inspirational Learning Academies Trust has transformed the fortunes of two schools in Stoke-on-Trent North, Kidsgrove and Talke. Norton-le-Moors Primary Academy became part of the Learning Academies Trust in 2015, following an Ofsted inspection that rated it as inadequate. After the takeover, it received its first good grade from Ofsted in 2017, and in 2019, 13% of pupils, which is higher than the national average, were achieving beyond the expected standards for reading, writing and maths. I will give a big shout-out to Jack, who was a runner-up in my Christmas card competition. It was a pleasure to visit him with Councillor Dave Evans and award him the prize of the card, as well as Port Vale football match tickets—Stoke’s first team, of course, unlike that team further south, Stoke City.

We also have Whitfield Valley Primary Academy in Fegg Hayes, which joined the Inspirational Learning Academies Trust in 2016. It is now not only rated good by Ofsted but has achieved an above-average progress score in maths, as well as above-average scores in reading and writing.

To look at another example, the Shaw Education Trust recently took over Kidsgrove Primary and Secondary Schools, following inadequate Ofsted ratings under the former multi-academy trust, the University of Chester Academies Trust. That shameful trust has been slammed by Ofsted for failing in its school improvement strategies and below-average standards in some of its schools. In May 2018, it received a formal warning from the Education and Skills Funding Agency to get its finances in order, after racking up a £3 million deficit. The trust confirmed that it was considering cutting 24 support staff and 19 teaching roles across its schools.

Since then, thanks to the Shaw Education Trust, Kidsgrove Primary and Secondary have partnered in launching a new digital strategy, allowing pupils to be taught with up-to-date technology. That follows my “Silicon Stoke” agenda, a new prospectus setting out the ambition for a digital transformation of the city of Stoke-on-Trent, enabling it to become a smart city, attracting new national and international businesses, and being at the heart of the UK video games sector.

“Silicon Stoke” ensures that Stoke-on-Trent takes up opportunities through digital connectivity, and the Shaw Education Trust has ensured that our primary and secondary students at Kidsgrove and Talke are kept up to speed with the new digital age through the digital strategy. Since July this year, all classrooms in Kidsgrove Primary, for example, have been equipped with the latest Promethean boards for teacher and pupil use, and since September, there has been a measure for all students across both schools to receive an iPad, to support school and home learning.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

I thank my hon. Friend and neighbour for giving way. I thank him for referencing the Shaw Education Trust, which also has schools in my constituency, such as the Orme Academy. Does he agree that one of the benefits of multi-academy trusts is that they can spread best practice from one area to another, and thus raise standards for everybody across my borough and his city?

[Jonathan Gullis]

I am grateful to my hon. Friend and neighbour, with whom I share Kidsgrove, Talke and Newchapel, since they are within the Newcastle-under-Lyme borough. As we have just heard, the Shaw Education Trust has spread good practice and is sharing expertise, not just across that borough but also within the Stoke-on-Trent City Council area. In fact, the current city director of Stoke-on-Trent City Council, Jon Rouse, was formerly the head of the Shaw Education Trust. I am sure that he is keen to ensure that he declares that he has no interest any more in that trust, having become city director. Ultimately, we could see what he was doing in the Greater Manchester area and how Shaw Education Trust has gone on to do many great things.

My hon. Friend has been a doughty champion for all the schools in his community. Not a day has gone by recently without me seeing a photo of him in a school in his constituency. I know he was recently at Silverdale in the Knutton area, visiting some of the fantastic schools there, alongside local county councillor Derrick Huckfield, who is also doing a fantastic job in that area.

Multi-academy trusts have proven, across Stoke-on-Trent, north Kidsgrove and Talke, that they can level up education by driving up standards and giving our children the education that they deserve. We are committed to driving up school standards across the city. The new education challenge board, approved by the Secretary of State and the Minister for School Standards, is chaired by Sir Mark Grundy, a highly respected educational leader. It will bring together city council leaders, the Department for Education, local academies, Ofsted and the regional schools commissioner. Working collaboratively, the new education challenge board will provide oversight of educational performance across Stoke-on-Trent, helping to turn schools around through first-class teaching and leadership, by drawing on the expertise of the trusts already succeeding within the city.

Unfortunately, not all the trusts are performing in the same way. That matters, because 42% of schools are now academies, and 84% of those academies are part of multi-academy trusts. Since they have control over such a significant number of our schools, families must have confidence in trusts, regardless of where they are in the country. Parents and teachers work incredibly hard to provide children with the best education they can, while listening to various scandals of multi-academy trusts abusing their budgets with excessive spending.

To pick just a few examples, 40 chains have spent more than £1 million on executive expenses, paying thousands for first-class travel. The Aspirations Academy Trust, based near Heathrow airport, has spent nearly £90,000 for its America-based co-founders to fly across the Atlantic; the Paradigm Trust in London has covered the cost of broadband at its boss’s French holiday home; and the Academy Transformation Trust in Sutton Coldfield has even paid to lease a new XJ Premium Luxury V6 Jaguar for a chief executive earning £180,000 a year.

I want to make it clear that I am a huge supporter of academisation, and I believe that we should be going full throttle to turn all schools into academies. Through my experience as a teacher, I have seen at first hand how brilliantly they can turn failing schools around, but we must restore the faith of parents, teachers and, most importantly, the pupils, and we must ensure that trusts are working on behalf of students and not, insultingly, taking advantage of the big budgets to which they have access. It is absolutely right that we move from the local education authority model, but we do not want to create less accountable and transparent LEAs by not having multi-academy trusts properly inspected.

That is the heart of the issue. With no formal procedure in place for inspecting the boards of trustees of multi-academy trusts, how can parents and teachers know that their trusts are performing with the best interests of the school and students at heart? If Ofsted were able to consider the achievement of pupils across schools covered by a multi-academy trust, the success of a multi-academy trust in reversing educational underperformance, and the quality of leadership, financial management and governance of a multi-academy trust, we could ensure that multi-academy trusts played a full role and, crucially, allow those that are doing truly excellent work to be recognised.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

I commend my hon. Friend on securing the debate. I wonder whether he will touch briefly on the issue of the regional schools commissioners. As he has rightly outlined, there is concern that multi-academy trusts lack transparency in their governance structures and are difficult to hold to account, but there is also concern about how we as Members of Parliament can access the commissioners, interact with them and help to raise concerns through the system. Will he draw that to the attention of the Minister and give his own thoughts on that particular challenge?

[Jonathan Gullis]

I am very lucky to have had a really healthy working relationship with the west midlands regional schools commissioner, who is a former headteacher at the Mill Hill Primary Academy in Stoke-on-Trent North. However, I have serious concerns, and the purpose and role of regional schools commissioners is an issue that was raised in the Education Committee. When those posts were originally set up, it was absolutely the right thing to do, both to have accountability and so that parents, Members of Parliament and teachers in the schools could raise any concerns. In my opinion, regional schools commissioners should be brokering deals, such as new deals for multi-academy trusts to come into a local area, holding to account boards of trustees that they think are underperforming, and feeding that information back to the Department for Education.

At this moment in time, I do not think that regional schools commissioners are utilised well enough, and there has to be a discussion at some stage about whether they are the right model to bring this change about in the long term, and whether they could be given more powers. Hopefully, we will ensure that regional schools commissioners are not just civil servants, whom I am sure are very noble and worthy people, but that they have spent years in the classroom at all levels of governance and management and can bring their experience with them. That is when a regional schools commissioner can really work. At the moment, they are simply not fit for purpose. I know that the Education Committee raised this issue, and I am sure the Minister will look at it.

We have had a great 10 years of Govian and Gibbian reforms. We will now have the Zahawi-Walker reforms over the next 10 years, and I am sure there will be a White Paper in which we will start to see the next 10 years of mission for education. I hope the role of regional schools commissioner can be explored by the Minister, and I look forward to hearing his thoughts on that. If he cannot tell us today, I am sure he can write to us to let us know how he sees that going forward.

Teachers are accountable for the education they provide to pupils, with Ofsted inspecting schools, including individual academies, and children’s social services. To restore faith between teachers and trusts, multi-academy trusts and their leadership teams must be accountable in the same way as teachers. Ofsted’s chair, Dame Christine Ryan, has agreed with the need to inspect schools’ governing bodies, noting in the Education Committee meeting in September this year:

“I always felt it was absolutely essential to carry out inspection activities on the governing area and its interactions with the schools that it owned.”

Hospital trusts are subject to inspection by the Care Quality Commission, so why can Ofsted not inspect multi-academy trusts in the same way?

We have been moving in the right direction. In 2018, Ofsted trialled inspecting individual academies under the same multi-academy trust before visiting the trust’s head office to evaluate its effectiveness. Although that certainly highlighted the requirement to inspect multi-academy trusts, inspections remain focused on individual schools, meaning that wider issues at the heart of the trusts that run them can go undetected. Inspections that cover only individual schools are the crux of the multi-academy trusts’ accountability problem. Education Committee meetings with Ofsted chief inspector Amanda Spielman in June 2021 were revealing, as she said:

“We still operate what in some respects is historic inspection legislation that constrains us to look at the level of the individual school”.

That clearly limits our ability to hold those responsible to account. The chief inspector noted in November 2020 that

“accountability needs to be able to look at the multiple levels in the system to ask the right questions at the right level”.

To ensure that multi-academy trusts truly use their power for the benefit of our schools, accountability must reflect the top-heavy leadership style of many trusts, and thus hold those responsible to account.

Ultimately, multi-academy trusts can, and do, turn schools around, just as the Inspirational Learning Academies Trust has done across schools in Stoke-on-Trent North, Kidsgrove and Talke. By holding trusts to account through regular inspection—they do not fear being held to account because they are proud of their work—we can ensure that schools, staff and students alike are performing to their full potential. The inspection of multi-academy trusts will allow us to recognise those that perform well, and incentivise the best multi-academy trusts with generous funding to take on struggling schools. By keeping trusts responsible for their performance, we can seek to harness their power, especially in parts of the country where school outcomes are weak. With my personal experience in the teaching profession, I believe that multi-academy trusts are the proven route to ensuring that every child, no matter where they live, can attend a school where they will reach their potential, and open doors to the career routes they wish to pursue.

When I was elected, I promised to level up communities like Stoke-on-Trent North, Kidsgrove and Talke, and providing a quality education for every child is vital to doing this. Multi-academy trusts have had a crucial role in the great improvements in school standards in the last decade; it is our responsibility to identify the best of them and use their power to prove to every child, up and down our United Kingdom, that they are not forgotten and opportunity sits right on their doorstep.

This debate comes off the back of my introduction of a ten-minute rule Bill, for which I was delighted to receive cross-party support from members of the Labour party and from the Liberal Democrats. It shows the strength of feeling on this issue. I was lucky enough to secure the signature of my hon. Friend the Member for Wantage before he was promoted to become Parliamentary Private Secretary at the Department for Education. He knows how great this is, and I am sure that he will use his position within the Department for Education to lobby the Minister. Ultimately, I think this shows the strength of feeling that this is the right way to have fairness, accountability, transparency and to ensure that multi-academy trusts are a positive driver for improving education outcomes across England.

17:12

[Peter Kyle (Hove) (Lab)]

It is a pleasure to serve under your chairmanship for the very first time, Mr Robertson, unlike the hon. Member for Stoke-on-Trent North (Jonathan Gullis), who seems to be a regular in your sessions. I am also very grateful to the hon. Gentleman for securing the debate, and for the persistence with which he is championing this cause. It is extraordinary; he had so much time in which to speak in this debate, and yet he did so at such a ferocious pace. For the benefit of our friends in Hansard, I will speak more slowly so that they can rest their weary quills for the next few minutes.

There are 7,680 schools in this country that are now part of multi-academy trusts. Even if each of those schools had just 500 pupils, that would mean several thousand young people whose futures are in the hands of multi-academy trusts. Regardless of ideology, that should give us pause for thought. Due to the reforms of recent years, multi-academy trusts now have a level of influence over the school system that few could have predicted, even when the first trusts emerged. In fact, most other authorities with responsibilities for young people are subject to extremely stringent inspection regimes—even if they are responsible for far fewer children than many multi-academy trusts. That is why we must do all we can to ensure that, whatever regulatory framework we develop for MATs, it reflects the level of influence that these trusts now exert.

For too long, education policy has been dominated by discussion of school structures. I noticed that in his speech, the hon. Member for Stoke-on-Trent North fell into the same trap, if he does not mind my saying so. As someone who has helped set up two academies, I know their strengths—that they can be a phenomenal tool for delivering improvement—but also their limitations. To suggest that they would have the same impact in every situation stretches the single tool that academisation presents as an opportunity for the education system. Other tools are available to Ministers, principals of schools, school leaders, MATs and local education authorities, and we need to use all the different tools that are at our disposal, not disproportionately favour one for reasons that are simply ideological.

For too long, education policy has been dominated by discussions about school structures—that was, after all, the key plank of the reforms implemented by the Conservative-led coalition after the 2010 general election. Obsessions over school structures have held our schools back, because they have hidden new and emerging challenges in our school system such as the complete failure to root out sexual harassment in our education system. Though it has been found by Ofsted to be routine in all schools, there have been particularly high-profile cases of poor practice in “outstanding” schools that are part of well-established trusts. That is not an argument against trusts or against collaboration, but it is a clear example of how focusing on structures can obscure the real issues that are existing, emerging and developing within our school system. Our focus should not be on radical changes in school structures: it should be on what delivers improvement in the 2020s and beyond, not in a bygone era.

To his credit, I believe that the hon. Member for Stoke-on-Trent North is focusing on this issue with a sincere desire to drive improvement, going forward. The Labour party and I are very grateful for that, which is why we have offered what I hope the hon. Gentleman will perceive as constructive support since he introduced his ten-minute rule Bill and beyond. He has drawn national attention to the proliferation of multi-academy trusts under this Government, and has pushed for a specific loophole around inspections to be closed.

As has been noted, Ofsted has carried out summary inspections on multi-academy trusts since 2019. Recent updates to the guidance on those inspections should help to broaden their remit and increase their volume. However, Ofsted itself has highlighted the need to go further: its chief inspector, Amanda Spielman, has highlighted the “peculiarity” of not inspecting MATs on their governance, efficiency and use of resources. Appearing before the Select Committee on Education, she also referred to a suite of

“historic inspection legislation that constrains us to look at the level of the individual school”.

We in the Labour party completely agree that inspections of multi-academy trusts should take place. We also agree that those inspections should include a proper assessment of leadership, governance and safeguarding arrangements, so we look forward to hearing the Minister’s response today.

As a former chair of governors involved in setting up two turnaround academies, I know how important leadership is to the success of schools. What is more, we never feared being held to account. Inspections are important: in fact, we relished the chance to show what we could do and learn how to perform better. I was there at 7.30 in the morning as chair of governors, alongside the principal, to await the team of inspectors. We welcomed them to our school and we saw their inspection as a tool for improvement, even though we all felt the heat—the anticipation—and did so with great nerves, because we wanted to show off what was great about our school.

When I got the reports in from those inspections, I found them to contain incredibly helpful insights into the performance of schools, which often reinforced the direction of travel within a school and highlighted those things that we did not quite notice. Even on school inspections, classroom visits and walkarounds, it is very hard for people who are not trained educationists to see with their own eyes precisely what is happening in every corner of a school, rather than just going on the data that is presented to them by that school. Inspections are a really important part of improvement, whatever the organisation. So, I have no doubt that genuinely forward-looking MATs will take the same approach to a more rigorous form of inspection for their own organisations than the current regime offers—a form of inspection that champions innovation and gives the insight and analysis of performance to help MATs improve in practice, just as a good inspection should seek to improve individual schools as well.

Adopting a new form of inspection to challenge and support MAT leaders is one thing, but driving up performance and leaders will take far more than a new inspection regime, especially given how badly both they and pupils have been let down during the pandemic. According to research conducted by Teacher Tapp, only 2.5% of school leaders felt supported by the Department for Education throughout the pandemic. Think about that for one second: 97.5% of teachers—over 400,000—trying to respond to a once in a lifetime disruption to education without anyone backing them up. The sense of isolation they felt was profound.

Changes to inspection regimes will go so far, but will not remedy the worst failures of this Conservative Government. What is worse, the Department’s muddled and inconsistent advice was often actively harming our school leaders’ ability to respond. One teacher said of the guidance that she received:

“I physically look at it and I can’t even bring myself to open it right now, because you just get saturated with it”.

Threatened with legal action if they closed—only to be forced to close the very next day—schools and trust leaders have lacked proper leadership throughout the pandemic. They are now lacking properly resourced catch-up support and tough action to clamp down on anti-vaxxers outside school gates.

[Jonathan Gullis]

I want to put it on the record that I completely agree with the hon. Gentleman regarding the disgraceful action of anti-vaxxers standing outside schools filming young people coming in and out of that school, as well as parents. It is absolutely abhorrent and there is absolutely no place for it. This Government have to come down hard on those people.

School, for some of the most vulnerable people in our communities, is the safest place for them. As a former head of year, I used to have a lot of children who hung around after school—despite the fact they told me it was the worst place to be—because it was where they felt safest. The fact that we have these disgusting individuals targeting young people is abhorrent. I am sure that the hon. Gentleman will also call for action. I want to make sure this is on the record for the Minister: we have to go in hard; we have to make our young people and teachers feel safe.

[Peter Kyle]

This is something that I have been deeply concerned about since the start of the autumn term in September. On 19 July in the Chamber, when I raised concerns about the vaccine roll-out among children aged 12-plus and argued that it should be rolled out over the summer months, so as to use the mass vaccination existing infrastructure, so that schools could be protected come autumn and stabilised, but also so that they did not become targets for anti-vax protests, the then Vaccines Minister, the right hon. Member for Stratford-on-Avon (Nadhim Zahawi), told me that children were protected by a “wall of vaccinated adults” and therefore it was not a priority. He was wrong. Now he is Secretary of State for Education and we are picking up the pieces.

The principal of a school told me recently that he feels his job is no longer primarily that of leading an institution for schooling, but of running a logistics centre: twice-weekly testing in school, organising the logistics behind a vaccine roll-out in school, dealing with local outbreaks, and dealing with the need to control the flow of students. He said the first, second, third and often fourth items on the agenda of his daily senior management team meetings were about logistical challenges, not teaching and learning. That is the price of not seeing this coming down the road. It was predicted and predictable and was not dealt with.

The Labour party has tried to be constructive about this. Last month the Leader of the Opposition proposed a solution—to update the legislation around public spaces protection orders. They are unwieldy at the moment and could take several weeks to implement. However we believe that, with a very simple amendment to the Anti-social Behaviour Act 2003, the process could be streamlined so that an order could be brought into force in just one hour, with one phone conference between a school principal, the local authority and the local police force. They could bring into the order the powers to keep anti-vax protesters away from school gates for the duration of the vaccine roll-out programme. We offered that suggestion, but sadly the Government have not responded. The Secretary of State for Education said in response to my oral question just two weeks ago that he was in conversation with the Home Secretary, and that all powers would be implemented. Again, nothing happened. I cannot see that that conversation actually took place in a meaningful way.

However, there is another opportunity, and it is great that I have been given the opportunity to put it on the record. Tomorrow, in the House of Lords, Lord Coaker will table an amendment to the Police, Crime, Sentencing and Courts Bill that would amend the 2003 Act to give schools the powers that I have just described to instigate exclusion zones for anti-vax protesters within one hour, and they could do so pre-emptively; if one school is facing disruptive anti-vax protests in which children are being bullied, harassed and intimidated, in all likelihood the same will emerge down the road when the protest moves to another school, so schools need those powers to prevent that protest from happening. The Government have an opportunity to give them those powers. We would get this through in a heartbeat. The Labour Opposition in the House of Lords stand ready to table that amendment tomorrow.

I will have my say on another issue, because I feel as strongly as the hon. Member for Stoke-on-Trent North, and we have another 25 minutes of debate, so I am sure I can get this on the record before I sum up the debate. In my constituency, anti-vax protesters have gone on to a school bus to tell children that they will become infertile if they take the vaccine. Outside schools in my constituency, there have been so many harassing, bullying and intimidatory protesters that schoolchildren have had to detour out into the busy main road in order to go through the driveway into the school. A child was grabbed by the collar and told that he could endanger the lives of his teachers and his parents.

I bring those experiences and my anger about that kind of behaviour because, let us be clear, these people are not just anti-vax. Six months ago, they were anti-face masks. A year or two ago, they were anti-covid altogether, believing it was all fake news. If they were alive 350 years ago, they would have been calling for Galileo to be burned at the stake for saying the earth revolves around the sun. We went through the scientific revolution, we went through the Enlightenment, in this country so that we could not base policy on superstition. We did so by bringing the best of scientific understanding to the heart of Government. Let us not allow these people to determine how public health unfolds in this country. I thank the hon. Gentleman for that intervention and for giving me the opportunity to put that on the record. I feel very strongly about it.

People leading schools and teaching in classrooms through the pandemic lack resources for catch-up support and tough action to clamp down on anti-vaxxers outside school gates. In contrast to the Government, the Labour party is on the side of pupils, teachers and leaders. Our goal is a well-functioning school system, backed with resources, direction and inspection, that prepares students for the world of work and the world of tomorrow that they will encounter. Under the new leadership of my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), we have updated our positions on key issues in schools policy to meet the new challenges that schools and trusts face. The Government have not. We innovate; I am afraid that the Government stagnate.

What is the Minister’s assessment of the strength of the current inspection regime for MATs? What plans does he have to expand Ofsted’s inspection powers with regard to MATs, and does he intend to support any greater powers with the required resources? What other steps is he taking to support schools that wish to exit their trust if that is in the best interests of pupils? Will he commit to a new era of strong leadership from the Department for Education? This is a fantastic opportunity, as we hopefully see the finish line of the pandemic in sight, and with a new ministerial team, to commit to new, strong leadership—one that trust leaders, school leaders, teachers and students can at last trust, replacing the years of drift and decline.

As I made clear at the start, ensuring robust standards for all MATs is crucial. It would matter if they educated just one child; it certainly matters when they educate so many thousands. A young child has only one shot at their education; the state must do all it can to make that shot a success.

[Mr Laurence Robertson (in the Chair)]

I would like to leave two or three minutes at the end for the mover of the motion to respond.

17:30

[The Minister for School Standards (Mr Robin Walker)]

It is a great pleasure to serve under your chairmanship, Mr Robertson. It is also a great pleasure to follow the hon. Member for Hove (Peter Kyle); it was great to hear him speak so passionately about the value of school inspection. I know he has had his differences with his party’s Front Bench in the past. Obviously, given the manifesto for school inspection that Labour fought the last election on, that is a pretty major difference. I welcome many of the points he made and, although it is not the subject of the debate, I share the absolute condemnation of bullying and intimidation by anti-vaxxers. It is, of course, totally unacceptable.

I congratulate my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis)—also the Member for Kidsgrove and Talke—on securing the debate. I know that its subject reflects his immense commitment and, indeed, successful frontline experience in improving educational outcomes for pupils. As we would expect, he has spoken with great passion and eloquence about the transformative potential of the academy system and the need to harness that so that pupils across the country, and particularly in his Stoke constituency, can benefit.

I am also pleased that, through the Stoke plan, there is a place-based pilot aiming to level up education in the city and identify strategies to build up MAT capacity in the area, and that my colleague, Baroness Barran, and the Secretary of State were recently able to attend the inaugural meeting of the education challenge board in the area. I am glad to hear of the positive developments that my hon. Friend the Member for Stoke-on-Trent North reported at both the Inspiration Trust and the Shaw Education Trust, as well as the support they have given my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell).

My hon. Friend the Member for Stoke-on-Trent North has rightly emphasised the importance of having the right accountability arrangements in place to support continuous improvement in educational quality and, ultimately, to change the lives of children for the better. I thank him for that. We have also heard a number of valuable contributions from colleagues who are now elsewhere and, indeed, from the Opposition spokesman.

I am also conscious of the contributions of the Education Committee, its role in scrutinising current accountability arrangements and its interest in promoting Ofsted’s inspection role over a number of years through its reports and discussions, which underlies the relevance and importance of today’s debate across the House. I also acknowledge the desire of Her Majesty’s chief inspector and the Ofsted chair to go further.

I absolutely agree that accountability arrangements should develop over time to reflect the delivery of education and the decision making that goes on. It is clear that that delivery is taking place within an evolving landscape in which academies and MATs are playing an increasing role. A little more than a decade ago, there were just 203 academies. I am pleased to report that there are now more than 9,700 open academies, free schools, studio schools and university technical colleges, with around 1,200 academy trusts running more than one academy.

Today, more than 55% of pupils in state-funded education study in academies, but that of course means that almost half do not. The dual system of educational delivery in this country persists. We are on a journey to change that but we have not yet reached our destination: a world-class school-led system in which every school is part of a family of schools in a strong multi-academy trust.

Our commitment to reaching that destination is fuelled by the evidence of the benefits we already see in strong MATs. My hon. Friend the Member for Stoke-on-Trent North has alluded to some of them today: the flexible deployment of teachers and leaders to where they are needed most; the opportunities for teachers to gain experience across school settings; the sharing of resources and mobilisation of the best available evidence of what works; the use of economies of scale to improve outcomes; and great resilience, which has been particularly important during the pandemic. The list goes on. Put simply, a group of schools in a trust, working together with a single aim, can make a profound difference. I agree with my hon. Friend and the hon. Member for Hove that not all trusts are as strong as they could be, which is why accountability is a crucial part of the equation.

Ofsted already plays a role through its routine school inspection programme, which, as Members will know, was paused temporarily in response to the pandemic. The programme not only resumed in September, but has now accelerated so that all schools, including outstanding schools that were previously exempt from routine inspection, will have at least one inspection between last term and summer 2025—a year earlier than previously committed to—to provide swifter assurance for parents and more timely recognition of schools’ work as they strive to support pupils’ recovery.

Ofsted school inspection provides robust assessment of the quality of education and the strength of leadership and management in each and every academy. It is important to recognise that through the lens of the individual school Ofsted gazes at and captures the impact of MATs. After all, when an academy is part of a MAT, the board of trustees is the governance body and the role played by trustees in relation to the school is evaluated by the inspectors as part of their judgment of the effectiveness of leadership and management at the school. In a school with good leadership and management, inspectors will expect trustees and local governing boards to ensure that the school has a clear vision and strategy, manages its resources well and holds leaders to account for the quality of education provided to pupils.

The bottom-up accountability for MATs provided by Ofsted’s school-level inspection is supplemented by a programme of MAT summary evaluations, which provides more of a top-down view and insight into the role and impact of the MAT itself. Those evaluations draw on the inspections of individual academies in a trust, along with direct engagement with trust leaders to review how well a trust is delivering a high quality of education and raising standards for all pupils. To be clear, it is early days for the programme, which began in December 2018 and which builds on the previous batched inspection approach, and it has involved 12 MATs to date. As with routine inspections, the evaluations have rightly been paused in the light of the pandemic, but will now move forward under the recently revised Ofsted arrangements. The Ofsted updates are intended to bring evaluations more in line with Ofsted’s education inspection framework, with its focus on the quality of education and curriculum. The evaluation includes consideration of key information about the MAT and aims to recognise where it is having a positive impact, as well as giving the MAT helpful recommendations on aspects that could be improved.

I want to come back to the MAT summary evaluation programme, but before that I want to provide a wider context to the arrangements for MAT accountability. Academy trusts’ status as companies, charities and public-sector bodies means they are subject to significant scrutiny, beyond the necessarily periodic Ofsted inspections and evaluations. The Department, as regulator, requires a level of transparency from trusts, and its regional schools commissioners and their teams, together with the Education and Skills Funding Agency, provide robust educational financial oversight of all academy trusts. Trusts themselves must publish annual reports and audited accounts. That is in addition to the Department publishing a wide range of information, such as tables setting out measures of educational performance and financial benchmarking data. Both the regional schools commissioners and the ESFA hold trusts to account where schools are underperforming or where there are weaknesses in safeguarding, which we have heard about in today’s debate, governance or financial management. That can include commissioning support or issuing a pre-warning notice, a termination warning notice or a notice to improve, all of which are published if necessary. The funding agreement can be terminated and a new sponsor identified to take on responsibility for the academy.

On managing MAT expansion, we have increased the rigour around how regional schools commissioners decide on which academy trusts can grow, with oversight from the national schools commissioner. Before approving a decision about growth, RSCs will consider evidence about the educational and financial capacity of an academy trust. In doing so, they should consider the circumstances and maturity of the academy trust, reducing the likelihood that trusts grow in an unsustainable way as, I acknowledge, they have been known to in the past. To support that approach, regional schools commissioners regularly engage with trusts to ensure strong processes are in place to maintain and improve educational performance and to inform decisions about the suitability of a trust to support new schools.

I hear the concerns that my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter) raised and my hon. Friend the Member for Stoke-on-Trent North endorsed about the role of regional schools commissioners. Their role has evolved and I suspect that that will continue to happen. There is an increasing focus on financial management, supported by the ESFA. Regional schools commissioners and the ESFA need to work together to test both financial regularity and value for money in all trusts. I am happy to engage further on the issue with hon. Friends.

Financial accountability is founded on a clear framework communicated and regulated by the ESFA through trust funding arrangements and the academy trust handbook. As mentioned earlier, academy trusts must publish annual reports, audited by a registered statutory auditor. As part of their annual reports and accounts, trusts must also publish details of their objectives, achievements and future plans, including what they have done to promote value for money in support of those projects. The oversight arrangements go beyond the requirements for local authority maintained schools and provide the Department as regulator with confidence that the oversight is professional and consistent, as the auditors themselves have to confirm standards set by an independent regulator. It is right that we consider adapting and implementing the current academy transparency measures across the maintained sector to strengthen accountability for maintained schools and ensure we have strong and balanced arrangements across all schools. We are taking action as part of the Department’s 2020 transparency consultation response.

On the issue of financial mismanagement—my hon. Friend the Member for Stoke-on-Trent North has raised cases of that in the past—a number of steps have already been taken to strengthen academies’ financial accountability and transparency. That includes the introduction, in April 2019, of requirements for academies to declare to the ESFA, up front, any related party transactions, and in turn to seek approval for any transaction—or cumulative total of transactions—exceeding £20,000.

To be clear, the vast majority of academy trusts are delivering strong financial management and governance. The latest published data shows that in 2018-19, 99.3% of academy trust accounts received unqualified opinions. However, where there is any risk to public funds, the ESFA will intervene. That can include issuing a notice to improve, seeking to impose sanctions on individuals engaged in misconduct or, where appropriate, in the most serious cases, terminating funding agreements.

With the combination of Ofsted school inspection and Ofsted MAT summary evaluations, together with regulatory oversight through regional schools commissioners and the ESFA and transparency on educational outcomes through MAT performance tables, I hope hon. Members will agree that significant accountability safeguards are already in place for MATs. However, that does not mean that we should stand still. We need to keep arrangements under review and seek to build further assurance, where appropriate, while ensuring a balanced system, particularly when they are compared with local authority-maintained schools. I would like to see Ofsted’s MAT summary evaluation programme expanded in the short term, the MATs visited diversifying, and the model continuing to develop. I know that Her Majesty’s chief inspector is keen for that to happen. We will absolutely keep reviewing actively where and how we might go further.

Beyond that, I come back to my original theme: our plan is to move, over time, away from the current dual system approach to a more unified one in which all schools are in strong MATs. As part of that we will be taking a careful and detailed look at how better to hold MATs to account, including Ofsted’s role in that, to ensure MATs are delivering for children. The schools White Paper, which we expect to publish in early 2022, will articulate a long-term vision of how our education system can deliver on the Government’s priorities of building back better after the pandemic and levelling up across the country.

Whatever the future accountability arrangements are, they will need to be developed on the basis of ensuring proportionality and coherence, as well as transparency; it is in no one’s interest for us to micromanage MATs, to stifle their innovation or stamp over their autonomy. Those are the very things that mean the strongest MATs can make such an impact.

We also need to examine accountability at school and MAT level together, to ensure that arrangements do not overlap, confuse or create unnecessary additional burdens that get in the way. Importantly, we need to keep engaging closely with the sector, with organisations, agencies and individuals with a close interest and expertise—I very much include my hon. Friend the Member for Stoke-on-Trent North in that—to work through the issues and be confident that the system delivers. We need to get the right accountability balance, and we will not make changes until we are sure that we have it.

The hon. Member for Hove challenged me with a number of question, and I appreciate that I have not been able to answer them all directly today. However, I can confirm that this is an area that we will keep under active consideration. As we move forward with our school system reforms, we will need an accountability system that empowers trusts and ensures that they are meeting the needs of our young people, and I expect Ofsted will play an important role in that. I again congratulate my hon. Friend the Member for Stoke-on-Trent North again on bringing forward this important debate.

17:43

[Jonathan Gullis]

I am delighted to hear about the schools White Paper—the Zahawi-Walker legacy document —that will be launched next year. I will absolutely be pushing for my ten-minute rule Bill to play a key part in that. I am obviously happy to always try to be flexible and fair, but I think—we heard it from the hon. Member for Hove (Peter Kyle)—that this is something that brings everyone, across the House, together. We want the very best for our young people and therefore want the very best education to be accessed.

I could not agree more with the hon. Member for Hove; none of the multi-academy trusts I have spoken to fear this idea, because they believe firmly in what they do. I think the overwhelming majority of multi-academy trusts do their best, work hard, spend their money correctly and invest in the schools within their trusts, and I think they have no problem with it. The only ones that will be worried about are those that do not want to face the scrutiny. That gives the DFE the power to get rid of them—disband these ones—and broker new deals with good existing multi-academy trusts to then come in and take over.

I like to be a bit punchy every now and again, and the hon. Member for Hove is fantastic when he gets going about the Government’s record, so I could not help but remind myself of a few facts. At the end of the day, when the Conservative party came to power in 2010, about a year before I entered the teaching profession, the legacy left by the Labour party was that the Confederation of British Industry stated that employers had lost confidence in Britain’s exams, the Wolf Review found some courses

“fail to promote progression into either stable, paid employment or higher level education”,

and some 350,000 young people had been let down by courses that had little or no labour market value. In 2008, the Sutton Trust found that only 40 pupils out of the 80,000 eligible for free school meals went on to Oxbridge, and in May 2010, the Office for Fair Access said that by the mid-2000s the most advantaged 20% were

“seven times more likely than the most disadvantaged 40% to attend the most selective institutions.”

We only have to look at Labour-run Wales where education standards are falling down the league tables. It is an abomination and Mr Drakeford should be ashamed of himself. He should be held to account for his dismal record in failing to deliver for the people of Wales.

[Peter Kyle]

I welcome the hon. Gentleman’s words, and his challenge and scrutiny of Labour’s record. I make the simple point to him that when Labour came to power in 1997, just over 40% of students were getting five GCSEs including maths and English. By the time we finished in power, it was almost 80%. On a range of different measures, outcomes were more than doubled. If he criticises the legacy that Labour left, can he picture what we inherited last time his party left office?

[Mr Laurence Robertson (in the Chair)]

Order. We are actually on a wind-up speech about multi-academy trusts. The hon. Member for Stoke-on-Trent North has 30 seconds to respond to the intervention, but he must then wind up.

[Jonathan Gullis]

Apologies, Mr Robertson. The hon. Gentleman asked me to picture 1997 and put my head back in that time; I was seven years old when Tony Blair came to power, so it is hard for me to fathom and picture that. Obviously, I had to suffer through the Labour doldrums in that education system, but I am grateful that I had a fantastic school and an inspirational teacher there, who was, by the way, a Labour councillor in Tamworth and who is a role model for me.

Finally, on the subject of the “not education union”, Dr Mary Bousted and Kevin Courtney need to resign with immediate effect. They are an abomination to the profession. I will come up to their offices, pack their stuff and send it to their houses. The National Education Union is a disgrace.

Going back to the most important point in the debate, Ofsted want there to be inspections of multi-academy trusts and there is cross-party consensus on that. As we have heard from Members, multi-academy trusts that are really well run are not afraid of this. I hope in the White Paper, the Zahawi-Walker legacy document, we will see some fantastic innovation to turbocharge these schools and multi-academy trusts, and ensure that kids in Stoke-on-Trent North, Kidsgrove and Talke are no longer forgotten and left behind.

Question put and agreed to.

Resolved,

That this House has considered the Ofsted inspection of multi-academy trusts.

17:47

Sitting adjourned.

Written Statements

Tuesday 23rd November 2021 Written Statements

Tuesday 23 November 2021

Public Records: Landing of BA Flight 149 in Kuwait

Tuesday 23rd November 2021 Written Statements

[The Secretary of State for Foreign, Commonwealth and Development Affairs (Elizabeth Truss)]

Today the Foreign, Commonwealth and Development Office (FCDO) will release files covering the events surrounding British Airways flight 149 (BA149) to the National Archives. BA149 landed at Kuwait City on 2 August 1990 as the Iraqi invasion of Kuwait was beginning. The passengers and crew from the flight were subsequently held hostage by Iraq and mistreated. The Foreign and Commonwealth Office (FCO) provided consular and diplomatic support to those involved from the outset, but there have long been questions about how much the Government knew of the situation at the time.

We now know that Iraq was beginning a full invasion of Kuwait on the night of 1 to 2 August. The files being released today describe how things looked to those involved at the time.

On 1 August the British Embassy in Kuwait told the local British Airways office that while flights on 1 August should be safe, subsequent flights were inadvisable. BA149 took off from London at 18:04 GMT on 1 August, almost two hours later than scheduled because of technical problems. Its ultimate destination was Kuala Lumpur with a short stopover in Kuwait. At about 22:15 GMT, during its flight towards Kuwait, the captain spoke to the captain of another flight which had left Kuwait for London that evening. The pilot of that flight reported nothing unusual in Kuwait and no reason for BA149 to depart from its planned route.

The files show that the British ambassador in Kuwait informed the Resident Clerk—the officer on overnight duty to deal with emergencies—at the FCO in London about reports of an Iraqi incursion into Kuwait around 00:00 GMT on 2 August 1990, while the British Airways flight was en route. The information was passed by the Resident Clerk to the Head of the FCO’s Middle East Department and also to No. 10, the Ministry of Defence, the Cabinet Office and the Secret Intelligence Service, but not to British Airways.

BA149 landed at Kuwait City at 01:13 GMT. Around 45 minutes later Kuwait City airport was closed and BA149 was unable to leave. Its passengers and crew were subsequently held hostage by the Iraqis, with the last hostages released in December 1990.

The Government have always condemned the Iraqi invasion of Kuwait, the suffering that followed and the mistreatment of those aboard BA149. The responsibility for these events and the mistreatment of those passengers and crew lies entirely with the Government of Iraq at the time.

The files show that in the call to the Resident Clerk, the British ambassador in Kuwait was unclear whether the Iraqi move across the border was a limited or larger incursion. At that point, the evidence in the files suggests that it was not possible to say with certainty what was happening. Similarly, the Resident Clerk in the FCO would have had no knowledge of the timing of flights into Kuwait. At the time there appeared to have been no formal arrangements by which information about such events could be passed from the FCO to airlines or the Department of Transport. A procedure to deal with situations like this now exists involving Government and the airline industry.

There was also speculation at the time and since that the flight was used to carry members of UK Special Forces. The files are consistent with the then Minister for Europe’s statement in April 2007 that

“the Government at the time did not attempt in any way to exploit the flight by any means whatever.”—[Official Report, 27 April 2007; Vol. 459, c. 1217.]

The call made by Her Majesty’s ambassador to Kuwait has never been publicly disclosed or acknowledged until today. These files show that the existence of the call was not revealed to Parliament and the public. This failure was unacceptable. As the current Secretary of State, I apologise to the House for this, and I express my deepest sympathy to those who were detained and mistreated.

[HCWS410]

NHS Workforce and Technology Centralisation

Tuesday 23rd November 2021 Written Statements

[The Secretary of State for Health and Social Care (Sajid Javid)]

Yesterday we announced to the House of Commons our intention to centralise NHS workforce and technology to prioritise better care for patients. Health Education England (HEE), NHS Digital (NHSD) and NHSX will become part of NHS England and Improvement (NHSE/I), putting workforce and technology at the heart of long-term planning. The plans will aim to see more patients benefit from the best possible care, with the right staff in place to meet patients’ needs.

Subject to parliamentary passage of the requisite powers within the Health and Care Bill, these changes will help ensure that service, workforce and finance planning are integrated in one place at a national and local level. They will simplify the national system for leading the NHS, ensuring a common purpose and strategic direction.

I have accepted the recommendations of Laura Wade-Gery, non-executive director at NHS England and chair of NHSD, including to merge NHSX and NHS Digital into NHSE/I. A copy of the summary report is being placed in the Library of the House. The recommendations build on the huge progress made on digital transformation during the pandemic and will improve co-operation between the key digital bodies of the NHS by bringing them under one roof for the first time.

NHSX has more than fulfilled the mandate it was given when it was set up, putting digital transformation right at the centre of the NHS’s future vision and driving effective delivery of key programmes such as the covid pass. NHS Digital has kept the NHS’s live services going, producing the shielded patients list, and run the technology that supported our vaccine deployment.

I would like to offer reassurance that in this new configuration the responsibilities for digitisation of the social care sector, and for ensuring the very highest standards of information governance and data privacy, will be retained.

Merging HEE with NHSE/I will put long-term planning and strategy for healthcare staff recruitment and retention at the forefront of the national NHS agenda. Combining HEE’s strengths with those of NHSE/I will help ensure that:

service, workforce and finance planning are properly integrated in one place, together with the work of the NHS People Plan, at national and local levels;

the changes to education and training that we need—to enable employers to recruit the health professionals they need to provide the right care to patients in future—are driven further and faster;

the record investment the Government are making in the NHS delivers for both frontline NHS organisations and patients through one national organisation, making it easier to ensure a single national strategy for the service; and

there is a simplified national system for leading the NHS, providing a single line of accountability for the whole of NHS performance.

This reform will build on the progress HEE has made and the vital role it has played during the pandemic, with record numbers of doctors and nurses currently working in the NHS.

I would like to pay tribute to colleagues at HEE, NHS Digital, and NHSX for the progress they have made, which we will continue to drive forward.

[HCWS414]

Derwentside Immigration Removal Centre for Women

Tuesday 23rd November 2021 Written Statements

[The Secretary of State for the Home Department (Priti Patel)]

I am today announcing the opening of Derwentside immigration removal centre for women in County Durham. Detention plays a limited, but crucial role in maintaining effective immigration control and securing our borders. It is right that those with no right to remain in the UK are removed if they do not leave voluntarily.



This new, smaller immigration removal centre will replace Yarl’s Wood as the only dedicated immigration removal centre for women. In order to maintain operational flexibility, we will continue to maintain some limited detention capacity for women at Colnbrook, Dungavel and Yarl’s Wood. These changes will significantly reduce the overall immigration detention capacity for women.



Derwentside will be operated in line with the statutory framework established by the Immigration Act 1971 and the Detention Centre Rules 2001. The centre will provide safe, secure and fit for purpose accommodation for up to 84 women, with a full range of recreational and healthcare facilities tailored to women.



We are committed to ensuring the proper protection and treatment of vulnerable people in detention. Safeguarding and promoting the welfare of women is at the forefront of the new facility, and builds on the learning and experience of Yarl’s Wood. The new contract to operate the centre takes into account Stephen Shaw’s reviews of vulnerability in detention, with increased staffing levels and major improvements in the frequency, diversity and accessibility of educational and recreational activities.

[HCWS411]

Net Zero Estate Playbook

Tuesday 23rd November 2021 Written Statements

[The Paymaster General (Michael Ellis)]

My noble Friend the Minister for Efficiency and Transformation (Lord Agnew Kt) has today made the following written statement:



I am pleased today to formally launch the new Net Zero Estate Playbook.

Decarbonising the public estate will play a pivotal role in our fight against climate change. With more than 300,000 individual properties, at a combined value of £515 billion, the UK public sector manages, by some distance, the largest property portfolio in the country.

Operating at this scale means that every decision we make and every improvement we implement has an impact. We must go beyond decarbonising our own estate, by leading from the front, setting an example, and bringing industry with us.

There is a very clear direction set out for Government property. We are steadily working towards creating a greener public estate. Since 2010, we have reduced carbon emissions by 50%, but there remains much more work to do.

We have made significant progress on encouraging collaboration and co-location between parts of the public sector. We are working to improve maintenance, insulation, and efficiency across the public estate. We are prioritising retrofitting existing buildings where we can, and adopting modern and sustainable methods of construction where we need new buildings.

This Net Zero Estate Playbook is about helping us go further, and faster. It’s a guide, to support every Government organisation. It takes best practice from around the UK, aligning with Government policy and bringing the best advice into one place to inform and improve sustainability strategies and simplify the path to net zero.

It provides, for the first time, a methodical step-by-step guide to help Government property professionals decarbonise their estate. A copy of the Net Zero Estate Playbook has been deposited in the Libraries of both Houses.

[HCWS412]

Driving Licences: Draft Legislation

Tuesday 23rd November 2021 Written Statements

[The Secretary of State for Transport (Grant Shapps)]

A statutory instrument was laid on 16 September 2021 titled the Motor Vehicles (Driving Licences) (Amendment) (No. 2) Regulations 2021 (the “No. 2 regulations”) and was due to come into force on 15 November 2021. The substantive legislative changes proposed in the No. 2 regulations would have removed the need for a person to pass the “B+E” car and trailer test before they could pull a heavy trailer behind their car. This would have meant people with licences awarded after 1997 also no longer needed to pass a separate test to tow a heavy trailer.

This statutory instrument was not approved in time for the No. 2 regulations to come into force on 15 November 2021. Since such affirmative statutory instruments cannot be amended once laid in draft, we have taken action to lay the regulations afresh as the draft Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021 (the “No. 5 regulations”).

To make rapid progress on this, we are seeking to make use of the urgency procedure under paragraph 14(6) of schedule 8 to the European Union (Withdrawal) Act 2018. I am of the opinion that, by reason of urgency, the requirements for this affirmative statutory instrument (by virtue of paragraph 13(1) of schedule 8 to the European Union (Withdrawal) Act 2018) to be made after being published in draft for 28 days, together with a scrutiny statement, should not apply.

Forgoing the 28-day publication period will allow earlier laying of the No. 5 regulations than would have otherwise been possible and strengthen the steps we have already taken to increase HGV testing capacity and ease supply chain issues as quickly as possible. Arrangements will be in place to ensure that the changes made by the No. 5 regulations are operationally effective as soon as they come into force.

[HCWS413]

Grand Committee

Tuesday 23rd November 2021 Grand Committee

Tuesday 23 November 2021

Arrangement of Business

Tuesday 23rd November 2021 Grand Committee

Announcement

15:45

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Conformity Assessment (Mutual Recognition Agreements) (Construction Products) (Amendment) Regulations 2021

Tuesday 23rd November 2021 Grand Committee

Considered in Grand Committee

15:46

Moved by

[Lord Greenhalgh]

That the Grand Committee do consider the Conformity Assessment (Mutual Recognition Agreements) (Construction Products) (Amendment) Regulations 2021.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, these regulations were laid before both Houses on 16 September 2021. They are part of the Government’s programme to implement the UK-Canada Trade Continuity Agreement, specifically in the context of construction products.

These regulations are made using powers in the Trade Act 2021 to amend the Conformity Assessment (Mutual Recognition Agreements) and Weights and Measures (Intoxicating Liquor) (Amendment) Regulations 2021, known as the 2021 regulations. They make a simple amendment in order to cite the construction products regulations as specified regulations within that legislation.

This brings me to the detail of our statutory instrument. Using powers from the Trade Act 2021, these regulations make an amendment to the 2021 regulations to include the UK CPR as a specified regulation. They do no more than is necessary to implement the mutual recognition agreement on conformity assessment under the UK-Canada Trade Continuity Agreement. They do not change the key CPR requirements for placing construction products on the market in Great Britain. For those reasons, they are very simple to understand.

The effect of making this amendment can be considered in two parts. First, these regulations ensure that, pursuant to the UK-Canada Trade Continuity Agreement, the UK recognises and accepts a conformity assessment procedure or result issued by a Canadian conformity assessment body that has carried out the assessment of a construction product against UK CPR requirements. The effect of this is that a conformity assessment procedure undertaken by a Canadian conformity assessment body against UK designated standards will be treated as if it were performed by a UK approved body, enabling Canadian-assessed UK conformity assessment marked products to be placed on the market in Great Britain.

Secondly, and finally, these regulations enable the Secretary of State to assign an identification number to, and include in any register, a Canadian conformity assessment body carrying out an assessment in relation to the UK CPR and include a Canadian accreditation body in a register of those bodies. As a result, manufacturers can easily find and use a Canadian-based conformity assessment body that is accredited to undertake conformity assessment procedures against UK designated standards prior to export to Great Britain.

In summary, our overall approach to these amendments is entirely consistent with both the policy and legal intent of the Trade Act 2021 and enacts the policy that the Government have an obligation to execute as part of their international agreements. Equally, these regulations, and the 2021 regulations they amend, are entirely concurrent with the Northern Ireland protocol, which applies in Northern Ireland. These regulations serve a very specific purpose: to amend the 2021 regulations to ensure that the UK CPR is a specified regulation. This is necessary to enact the provisions of the UK-Canada Trade Agreement protocol on conformity assessment that came into force on 1 April 2021.

This instrument is necessary to ensure that we remove a technical barrier to trade between the UK and Canada and meet our obligations within the UK-Canada Trade Continuity Agreement, which has already come into force. I hope that colleagues will join me in supporting the draft regulations. I commend them to the Committee.

[Lord Jones (Lab)]

My Lords, I thank the Minister for his introduction to these regulations. Time is of the essence and I propose to be brief. In paragraph 4 of the helpful Explanatory Memorandum, reference is made to the territorial applications. So far as Wales is concerned, I refer to paragraph 10 on consultation and ask by what means were the consultations carried out? Were they carried out by officials—probably—or by Ministers? Was business done simply by letter? How did the department and the Senedd relate on this technical matter, which one supports? On this issue, how does a great department of state deal with a Parliament in faraway Wales? The Minister may have an observation to make.

Paragraph 12 deals with impact. Can the Minister furnish an example of how these regulations affect a specific business? Perhaps he can give one example, large or small. Paragraph 13 deals with small businesses, which are the lifeblood of the Welsh economy. Clearly, Government UK are the agency involved in communications with small businesses. Was the Federation of Small Businesses involved? Were chambers of trade and the CBI involved? What were the channels of communication used by Government UK where Wales is concerned? Is there an existing estimate of the envisaged effects? Also, is there a word missing from the first line of paragraph 13?

If the answers are not available now, might the Minister write? He might know that with regard to the European Union, Wales very heavily decided that it wanted to come out.

[Baroness Pinnock (LD)]

My Lords, the Minister read out the technical details with gusto. He obviously enjoyed doing it. In a nutshell, what we are being asked to accept today is the transfer of a protocol attached to the EU Comprehensive Economic and Trade Agreement with Canada into UK law.

This simple transfer has involved a Command Paper—351—followed by the process in both Houses and presumably a time since January 2020 when Canadian building products were not able to be certified in Canada and the certification accepted by UK authorities. Perhaps the Minister will be able to explain whether that is the case and whether building products from Canada have had to be certified here in the UK as well as in Canada during this period.

Then there is Regulation 6, which appears to relate to the assessment of the Canadian assessment bodies and whether these comply with UK standards. Can the Minister explain how the assessment body in Regulation 6 is held accountable for its determinations?

At the heart of all this are the UK construction products regulations. These regulations may well be comprehensive and require construction products to comply with basic safety standards. However, regulations are only ever as good as the processes for ensuring full compliance. The Grenfell Tower tragedy has exposed the awful failings in this regard. The question, therefore, to the Minister is a very important one: how will the Government ensure complete compliance with the assessments of complex construction materials and, as importantly, ensure that the products are used as per the regulations? Those are the lessons from Grenfell.

In conclusion, this SI is a straightforward transfer of mutual recognition agreements from EU law to the UK in relation to construction materials from Canada. The wider issue is this: quis custodiet ipsos custodes? [Interruption.] Well, our beloved Prime Minister uses Latin all the time, so I thought I would add some in.

[A noble Lord]

Res ipsa loquitur.

[Baroness Pinnock (LD)]

Exactly, perhaps. Quis custodiet ipsos custodes? Who guards the guardians? This is important. With those remarks, I broadly agree with the proposed changes.

[A noble Lord]

I only went to a technical school.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, it is good to be back in the Moses Room with the Minister. As other Members have said, the regulations before us are technical. I can say at the outset that I am happy to support them.

My noble friend Lord Jones asked about consultation. I am sure that the Minister, the noble Lord, Lord Greenhalgh, will come back on that point, particularly in regard to consultation with the devolved Administrations. My noble friend mentioned the Senedd, but it would be interesting to hear what consultations have taken place with the other Administrations. I also noted from the Dispatch Box that there was no consultation with the public because it was not deemed necessary.

The noble Baroness, Lady Pinnock, raised an important issue in respect of Regulation 6. It is absolutely fine to agree the regulations as they are here now; there is no problem with them whatever. But the question is always, is it not, what happens when things go wrong. I think that was the noble Baroness’s point. It is a fair point. We are authorising a body in another country to certify that products are correct and stuff, but further down the track, if things go wrong, what processes are there? How do we deal with that? This is the nub of the question that the noble Baroness and I want answered.

I will leave it there. I accept that, if the Minister does not have an answer now, he will write to colleagues and place a copy in the Library. As I said, I am content with the regulations as they stand.

[Lord Greenhalgh (Con)]

My Lords, I particularly appreciated the contribution from the noble Lord, Lord Jones, who I gather has had more than half a century of parliamentary service. That is quite incredible; I am almost the same age as the number of years he has served in both Houses. The noble Lord is obviously very passionate about Wales. He wanted to know about the consultation. No public consultation was carried out, because it was not considered necessary.

I understand a bit about the principles of this. It is all about opening up markets. We know that there is a shortage of construction products; that was the nature of the question from the noble Baroness, Lady Pinnock, and the noble Lord, Lord Kennedy. Although it is good in principle, how do we ensure in practice that the construction products that are recognised by a conformity assessment body that is not our own do not result in any dumbing down in standards? Obviously, as the Minister for Building Safety, that has been the key question on which I have wanted reassurance. We are absolutely committed to maintaining high standards for construction products. We know what we saw in the tragedy of Grenfell; indeed, I referenced Lakanal House in Southwark and Garnock Court in 1999. Every decade, we have had a tragedy.

I assure noble Lords that this legislation does not amend the standard of construction products being placed on the market. That is the critical thing for everybody to recognise. However, there is a shortage of construction materials, so we will get high-quality products, increase availability and encourage the flow between the UK and Canada. That can only be a good thing, but I take the point. I hope that I have given sufficient reassurance and answered the specific point on consultation.

If there is anything else, I will be happy to pick it up and write to noble Lords, for example on some of the technical points.

[Lord Jones (Lab)]

Thank you for writing.

[Lord Greenhalgh (Con)]

Thank you. To conclude, we think that these regulations are vital, as is getting these construction products assessed against UK CPR requirements. If those assessments are to be carried out by Canadian conformity assessment bodies, we need to ensure that they are assessed against our own regulatory requirements.

I have done my best to answer the questions I can answer. I will write to the noble Lord, Lord Jones. I take it that noble Lords support the regulations, and I thank them for that.

Motion agreed.

Local Audit (Appointing Person) (Amendment) Regulations 2021

Tuesday 23rd November 2021 Grand Committee

Considered in Grand Committee

16:00

Moved by

[Lord Greenhalgh]

That the Grand Committee do consider the Local Audit (Appointing Person) (Amendment) Regulations 2021.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, the regulations we are considering today were laid in draft before the House on 21 October 2021. If approved and made, they will provide for the appointing person to set fee scales for local audit later in the financial year, apply standardised fee variations in specific circumstances and appoint auditors for shorter contract periods where appropriate.

These regulations are designed to provide the appointing person with greater flexibility to ensure that the costs to audit firms of additional work are met, and to reduce the need for time-consuming case-by-case consideration of fee variation requests, in order to support the timely completion of local audits.

The Local Audit and Accountability Act 2014 enables the Secretary of State, through secondary legislation, to make regulations. This statutory instrument was laid before Parliament under the affirmative resolution procedure. The 2014 Act placed responsibility on local bodies to appoint their own auditors. However, the Act also provided for an “appointing person”, specified by the Secretary of State, to appoint auditors on behalf of local bodies that choose to opt in to such arrangements. Public Sector Audit Appointments Ltd, a subsidiary of the Local Government Association, is the body currently appointed to perform this role.

In September 2020, Sir Tony Redmond published his independent review into the effectiveness of external audit and transparency of financial reporting in local authorities. The Redmond review found that there was an increasing disparity between the fee scales set by Public Sector Audit Appointments Ltd and the amount of work being carried out by auditors. This had led in turn to a large increase in the amount of fee variation requests. These are requests from auditors to charge additional fees beyond those provided for in the fee scales set by Public Sector Audit Appointments Ltd for each audit year.

The Local Audit (Appointing Person) Regulations 2015 provide for fee variations relating to the audit of a particular authority to be considered by Public Sector Audit Appointments. In practice, this means that Public Sector Audit Appointments Ltd can consider and approve fee variations on a case-by-case basis only.

In its response to the Redmond review, the Government committed to review regulations to provide Public Sector Audit Appointments Ltd with greater flexibility to ensure that the costs to audit firms of additional work were met more easily. To provide this flexibility, earlier this year the Government consulted on potential amendments to the 2015 regulations. The overwhelming majority of respondents to the consultation agreed with the Government’s proposals, which we now propose as the following amendments to the 2015 regulations.

First, this statutory instrument will amend the regulatory deadline for Public Sector Audit Appointments to set fee scales from before the start of the financial year to 30 November of the financial year to which the fee scales relate. This will enable Public Sector Audit Appointments Ltd to take into account more up-to-date information when setting fee scales, including results from previous audits. More accurate fee scales should help to reduce the number of instances where fee variations are required.

Secondly, this instrument will enable Public Sector Audit Appointments Ltd to set standardised fee variations to be applied to all local bodies or groups of local bodies. This change is designed to streamline the fee variation process where a particular issue has had a similar impact on the audit of large numbers of local bodies. Circumstances in which these may apply could include a regulatory or policy change, such as a change to accounting or auditing codes, or even one-off events that have a national or far-reaching impact, as we have experienced with the pandemic. In these circumstances, Public Sector Audit Appointments Ltd will be able to apply a standardised fee to all affected bodies, preventing the auditor from having to submit a fee variation request for each individual body. Public Sector Audit Appointments will be required to consult both opted-in local bodies and local auditors before setting standardised fee variations.

Thirdly, this instrument will give Public Sector Audit Appointments the flexibility to appoint auditors for one or more financial years at time, up to a maximum of five consecutive years. This could include years which precede the date on which the local authority opts in, if those years still have an audit outstanding. Under existing regulations, Public Sector Audit Appointments is required to appoint an auditor to that authority for the remainder of the compulsory appointing period, which could be up to five years, depending at what point in the appointing period the authority elects to opt in.

In conclusion, these changes will help to support the stability of the local audit market by making it easier for firms to claim for the costs of work completed—

16:05

Sitting suspended for a Division in the House.

16:12

[Lord Greenhalgh (Con)]

My Lords, in conclusion, these changes will help to support the stability of the local audit market by making it easier for firms to claim for the costs of work completed. Alongside this, we are continuing to implement all the recommendations that we committed to in our response to the Redmond review.

I hope that colleagues will join me in supporting the draft regulations. I commend them to the Grand Committee.

[Lord Jones (Lab)]

My Lords, I thank the Minister for his introduction and the details he has to hand. Can he give instances of the likely typical fees that will be set by the appointing person? Fees are public money. How will the appointing person be selected or chosen? Will it be a ministerial appointment, or will it be left to local government itself via its own representative bodies? What will be the likely salary of the appointing person, or is that settled already? I ask questions the answers to which may not be to the Minister’s conscientious hand. If that is the case, might he please write?

16:15

[Baroness Pinnock (LD)]

My Lords, I draw attention to my relevant interests as a vice-president of the Local Government Association, a member of Kirklees Council and a member of that council’s audit and governance committee.

The Redmond review into local authority financial reporting and audit is far-reaching in its recommendations and broadly welcomed by those in local government, who want greater simplicity and transparency in financial reporting and auditing. One challenge facing local government audit requirements is the narrowing number of private audit firms willing to take on such audits. Yet sound auditing is an essential prerequisite for value-for-money judgments and financial transparency, as local government financing becomes ever more complex.

The proposals in this SI tackle some of the issues regarding process. These relate to fee scales, deadlines, standard fee variations and the length of time for which an auditor is appointed. Setting the end of November as the deadline for setting fee scales so that up-to-date information can be included in the calculation seems sensible, as does setting standardised fee variations. However, can the Minister confirm that such fee variations will be in proportion to the local authority accounts being audited?

I have some concerns about the potential for an auditor to be appointed for as long a period as five years. As external auditors rely heavily on a good working relationship with the local authority finance team and its internal auditors, there is always a risk that a cosy relationship develops. Can the Minister explain the thinking behind the ability for the same auditor, rather than the same audit company, to continue for five years? An explanation of the criteria that will be used by the appointing person to appoint for shorter periods “where desirable” would be helpful, as would an outline of the circumstances for audit firm rotation partway through an audit period, to understand the thinking behind that. If the Minister does not have all that in front of him, it would be good if he could write me a note.

There is a far deeper concern with local authority audits than will be dealt with by this SI. The Financial Reporting Council, which regulates the accounting industry, said this year that 60% of the English local authority audits it had reviewed did not meet its required standards. The House of Commons Public Accounts Committee detailed the problems this July. I will quote from the summary of its report, as we need to think about it:

“Without urgent action from government, the audit system for local authorities in England may soon reach breaking point. With approximately £100 billion of local government spending requiring audit each year”,


the Ministry of whatever it is called now—levelling-down, communities and whatever—

“has become increasingly complacent in its oversight of a local audit market now entirely reliant upon only eight firms, two of which are responsible for up to 70% of local authority audits. This has not been helped by the growing complexity of local authority accounts … If local authorities are to effectively recover from the pandemic, it is critical that citizens have the necessary assurances that their finances are in order and being managed in the correct manner.”

Both the FRC and the Public Accounts Committee report raise fundamental issues about local authority auditing which are not addressed by this SI, but which I hope the Minister can respond to either now or in writing. Having said that, with the exception of the questions I raised earlier, I concur with the changes that have been proposed.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I, too, declare my interest to the Grand Committee as a vice-president of the Local Government Association.

Audit is about ensuring the proper inspection of a body’s financial affairs, ensuring that the financial dealings of the organisation, and the information that residents get, is correct and proper. It gives confidence to local people and, of course, to the Government and everybody else that an organisation is acting properly—or it identifies irregularities.

I was first elected a councillor in 1986—I am showing my age now. I remember the old district auditor, who used to look after the accounts. Of course, that is now all gone; we have local audits run through the Local Government Association.

The noble Baroness, Lady Pinnock, raised an important point on fee scales, what those fees are, when they can be varied and changed, and why. There is also the risk around the relationship: if the same person does the work every year, there may be an issue with things becoming too cosy. For me, there is the whole question of value for money. This is council tax payers’ money that we are spending here—so what are we doing to ensure that, when any fees are varied, we are getting value for money? The noble Baroness made the point that fewer and fewer firms are willing and able to do this work, which is also an issue for the Government to look at.

For me, it is about ensuring that public money is spent wisely, properly and legally. If fees are going to be varied, how do we ensure value for money? Then there is the issue of the reduced number of firms doing this work. How do we ensure that the relationship is not too cosy and is always properly professional? Having said that, I have no issue with the regulations, and I shall leave it there. I hope that the Minister can respond to the issues raised. I know that, if he cannot, he will come back to noble Lords with a letter and place it in the Library of the House.

[Lord Greenhalgh (Con)]

My Lords, we have had an interesting short debate on these regulations, and I thank all noble Lords for their contributions. The problem around audit is long-standing. I remember when I first became a councillor, which was a little later than the noble Lord, Lord Kennedy, back in January 1996 —a very cold month, if I remember—there were real difficulties with filing accounts on time, even then. This has been a long-standing problem and is not a recent one. Those who have read the Redmond review will recognise that the best way to deal with it is by investing and providing additional funding to support local bodies to improve standards. The point made by the noble Baroness, Lady Pinnock, is important. There is a contribution of some £15 million to support local bodies with rising audit fees, making sure that there is the competence required to file accounts in a timely way.

Often, there will be an issue around reconciliation of accounts, which is quite shocking. If you cannot reconcile your accounts—the fundamental accounts in control—money can be lost. There have been examples of councils losing money. So, having high-quality audit is extremely important, as is the completion of audits, which is vital in maintaining transparency and assurance of local authority accounts. Late delivery of local assurance can have a significant impact, not just on local authority financial planning but on the timely completion of whole government accounts. That is why the Government are continuing to implement all recommendations of the Redmond review, including the regulations before us today.

I will do my best to answer some of the questions and I will follow up in writing if I am not able to. In answer to the noble Lord, Lord Jones, the appointing person is specified by the Secretary of State at the Department for Levelling Up, Housing and Communities. It is not a salaried position; they are paid by the local authorities. Importantly, we are keen on the use of the scheme through the Local Government Association and Public Sector Audit Appointments Ltd, which has the specific technical expertise. Of course, local authorities can choose who they like. We recognise that this is a good scheme, which happens to be over a five-year period.

In response to the noble Baroness, Lady Pinnock, I will write on her specific points about shorter appointments, but all appointments require local authorities to voluntarily opt in. We recently consulted on proposals to establish the audit, reporting and governance authority, which is due to replace the Financial Reporting Council as the new systems leader for local audit. We will publish our consultation response in due course.

This is a largely technical provision, which I think has the support of noble Lords.

[Baroness Pinnock (LD)]

Before the noble Lord sits down, I asked whether the standardised variations of the fees would be in proportion to the accounts that were being audited.

[Lord Greenhalgh (Con)]

I thank the noble Baroness for that specific point. It is obviously technical in its nature. Public Sector Audit Appointments Ltd will be required to consult local bodies and local auditors before setting standardised fees.

Motion agreed.

Antique Firearms (Amendment) Regulations 2021

Tuesday 23rd November 2021 Grand Committee

Considered in Grand Committee

16:27

Moved by

[Baroness Williams of Trafford]

That the Grand Committee do consider the Antique Firearms (Amendment) Regulations 2021.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the draft regulations were laid before the House on 14 September. The Committee will recall that it debated the Antique Firearms Regulations on 6 January this year. The regulations introduced a statutory definition of antique firearms to prevent criminals from exploiting a lack of legal clarity to obtain old but functioning firearms for use in crime. The regulations came into effect on 22 March this year and were based closely on long-standing Home Office guidance. They now define in law which firearms can safely be regarded as antique and therefore exempt from control, and those that must be subject to licensing.

Here, I have to issue an apology. Following concerns raised by law enforcement, the new definition does not include seven types of cartridge, which, together with their associated firearms, have featured most often in crimes involving antique firearms. This means that these particular firearms can no longer be regarded as antique. However, owners were able to retain them on a firearms certificate and a six-month transition period was included in the relevant commencement regulations to allow owners to license, sell or otherwise lawfully dispose of their firearms. That transition period ended on 22 September this year.

During the transition period, it was brought to the Government’s attention that a category of cartridges that had previously been included in the Home Office guidance had been inadvertently omitted from the regulations. These cartridges are for vintage rifles, punt guns and shotguns with bores greater than 10. The regulations, which this Committee may recall are unusually technical and lengthy, listing over 450 old cartridge types, went through checks prior to being laid. Regrettably, however, this omission was not picked up. Unless we correct the error, owners of the omitted firearms would have to license them, incurring unnecessary inconvenience and expense, with no benefit to public safety.

16:30

Since antique firearms are not licensed, I cannot say exactly how many firearms might be affected by this omission, but I understand that there could be 200 to 300 owned by around 100 collectors. They are also the sort of old firearm that can be found displayed on the walls of pubs. The Antique Firearms (Amendment) Regulations 2021 will correct this omission by adding this category of cartridges to the list in the schedule to the 2021 regulations, as was always intended.

In the meantime, the Government have made the Policing and Crime Act 2017 (Commencement No. 11 and Transitional Provisions) (Amendment) Regulations 2021, which extended the transition period in respect of the omitted firearms until 22 January next year. That will ensure that owners remain in lawful possession while the amendment regulations before us today can be considered by Parliament and, I hope, approved and brought into effect.

Although the owners of these firearms will not require a firearms certificate to possess them once the omission has been corrected, the way in which the transitional provisions were drafted in the commencement regulations means that owners could still lodge an application for a certificate with their local police force before the end of the extended transition period. Otherwise, they could technically commit a historic offence of unlawful possession. This is because owners who choose to retain their firearms can only benefit from the transitional provisions, including the temporary disapplication of unlawful possession offences, if they have applied for a certificate before the end of the transition period.

The Home Office has issued advice on the government website to make owners aware of this omission and the need to apply for a firearm certificate before 22 January next year. The NPCC lead for firearms licensing has suggested to police forces that they simply hold on to any applications that they receive and then cancel them once the amendment regulations come into effect. This will avoid owners having to pay unnecessary fees and will avoid nugatory work for police forces.

I again apologise to the Committee for having to take up more of its time to correct this omission. The 2021 regulations have been checked by officials and external stakeholders for any further omissions or errors. As a result, the amendment regulations will also make a number of minor and typographical corrections to the descriptions of other cartridges specified in the 2021 regulations. Although none of these corrections represents any significant flaw, it is worth making them now to ensure that the 2021 regulations are accurate. I commend these regulations to the Committee.

[The Duke of Montrose (Con)]

My Lords, I am grateful to my noble friend the Minister for explaining the reasons behind this amendment, which follows rather rapidly on the original document. I declare an interest as an owner of a 200 year-old gun, which is a muzzleloader, but I think it was excused in the earlier legislation.

The Minister mentioned various classes of gun that would be excepted. I guess that her list was the existing one, because I cannot see that this amendment includes any new classes; it merely corrects the spelling of “ammunition”. Was this corrected along with the external advice of people who own these guns? I would be grateful to hear from her.

[Lord Addington (LD)]

My Lords, when the Government recognise their mistake, cock-up, call it what you like, and put their hand up quickly, one should applaud, because that way we end up with fewer mistakes down the road, so I thank the Government for addressing this.

I remember doing the other regulations. There was a long and complicated list, as the noble Baroness said. One point I tried to make at that time but could not was why World War I guns of exactly the calibre as World War II guns were not included in the list, but that has gone.

Exactly what criteria are being used to determine what makes a firearm antique? There have been comments about black powder. It is technically possible to reproduce everything, so what are the criteria for how difficult it has to be? Hearing them again might help to clarify why we are doing this, so that anybody who is listening in—I am sure there is rapt attention outside—will know exactly why we are categorising certain weapons as antique.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party supports these regulations. They are largely technical in nature. This instrument corrects an error in the Antique Firearms Regulations 2021. In his summing-up of the brief debate in the other place on 8 November, the Minister, Kit Malthouse, described the whole experience of correcting this error as a “chastening experience” for him and the firearms team at the Home Office, and he expressed the hope that there would not be a recurrence of a similar error in future. I thank him for that candour, and I thank the noble Baroness for repeating the apology.

In 2017, the Government legislated through the Police and Crime Act to provide a statutory definition of an antique firearm. The Home Office consulted on what the cut-off date for manufacture should be, the propulsion systems and the cartridges. This information informed the 2021 regulations. It is these regulations that are being updated. The instrument corrects an omission from the regulations. It amends the schedule to the 2021 regulations by adding cartridges for vintage rifles, punt guns and shotguns with bores greater than 10. It also makes minor corrections to the descriptions of some other types of cartridges in the schedule.

From reading the short debate in the other place and the Library note, I have a few questions for the Minister. First, the territorial extent of this instrument is England, Wales and Scotland. What is the position in Northern Ireland on similar issues with antique firearms? I would be grateful if the Minister could comment on that. Secondly, the Library note explains that the ongoing approach to monitoring and reviewing this legislation is twofold. The first is to establish a non-statutory group of experts who will meet annually to consider the latest developments in the criminal use of antique firearms. Secondly, the Home Office is to carry out a three-year review of the 2021 regulations. Can the Minister say whether these groups have been established and when they are next due to meet?

In his response to the debate on 8 November in the other place, the Minister spoke of the prevalence of the use of antique firearms in criminal activity. He said that the National Ballistics Intelligence Service

“saw a rise in the use of antique firearms between 2008 and 2016, with 95 uses in 2016, and recoveries have decreased slightly.”—[Official Report, Commons, Delegated Legislation Committee, 8/11/21; col. 7.]

He also said that there had been six fatalities since 2006 from the use of these weapons. This data seems very out of date. When would the Minister reasonably expect to have a more up-to-date analysis of the extent of the problem of the use of antique weapons in criminal activity?

Finally, in the other place, my honourable friend Conor McGinn asked the Minister about the new statutory guidance to chief police officers on firearms licensing coming into force. He asked about the information to be provided about any medical conditions, particularly mental health conditions, of people applying for licences. I understand that this is outside the scope of this statutory instrument, but can the Minister say whether the twofold monitoring approach, which I mentioned earlier, will cover developments in mental capacity assessments of those who currently hold firearm licences?

We support these regulations. Our priority, like the Government’s, is to protect the public, and we agree that a systematic, ongoing review of regulations is the best way to achieve this.

[Baroness Williams of Trafford (Con)]

I thank the noble Lords who have spoken in this debate. My noble friend the Duke of Montrose asked whether there is a new type of gun. The answer is no. The classes of vintage rifles, punts and shotguns with bores greater than 10, which were omitted, are now being inserted. Nothing new is being inserted—these should have been inserted in the first place, hence my apology.

As to the definition of antique firearms, that is specified in the Antique Firearms Regulations 2021. They must have been manufactured before 1 September 1939.

The noble Lord, Lord Ponsonby, asked about the territorial extent. It is a devolved approach. They have a similar approach to Great Britain. Shooting in Scotland is covered by the same legislation as England and Wales, apart from air rifles.

I will consult the department on the data when I go back. The noble Lord, Lord Ponsonby, thinks that this data seems to be a bit out of date. The data I have is that the antiques firearms recovered per year in criminal circumstances increased from eight in 2008 to 95 in 2016. The number of recoveries has decreased slightly since 2016, down to 80 in 2020. I will see if I have any more up-to-date information for him. I will also find out for him when the non-statutory groups of experts in the three-year review are due to meet, because I am not sure at this stage.

I hope I have answered all the questions.

[Lord Ponsonby of Shulbrede (Lab)]

I have one additional question. Will the review groups also look at the mental capacity and that other aspect of the licensing process?

[Baroness Williams of Trafford (Con)]

I will definitely get back to the noble Lord on that. I think there has been something on that recently.

[Lord Addington (LD)]

I raised the point that the rifles used by the British Army in 1917 are effectively the same as the rifles used in 1940. The same is true of the German and American armies. Why is there this artificial cut-off? The rifles fire the same bullets. They are using the same calibre of bullets, the same propulsion, the same white powder for the same lethal intent. Some clarification of that would help. If it is about killing capacity, it is there in these slightly older weapons.

[Baroness Williams of Trafford (Con)]

I get the point the noble Lord is making. Clearly, there has to be a cut-off somewhere, but I will find that out for him.

Motion agreed.

Age of Criminal Responsibility (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2021

Tuesday 23rd November 2021 Grand Committee

Considered in Grand Committee

16:44

Moved by

[Viscount Younger of Leckie]

That the Grand Committee do consider the Age of Criminal Responsibility (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2021.

[Viscount Younger of Leckie (Con)]

My Lords, this draft order was laid before the House on 18 October 2021. It will support the Scottish Government’s decision to raise the age of criminal responsibility in Scotland from eight to 12 by making cross-border provisions necessary for the implementation of this change.

This order, known as a Scotland Act order, is made in consequence of the Age of Criminal Responsibility (Scotland) Act 2019, which I shall now refer to as the 2019 Act. Scotland Act orders are a type of secondary legislation made under the Scotland Act 1998, which has formed the foundation of the devolution settlement with Scotland for over 20 years.

The 2019 Act raised the age of criminal responsibility in Scotland from eight to 12. The Act also established the role of the independent reviewer. This is a position that oversees the disclosure of convictions, and other relevant information, related to when a person was under the age of 12. The 2019 Act provides specific powers for the police to investigate instances of serious harmful behaviour by children under the age of 12.

To support this change, amendments are required to UK legislation to ensure that the 2019 Act can be implemented fully. The order is designed to protect and support children. With this in mind, I first want to explain the disclosure provisions set out in Part 2 of the legislation.

While the 2019 Act made it possible for Scottish Ministers to request certain information from chief police officers in Scotland relating to the behaviour of children, the Act also created the position of the independent reviewer. In their post, the independent reviewer will be responsible for determining whether this information ought to be released if it relates to a time when the person in question was under the age of 12.

This Scotland Act Order will ensure that the powers of the independent reviewer apply across the UK, so that information provided by chief police officers from other forces will be reviewed by the independent reviewer before it is released to Scottish Ministers.

The order also extends provisions of the 2019 Act, which currently apply to Police Scotland, to constables of non-territorial forces operating in Scotland. This will ensure that consistency in policing is achieved across Scotland, with equality of treatment for any child in that jurisdiction regardless of the situation. That said, it is not expected that these non-territorial forces will use these provisions often, if at all.

Police across the UK are also supported by this order. Section 75 of the 2019 Act has made it an offence in Scotland for a person to obstruct investigations into behaviour of a child under the age of 12 who is believed to have caused serious harm to another person. The order will extend this offence to include obstructions that occur elsewhere in the UK. Similarly, the order facilitates the cross-border enforcement of court orders made under the 2019 Act for the collection of information from a child under the age of 12 in other parts of the UK. This may be necessary if a child has returned home to another part of the UK following a serious incident in Scotland.

Let me offer a real-world example of the changes that the order seeks to make. Let us consider what might happen if a child who lives in England is involved in a serious incident while on holiday in Scotland. The order provides that a Scottish court order authorising collection of information from that child can be enforced in England. This will enable the incident to be effectively investigated so that the right support can be put in place for the child and any person involved in the incident. Through the changes made by this order, children in Scotland will be better supported.

This order will also enable appropriate bodies such as Police Scotland and local authorities to engage with their counterparts across the UK to ensure that harmful behaviour is addressed proportionately and accurately. Court orders sought and granted in Scotland will be enforceable by police forces across the UK in relation to a child whose behaviour causes harm and who then leaves Scotland before Scottish police were able to enforce the order.

It is important to point out here that the number of children affected is very small. In Scotland, data provided by the Scottish Children’s Reporter Administration shows that, in 2016-17—those are the most recent figures—only 16 serious cases involving children under 12 resulted in an interview. Police Scotland also advised that only 10 children under 12 were searched during that same period.

In summary, this instrument will ensure that the Age of Criminal Responsibility (Scotland) Act 2019 can be fully implemented, with necessary cross-border provisions put in place. We believe that this order is a sensible and pragmatic step to assist the Scottish Government. I commend it to the Committee and beg to move.

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the Minister for explaining the circumstances; indeed, I thank him for the Explanatory Notes, which make this clear. However, they raise some interesting questions.

First, it is perhaps worth recording that, prior to the 2019 Act, the situation in Scotland was anomalous in quite remarkable ways. The age of criminal responsibility was eight, yet we had a well-developed set of children’s panels and children’s hearings which were designed to ensure that children were not treated as criminals and not subject to the criminal process. The surprise is how long it took to address the age of criminal responsibility.

Secondly, the rest of the UK is now out of step with Scotland: the age of criminal responsibility is 10 in the rest of the UK and 12 in Scotland. This raises the question not of the enforceability of this order but of whether the relevant authorities will understand, engage with and be fully conversant with the differences. I think we all recognise that, sadly, children, including very young children, are capable of quite wicked acts, acts that are by definition and in their characteristic criminal. However, if they are under the age of criminal responsibility, they will not be subjected to the criminal process.

So, when there is an issue of questioning, following up on or investigating children, will the authorities in other parts of the United Kingdom approach it in the same way as the authorities in Scotland, given the different background? Will this lead to children who have crossed the border being treated differently and adversely through a lack of appreciation and understanding of the differences between the two regimes? Although we do not expect many cases like this, that issue could raise an anomaly.

On a broader issue that is perhaps a matter for the United Kingdom Government, at 12, the age of criminal responsibility is still considered by many authorities to be too low. I think the Council of Europe suggested that it should be at least 14, while the United Nations thinks that it should be 16. Is any consideration being given to the rest of the United Kingdom raising the age of criminal responsibility? Also, because the final stages of the Act will not come into force until next month, are any issues likely to arise from the transitional arrangements—that is, will children under the age of 12 who committed a crime or were engaged in the system before the Act came into force still be subjected to the old regimes both north and south of the border? How might that play out? Of course we understand the need for the order—that is not in question—but I hope the Minister recognises that some issues could arise out of the differences in both the age of criminal responsibility and the procedures applied in Scotland compared with England.

As a final footnote, the children’s panel and children’s hearings have generally been recognised as a highly progressive mechanism for dealing with young offenders below the age of criminal responsibility, yet they have not been replicated. With the wonders of our United Kingdom, I wonder why we do not pursue best practice. This is one area where Scotland, having lagged behind, certainly on the age of criminal responsibility, has now overtaken England and has a much more constructive, progressive system for handling young people who get into trouble. Having read the guidelines for the child interview rights practitioners, which are quite thorough, I wonder whether there will be people in other parts of the United Kingdom who have conformed to the same sort of guidelines that have been established for the Scottish process.

I hope the Minister understands what we are talking about. I accept that it is very few cases, but despite the law trying to ensure that there is a common practice across the United Kingdom, the differences might lead to a situation where the law and the practice do not coincide.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for introducing this instrument so clearly. We support it in the context of increasing the age of criminal responsibility from eight to 12. It is appropriate that measures be taken to give effect to that, particularly in relation to the cross-border element. I am interested in how it works in practice. I might not have understood it, but I would be grateful if the Minister would help me on this.

As I understand it, in Part 2 of the order we are dealing with a situation where, typically, a chief constable of an area in England has information about what somebody did between the ages of eight and 12. We are talking about something that either is or would have been a criminal offence in England when the person committed it. If the position is that the chief constable of the English area has that information, is the effect of this provision that, before the chief constable provides that information to Scottish Ministers, the independent reviewer must consider whether the chief constable of the English area should make that information available to the Scottish Ministers?

If that is the position, before the chief constable refers the matter to the independent reviewer, does he or she have a discretion as to whether they submit that information to the independent reviewer? If the chief constable has such a discretion, could the Minister—I gave no warning of this, so I would quite understand if he needs to write to me—give some indication of the basis on which the chief constable should determine whether to submit that information to the independent reviewer? Separately, could he indicate what approach the independent reviewer will take as to whether such information should be made available from the chief constable of the English area to the Scottish Ministers?

What I am trying to get at is some assistance for the English police forces. Understandably, the order gives no indication of the right approach in relation to this. Given what the Scottish Government are asking the UK Government to do, do the Scottish Government want the norm to be that the English police forces do not disclose the information about what the person did between eight and 12, save in exceptional circumstances? If that is the policy intention, what other sorts of things would be exceptional circumstances?

17:00

I would have thought that the policy might be that, if there was a conviction or something similar to it for somebody between eight and 12, it would be extremely likely to be only for something incredibly serious, because it is very unlikely that anybody would be prosecuted in England—and never between eight and 10, because the age of responsibility is 10 in Scotland. The numbers of prosecutions of people between 10 and 12 are minute, and will only occur in very serious cases.

Is the practicality, therefore, that it will always be so serious that you would always expect the chief constable to report to the Scottish Ministers on any such prosecution? Separately from all those questions, but connected with the same approach, would matters other than prosecutions be covered—for example, investigations, cautions, referral to local authority care proceedings, or something like that?

I am sorry to have given no warning about these questions. As I say, we support the order. We are just very keen to see how it works in practice.

[Viscount Younger of Leckie (Con)]

I start by thanking the noble Lord, Lord Bruce of Bennachie, and the noble and learned Lord, Lord Falconer, for their general support for this order. As I alluded to earlier, the instrument before us today will support the Scottish Government in the implementation of the 2019 Act and ensure that effective and proper cross-border co-operation is undertaken. I re-emphasise that the order will ensure that disclosure of information relating to when a person under the age of 12 is properly managed—I shall come back to this point—that police forces operating in Scotland are all working under the same regulations, and that it will provide support for Police Scotland in its work across the UK.

The noble Lord, Lord Bruce, asked a number of questions, which I hope I can answer. The first is very simple: why has it taken so long, going back to 2010, for us to get to this point today? He might not expect any other answer than the one that I am about to give: that this is certainly a matter for the Scottish Government. In some defence of the Scottish Government, I would say that it is important to recognise the complexity and sheer volume of work required to ensure that we get to this point and that the work of this important side is successful. It is fair to say that the Scottish Government have taken a phased approach to implementation, prioritising changes that have the most material positive effects for children and young people. But it is for the Scottish Government to say why it has taken so long.

The noble Lord, Lord Bruce, asked about the age of criminal responsibility and how it compares with arrangements in other parts of the UK. He will know that the age of criminal responsibility in England and Wales was set at age 10 by the Children and Young Persons Act 1963 and has been maintained by subsequent Governments. Most children aged 10 to 14 are diverted from the formal criminal justice system or receive an out-of-court disposal. Younger children should not be prosecuted for offences unnecessarily when a better alternative may be available. A child’s needs, maturity and chronological age are always considered in determining the most appropriate response to offending. As the noble Lord will know—he is right to ask the question—this is a complex issue, and the needs of each child need to be taken into account.

The noble Lord also asked about cross-border co-operation work, and I think that the noble and learned Lord also alluded to this. Co-operation could be in the form of enforcement of a Scottish court order by an English or Welsh police force or the Police Service of Northern Ireland on behalf of Police Scotland. Information-sharing between Scottish, Welsh and English local authorities will also allow for the child’s resident authority to take appropriate actions to address serious harmful behaviour that took place in Scotland. The Scottish Government have agreed to pay individual local authorities in England, Wales and Northern Ireland any additional costs each time the independent reviewer makes a request for information.

In respect of Northern Ireland, a number of statutory criminal justice agencies, including the Police Service of Northern Ireland, AccessNI and the Youth Justice Agency, have agreed to share information with the independent reviewer, on request, where a child is known to the authorities in Northern Ireland.

The noble Lord, Lord Bruce, also asked whether this order will create problems for complicated cases involving young people between Scotland and England. Again, it plays well into some of the questions raised by the noble and learned Lord. The answer is no. The order is designed to protect and support children in the very rare instances where cross-border co-operation is needed. It simply gives the relevant bodies the ability to effectively collaborate on investigating an incident of harmful behaviour so that the right support can be put in place for a child. Again, I make the point that this is child specific.

The noble Lord, Lord Bruce, raised the issue of transition. There are no transitional arrangements for police powers. There is nothing retrospective about raising the age, so something effective beforehand that was an offence still will be, but, as there are so few cases, there may well be none in the police system at the point of commencement.

The noble and learned Lord, Lord Falconer, raised a number of questions and I may well need to read Hansard and produce a letter for him. I appreciate the fact that he acknowledged that he did not give me any advance notice, but that is okay. He asked an important question: how does the cross-border arrangement work in practice? Operational guidance is being developed by Social Work, Police Scotland and the Convention of Scottish Local Authorities. Ministerial guidance has already been issued in relation to certain police powers in the Act, but the answer is that it is work in progress. Noble Lords may wonder why that is the case, given that we are 10 years in, but that is the answer.

The noble and learned Lord also asked how Police Scotland and Scottish local authorities work with their counterparts in the rest of the UK. I think that I have answered part of that question in response to the noble Lord, Lord Bruce, but I add that the order will enable Scottish bodies to work with their counterparts across the UK to investigate harmful behaviour by a child under the age of 12 in Scotland. This could be through the enforcement of court orders or information sharing between local authorities to help to address the harmful behaviour in the child’s local residential area.

The noble and learned Lord also asked about the independent reviewer and how it works specifically. I hope that I can answer many of his questions in the following way. The independent reviewer can review information concerning the behaviour of persons while under 12 before the information can be disclosed on an enhanced disclosure or protecting vulnerable groups scheme record, as other relevant information. The reviewer has the power to gather additional information necessary to carry out the review and must invite representations from the applicant and take them into account when doing so.

This newly created role introduces a fairer and more proportionate approach to the disclosure of information that occurred while the individual was under the age of 12. The reviewer will take into account the interests of the young person and of community safety when deciding if an individual’s actions during their childhood should be disclosed, to ensure that young people’s life chances are not unnecessarily affected by harmful behaviour in childhood. However, I am aware that the noble and learned Lord asked some precise procedural questions, so I may not have given the full answer. I will need to read Hansard and get back to him.

The noble Lord, Lord Bruce, asked about children’s court hearings and why these have not been implemented. It can be misleading to make simple comparisons between countries, because youth justice and wider social security systems differ considerably, which I suspect he will know. It is the aim of English forces to check information with the independent reviewer before submitting to the Scottish Government. That relates to a question asked, I think, by the noble and learned Lord, Lord Falconer.

I hope that I have covered the majority of questions. There is quite a lot of technical information here and I feel that I probably need to write a full letter just to check that I have everything in order and to ensure that full answers are given. Otherwise, with that, I beg to move.

Motion agreed.

Eggs (England) Regulations 2021

Tuesday 23rd November 2021 Grand Committee

Considered in Grand Committee

17:11

Moved by

[Lord Benyon]

That the Grand Committee do consider the Eggs (England) Regulations 2021.

Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, this instrument allows marketing standards checks on class A eggs imported from third countries to continue to be conducted at the locations where they already take place. It is needed because, without amendment, the retained regulation on egg marketing standards will require these checks to be relocated, causing disruption to the current inspection process and requiring considerable additional resources, with no material benefit for consumers. This instrument will have effect only in England. The Scottish Government and the Welsh Government will make the same amendment to their own domestic legislation.

Marketing standards are intended to ensure that the market is supplied with products of a standardised and satisfactory quality to meet consumer expectations. They are in addition to, and separate from, sanitary standards. Sanitary standards will continue to be checked at the border. The amendment made by this instrument is not a change of policy and confirms the existing arrangements for these marketing standards checks.

Through the functioning of the Northern Ireland protocol, Regulation 589/2008 on egg marketing standards, which Great Britain has retained, will continue to apply to Northern Ireland as it has effect in the EU. Therefore, the current checking arrangements for the movement of third-country class A eggs into Northern Ireland will not change. For class A eggs to be imported into Great Britain from a third country, the Secretary of State must determine whether the third country has equivalent egg marketing standards following an assessment of its legislation and checking practices. Only EU member states are currently recognised as producing eggs to this equivalent standard.

In the future, should we wish to import eggs from any third countries other than the EU, the Secretary of State must first make a similar determination of equivalence. Until then, class A eggs may not be imported into Great Britain from non-EU countries. We will continue to uphold the high standards expected by UK consumers and businesses.

Since a grace period has been granted for marketing standards and SPS checks on EU goods until 30 June 2022, checks will need to be conducted on class A eggs from the EU from July 2022. Any third-country imports that might be agreed before July 2022 would also require border checks. Under current legislation, all these checks would need to take place at the border.

If this statutory instrument does not pass, our current operating practices will not be compliant with our retained legislation. The change contained in this statutory instrument has been discussed with British egg industry stakeholders. Defra has held a joint consultation with the Scottish and Welsh Governments on the proposed change and continues to engage closely with the sector. I beg to move.

17:15

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend for introducing the instrument before us this afternoon, on which I have a number of questions. Paragraph 8.1 on page 2 of the Exploratory Memorandum says that:

“This instrument does not relate to withdrawal from the European Union or trigger the statement requirements under the European Union (Withdrawal) Act.”


However, it would seem that it relates entirely to our withdrawal from the European Union and the retained legislation that pertains to that. I am therefore not sure why that paragraph is there. Can the Minister clarify that please?

Paragraphs 10.4 and 10.5 of the Explanatory Memorandum refer to the consultation, which was carried out through

“the online survey Citizen Space”.

I do not know about other noble Lords, but online surveys are complete anathema to me. They do not seem a very personalised or direct form of consultation. Can my noble friend please explain to us whether this is now the way forward? Is this the Government’s consultation mode of choice? I want to place on record that I do not approve of that at all. It was also carried out on what is traditionally a holiday period—from 19 July to 16 August. I thought that consultations normally take place over a 12-week or three-month period to enable those who wish to respond in some detail to do so. This also allows the industry to talk among themselves to see whether they want only one person to respond, or everyone.

Paragraph 10.4 goes on to say that:

“The consultation targeted stakeholders from the egg sector, with close engagement with egg enforcement bodies.”


It would be interesting to know whether the six responses received match those that were actually sought. How many targeted invitations were sent out? Of those six, only one agreed to the proposal. The overwhelming majority of respondents disagreed with it,

“preferring checks to take place at the border, due to concerns that these measures should mirror the requirements for import of Class A eggs into the EU.”

I would like to know the basis on which we have moved away from the historic checks that we did at the place of import and why the Government are not carrying the industry with us.

I have to say that I am deeply unhappy that, to mitigate the concerns expressed by the vast majority of those who expressed any concerns at all, all we are going to do is to organise a round table. Clearly, we cannot amend the statutory instrument so I would be very interested to know what form the round table will take. The fact that a round table is going to be convened demonstrates that there are widespread concerns in the industry. I would be very interested to know who from the department will attend the round table. Will it be at ministerial level or official-only level?

I pay tribute to the report produced by the Secondary Legislation Scrutiny Committee, and refer to the committee’s thoughts on page 12 and in Appendix 4 on page 32. It appears that there are going to be two different types of checks in relation to GB to Northern Ireland. There will be checks at the border to ensure that the consignment contains either class A or B eggs, as at present. However, all eggs from Northern Ireland will continue to have unfettered access to the UK market. There is clearly a discrepancy there.

Finally—I had better stop because I could spend the whole of the afternoon on this one little instrument—my noble friend said in his introductory remarks, if I heard him correctly, that sanitary standard checks will continue to be made at the border. If we are doing those checks at the border, why on earth can we not do all the checks at one place on imports into this country?

I did say finally, but I did not mean finally. Will my noble friend commit to bringing forward an instrument on the question of equivalence at such time as he suggests that non-EU countries may come forward with imports? I think he said that there would be an instrument at that time. Can he confirm that that is indeed the case? I think he will understand from my drift that I do not like the instrument before us.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, the Minister referred to paragraph 10.3 of the Explanatory Memorandum, which states that consultation

“was undertaken as a joint consultation with the Scottish Government and Welsh Government. Northern Ireland is not involved in these amendments, due to the effects of the Protocol on Ireland/Northern Ireland.”

I declare an interest as a member of the House of Lords sub-committee that is scrutinising the protocol on Ireland/Northern Ireland, and I have some questions in this regard. What does that mean in practice? Can eggs from GB be put on the market in Northern Ireland, and vice versa? Do these eggs have to be checked before they can be put on the market in Great Britain or Northern Ireland? That issue was raised by the Secondary Legislation Scrutiny Committee. Living in Northern Ireland, I am very well aware that Marks & Spencer and Sainsbury’s sell quite a lot of products that come from GB. What will the nature of these checks be? Where will they be carried out?

I support the protocol and believe in its sustainability, but perhaps the Minister can advise on progress in the ongoing negotiations on the protocol between the UK and the EU, with particular reference to the SPS arrangements. That was one of the “non-papers” from the EU in relation to this issue.

As this is a domestic statutory instrument, it falls to the Secondary Legislation Scrutiny Committee rather than our protocol committee to scrutinise it. What is the interaction between this statutory instrument and the protocol? Perhaps the Minister can give us some detail and clarity on that interaction and on the practical impact on the supply of eggs from GB to Northern Ireland and vice versa. As the noble Baroness, Lady McIntosh, said, eggs that travel from Northern Ireland to Britain enjoy unfettered access, so it would be good to get clarity on that.

It is important that the Government make a full analysis of the interaction of domestic primary and secondary legislation with the protocol. A lot of these statutory instruments come to us simply for information purposes, but we also get referred legislation from the EU that will affect and impact Northern Ireland on an ongoing basis. The Government have analysed the interaction of domestic primary and secondary legislation with the protocol. What has been done to ensure that that analysis takes place on an ongoing basis? If it is taking place, is it possible to publish the results and for a copy to be placed in the Library of both Houses?

[Earl Cathcart (Con)]

My Lords, we started out as an egg producer on our farm in Norfolk about 10 years ago. For the first few years, it was a reasonably profitable business, but as more farmers have come into the market that profitability has increasingly been reduced. It is all about supply and demand. As the number of producers has increased, margins have been squeezed. In the past few years, we have been seriously considering whether it is worth our while continuing in the business, but as we employ three local people and it is still just profitable, we have continued in the hope that egg prices will go up.

On the surface, these regulations look innocuous enough. They went out to consultation, and of the six respondents, who all look after the interests of UK food and egg producers, only one was prepared to agree with them. The other five argued that the checks should take place at the border. Many emphasised that this change should be reciprocated by the EU to benefit British egg producers and egg exporters. This has not happened—I do not know whether Defra even tried—so exports from the UK to Europe will be subject to the full range of EU checks and bureaucracy, thus raising the costs and reducing the competitiveness of our exports.

As things stand, these regulations will make things lopsided—or rather, one-sided—with EU imports of eggs into this country being exempt from checks, bureaucracy and costs at the border but our exports being fully subject to all the EU rules and costs. So no level playing field there then. To my mind, Defra has scored an own goal here in not supporting its own UK egg producers, who have the highest welfare standards in the world, while helping with the import of cheap, low-welfare eggs. Thanks a bunch. One has to wonder why.

After the initial consultation, Defra held a virtual meeting in September with the consultees, who were told—I find this unbelievable—that the Government want their support to facilitate importing cheap EU eggs to help feed the nation. You could not make it up. Here we have a Defra official asking the very bodies that look after the interests of UK food and egg producers to support flooding the UK market with cheap, low-standard foreign imports. With margins already tight, we egg producers need that like a hole in the head. No doubt the Government were concerned about the supply chain problems, the lack of HGV drivers and the prospect, circulated in the media, that there would be empty shelves in the supermarkets at Christmas, but here we have Defra saying that it wanted cheap imports of eggs and to hell with its own egg producers.

Defra went on to say that it wanted to ease the process, as border inspections would involve more time and costs for egg importers. As an egg producer, am I bothered? All these regulations will do is flood our market with cheap eggs and increase the pressure to reduce the price that we get, thus further squeezing our margins. I am told that, when the consultees explained to Defra that UK producers could easily produce enough eggs to feed the nation—we already produce 90% of our requirements—but that with these regulations they were going to be undercut by lower-standard, lower-cost imports, Defra responded by saying that the consultees were acting only in the interests of protecting UK producer profit margins. As an egg producer, I say, “What profit margins?” They are tight enough already.

Just whose side is Defra on? Quite clearly, it is not its UK food producers. The Government have a cheap food policy priority and an anti-producer, pro-consumer mentality that seems prevalent in Whitehall. Surely the Government, and a Tory one at that, ought to protect and promote their own food producers, which they expect to operate with ever-higher welfare standards, rather than to protect and promote cheap imports? The problem is that although we have a Defra Secretary of State, George Eustice, an Agriculture Minister, Victoria Prentis, and my noble friend Lord Benyon, who all have farming interests and all support British farming, we have a Government who do not.

17:30

[Lord Rooker (Lab)]

My Lords, before I start, I want to register a complaint about this Room. Since 2013, I have sat on this side of the Room, previously being a Minister and chair of the FSA. I am fed up to the back teeth; that light up there has been flashing for over eight years. It does not affect people on the other side. I fully accept that you have to be pretty sensitive to it, but it has been like that for eight years and no one has done anything about it.

Having got that off my chest, I thank the Minister for bringing forward these regulations. I accept, as he said, that they are very narrow, but this is a golden opportunity to raise other issues relating to eggs, as has been the case. I agree entirely with the speech of the noble Baroness, Lady McIntosh of Pickering. Some time, I would like the Minister to answer the point just made by the noble Lord: what is our latest self-sufficiency figure? I found a figure of 89% of imports, or £1.7 billion, and exports of only £315 million. It is not a big issue. I just wondered what it was.

People joked about egg fraud when I raised it as a Minister, but it is big business. We must take steps to stamp it out. I will give only a snapshot. In 2010, Mr Owen of Bromsgrove was fined £3 million and did three years inside. That case started while I was at Defra, from 2006 to 2008, because of the way it was tipped off. Some 100 million eggs were mis-sold due to mislabelling. The defence had the brass neck to argue that Owen was not the only person “creating mischief in the egg industry”. That is the kind of class act of barristers. That was the defence argument—a bit of mischief. Some 100 million eggs were mis-sold; basically, low-level stuff sold as free range.

In 2018—it has not gone away—there was payback of £500,000 and 30 months inside for Anthony Clarkson of Preston. Again, it was free-range egg fraud—buying barn eggs and selling them free range. There are plenty available. In February 2019, a Netherlands trader was convicted of selling eggs unfit for human consumption. The other thing is: can we trust the statistics on eggs? We are talking about big figures by definition. I regret to say that I have only just discovered that, from 1996, hopefully not until now, HMRC showed errors in its imports and exports of three times the real figure. For 2008, the claim was that 600,000 cases—a case is a lot of eggs, at least 360—were exported, but it turned out to be less than 200,000.

In February 2013, Defra reported that the UK imported 267,000 cases, but, in reality, it turned out to be 127,000 cases. The exports in the same year were given as 61,000 cases, but, in reality, it was only 16,000 cases. There is a brilliant graph of what HMRC was producing. I take exception to this because, at some point during that period, I would have answered Parliamentary Questions, both in 1997-99 and 2006-08, giving false information. I have never been informed about this; it has come about only because I was searching the web in preparation for this debate. I had no idea about the revised figures of this HMRC miscalculation. Quite a serious issue is: can we trust the figures that we are given?

As the noble Baroness, Lady McIntosh, said, this is all about the EU and Brexit. The EU’s export figures and documentation are brilliantly accessible, unlike ours. I gather that, in 2019, the EU exported to the UK 12,048 tonnes of eggs for consumption—I have dealt only with eggs for consumption; I have not dealt with eggs for food production or day-old chicks. That figure is down in 2021 to 7,358 tonnes. The UK exported almost a similar figure in 2019: we exported to the EU 11,022 tonnes. That is now down to 6,685 tonnes. The EU imports eggs from all over the world. I am not familiar with the sanitary checks at the ports or the others. We are facilitating food imports from the EU without lots of checks because we accept it; we trust it. If anything is going around and being marketed in the EU, then it is okay by us—that is what we said—and it is why we are not employing loads of people to go round the world checking on food production, which is what the EU was doing for us before Brexit. We are relying on the EU to do it for us. If it is okay for the EU, it is okay for the UK.

The EU imports eggs from around the world—and I mean around the world: from Ukraine, USA and Argentina. It also imports from China—I repeat, China: the equivalent of 1,348 tonnes of eggs in 2020. Other countries include North Macedonia, Albania, Norway, Switzerland, Kazakhstan and Bosnia-Herzegovina. How do we know that the eggs that we import from the EU are only from the 27 member states? If eggs are being moved around the EU—and let us not forget that many of them will come in unmarked; they will be marked in the EU—how do we know that we are not importing from outside the 27?

I would hate to think, for example, that we were importing eggs from China without any checks. We would not know whether they were produced via slave labour, which, as we know, the cotton pickers are in Xinjiang. Who is checking on this? There are some serious issues. In 2020, the EU exported to the UK 100,160 tonnes equivalent. The UK was the biggest destination of eggs from the EU. The next were Japan, with 68,163 tonnes, Israel, with 14,809 and Russia, with 45,378, so the UK was by far the biggest recipient of exported eggs from the EU, with Japan being the next.

Where are they coming from and how do we know? Those are legitimate questions for me, for regulators, for food producers, for customers and for supermarkets. A lot has been done to improve the standards of egg production in the UK—I fully accept that—but how do we know that eggs are coming only from the 27 EU member states? There are some serious issues here that the Minister will, I hope, be fully briefed to answer.

My final point concerns another aspect of this. The eggs that are coming in will not all be for consumption; some of them will be for food production. I picked up from Food Manufacture magazine concerns about the importing of eggs to the UK for use in “British” products—that is, as ingredients in pre-prepared foods. We use imported eggs. If the fact is that we are only 89% or 90% self-sufficient, that 10% represents a hell of a lot of eggs.

I understand that there is a petition asking UK supermarkets, although this is not their full responsibility, and food producers to stop such imports. There is a complete lack of transparency in the sourcing of egg products in such foods. Customers today are faced with eggs on the shelves in supermarkets with the British Lion brand and the name of the farm on them —great—but nobody knows where the eggs they are consuming in the pre-prepared foods they buy on the shelf next door come from, because there is a lack of transparency. They will certainly not all come from the UK as, by definition, they are imports. British Lion egg producers are quoted as saying:

“In recent years there have been a number of food safety issues associated with egg products produced in Europe and further afield.”


“Further afield” means outside of Europe. They go on:

“Using them also adds unnecessary food miles and does not meet the guaranteed, high standards provided by the Code of Practice for the production of Lion Quality Egg Products.”


What is the Minister’s view of the petition?

I have a soft spot for Defra and MAFF, having spent four years in total in both departments. It is the producers’ ministry; that is what I used to say when we were setting up the FSA. “We want the consumer to be looked at. Carry on being the producers’ ministry”, I used to say—but, listening to what the Minister said, it is no longer the producers’ ministry if its approach is to smash up the UK industry by saying that it wants lots of cheap imports. If that is its attitude on eggs, that will be the policy attitude on other foods and ingredients, which is what some of us said would happen before Brexit. We were constantly told by the noble Lord, Lord Gardiner, who was the Minister concerned—I must have a dozen cases of this in my files upstairs—that there would be no diminution in the quality of and food standards for imported food. That was repeated day after day, month after month, with great sincerity. Nobody is questioning the noble Lord’s sincerity but the reality is that the department is seeking to go back on that commitment. That is the only conclusion to draw in talking about cheaper food. Cheaper food comes about only because of less regulation, lower welfare conditions and worse pay and working conditions for workers. That is the only way it happens. It is what happens in this country, which is why we must be careful about the work of the gangmasters organisation.

The reality is that this is a good example. It is an egg. We all know what an egg looks like and what we can do with it. It is not so easy with other products, such as cuts of meat and grains; that is all too technical. The public understand that, if we as the public are being cheated on egg imports, how do we know we are not being cheated on other food imports when the ministry that is supposed to be looking after this and guarding the regulations is now hell-bent on trying to reduce standards? It is no good the Minister shaking his head; he has to give chapter and verse to answer exactly what his current department’s attitude is.

17:45

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I thank the Minister for his introduction to this short statutory instrument. I think it is the shortest statutory instrument I have ever had to speak to, but it has very important issues at its heart.

A small percentage of British eggs are exported, and these are only ever grade A eggs, according to the Explanatory Memorandum. The British egg industry is 89% self-sufficient and produces plenty of eggs for consumer needs. A very small percentage of eggs are imported. During the period when Covid-19 was at its peak, eggs were imported from Spain due to supply chain difficulties. It is essential that only grade A eggs are imported and important that there should be adequate checks on these eggs.

It is, of course, practical for these checks to be done at the packing centres where egg marketing inspectors are already carrying out visits. However, I would like reassurance that it would not be possible for imported eggs to enter the retail market without going through a packing centre. I presume that if eggs were checked at the border on the point of import it would be very difficult for them to go unchecked and enter the retail chain. Can the Minister say whether it would be possible for eggs to leave the point of import and avoid going through a packing centre?

There is also an issue with labelling. Eggs stamped with the Lion symbol are processed through exclusive Lion packaging centres that do not deal with imported eggs, as that is prohibited under the Lion scheme rules. The BEIC, which runs the Lion Quality scheme for egg production, owns the Lion Quality trademark and is obviously keen to protect its product.

Eggs entering the GB market and coming from countries that have equivalent standards to home-produced eggs are not labelled. However, eggs coming from countries that do not have equivalent standards are labelled “non-UK standard” or “non-EC standard” and with the country of origin. How confident can consumers be that this labelling is accurate?

I understand that these eggs are likely to be used for mass catering and retail. Given the small percentage of imported eggs—10%—it is likely that these eggs will end up being used for catering purposes—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I apologise for interrupting the noble Baroness. She will be aware that a Division has been called in the Chamber. The Committee will adjourn—I am hesitating to say for 10 minutes, because I am not quite sure whether that is what has been agreed—for certainly no more than 10 minutes to allow noble Lords to register their votes.

17:48

Sitting suspended for a Division in the House.

17:57

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, as I said, given the small percentage of imported eggs—10%—it is likely that they will end up being used for catering purposes. However, the consumer will not be informed that they are consuming products made with imported eggs. Given the contribution made by the noble Lord, Lord Rooker, on the fraudulent labelling of eggs, is this a concern for the Minister?

The consultation carried out online received six responses, with one agreeing to the proposal and the other five expressing a preference for checks at the border. Could this poor response be due to the online nature of the consultation? Although it is practical for the checks to take place at packing centres, it is important to keep the industry on board. With only one in six producers content with the proposals, it seems as though the Government are riding roughshod over the egg-producing industry. The noble Baroness, Lady McIntosh of Pickering, referred to this, although she did not use those words.

The Explanatory Memorandum indicates that:

“a round table will be scheduled with industry”

to mitigate any concerns. Can the Minister say whether this round table has taken place yet and, if so, what the outcome of the discussion was? If it has not yet taken place, has a date been fixed in the future? Can he provide reassurance that the cost of checks will not fall on the egg industry? The noble Earl, Lord Cathcart, referred to the costs involved. I am concerned to hear again from him that Defra is actively encouraging the import of cheap eggs. Why, given that GB is virtually self-sufficient in egg production?

Lastly, given that the Lion Quality assurance scheme accounts for 90% of GB egg production, can the Minister say how many packing centres are therefore likely to be dealing with imported eggs? The noble Lord, Lord Rooker, asked some very searching questions, and I look forward to the Minister’s response, but I am generally content with this SI.

18:00

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the Minister for his introduction to this SI, and for the helpful briefing that he organised with officials beforehand. However, he will know that the Secondary Legislation Scrutiny Committee has drawn this SI to our attention. Like other noble Lords, partly arising from that, I have a number of questions.

Obviously, our main concern is to maintain our high animal welfare and food quality standards. Clearly, we can maintain those standards more easily if the eggs are produced within the UK. I am absolutely with the noble Earl, Lord Cathcart, on that issue. Can the Minister remind us what percentage of class A eggs are currently being imported from the EU into the UK? We have heard some statistics today, but it would be helpful to have clarification from the Minister on that. Is it the case, as my noble friend Lord Rooker is saying, that third-country eggs are also coming to us via the EU? Is that standard practice? I think we should know more about this. Given that many of these procedures in the SI are about potential third-country egg producers coming direct to us in future, it would be helpful if the Minister could say whether he is aware that there are, in the sidelines, third-country producers awaiting some sort of green light to be able to sell into the UK market, and what the consequences might be.

That is just a general point. I now want to ask some specific questions—and the first question is about arrangements on the Northern Ireland border. In response to the question from the Secondary Legislation Scrutiny Committee on this issue, Defra said that all eggs from Northern Ireland to GB would continue to have “unfettered access” to the UK market. Does that mean that there are no checks carried out on these eggs at all either at the border or at the so-called points of destination, or anywhere else?

Meanwhile, as I understand it, class A eggs going the other way—from GB to Northern Ireland—will continue to be checked at the border, as GB will have the status of a third country with regard to Northern Ireland. Those are the issues that my noble friend Lady Ritchie raised, and I agree with her: we need to know more detail on the practical application of how the rules will apply going in both directions. It would be helpful if the Minister could clarify those arrangements under the terms of the protocol. Also, can he clarify how the outcome of the current negotiations on the Northern Ireland protocol between the noble Lord, Lord Frost, and the EU might impact on the regulation of imports to and from Northern Ireland in future? Will eggs be caught up with this, and is this an issue on its agenda for change?

Secondly, like other noble Lords, we share the concern expressed by the Secondary Legislation Scrutiny Committee that the majority of respondents to the original Defra consultation were against the proposals in this SI. The Defra letter explains that a subsequent round table was held on 24 September. Stakeholders expressed concerns about whether imported eggs would be subject to the same standard of checks as domestic eggs and produced to the same high health, welfare and food standards. Rightly, my noble friend Lord Rooker raised issues about egg fraud, and he gave some shocking examples of it this afternoon. Clearly, we need to ensure that our consumers are not being mis-sold—and that is a concern that the stakeholders expressed at the meeting on 24 September.

What do the current checks on UK eggs entail? I do not quite see how we can differentiate between the sanitary provisions that the Minister was talking about and how they are marketed. I would have thought that the marketing is about the sanitary provisions, so the two should go hand in hand. Does the Animal and Plant Health Agency regularly and randomly visit UK poultry farms to check on animal welfare issues and on whether the birds are, for example, being reared organically? Does the same provision for checks on animal welfare et cetera also apply to imported eggs? Otherwise, how can we be sure that food standard equivalence is being applied?

The Defra response to the Secondary Legislation Scrutiny Committee referred to the APHA carrying out random checks on domestic and imported eggs at warehouses, distribution centres and packing centres, but this does not seem to include visits to where the birds are being reared, so how can we be assured that the high animal welfare standards included in the marketing of imported eggs can be trusted? This was an issue raised by a number of noble Lords. Obviously, this matters because descriptions such as “free range” or “organic” carry a premium price, so the temptation for some degree of fraud is obvious for all to see.

Once we have finished the 21-month transition period with the EU, what arrangements will be in place to check welfare standards on site for both EU and third-country egg producers? Will we go to see where the chickens are being reared and the eggs are being produced?

Thirdly, are all UK eggs currently produced distributed via warehouses and packing centres or do some go straight to market? This was the question raised by the noble Baroness, Lady Bakewell. I can imagine that there is a healthy trade in local eggs at farm shops and farmers’ markets or potentially in the restaurant sector, so how is the APHA monitoring the quality of eggs that do not go via those distribution centres? What would stop egg importers avoiding packing and distribution centres and therefore avoiding the checks? Could they also go straight to market or to some locality without going through the distribution centres?

Then there is the question of what happens at the ports. This issue was raised by the noble Baroness, Lady McIntosh. Presumably the APHA is already doing other checks at ports and custom points on foodstuffs being imported; it is already there with the resources, so it would not be too much of a stretch to check egg imports as well, particularly as we have heard that the phytosanitary checks will still carry on at the ports. Therefore you could argue that it would be more efficient to inspect all those consignments together, so I wonder why we are not still planning on doing that.

Finally, I am trying to get to the root of this issue. Is it an issue about overall APHA staffing levels? Is this ultimately the issue? Is it about staff shortages? What level of vacancies is being carried by the APHA? What proportion of APHA staff were previously EU staff who have left and cannot be replaced? Is this an issue at the heart of the matter?

The most important aspect of this debate is the need to maintain our high animal welfare and food safety standards. I absolutely share the concern of stakeholders and noble Lords this afternoon that these proposals do not provide sufficient reassurance that we will be maintaining those same high standards. I hope the Minister will be able to provide further reassurance on this issue, and I look forward to his response.

[Lord Benyon (Con)]

I thank noble Lords who have contributed to this debate. I will endeavour to answer all the questions that have been asked.

My noble friend Lady McIntosh referred to the sentence in the Explanatory Memorandum that relates to whether we used the European Union (Withdrawal) Act powers for this statutory instrument. I can confirm that we did not. I think she and others also asked why, given that the egg sector opposes the proposal—or so it was deemed from five out of the six responses—the Government are moving ahead with it.

In response to the consultation, Defra and the Welsh and Scottish Governments held a round table, as has been said, on 24 September to address the concerns raised by the industry. Invited to the meeting were the checking authorities responsible for egg marketing standards checks across Great Britain—the APHA egg marketing inspectors, who operate in England and Wales, and the Scottish Government poultry officers. In response to concerns expressed by the industry that imported eggs should be subject to the same standard of checks as domestic eggs and produced to the same high health, welfare and food standards, Defra explained that the checks will continue to be made on a risk basis, as well as randomly, in line with Article 24.2 of Regulation 589/2008, and that food quality will not be impacted by this SI.

My noble friend Lady McIntosh also asked about the nature of the survey, noting that it was online. All relevant industry representatives responded and were at the round table, so it is fair to say that a pretty full consultation has happened. She asked about UK exports to the EU. I can confirm that UK exports are checked at the border for both hygiene and marketing quality.

A number of noble Lords asked about resources at the APHA. This statutory instrument changes the current legislation, requiring marketing standards checks to take place at the border to allow the continuation of a current practice. We have the resources to do this now. I am quite open that, if we were not to pass this and require those checks to take place at the border, it would put considerable resource demands on the APHA. It would require a border control post to have a very large chilled space, so that every lorry that came in with its 28 pallets of eggs could be safely unpacked and those eggs moved into a chiller space. If they were not, they would risk deteriorating in quality, so that would have to take place. They would then have to be reloaded and taken to a distribution point where we had the resources to check them. I hope noble Lords remember this important point.

The noble Baroness, Lady Ritchie, raised a very well-made point about the implications of this SI for Northern Ireland eggs entering the UK and whether they will be treated differently, with Northern Ireland continuing to follow EU rules. Eggs produced in Northern Ireland are not considered to be entering GB from a third country. The statutory instrument does not change the way eggs moved from GB to Northern Ireland will be checked. Northern Ireland eggs will continue to have unfettered access to the GB market, as at present, and will continue to be checked in the same way as domestic eggs from England, Scotland and Wales. In any case, the checks on third-country eggs are identical to those performed on domestic eggs. They will continue to be checked by egg marketing inspectors on a risk-assessed and random basis at the point of destination, at packing centres, at distribution centres and at wholesale premises.

I think she asked whether eggs from GB can be put on the market in Northern Ireland. Class A eggs imported into Northern Ireland from third countries will continue to be checked at the time of customs clearance and prior to their release for free circulation, in accordance with Article 24.3 of Regulation 589/2008, as it has effect in the EU. I think I have said whether eggs have to be checked before they can be put on the market in GB.

18:15

My noble friend Lord Cathcart made an impassioned plea on behalf of egg producers. I say to him and the noble Lord, Lord Rooker, that Defra is absolutely determined and passionate about promoting British food. I know that nobody here would say that we want a ban on imports—I know noble Lords understand that that would cause a very difficult situation in our trade with our closest and most important partners—but we are now at nearly 90% self-sufficiency on eggs and it seems perfectly possible that we can improve on that still further. Nevertheless, there will be a free flow as supply chains dictate, but I can absolutely assure my noble friend that we want to see eggs sold in the country being produced to our high welfare standards. Any eggs that come in must remain produced to our clear, high standards in a state of equivalence. I will come on to talk about that a bit more.

Imported eggs are subject to exactly the same level of checks as domestic eggs. These checks are conducted by APHA egg marketing inspectors on a random and risk basis. They check quality, weight, grading, labelling, marking and packaging, as well as farming methods such as free range, barn and caged. I have been fascinated to learn how they do this: using ultraviolent light, they can detect by looking at an egg how it has been produced. So the eggs that are being checked cannot be ones produced in battery cages that we would not allow here.

Fraud, which the noble Lord, Lord Rooker, raised, is an important point. I cannot stand here and guarantee that every egg coming into—or, indeed, produced in—this country is produced to the standard that it says on the box, but we have a very strict checking system. We currently import class A eggs only from EU member states. We recognise that eggs from the EU are produced to an equivalent standard. The EU has reciprocated on this and recognised the equivalence of our eggs. We have regular contact with our friends in the EU, and we will make sure that we continue to do so, so that the standard and quality of any eggs that come into this country do not put our producers at risk.

As I said, in 2020, the UK was 89% self-sufficient in eggs. A staggering 11.2 billion eggs are eaten in this country; we import 1.7 billion and export 315 million of them. Eggs are imported on commercial documentation, and importers are not currently required to pre-notify the authorities before the import of eggs under marketing standards or SPS rules, but, as I say, the Government will continue to promote British produce. We have not imported non-EU, third-country eggs for many years. At present, we only import equivalent, third-country, class A eggs from the EU. If dodgy eggs coming from appalling producing circumstances—both for the livestock and those operating the production—are coming into this country as class A eggs, they will be found and discovered by our inspectors. In the UK, all imported class A eggs are required to undergo marketing standards checks. I hope I have reassured my noble friend Lord Cathcart. He is obviously on the front line of this issue, but I want to get across to him and to other producers the message that we are on their side.

The noble Lord, Lord Rooker, talked about the origins of eggs. The regulations require the country of origin to be stamped on the egg itself, not just on the packaging. Eggs will also be accompanied by an export health certificate signed off by a vet—probably a measure introduced by the noble Lord himself when he was at Defra. The APHA will check the stamping on those eggs.

The noble Baroness, Lady Bakewell, made an important point. A relatively small number of imported class A eggs do not pass via packing and distribution centres. In this case, the eggs go straight to retail, but it is a small percentage. There is a possibility of further checks by trading standards officers from local authorities.

The noble Baroness asked whether eggs which are non-UK standard or non-EC standard can be sold in the UK. Eggs which are not of an equivalent standard to those produced domestically and which are deemed to be produced to non-UK/non-EU standards may still be sold in Great Britain. However, the packaging of such eggs must be marked with the country of origin and the farming method as non-UK standard. No eggs currently imported into the UK require such a label, as we do not receive eggs from countries that do not have equivalent standards. The Explanatory Memorandum to the SI states that if any third country—that is, non-EU country—wanted to export eggs to the UK, the Secretary of State would be required to sign that off to make absolutely sure that those standards were being maintained.

Defra explained in the round table and in the consultation that checks will continue to be made on a risk basis as well as randomly and that food quality will not be impacted by this amendment. I hope that has gone some way to reassure the important people whom we want to continue to support in the production of eggs in this country.

There were broader questions about egg marketing standards. I have to say from the six months that I have been in this role that the APHA is one of the most impressive organisations that I have dealt with. I have full confidence in it. Are there enough people? No, we need more. The noble Baroness, Lady Jones, made a very important point. It is well known that we are short of vets and other people, but we are able to manage this if this SI passes; if it does not, we would be short of the resources we need.

I think that I have answered all the questions on Northern Ireland.

[Baroness Ritchie of Downpatrick (Lab)]

On Northern Ireland, I mentioned the importance of a full analysis by Her Majesty’s Government of the interaction of domestic primary and secondary legislation with the protocol. I also asked what is being done to ensure that such analysis takes place and that, if it is taking place, a report could be placed in the Library of both Houses.

[Lord Benyon (Con)]

The noble Baroness is right to raise this point, as others have done, about the ongoing negotiations around the Northern Ireland protocol. I do not feel qualified give an accurate, up-to-date report. After this Committee, I will find out whether there is going to be an immediate communication about the status of the Northern Ireland protocol and an analysis of its functioning, particularly in relation to this matter. If there is not, I will make sure that she receives more information. The noble Baroness, Lady Jones, raised that as well.

I have answered quite a few of the questions—probably not every single one.

[Lord Rooker (Lab)]

The Minister has been very helpful; I fully accept that. I do not expect him to know the answer to this, but I hope that he will take my word for it that if any of us in this Room is wearing any cotton fabric or garment, it is possible using element analysis to find out where the cotton was grown. The same technique can be used to decide whether lamb was created in Wales or New Zealand. Does the technique of element analysis figure in any of the checks about where eggs have come from?

[Lord Benyon (Con)]

That is a very good point, and I will seek further information. I hope to reassure him and my noble friend Lord Cathcart that the idea that we are somehow allowing the import of substandard products that discriminate against our domestic producers is easily detectable through the measure that he mentioned which shows precisely how that egg is produced. I do not know whether it can deal with the point about fraud, or whether it can say, for example, that the egg came from Argentina or China, but this is a fresh food product, so obviously there is an issue about timing. I think that would militate some of the fraudsters who might want to try to enter the supply chain, but I assure the noble Lord that no undercutting of our producers will be facilitated by this measure or by my department in our determination to support the producers of this country. I really want to re-emphasise that point.

I hope that noble Lords fully understand the need for this instrument, which is to ensure that marketing standards checks on class A eggs imported from third countries continue to happen at the locations where they take place today. As I outlined in my opening speech, the instrument will also avoid any disruption to the level of checks that currently take place and will allow egg marketing inspectors to continue to uphold our high standards. I believe I have answered all the questions, but if I have not, I am very happy to provide written answers, I will check Hansard and respond in writing to any questions I may have missed.

Motion agreed.

Food (Promotion and Placement) (England) Regulations 2021

Tuesday 23rd November 2021 Grand Committee

Considered in Grand Committee

18:27

Moved by

[Lord Kamall]

That the Grand Committee do consider the Food (Promotion and Placement) (England) Regulations 2021.

Relevant document: 12th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, obesity is seen as one of the biggest health problems this country faces. The latest national child measurement programme data from 2020-21 showed that around 40% of children leaving primary school were overweight or obese, with one in four living with obesity. Regular overconsumption of food and drink high in calories or the consumption of sugar and fat can lead to weight gain and, over time, obesity, which in turn has a significant impact on health and well-being and increases the risk of certain related diseases.

The Covid-19 pandemic has highlighted the impact that obesity can have on people’s health. Evidence from a University of Liverpool study shows that those who are overweight or living with obesity and who contract Covid-19 are more likely to be admitted to hospital and suffer worse complications. This measure is part of the Government’s healthy weight strategy, which we hope will contribute towards achieving the ambition of halving childhood obesity by 2030.

The instrument we are discussing today concerns the introduction of restrictions on promotions of less healthy products by volume price and location for retailers in England with 50 or more employees. Location restrictions will apply to store entrances, the ends of aisles, checkouts and their online equivalents—for example, home pages and payment pages. Volume price restrictions will prohibit retailers from offering promotions such as buy one, get one free or three-for-two offers on less healthy products.

18:30

Less healthy products are defined as those that are of most concern to childhood obesity. It is a two-step process to determine whether a product is considered less healthy, which allows the healthiest products within categories to be excluded. First, products will be subject to the restrictions only if they are in the specified categories listed in Schedule 1 to the regulations.

If a product falls into one of these categories, the second stage is to apply the technical guidance to the 2004-05 nutrient profiling model, or NPM. If a food product scores 4 or above, or a drink product scores 1 or above, it will be considered less healthy and cannot be promoted. Healthier products within categories in scope of the restrictions will be excluded and therefore can be promoted.

The requirement applies to food sold in England only. We have engaged with Scotland, Wales and Northern Ireland throughout the consultation process. Subject to Parliament’s approval, the regulations will come into force from 1 October 2022.

The aim of this policy is to restrict the promotion of products considered to be less healthy in favour of healthier options. We hope that this will help to improve children’s diets and to reduce the overconsumption of food and drink high in calories, sugar, salt and fat that contributes to children being overweight and obese. We hope that this will shift the balance of promotions towards healthier options and maximise the availability of healthier products on promotion, making it easier for parents to make healthier choices when shopping for their families.

Data from previous Public Health England reports show that we buy almost 20% more as a direct result of promotions, while less than 1% of food and drink products promoted in high-profile locations are fruit or vegetables. Price promotions increase the amount of food and drink that people buy by around one-fifth and account for around 40% of all expenditure on food and drinks consumed at home. The location of products within stores also significantly affects what shoppers buy, with end-of-aisle displays increasing sales of soft drinks by over 50%.

Data from Public Health England’s sugar reduction evidence report suggests that promotions increase consumer spending by encouraging people to buy more than they intended, increasing their consumption of less healthy products. Research from a study conducted by Curtin University in Australia shows that children are uniquely vulnerable to the techniques used to promote sales.

Some supermarkets have already made voluntary commitments to reducing such promotions, which the Government welcome. However, these measures are not always implemented consistently or as recommended, so the Government intend to introduce legislation across the market to create—noble Lords have heard this phrase before—a level playing field within the retail sector.

Obesity has significant costs for society. Public Health England has estimated that the indirect cost to the UK economy from obesity-related conditions to be approximately £27 billion per year. The Government hope that this policy will deliver significant health benefits. The Government’s own impact assessment estimates that the policy will have a net benefit to society of around £7 billion over the next 25 years.

Micro and small businesses will not be impacted by these regulations, since the Government recognise that they are likely to find the restrictions more challenging to implement. The Government will continue to work closely with the food and drink industry and local authorities to provide the support needed before implementation of the regulations in October 2022. Guidance is being developed to support these regulations.

The Government want to make the healthier choice the easier one and to support people to lead healthier lives. Together with food companies, supermarkets and health professionals, the Government hope to create an environment to empower consumers to make better choices and to live longer lives in better health. I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Baroness, Lady Brinton, will contribute virtually as the Liberal Democrat Front-Bencher at the appropriate point in the debate.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I am grateful to the Minister and the Government for the initiative, which I would describe as making tentative moves to try to reduce the growth of obesity. I declare an interest as vice-chair of the All-Party Parliamentary Group on Obesity, and I am grateful to the Obesity Health Alliance, which has recently produced a very wide-ranging and thorough examination of the problem. I am grateful to it for the briefing.

It is worth remembering that the last serious attempt to tackle this was after the coalition Government came into power in 2010-11, when an alcohol strategy was drawn up and there was an engagement between government and the private sector, and the many representatives of the health business, if I can describe it like that, who were anxious to see changes effected. We had the creation of the responsibility deal, which ran from 2011 through to 2015, when it collapsed. The health officials were unhappy about the way in which the agenda was being run, and in 2013 many of them withdrew because they felt that the private sector—the manufacturers and retailers—were controlling the agenda and that public health was rather lower down the line than profits. So it went in 2015, and since then we have had very little change, apart from a growth in obesity.

On the alcohol front, on which we have spoken from time to time, apart from with youngsters there continues to be a problem there, with more and more people going into hospital and more and more people dying from liver problems. The real concern here has been with the growth in obesity among youngsters. We have been at this since 2006, when the Labour Government first kicked it off with the national measurement scheme. Initially, the idea was that we would engage over a very wide area, but because of the continuing cuts that have taken place in public expenditure at local level, it has not really made a great deal of headway. We have had a fallow period, with many of us complaining over the years, but it would be churlish not to say that I welcome this move, although that is not to say that I am going overboard over what the Government are proposing.

I have a number of questions. It has taken us six years—seven years, really, since it will be 2022 by the time we finish the consultation with the parties involved and this is put into effect—but the document talks about waiting another five years to do a review. Unless I have misunderstood, it will be five years before it is fully reviewed again. Could you correct me if I am wrong or, if I am right, explain why we have to wait another five years, which means that we will have run from 2010 to 2027 before we really look at some of the serious proposals made by the Government?

Secondly, I would like to know who is covered by the square footage provision. Obviously, hypermarkets and supermarkets are covered, but I would like to know whether convenience stores are also covered. I live in Battersea, near the bridge, and next to us we have a local co-op that does extraordinarily good business. Would it qualify to be covered by the changes that are proposed? I cannot remember the figure, but it may be 1,200 square feet. I would be grateful if the Minister could say whether convenience stores fall into it, because they are major retailers in this context as they sell nearly half as much as the supermarkets do. If they are not covered, it will be a major omission and something that we would want to return to.

Thirdly, I listen carefully to everything the Minister says as he finds his way with his new brief. At his first Questions, he talked about unintended consequences and said that it is very important when we are making changes that we try to foresee them. I am particularly interested in seeing how retailers effectively drive a coach and horses through so many areas of legislation with their ability to place their goods in a position which sells them best for them but on the other hand brings them to the attention of children, in particular.

Again, I mention my local Co-op. No longer can people see cigarettes. They are hidden. It took years to get that changed, but it is a worthy development that was put through by the Government. When I go in, I am now surrounded by alcohol. We have all this about advertising, thresholds and the rest of it, yet when children stand in the queue to buy their Mars bars in the Co-op, they are surrounded by alcohol and, on the other side, by doughnuts and a host of sweeties which are attractive to them and which, as we know, are at the heart of the growth of obesity. I wonder whether the Government have thought through what will go in place of the movement of some of these articles which are presently being sold, which have been identified as being very risky from a health point of view. If they do not cover it, I suspect we will find, for example, that alcohol goes there, which is what has happened previously. I know that is not about child obesity, but none the less it relates to obesity, as 10% of all obesity comes from the sugar in alcohol. So we are continuing with the same problem, especially given that we still do not have any indication on alcohol. You queue there, and there is no indication of the sugar content or the calorific effects in the drinks. Perhaps the Minister might say what the Government are intending to do about that. I know it is not in this document, but it is all interrelated with obesity, and we cannot separate it too much.

In another initiative, trying to be as positive as I can be with the Committee, Sir Keith Mills, who was responsible for Air Miles and Nectar points, has been doing a special piece of work for the Prime Minister and has come up with a number of trials. Is there a correlation between the work that will be put in place in this document and what he is endeavouring to do in incentivisation? I may sound negative, but I believe in incentives to encourage people to eat and drink better and I believe in trying to find incentives in which the private sector, particularly retailers, will not to try to take advantage but will work together so that we will see positive incentives offered to them to effect changes in the formulation of food and the way in which they present drink and food in retailing terms. Is there a link between the activities he is undertaking?

Finally, can we see more experimentation? I am very pleased that Sir Keith Mills is doing that. Wherever we can try to engage with those who are interested in the private sector, we should try to get joint working taking place where, if the Government see it works yet the private sector does not want it, they will do what they are doing today. I hope they will stick to their guns, legislate and make the changes stick rather than change their mind and run away under pressure from the industry.

[Baroness Neville-Rolfe (Con)]

My Lords, I congratulate the Minister on his clear and succinct explanation of these regulations and of the risks of obesity, which we have witnessed a great deal during the Covid crisis. The noble Lord, Lord Brooke of Alverthorpe, then spoke about the APPG’s work on obesity.

I probably should register an interest. Although I no longer have direct food sector interests, I have shares in Tesco. In fact, I recall that it moved early in banning sweets from checkouts, but obviously it will incur costs from these regulations. I also have shares in Amazon, which, I suspect, could benefit from a shift online as a result of the regulations, which probably bear less heavily on online.

Forgive me for a brief diversion, but I was absolutely delighted to see that the regulations were made under the Food Safety Act. The passage of that Act was one of my proudest achievements as a civil servant. In fact, I supported the late Baroness Trumpington, whom I miss so much; she even gave me a toy pig for my baby, which has now been passed on to the next generation.

18:45

I have three points to make. First, I am glad that my noble friend the Minister and his department have produced an impact assessment. Such impact assessments are always a concern of mine, as he will discover. They really help one to understand the problem. However, I need some help in understanding the one before us today. Perhaps I should make it clear that it is attached to the back of the SI. The first page seems to say that the cost to business is £53.5 million of the package a year. That seems very low, given all that is happening. The industry estimates that I have seen suggest that the regulations will cost each small shop £13,000 per site and each supermarket between £50,000 and £100,000 per site. I do not know how many stores will be affected because we need an answer to the question asked by the noble Lord, Lord Brooke, about scope. That page also says that there is a net present social value of £2,916 million; that sounds like nearly £3 billion, if I have my commas in the right place. I am interested as to how that relates to the business net present value of minus £148 million in the second column.

Page 4 summarises option 2, which I think has been the chosen one; that seems to be what the impact assessment is telling us. It seems to say that the benefit will be over 25 years, so we are looking at this quite big figure over 25 years. However, it gives a slightly different total of £2,038 million. So I do not understand how the costs and the benefits stack up. Where are they coming from and what discount rate has been used? That will be key in the final figure you come to. Can my noble friend the Minister enlighten us?

My second question relates to a briefing that I received from the Association of Convenience Stores—it represents smaller stores so it must have some concerns—the British Retail Consortium and the FDF. I forwarded the briefing to the Minister so that he could have a look at it. While reiterating their commitment to tackling obesity, the organisations criticised the drafting of these lengthy regulations, saying that there are many unanswered questions. They attached a list of the 25 most important ones, which include everything from the scope of businesses covered, which we have already identified as an important area, to the products affected, the location of placement restrictions in stores, the way in which online delivery is affected and whether Trading Standards or Environmental Health officers will implement the new regulations. The Minister will not be able to answer these questions today, but I wonder whether he will undertake to answer them and place the reply in the Libraries of both Houses in, say, the next month. Businesses must know what they are being asked to do. I remember that we were very strong on that point in relation to the Consumer Rights Act 2015, which I worked on constructively across the party divide when I was the responsible Minister. Chaos ensues if you do not know what the rules will be.

These are not Covid regulations. We must give business proper notice. We are asking for a major shift, especially in store practice and behaviour. I thought the points made by the noble Lord, Lord Brooke, about substitution effects and incentives were very interesting.

My final, brief third question is this. How will whoever is going to enforce these regulations, whether it is trading standards or environmental health officers, be resourced to enforce these complicated and important new laws?

[Baroness Brinton (LD) [V]]

My Lords, I declare an interest as a vice-president of the Local Government Association. I thank the Minister for his introduction to these regulations. The comments of the noble Lord, Lord Brooke of Alverthorpe, as chair of the APPG on obesity, were particularly helpful.

These regulations sit behind recently revealed alarming figures showing that nearly a quarter of children are overweight or obese when they start primary school. That figure has risen to a third by the time they leave at 11. The Government are right to be concerned about the overconsumption of food and drink high in calories, sugar and fat, which leads to obesity and associated obesity illnesses. I will come on to the regulations shortly, but from these Benches we want to make two other comments.

First, the Conservatives in government have consistently cut public health budgets to local authorities over the last six years. The King’s Fund says that, on a like-for-like basis, the 2019-20 budget is 15% less than that of 2013-14, including a more than 5% cut to obesity services. In addition, the reduction in school nurses as well as health visitors over the last decade has meant that some of the vital early face-to-face advice on nutrition to parents of young children has gone.

Worse, some of the excellent work done by chefs such as Jamie Oliver and by the campaign of Henry Dimbleby—both of whom over the years encouraged much healthier eating in schools—has been reduced if not lost. In fact, recent reports say that high-fat, high-carbohydrate foods such as the dreaded turkey twizzler are re-emerging on to school menus.

The second issue from these Benches is the decline in fitness of our primary school children. This has been a long-standing problem, but the sale of playing fields and focus in the curriculum on core subjects have all led to a reduction of time when children can exercise, take up sports and essentially get the habit early, which will also impact on their weight. This January, Sport England noted that children’s activity levels were down in 2019-20—pre pandemic—with only 44% of children and young people meeting the Chief Medical Officer’s guidelines on taking part in sport and physical activity for an average of 60 minutes a day. Now is the perfect time, as restrictions have been relaxed, to increase the time that young children can undertake sports and exercise. Can the Minister say what influence the Department of Health and Social Care has with the Secretary of State for Education in remedying this matter and what plans there are to fund more opportunities for young children to participate in sport and exercise?

Turning to the regulations, I note that this follows a decade of trying to encourage large supermarkets to reduce salt and sugar in their own direct products, as well as encouraging their suppliers to reformulate. However, not all of them have achieved enough, nor have they changed their attitudes towards promotions.

If the Grand Committee will permit me an anecdote, one of my adult children used to work as a buyer for a major supermarket, and its department had been asked to go back to suppliers to ask them to reduce sugar, salt and fat. My son was responsible for, among other things, dairy products. Most products and many suppliers were happy to work with the supermarket to achieve reductions, but both sides were completely stumped by one product: brandy butter. It has not just sugar and fat, but alcohol too. On this occasion, it was agreed there was very little they could achieve, other than to highlight its very red traffic light and recognise that it was a truly seasonal product that was not part of people’s everyday habits. But it is good they were thinking about it.

While the public health responsibility deal has improved matters a little bit, it is not nearly enough. One key area remains obvious. That is the influence of promotions targeted at children and their parents, both in store and on television. Other speakers have referred to multibuys, end-of-carousel promotions and queuing eye-catchers—far too often, junk food and sweets. While the public health responsibility deal has helped a bit in those larger supermarkets, it is certainly not enough, and it is good that healthier choices will be much more visible in shops and that buy one, get one free and three-for-two offers on high fat, sugar and salt products will be restricted.

On food scope, it was worrying to read in the past few days that a high level of juice in baby and toddler food, which has a very high fructose content, is not labelled as high sugar because the juice is natural and not added, processed sugar. Most parents of babies and small children believe that such products are not high in sugar. Surely, this needs to be added to the formulation list for HFSS products. Is the department looking at this?

It is right that environmental health food authorities should be responsible for enforcing this in localities, but I ask, as others have, whether there will be extra funding for environmental health to be able to carry this out. We need to remember that members of environmental health have many other responsibilities too, including the vital role during the pandemic of test and trace, working with local resilience forums. The Government cannot keep loading extra responsibilities on to beleaguered local authorities without funding them properly. Will there be funding for this for the enforcement bodies?

From these Benches, we regret that the food sector has not responded well enough to remove the need for this regulation, but we believe that the long-term health implications for our children are being damaged by current custom and practice. But this cannot be done without other actions too: funding more sport and exercise opportunities and funding enforcement are just two critical elements. The minimum of another five years to implementation, as outlined by the noble Lord, Lord Brooke of Alverthorpe, is too slow. Can the Minister please ensure that these changes are speeded up?

[Baroness Merron (Lab)]

My Lords, I appreciate the intent behind these regulations and thank the Minister for his introduction to them. I want to comment on the current situation and raise a number of questions following on from those that we have already heard, because I feel that it is the detail of the regulations that is wanting rather than what they are about.

To emphasise the points that have already been made in this debate and have been heard in your Lordships’ House on many occasions, the UK has among the highest childhood obesity rates in western Europe. One in four children is overweight or obese when starting primary school, and the number is one in three by the time a young person gets to secondary school. These children are obviously more likely to become obese adults—let us remind ourselves that, at present, one in four adults is obese—and therefore at greater risk of conditions such as diabetes, heart disease, fatty liver disease, cancers and mental ill-health. As we know, the situation is worse in poorer communities. Indeed, one in three adults in the most deprived areas is obese, compared with one in five in the least deprived—a clear inequality if ever we saw one. The discrepancy among children is even more alarming: more than twice as many children are obese in the most deprived communities as in the least, and that gap has nearly doubled under this Government.

There is no doubt that in-store promotions are incredibly effective in influencing what we buy. Research shows that we buy 20% more than we intended when faced by promotions. Cancer Research UK has shown that greater volumes of high fat, sugar and salt are likely to be purchased by those who are already overweight or living with obesity, so we see a correlation between promotions and obesity, and it is right that these regulations seek to tackle that. So, yes, it is right to take action to address this situation, not by limiting people’s freedom of choice but instead by supporting them to make healthier choices.

However, these regulations alone will not be enough, and it is this point that I want to emphasise to the Minister. We need a radical obesity strategy that goes much further, ensures that families are able to access healthy food and supported local leisure facilities, and ensures that poverty can be tackled. Without that, there will be no levelling up. All we will see is a continuing widening of the already considerable gap between those who have the means to manage their weight and those who do not.

19:00

There are some specific angles that I would like to draw to the attention of the Minister with regard to these regulations. Can he advise why this policy is being introduced by secondary legislation when MPs were given the opportunity to debate and, crucially, to amend related obesity policies on junk food advertising just last night? Why could this not have been done in the Health and Social Care Bill? Does he accept that that would have allowed for rather more scrutiny and would have allowed your Lordships’ House to vote on additional safeguards, rather than the procedure afforded to us here, which could be described as the “take it or leave it” procedure? What is the Minister’s view on the Secondary Legislation Scrutiny Committee’s comment that these regulations should contain a sunset clause to allow the policy to be evaluated effectively after a period of time?

Looking to enforcement, as we know, these regulations will be enforced by local authorities. Their budgets have been systematically cut over the past 11 years. What assessment has been made of the capacity of local authority trading standards to enforce any of this? Will additional funding and resources be provided in respect of this new and more intense role? Otherwise, we are passing regulations with all the right intent but without the means to deliver.

With regard to exemptions on promotions, can the Minister explain why the new rules on promotions apply only to medium and large businesses, and why corner shops are exempt from these regulations? This was raised and illustrated by my noble friend Lord Brooke. We understand the placement exemption because we all understand that it would be impossible for small retailers where every shelf is near an exit, an entrance or a till, but why does it apply to promotions? Why is it more onerous for small businesses than for medium-sized businesses or franchises not to provide a three-for-two or a buy one, get one free? It would be helpful if the Minister could advise us why smaller businesses have not been fully taken into account.

On timing—this was referred to by the noble Baroness, Lady Neville-Rolfe—businesses have had to grapple with the need to reconfigure space for social distancing to make them Covid-secure for staff and customers. Now, they must undergo a further configuration, still within Covid-secure measures, and perhaps another reconfiguration when Covid-secure policies are no longer needed. Can the Minister say what consideration has been given to this when discussing and deciding the timeline for implementing the placement regulations with the industry? Can he advise the Committee of when the guidance will finally be published?

With regard to the scoring system on high fat, sugar and salt, some experts have raised concerns that the food classification system used is outdated and that foods that are higher in fat get disproportionately penalised compared with those that are packed with sugar, which are less satiating and where evidence suggests the real obesity problem lies. Can the Minister advise what consideration the Government have given to this and what plans there are to review the impact of this policy on obesity, specifically with regard to the classification system for high fat, sugar and salt?

The Minister will be aware of existing concerns that some brands have deliberately marketed products as healthy despite what they really are. Indeed, some refined sugar-free bars contain more sugar than a chocolate bar. Research from Bite Back 2030 found that 57% of “health halo” foods surveyed would receive a colour-coded nutritional information label. Can the Minister confirm whether these will be captured by the regulations? What steps are the Government taking to help consumers to navigate packaging information and to clamp down on deliberate and dishonest marketing tactics used to encourage people to consume faux-healthy junk food products?

I note that the retail food and drink sector has committed to delivering the proposals, but that sector needs to be a partner in tackling obesity. It is disappointing that there are so many questions about the drafting of the regulations, which do not appear to enable this. I hope that the Minister will reflect on that and do what he can to put it right.

[Lord Kamall (Con)]

I start by thanking noble Lords for their contributions to today’s debate. I shall try to turn to some of the questions from noble Lords and to answer as many as possible in the next three hours, if noble Lords will be patient with me. [Laughter.] Seriously, if I do not touch on a particular question, please write to me to follow up, particularly on some of the more technical questions.

I start with some of the questions from the noble Lord, Lord Brooke. He asked about the scope. Stores smaller than 185.8 square metres or 2,000 square feet—if you are wondering why such an unround number was chosen in metric—and specialist retailers that sell one type of food product category, such as chocolatiers or sweet shops, will be exempt from location restrictions but will need to adhere to the volume price restrictions. The policy will come into force in October 2022. The noble Lord referred to issues that I am always interested in, which are the evidence, as well as the impact, and how we look at the unintended consequences of any such moves. There will be a review within three—

19:07

Sitting suspended for a Division in the House.

19:10

[Lord Kamall (Con)]

The policy will be reviewed within three to five years of it coming into force. I reassure the noble Lord that the intention is that the policy will come into force in October 2022. However, as the noble Lord and I have discussed in the past, I am always concerned about unintended consequences and evidence to see what has worked and what has not. In many ways, I am a fan of the discovery process. We do not have complete knowledge—in fact we have incomplete knowledge—and all we can do is trial and see what works and use the best evidence that we can to assess.

Part of this review of the regulatory framework provisions of the restrictions will consider whether penalties under the Regulatory and Enforcement Sanctions Act 2008 have been implemented effectively and achieve their ambitions. We will continue to keep the policy under review to ensure that it is both impactful and proportionate. I am sure noble Lords will agree that it is not sufficient just to pass a piece of legislation and hope it does its job. In fact, as I think many noble Lords would acknowledge, this in itself is not enough to tackle obesity. It has to be a multi-angled view with many different approaches. Some will work, some will not, but we have to learn from what works and make sure that we are not driving consumers into unintended consequences and leading them to worse health outcomes.

We hope that this strategy that we published in 2020 will be world leading. I think the noble Lord, Lord Brooke, mentioned Sir Keith Mills and his programme. This shows that it is not just this piece of legislation; it is a multichannel approach, if you like, including incentivising people to have healthier lifestyles —monitoring their steps and other exercise functions. Anyone who has looked at successful and unsuccessful diets will recognise the fact that it is not just about reducing what you take in; it is also about burning off those calories. We have to get the right balance. Each individual will have different BMIs and different physiologies and different strategies will work for different individuals.

In terms of the businesses that these regulations will impact, the location and volume restrictions apply only to medium and large businesses in England and around 24% of stores are in scope of the volume price restrictions. Given the size threshold for stores subject to location restrictions, these apply to approximately 16% of stores in England. Some 94% of estimated food retail revenue falls under the volume restrictions, while 84% falls under location restrictions. This means that these restrictions offer considerable potential, if done correctly, while ensuring that small businesses are not disproportionately impacted by the changes. I acknowledge that many noble Lords were concerned about the cost for both large and small businesses.

The original timescale was to be April 2022, but having considered feedback from the industry, we have made the decision to extend the implementation to October 2022. I am well aware that some in the industry are asking for a further extension and, as noble Lords can recognise from the tone of the debate today, some are in favour and some are against and the Government are trying to get the right balance. The Government want to bring in these measures so we can start analysing whether they work. We are also very mindful of the fact that it falls on industry to implement them.

The other issue raised was about smaller stores and what are called symbol groups, which, as noble Lords may understand, are smaller retailers that come under a wider brand. If we excluded symbol groups in their entirety, that would take away some of the health benefits of the policy. Franchises and symbol groups make up about 60% of those in scope of the volume price promotions and 14% of the location restrictions. Approximately only 12% of symbol group stores are over 2,000 square feet, therefore the vast majority of these stores will be exempt from the location restrictions. I hope noble Lords understand the point about the cost falling particularly disproportionately on smaller stores.

19:15

I thank my noble friend Lady Neville-Rolfe for forwarding to me the list of 25 priority questions compiled by the Food and Drink Federation, the British Retail Consortium and the Association of Convenience Stores. It is a priority to finalise the guidance for businesses as soon as possible and make sure that it supports industry as far as possible to get the right balance. Officials are concentrating on completing the exercise and, as part of this, are considering the feedback that the authors of these questions have offered. Our intention is to provide a point of clarification to industry in the final published guidance, which we are working to publish as soon as possible after these parliamentary debates. So, watch this space and do challenge me if it does not happen imminently.

[Baroness Neville-Rolfe (Con)]

It would be very helpful if, in responding to those questions and proposing the guidance, my noble friend the Minister could make a copy available, perhaps in the Library, to those of us who are interested in understanding because I do not think that this is the end of the era on this issue; I think we will revisit it again and again in various different ways.

[Lord Kamall (Con)]

My noble friend makes a very reasonable demand that is difficult for me to refuse. Let me put it this way: I hope that I have not caused any shock waves, as it were.

There has been an impact assessment, which shows that the location restrictions over the 25-year appraisal period are expected to bring health benefits of more than £57 billion and provide NHS savings of more than £4 billion. The volume price restrictions are expected to accrue health benefits of more than £2 billion and provide NHS savings of £180 million. We recognise that there will be costs to businesses; once again, this is all part of that difficult balance and debate. A phrase I have often heard is, “Do not let perfection be the enemy of progress”. We want to try as hard as possible to get this right. From the consultation that has been going on, we are very aware that this will have an impact on a number of businesses but, at the same time, there is lots of pressure, as noble Lords will have heard today, just to get on with it.

[Baroness Neville-Rolfe (Con)]

I am sorry to interrupt again, but £57 billion is a much bigger figure than I have seen anywhere; £3 billion, perhaps separately, I could understand. It is really helpful to have the impact assessment but it is difficult to understand what the benefits and costs are, which we need to understand to give my noble friend the Minister the full support that he requires.

[Lord Kamall (Con)]

Once again, I thank my noble friend for making that request. I always make it clear that it is important that we publish as much evidence as possible and let it be challenged; that is part of a healthy debate. If things do not work as intended, we should see what works and what does not. I am always very sensitive when someone says, “the evidence suggests”. We need to have that challenge but also make sure that we know what works. At the end of the day, we all want to see less obesity across our country, so surely it is important that we make sure that the evidence is there. Where something does not work, we will just have to try other ways.

On compliance, it is for local authorities to decide how best to enforce the requirements. Where an enforcement officer suspects that HFSS food or drinks may be inappropriately promoted, they should request further information to verify. If the product is in scope and has been promoted contrary to the law, an enforcement officer will consider what action should be taken.

[Baroness Merron (Lab)]

I thank the Minister; it is generous of him to give way. I would be very interested in how he sees the greater responsibility on local authorities. Picking up my question again, does he feel that local authorities are resourced suitably? Can they expect some recognition of this new and extremely important role, because the regulations require their co-operation too?

[Lord Kamall (Con)]

I thank the noble Baroness for that question. The Government are committed to ensuring that enforcement is proportionate and fair, and we intend to support local authorities and the judicial system on additional costs incurred as a result of enforcing the policy. Up front, I cannot say what those costs will be, but we want to understand what they will be to help enforcement.

I was asked whether we had watered down the policies for some products. We have excluded some products that are not among the highest sugar or calorie contributors to children’s diets or are not heavily promoted, but we will continue to keep the policy under review.

The noble Baroness, Lady Brinton, asked about weight management and other ways of tackling weight issues, including exercise. In March 2021, we announced an extra £100 million for healthy weight programmes to support children, adults and families in achieving and maintaining a healthy weight.

On infant foods, we will shortly consult on proposals to improve the marketing and labelling of commercial food and drink products for infants and young children. I acknowledge many of the concerns expressed by the noble Baroness, Lady Brinton.

The noble Baroness, Lady Merron, asked why we are using secondary legislation. The different legislative approaches being pursued reflect the current legislative framework and implementation routes available to the Government. For the promotion restrictions, we used existing powers in the Food Safety Act 1990 to lay secondary legislation before Parliament in July 2021. The statutory instrument has been subject to the affirmative parliamentary procedure.

On how we look at issues of inequality, noble Lords made a very fair point. Perhaps I may be so bold as to suggest that one issue for people I talk to in many of the communities that we are supposed to be reaching out to is that, for far too long, the public health industry has been dominated by white middle-class people who feel they know better than immigrant and working-class communities. It is really important that we understand those communities. As someone who comes one of the communities that have been patronised, I recognise that we have to make sure that we work with them and do not just sit in a place like this and assume that we know better. It is important that we really understand them. What is really good about the Office for Health Improvement and Disparities is that “disparities” are on the label, on the tin, which means that we have to look at how we address them.

There were some questions about why smaller businesses are exempt. I hope that I have answered them.

On people not being able to afford to eat a healthy diet, anyone who has watched daytime TV will know that some of those programmes can show you how to cook a meal very quickly and much more cheaply than is the case with many of the convenience foods that you can buy. The problem is how we translate that from the TV and entertainment to people’s lives in reality. In many ways, it means understanding families, where the decisions are made and what they have access to in many of their communities. Anyone who has been to many of the immigrant communities, for example, will know that there are plenty of shops that sell and openly display fresh food, but how do we make sure that we translate that into healthy diets?

On their own, these regulations will not be enough. We also have to look at how we translate all this into understanding people’s lives right at the family and the community level. It is our goal to improve children’s health and to reduce obesity. The shopping environment plays a vital role in the way products are marketed to us—for example, the pumping out of the smell of fresh bread from bakeries. We know that marketing people are experts in understanding consumer behaviours, with factors such as the location of products at the end of aisles affecting what we buy. The Government are committed to getting the right balance between stopping bad practice and working constructively with industry. We also want to evaluate the evidence of the restrictions once the policy is implemented.

We believe that retailers can play a vital role in creating a healthier food environment that does not promote the overconsumption of less healthy products. The Government hope that these regulations will enable us to achieve a healthier food environment and make progress to halving childhood obesity by 2030, and allow us all to live longer lives in good health. I commend the regulations to the Committee.

Motion agreed.

Committee adjourned at 7.24 pm.

House of Lords

Tuesday 23rd November 2021 Lords Chamber

Tuesday 23 November 2021

14:30

Prayers—read by the Lord Bishop of Coventry.

Charities and Civil Society: Ministerial Responsibility

Tuesday 23rd November 2021 Lords Chamber

Question

14:36

Asked by

[Baroness Pitkeathley]

To ask Her Majesty’s Government what assessment they have made of the impact of including charities and civil society within the remit of a Minister who is also responsible for sport, tourism and heritage on the level of ministerial attention charities and civil society will receive.

[Baroness Pitkeathley (Lab)]

My Lords, I beg to ask the Question standing in my name on the Order Paper and declare an interest as president of the National Council for Voluntary Organisations.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, we greatly value the important role that charities and civil society groups play, and work across government to support them as they do so. This includes in the areas of sport and heritage where, as in so many others, charities and volunteers play a crucial part. Aligning those ministerial responsibilities creates a real opportunity for an innovative and collaborative approach to growing the sector’s contribution. My honourable friend is committed to his brief and will ensure that charities and civil society organisations benefit from significant attention.

[Baroness Pitkeathley (Lab)]

I thank the Minister for his reassurances, but research by the commission on civil society showed that ministerial engagement with the social sector is significantly lower than engagement with business, despite the huge contribution made by that sector in the Covid crisis, as the Minister acknowledged. In the absence of a dedicated Minister, will the Government consider returning to a system of having nominated civil servants in every government department, not just DCMS, responsible for engagement with civil society, as was the case some years ago, when I chaired the advisory body for the third sector set up by a previous Government?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, with 170,000 registered charities in England alone, it would of course be impossible for any or all Ministers to speak to every charitable organisation that does such important work. It is a duty for all Ministers in the roles they perform. In my portfolio, I have already in my weeks of office had the pleasure of working with the Music for Youth organisation and the Intermission Youth Theatre, and I know that ministerial colleagues across government take very seriously the role that civil society organisations play, not least my honourable friend, with his specific responsibilities.

[Lord Colgrain (Con)]

I declare my interests as set out in the register, with particular reference to the Harris (Belmont) Trust and Rochester Cathedral. Does my noble friend agree that within whichever department charities sit, the role of their volunteers is paramount? What measures can the Government take to facilitate their rapid return after the pandemic to both charities and those other organisations where volunteers fulfil a vital need, such as special constables in the police force? Will he also give an opinion on whether the position of volunteers could be included on future census forms?

[Lord Parkinson of Whitley Bay (Con)]

The Government recognise the vital importance of volunteering and its wide-ranging benefits, not just to the organisations for whom people volunteer but for individuals themselves. We know that, during the pandemic, volunteers have had to make adjustments or pause their volunteering and we are very grateful to them for adapting as they have. My honourable friend is seeking to learn from the new approaches developed in the pandemic. We have launched a new volunteering futures fund, through which £7 million will be made available to improve the accessibility of volunteering in the arts, culture, sport, civil society and many other sectors. On the point about the census, it was included in the 2018 White Paper published by the Minister for the Constitution. It was rejected by the Office for National Statistics, but DCMS’s community life survey captures people’s volunteering.

[Lord Crisp (CB)]

My Lords, as has been mentioned, voluntary and community associations have had an enormous impact on health and well-being during the Covid pandemic. There are several important organisations. I think of those such as C2, Connecting Communities, the Health Creation Alliance and others which support and develop those organisations. Will the department engage with the Department of Health and Social Care to support and develop those enabling organisations, as well as the sector more generally?

[Lord Parkinson of Whitley Bay (Con)]

My right honourable friend the Secretary of State is of course a former Health Minister, and the new Health Secretary is a former Culture Minister, so the insights that each have gained in their respective departments will, I know, be brought to their work. My honourable friend the Minister works with a range of groups—charities themselves but also sector representatives— including through round table meetings.

[Baroness Merron (Lab)]

My Lords, the voluntary and community sector deservedly gained a high profile during the pandemic, particularly as so many people responded to the call to volunteer at a time of national need. What assessment has the Minister made of the effectiveness of government machinery in harnessing that activity to support the sector? With all due respect to existing ministerial efforts and responsibilities, does he feel that there is a case to be made for a full-time Minister who will work across Whitehall and beyond to ensure focus on this?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is absolutely right to point to the fantastic work that volunteers did during the pandemic. The Government stood by them with support, including an unprecedented £750 million package specifically for charities, social enterprises and the voluntary sector, and my honourable friend, with his responsibilities, is the champion for the sector in government.

[Lord Addington (LD)]

My Lords, I must remember to declare my interests. Does the Minister agree that having one Minister in the smallest department in government, who is covering dozens of other subjects, does not exactly instil confidence? Also, if they are not going to have a powerful enough Minister, when will we get an idea about a coherent strategy throughout government for dealing with the charitable and voluntary sector, which is simply too big to ignore?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, it is not being ignored. Ministers in every department, big and small, work with a range of charitable and civil society organisations and greatly value the work that they do. This is not something just for DCMS, but my honourable friend, with his responsibilities, is the Minister with specific focus on championing them and ensuring that across government we are giving the sector the support it needs, such as I have mentioned.

[Lord Holmes of Richmond (Con)]

My Lords, I declare my interests as set out in the register. Does my noble friend agree that there is some sense in combining these responsibilities, as, for example, in the case of the British Paralympic Association, an excellent sport organisation and an excellent charity? Does he also agree that in our honourable friend Nigel Huddleston we have a Minister with the talent and tenacity to make a stunning success of his new portfolio?

[Lord Parkinson of Whitley Bay (Con)]

I certainly agree with my noble friend and thank him for that. He is right to point out that the briefs of civil society and sport have been combined before to great effect, and right to point to the fantastic organisations that work at increasing people’s participation in sport and physical activity through charitable and civil society groups.

[Baroness Prashar (CB)]

My Lords, I declare my interest as a trustee of Beacon Collaborative, a charity dedicated to promoting philanthropy. As has been said, Covid highlighted not only the importance of civil society but how fragile its sustainability and financial resilience are. Does the Minister agree that the growth of philanthropy is very desirable to increase support for civil society and, if so, can he tell us what the Government are doing to enable greater giving and philanthropy? Is he confident that the current ministerial arrangements are sufficient to support civil society and the growth of philanthropy, and to gain insights into the needs and values of the sector?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right to point to the huge importance of philanthropy in supporting the groups, and to the fantastic work that they do across the country. In addition to the support that the Government gave from the taxpayer, we are keeping a close eye on the health of the sector as it emerges from the pandemic. I am glad to say that the work of the Charity Commission shows that only 1% of charities foresee a critical threat to their survival in the next 12 months. However, we continue to keep a close eye on them.

[Lord Roberts of Llandudno (LD)]

My Lords, what worries me is the way we are trying to overload the responsibilities of one particular Minister. I think of the Minister for Intergovernmental Relations. I think it should be the Minister for Inter-Gove-rnmental Relations, because he already looks after housing, communities and levelling up. Let us give him Scotland, Wales and England. It is nonsense. Is it not only overworking somebody who does a good job in many ways but denying the younger and newer generation experience at that level to take over major government responsibilities at some time? What are the Minister and the Government thinking about in this sort of situation?

[Lord Parkinson of Whitley Bay (Con)]

The Minister with responsibility for civil society is my honourable friend Nigel Huddleston, not my right honourable friend Michael Gove, though, as I say, all Ministers across government work with the third sector in the important work they do. I also point out that responsibility for the voluntary sector and volunteering in the Welsh Government is held by two people who combine that with responsibilities for welfare reform, fuel poverty, fire and rescue services, domestic abuse, youth justice, community safety and much else.

[Baroness Sater (Con)]

My Lords, I declare my interests as set out in the register. As has been said, volunteers have always played an incredible role in British life. I think of the Olympics, the Paralympics, the ongoing Covid pandemic and the tireless efforts of millions of everyday people across the country. Does my noble friend agree that more can be done to harness and galvanise the spirit of volunteering by introducing a framework that links a volunteer’s voice within and across national and local government, and a volunteer champion to protect and recognise achievements, to stand up for their views and interests, and to help order the future functioning of volunteering? Will my noble friend therefore consider appointing a commissioner for volunteering to support the sector and give it the status that it so richly deserves?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the Government highly value the contribution of volunteers across the whole of society. We witnessed the huge difference they can make during the pandemic, as well as in the examples my noble friend raised. Volunteers are represented in discussions with government by a variety of sector representatives and bodies, but I will take her interesting suggestion back to my honourable friend the Minister and discuss it. I have also pointed to the volunteering futures fund, which the Government have announced to support more people to volunteer and play their important role.

[The Lord Speaker (Lord McFall of Alcluith)]

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

Zimbabwe: Makomborero Haruzivishe

Tuesday 23rd November 2021 Lords Chamber

Question

14:47

Asked by

[Lord Oates]

To ask Her Majesty’s Government what representations they have made to the Government of Zimbabwe about (1) the continued detention of opposition politician Makomborero Haruzivishe, and (2) political repression in that country.

[Lord Oates (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and in doing so I declare my interest as co-chair of the All-Party Parliamentary Group for Zimbabwe.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, the UK remains concerned about the political situation in Zimbabwe. We regularly urge the Zimbabwean Government to live up to their own constitution by ensuring that the opposition, civil society and journalists are allowed to operate without harassment, and that due legal process is respected. The Minister for Africa reinforced these messages when she met President Mnangagwa on 1 November. Our embassy is also in touch with Mr Haruzivishe’s lawyers as we await the outcome of his appeal.

[Lord Oates (LD)]

I am grateful to the Minister for his reply, yet despite the Government’s efforts, MDC youth leader Mako Haruzivishe remains incarcerated and the political and human rights situation in Zimbabwe continues to deteriorate. In the light of this, do the Government agree that regional leaders have a critical role to play in encouraging the Zimbabwean Government to respect human rights and the rule of law? Can the Minister tell the House what discussions the Government have had at ministerial level with the Government of South Africa and the newly elected Zambian Government in this regard?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I pay tribute to the noble Lord’s role on the APPG. He is of course right that it is important that regional Governments have a role to play. In this regard, we have engaged directly at the highest level with the South African Government and we continue to engage with other regional partners, as well as regional associations, including the African Union, on this priority.

[Lord Anderson of Swansea (Lab)]

My Lords, in the Government’s view, which country has the clout to bring effective pressure on Zimbabwe on political oppression? We probably have less influence than China, which is most unlikely to bring any such pressure. Zimbabwe’s conduct clearly tarnishes the image of the whole region. Is this recognised by its neighbours, particularly South Africa, and are they playing a positive role in this regard?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the short answer to the noble Lord’s final question is that we are engaged very much with South Africa and, yes, it wants to see a progressive, inclusive Zimbabwe as part of the region and the wider world. Zimbabwe holds ambitions to join the Commonwealth as well. It is a collective effort. I do not think that one country alone can influence the progression and inclusiveness of democracy. It is therefore important that we, together with key partners, continue to play this role.

[Lord Purvis of Tweed (LD)]

In response to the last element of what the Minister indicated, Zimbabwean press promoted the fact that President Mnangagwa met our Prime Minister and the Secretary-General of the Commonwealth in Glasgow at COP 26. As the Minister is also the Minister for the Commonwealth, can he say whether we are making clear that, while we want the Commonwealth to be inclusive and open to Zimbabwe being a member, the conditions of a free and fair political system and the restoration of the 2013 constitution and the rule of law are essential criteria for membership and rejoining the Commonwealth?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I totally agree with the noble Lord; those points are being made. On the COP engagement, it was the Minister for Africa, my honourable friend Vicky Ford, who met with the President of Zimbabwe.

[Lord Flight (Con)]

The British Government have already expressed their concerns over the continued incarceration of a pro-democracy activist and MDC Alliance youth leader, who has now been released on bail having been in jail for 202 days for allegedly inciting public violence when he whistled at Harare’s busy Copacabana terminus. This is despite the fact that he has filed an appeal against both conviction and sentence in the High Court. The noble Lord, Lord Ahmad, has advised that the British Government and embassy in Harare are in touch with his lawyers while awaiting the outcome of his appeal. The UK regularly urges the Zimbabwe Government to meet their international and domestic obligations by respecting the rule of law and the freedoms enshrined in the Zimbabwean constitution. What else might be effective?

[Lord Ahmad of Wimbledon (Con)]

My Lords, my noble friend is right to point out that our ambassador is engaged directly in raising various human rights issues, including the case he mentioned, and will continue to do so. What more can we do? We continue to work with key partners on ensuring that human rights are upheld according to the constitution.

[Lord Jones of Cheltenham (LD) [V]]

What representations have Ministers made to the Zimbabwe Government about the continued suspension of by-elections in Zimbabwe? Several dozen are outstanding.

[Lord Ahmad of Wimbledon (Con)]

My Lords, my honourable friend Vicky Ford had various points of discussion on the broader human rights agenda with the President. We continue to engage in the capital on the issues the noble Lord raises.

[Lord Collins of Highbury (Lab)]

My Lords, the simple fact is that the messages from the UK Government are not being heard by the Zimbabwean Government, and certainly not being acted on. Just over a year ago, I raised with the Minister the Government’s strategy for working with civil society groups in Zimbabwe to defend human rights. I specifically asked whether the Foreign Office would

“work with the TUC and its international affiliates to ensure that we support workers who are organised in Zimbabwe to defend their own human rights.”—[Official Report, 27/10/20; col. 125.]

The Minister at the time, the noble Baroness, Lady Sugg, outlined the support we were giving to civil society groups. She also promised to follow through on meeting with the TUC. Has that meeting taken place? What is the outcome? What support are we giving to those sorts of civil society groups in Zimbabwe?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I do not believe the specific meeting took place directly with the TUC. We certainly have been meeting in Harare with various unions, including teaching unions, most recently in September 2021 on salaries and the impact of Covid-19. Trade unions form an important part of civil society in any country, and we engage with them at all levels.

[Lord St John of Bletso (CB)]

My Lords, is the Minister aware that last week the Zimbabwe cabinet signed off on the patriot Bill, which would make it a criminal offence for anyone to criticise President Mnangagwa and for any member of the opposition to speak to any foreign Government in a negative way about Zimbabwe? At a time when Zimbabwe is considering rejoining the Commonwealth, can the Minister make it clear that our Government will support this only when the rule of law is restored and freedom of speech and political freedoms are protected?

[Lord Ahmad of Wimbledon (Con)]

The noble Lord has articulated the position of Her Majesty’s Government very well, and those principles will apply.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, will the Minister outline what discussions Ministers have had with their Commonwealth counterparts about the continuing political repression in Zimbabwe and about the need to build local economies and political democracy?

[Lord Ahmad of Wimbledon (Con)]

My Lords, we continue to engage with Commonwealth partners on a range of issues concerning human rights. On the specific question of Zimbabwe rejoining the Commonwealth, we are clear that we would only support readmission to the Commonwealth if Zimbabwe met the admission requirements. We continue to articulate that in relation to fundamental human rights to our Commonwealth partners as well.

[Baroness Hoey (Non-Afl)]

My Lords, Zimbabwe will only become a democracy when the people have a genuinely free and fair election. We have seen that recently in Zambia. Can the Minister go further and actually say what more could be done to get Zambia and other countries within SADC to put the pressure on Zimbabwe? It has to come from those countries. We can help, but we must make sure that they do their bit so that we can get back to a situation where the people of Zimbabwe genuinely have a free and fair election in 2023.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I agree with the noble Baroness: she is quite right to say that. SADC and other organisations—including, more broadly, the AU—have a key role to play and must lead on these discussions, as people want to see an inclusive, progressive Zimbabwe. Within Zimbabwe, we must see rights restored, constitutions respected and human rights—which includes the rights of other political parties to participate fully in the democratic process—guaranteed. Those will form part of our current and future discussions with key partners.

[The Earl of Sandwich (CB)]

My Lords, the US embassy in Zimbabwe has issued some devastating reports on conditions in prisons in that country, including ill-treatment of activists, violence against women and rape. Does the UK embassy confirm these reports? Can he confirm the continuing harassment of Hopewell Chin’ono, who is a highly respected figure, as reported by the American Bar Association?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Earl’s final point on the case of Mr Chin’ono, yes, we are very much engaged on that particular case. I have not seen the details of the report to which he referred, so if I may, I will write to the noble Earl in that respect.

Isles of Scilly: Ships

Tuesday 23rd November 2021 Lords Chamber

Question

14:57

Asked by

[Lord Berkeley]

To ask Her Majesty’s Government whether their award of £48 million from the Levelling Up Fund to the Council of the Isles of Scilly for the purchase of new ships requires the Council to demonstrate value for money by arranging competitive tenders for the (1) procurement, (2) construction, and (3) operation, of the ships.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, the Council of the Isles of Scilly submitted a full application, which included an economic and a commercial case. The Department for Transport reviewed these documents through a detailed assessment process, including assessing the value-for-money of the application. The process is set out in the fund’s technical and explanatory notes. Officials from the DfT will be writing to the Council of the Isles of Scilly to set out further business-case requirements.

[Lord Berkeley (Lab)]

My Lords, I am grateful to the Minister for that response. However, she did not say whether the council would be required to go out to tender for the supply of the ships or operating the service. At the moment, the application is to give the Isles of Scilly Steamship Company—the monopoly supplier of services—a free gift of something like £48 million to operate a service, with no conditions. Does she think that is the normal way to conduct public sector financial business?

[Baroness Vere of Norbiton (Con)]

I am pleased to be able to reassure the noble Lord that, of course, the current status of the bid is that it is in its very early stages. As I said, we will be writing to the sponsor setting out further requirements for the business case. By the time this comes for ministerial sign-off, we will have had not only an OBC but also an FBC, and it will be done with the five different businesses cases. That would be normal, according to the Treasury rules. It will be a very rigorous process, during which we will, of course, assess the commercial elements of the bid. The noble Lord should just follow the process carefully; the bid would appreciate his support and guidance in getting it through the government systems.

[Lord West of Spithead (Lab)]

My Lords, I declare an interest in that I like ships. Notwithstanding what the noble Lord, Lord Berkeley, says, I am delighted that a ship will be provided by some means for the Scilly Isles; it is very much needed. We are still awaiting the refreshed national shipbuilding strategy—we have been waiting rather a long time—but this will presumably be encompassed within that. Will the ship be built in the UK with UK steel? Appledore shipyard, for example, which is very close by, is ready to do the build; we have a lot of shipyards waiting for this work. Will the Government ensure that it meets the very highest standards as a green ship? In that context, we should make it the very best ferry in the world because there are opportunities for sales. Can we please not make a complete pot mess of this, as the Scottish Government have of the ferries that they have been trying to get?

[Baroness Vere of Norbiton (Con)]

I reassure the noble Lord that I like boats too.

[Noble Lords]

Ships!

[Baroness Vere of Norbiton (Con)]

I said that on purpose. It is the case that there will be a proper and correct procurement process that goes alongside this money. It is a significant amount of money and, as it is so significant, the Government will be keeping a close eye on the procurement strategy.

[Baroness Randerson (LD)]

My Lords, the Minister has still not confirmed that high environmental standards will be required. I would welcome her doing that. “Scillonian III” is 44 years old, so these replacements will be built for the long term; they must be of the highest environmental standards. Will those standards also be imposed on onshore infrastructure servicing not just these ships but the many small boats that use the Isles of Scilly?

[Baroness Vere of Norbiton (Con)]

Yes, the Government are keen to uphold the highest environmental standards. This is one of the attractive things about this bid. We will be funding the building of three vessels and harbour improvements. Part of the harbour improvements will involve improving the electricity supply, which will allow hybrid and electric vessels to use the harbour very effectively. Funding this bid aligns with the Government’s decarbonisation strategy and the Clean Maritime Plan.

[Lord Rosser (Lab)]

The Minister has referred to the bid. Will the new vessels under that bid mean that fewer crossings will be cancelled due to bad weather? Will they result in more crossings made, and throughout the whole year?

[Baroness Vere of Norbiton (Con)]

I certainly hope that both those things will be true. As the noble Lord will know, there is at the moment a very ageing vessel that chugs back and forth. It is very dirty, it keeps breaking down, the cost of maintenance is very high and it has to be taken out of service for maintenance to take place. It is also the case that, to fund that maintenance, passenger fares go up and demand therefore goes down. There is so much about this bid that is very attractive. We would hope that, out of all of this, we will see better services to the Isles of Scilly.

[Baroness Jones of Moulsecoomb (GP)]

Will there be a requirement in the contract to eliminate the use of fossil fuels?

[Baroness Vere of Norbiton (Con)]

I cannot comment on the detail of the contract; indeed, I am not entirely sure to which contract the noble Baroness is referring. We will be looking in the business case at the environmental credentials of the bid. These are very decarbonised vessels, and this is a huge step forward for maritime in the area. As I have said, however, the development of the OBC and the FBC will take a couple of years, so there will be many opportunities to discuss this further in the future.

[Lord Foulkes of Cumnock (Lab Co-op)]

Will the Minister ensure that the tendering is open, and not the kind of privileged access tendering that we have seen for protective equipment and clothing during the pandemic?

[Baroness Vere of Norbiton (Con)]

As I have set out many times, the tendering will be part of the business case that will be put forward by the sponsor of this project. We will, of course, be looking in it for open tendering, because we understand, as well as I am sure noble Lords do, that competition is the best way to improve quality and reduce cost.

Gender Pay Gap

Tuesday 23rd November 2021 Lords Chamber

Question

15:04

Asked by

[Lord Sikka]

To ask Her Majesty’s Government what assessment they have made of the persistence of the gender pay gap, and what steps they are taking to close it.

[The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott) (Con)]

I assure the noble Lord that we are continually looking at and assessing the gender pay gap. The national gender pay gap has fallen significantly under this Government and by approximately one-quarter in the last decade. The gap is caused by a range of factors, and reporting regulations have helped to motivate employers and focus attention on how improving equality can happen in the workplace. However, to continue making progress we need to understand in even more detail the real barriers that women face in the workplace and then take action to ensure that everyone has the opportunity to fulfil their potential.

[Lord Sikka (Lab)]

My Lords, the gender pay gap continues to blight the lives of many women, denying them access to good food, housing, education, healthcare, pensions and economic freedoms. I ask the Minister to commit to two things: first, not to award public contracts to organisations that have failed to eradicate the gap and, secondly, to give women a statutory right to know the pay of male colleagues doing equivalent work, with appropriate confidentiality.

[Baroness Stedman-Scott (Con)]

As ever, the noble Lord is very incisive and focused on the things he wants to change. I note the two points that he makes. While I cannot commit to doing them, I will go back to the ranch, tell them that the noble Lord, Lord Sikka, is on the prowl again, and see what they say.

[Baroness Jenkin of Kennington (Con)]

My Lords, I take this opportunity to wish the Minister a very happy birthday.

[Noble Lords]

Hear, hear!

[Baroness Jenkin of Kennington (Con)]

Guidance from the Government Equalities Office states that employers reporting on the gender pay gap should record their employees’ gender identity, not their biological sex. Some argue that for the vast majority of people, gender identity matches birth sex and that recording employees’ gender identity would therefore have no significant impact on an organisation’s gender pay gap. However, in male-dominated professions such as telecommunications, where fewer than 5% of the workers are female, even a small number of misclassifications can have a significant distorting effect on the data. Does my noble friend agree that this is the case? Will she now review the GEO guidance so that it makes it clear that employers must record employees’ birth sex, not their gender identity?

[Baroness Stedman-Scott (Con)]

Let me be very honest and straight with my noble friend: the Government have no plans to change the guidance. Gender pay is not supposed to be a data-collecting exercise, and to make it so would increase the burden on employers.

[Baroness Stuart of Edgbaston (CB)]

My Lords, the world of work is changing. One of the effects of the pandemic has been more working from home, which I think will continue. There is a real danger that the gender pay gap, rather than being diminished, will actually increase because we will have more people working from home with caring responsibilities, and this will disproportionately affect lone parents and women. What will the Government do, not just to reduce the gap but to prevent it widening?

[Baroness Stedman-Scott (Con)]

The gender pay gap is something that the Government take very seriously. The point that the noble Baroness makes about flexible working and working from home, and the impact that those have on women in particular, is well noted. Flexible working is wide-ranging and includes part time and flexitime, and it can be crucial for opening up opportunities, particularly for women. I cannot give a categorical answer about what we will do other than to say that we are mindful of this in everything we do in the Government Equalities Office. It may be that I come back to the noble Baroness with a bit more detail.

[Lord Davies of Brixton (Lab)]

My Lords, my supplementary question handily spans both parts of the Minister’s multitasking portfolio—an opportunity too good to miss, and a sort of birthday present. Will the Minister acknowledge that one of the biggest consequences of the gender pay gap is the gender pensions gap? Can she therefore outline what steps the Government are taking to address that specific dimension of the problem? When will action be taken to address the acknowledged shortcomings in the benefits that accrued from automatic enrolment for the many women on low pay in broken employment?

[Baroness Stedman-Scott (Con)]

I thank the noble Lord for that wonderful birthday present. Let me just say that auto-enrolment has been a fantastic success, and we want that to continue. On the point he raises about net pay and the pensions gap, the Government are absolutely going to rectify the anomaly. We published a call for evidence. The Government will pay a top-up to low earners, making contributions to pensions schemes using a net pay arrangement, from 2024-25 onwards.

[Baroness Burt of Solihull (LD)]

My Lords, I wonder if the Minister has heard of the book The End of Bias: How We Change Our Minds, by Jessica Nordell, on the incremental, cumulative effect of unconscious bias. Her model found that only a 3% unconscious bias in performative evaluation resulted in 87% of men in the top jobs. It is a shocker, but it explains a lot. If the Minister has not seen it, could she have a look and consider its implications for government policy?

[Baroness Stedman-Scott (Con)]

I wish I had known about this before, because somebody could have bought it for me for my birthday. I will go out and find that book, and I will read it. As for changing bias and the distortions in salaries between men and women, no one needs to push our door on that—we are there. As the good man Sir Winston said, those people who can change their mind can change anything.

[Baroness Thornton (Lab)]

I join other noble Lords in wishing the noble Baroness a happy birthday. Research by the Fawcett Society found that three out of five women who had been asked about salary history believed it damaged their confidence in negotiating better pay and believed a low past salary was coming back to haunt them. Does the Minister recognise that, when companies ask about salary history, it can mean that past pay discrimination follows women, people of colour and people with disabilities throughout their working life? Does she share my concern that this issue means new employers replicate pay gaps from other organisations? Could the Government consider this matter and allow it to be part of the influencing of their policy?

[Baroness Stedman-Scott (Con)]

I completely agree with the noble Baroness. You can sit in front of an employer and tell them what your salary is, and then they think they can get away with paying you just a little bit more. That is not on. I share the noble Baroness’s concerns, and I will feed those back into the policy-making process.

[Baroness Altmann (Con)]

I declare my interest as in the register, and I echo the birthday wishes to my noble friend. Following on from the question from the noble Lord, Lord Davies, I am delighted that Her Majesty’s Treasury will introduce measures to top up the pensions of those women who are receiving lower net pay each week due to the pension choice of their employer. The gender pensions gap is an urgent issue; it is twice the size or more of the pay gap. What measures are the Government taking to ensure employers help to close the gender pensions gap?

[Baroness Stedman-Scott (Con)]

My noble friend has been a long-term campaigner on the gender pensions gap and the net pay issue, and I am glad that we have some good news on the horizon. It was a Conservative Government who introduced mandatory gender pay gap reporting, in 2017, which means that all large employers—those of more than 10,000 employees—have to calculate it publicly. This has placed the gender pay gap at the top of the agenda and prompted conversations with business. Employers are now focused on understanding and tackling the causes of the gaps in their own organisations.

[Lord Dubs (Lab)]

Does the Minister agree—and I ask her to be bold in this instance—that complete transparency of income is the best way of dealing with the gender pay gap and discrimination on the grounds of race and disability? Surely the only answer is that we should have all incomes in the public domain through the tax system; that way we would know who is earning what and where discrimination takes place, and we would also see who is on the fiddle.

[Baroness Stedman-Scott (Con)]

You cannot argue with that. On transparency, I am absolutely with the noble Lord, but the issue of publishing everything on tax and salary is well beyond my pay grade. I will talk to my friends in the Treasury.

[The Senior Deputy Speaker (Lord Gardiner of Kimble)]

My Lords, that concludes Oral Questions for today.

Dormant Assets Bill [HL]

3rd reading
Tuesday 23rd November 2021 Lords Chamber

Third Reading

15:15

Motion

Moved by

[Lord Parkinson of Whitley Bay]

That the Bill do now pass.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, I beg to move that this Bill do now pass and, in doing so, take the opportunity to thank noble Lords from all sides of your Lordships’ House for their interest and contributions to the progress of the Bill so far. I am grateful for the scrutiny that they have brought, and the co-operative and constructive spirit in which the debates have taken place. I am also grateful for the broad cross-party support that the Bill has received so far. It is clear that all corners of your Lordships’ House share the same ambition to ensure the scheme’s continued success in unlocking dormant assets for public good.

I first thank my noble friend Lady Barran, who expertly led the Bill through Second Reading and Committee. I am very grateful for the opportunity to follow in her capable footsteps. I pay tribute also to the Front Benches opposite. The noble Lord, Lord Bassam of Brighton, and the noble Baroness, Lady Merron, have helpfully challenged the Government’s approach, and I thank them for the collaborative way in which they have done so. I also thank the noble Baronesses, Lady Barker and Lady Kramer, from the Liberal Democrat Benches, for all their invaluable contributions, which have been detailed and thoughtful. Noble Lords from across your Lordships’ House have contributed to a rich discussion on the Bill, and I am very grateful for all the points which have been raised.

As ever, I am grateful to the House authorities and parliamentary staff for their hard work behind the scenes. I acknowledge the extraordinary work of the officials who have worked so hard on the Bill for many months: the Bill team, the policy teams at DCMS and at Her Majesty’s Treasury, the lawyers in both departments, my own private office, the Office of the Parliamentary Counsel and the clerks in this place.

I take this opportunity to clarify aspects of the debate on Report regarding the additionality principle, an issue I discussed with the noble Baronesses, Lady Barker and Lady Kramer. Section 24 of the 2008 Act empowers the Secretary of State to add or remove named distributors of dormant assets funding. Currently, the only named distributor is the National Lottery Community Fund, and all funds, including those distributed through the four independent spend organisations in England, flow through it. Section 24 also provides for making consequential amendments, including to Schedule 3, where responsibility for reporting on the additionality principle is set out.

The Government consider additionality to be critical to the scheme’s success, and we have reiterated this position throughout our debates on the Bill. Indeed, we are clear that the voluntary participation of the industry is dependent on it. While we emphasise that there are no plans to change or add new distributors, I can reassure noble Lords that it is the Government’s policy that any new distributor added should be required to report on this principle in the same way that the fund is required to do so now.

The dormant assets scheme has spent the last decade working to tackle systemic social and environmental challenges and to level up communities which need it most. This Bill is set to unlock almost £1 billion of additional funding to ensure that the scheme continues to support innovative, long-term initiatives that seek to address some of the UK’s most important challenges.

[Lord Bassam of Brighton (Lab)]

My Lords, the Minister will be pleased to hear that I will be brief, but some thanks are worth echoing. I thank the Minister; it is never easy taking up another person’s Bill halfway through. I have had to do it myself and, at times, I lurched from being completely out of my depth to being a total shambles, so I know how it feels. The noble Lord was neither of those things; he was courteous and considerate of the points that we made and the amendments we moved.

Like the noble Lord I am delighted that we are moving to unlock previously untapped assets. I hope that the next iteration of this legislation—this is, after all, the second Bill on dormant assets—will bring forward even more dormancy and unlock it, so that communities can benefit.

I also thank the Minister’s predecessor, the noble Baroness, Lady Barran, for her time spent on the Bill. She was, like him, very courteous and open-minded about ways in which we can forge improvements. She was also willing to meet and discuss aspects of the legislation. I echo his thanks to my noble friend Lady Merron—my good friend—for her part in this. It is always a pleasure to work with her. I also thank the noble Baronesses, Lady Kramer and Lady Barker, on the Lib Dem Benches, who also played an active and energetic part.

Of course, the noble Lord, Lord Hodgson, played a decisive role on Report in helping to support the amendment that we sponsored on the community wealth fund, for which there was all-party support. Before the Commons is invited to reject that amendment, I suggest to the Minister that it might be an idea to sponsor some discussion between his ministerial colleagues and other Benches in your Lordships’ House to see if there is a way in which we can find some common ground on this—because I am very persuaded, as I know others are, of the benefit of the community wealth fund as a way forward. As he said, these resources can do a lot to take forward the shared agenda of levelling up and bring additional resources to bear in hard-pressed communities. We for our part would be very happy to meet and discuss this to see what common ground we can secure, because this is an important opportunity for us all, if we want to make it stick.

We wish the Bill well. It has been improved by your Lordships’ House, not just by the amendment on the community wealth fund but in other aspects as well. I thank the Minister for his comments on additionality, which will be very helpful. I am happy to support the Bill as it goes on its way.

[Baroness Barker (LD)]

My Lords, I also thank very much the Minister, his predecessor—the noble Baroness, Lady Barran—and the team. As is always the case with a Bill that is very technical and arcane, they had to display endless patience with the opposition as we painstakingly made our way to the place that they were already at. I also thank my noble friends Lady Bowles and Lady Kramer, who brought to the Bill a completely fresh eye from the financial sector and who set a very high standard of scrutiny for a Bill that is normally given over to those of us interested in the world of charity.

We achieved three things during the passage of the Bill. First, we made it clear that this is not simply an exercise in spending dormant money because it is there. We made sure that the scheme is about achieving impacts on financial inclusion in areas of deprivation. Secondly, we enabled it to be run using far more difficult asset classes than just bank accounts, and we made sure that the reporting systems for that were fit for purpose. Thirdly, we made sure that everyone involved in the scheme is under a duty to report—this is about additionality, not giving the Government a fund that they can dip into in difficult times.

In years to come, we will have reports from the disbursing body and the Secretary of State that I hope will show the impact of this, particularly in one respect: the endeavour to get rid of moneylenders in poor communities. If we achieve that, we will together have achieved something good and which we can be proud to support.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to the noble Lord and the noble Baroness for their comments, and I echo the tributes that they paid to the noble Baroness, Lady Bowles of Berkhamsted, my noble friend Lord Hodgson of Astley Abbotts and many others who contributed to the debates on this.

I will certainly discuss the point that the noble Lord raised with my honourable friend Nigel Huddleston, the Minister with responsibility for the Bill, in his capacity as Minister for Charities and Civil Society, as we just heard in Questions. I am sure that he will want to continue the discussions that we have had on community wealth funds as the Bill goes to another place but, as I say, I am very grateful that it does so with genuine cross-party support and a fair wind behind it. I grateful to all noble Lords who have ensured that this is so.

15:25

Bill passed and sent to the Commons.

Armed Forces Bill

Report stage
Tuesday 23rd November 2021 Lords Chamber

Report

15:25

Clause 3: Nomination of Circuit judge to sit as judge advocate

Amendment 1

Moved by

[Lord Morris of Aberavon]

1: Clause 3, page 2, line 6, after “judge” insert “licensed by the Lord Chief Justice to try murder, manslaughter and rape offences”

[Lord Morris of Aberavon (Lab)]

My Lords, I beg to move my Amendment 1, which would add my own words to the Government’s insertion of “or a Circuit judge”, and to speak in the same group to Amendment 2, which I support, in the names of the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Thomas of Cwmgiedd, and other noble Lords.

My amendment seeks to put on the face of the Bill the type of circuit judge that can be nominated to sit as a judge advocate. My understanding is that, at present, the Lord Chief Justice is able to nominate a High Court judge to do so and, in practice, from time to time does so. High Court judges have wide experience to try a whole range of cases, and those of the Queen’s Bench Division from time to time try the most serious offences, such as murder, manslaughter and rape, while they are on circuit. Circuit judges do not as a rule try such cases, save for those who are licensed by the Lord Chief Justice to do so. They are very senior and experienced judges. Trying a murder case can be a challenge, although those experienced to do so have the custom and practice to do it extremely well.

I hope that we can have a clear view that the type of judge who should sit is one who is licensed to try murder and manslaughter cases. I have the assurance of the Minister that they would be very experienced judges. I am grateful for her remarks but I emphasise that, administratively, in future there is no guarantee that what she says on paper now will mean that only those who are licensed to try in the criminal courts try such cases.

Turning to Amendment 2 to Clause 7, I racked what one of my mentors, the late Lord Elwyn-Jones, Lord Chancellor, used to call my brain for a suitable amendment that would be in order for Report to revisit the proposition, which I argued for in Committee, to civilianise the court martial system in certain serious criminal cases. My poor offering is the new clause proposed in Amendment 25 on page 8 of the Marshalled List. The noble Lord, Lord Thomas of Gresford, has shown greater ingenuity than me, and I now give notice that I will not move my amendment and will instead support his.

My campaign to civilianise the court martial system goes back a long way, to the time of the controversy concerning Sergeant Blackman’s case. The Minister was particularly kind to refer to my interest then. Following a number of debates that I was fortunate to initiate, the Ministry of Defence, with unaccustomed speed, set up an inquiry led by His Honour Shaun Lyons, and we are grateful to him. I am sure that this action owes a great deal to the then Minister, the noble Earl, Lord Howe, and the noble Baroness, Lady Goldie. Regrettably, Shaun Lyons’s recommendations for murder, manslaughter and rape have not been accepted by the Government.

I am glad that the protocol that I initiated and signed in the agreement between the Attorney-General’s office and the military prosecutors has stood the test of time. The ultimate authority in the Bill is the Director of Public Prosecutions, who works under the supervision of the Attorney-General, and, from my reading of the Bill, there is no undermining of the system. The Government were loath to accept my amendment in Committee. The amendment of the noble Lord, Lord Thomas of Gresford, does exactly what I had hoped would be plain sailing at Committee stage, and I congratulate him.

15:30

I believe that every soldier, sailor and airman—and their female counterparts—should have the same rights as civilians to a trial by a jury of 12, with all the statutory protections for majority verdicts, which time has proved work well in ensuring both just and timely verdicts. There is no such provision in court martials. It may well be, as the Minister said, that verdicts of two to one occur in a small number of less serious cases, but they have no place in modern criminal jurisprudence. Neither does a system whereby the most junior member of a court martial is asked to give his verdict first. This is even more important now, given the provisions in Schedule 1 for the constitution of court martials to include other ranks. Every service person should have the same protection for his or her day in court as a civilian counterpart. Our forces are now much closer to those in civilian life than they were and should have the same rights, hallowed and developed over centuries, as civilians have, and it is with pleasure that I support Amendment 2.

[Lord Thomas of Gresford (LD)]

My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Aberavon, for his support, and I congratulate him on the attempts that he has made over a long time to civilianise military law. I am pleased that he mentioned Lord Elwyn-Jones, who admitted me to the rank of Queen’s Counsel in the Moses Room rather a long time ago.

The issue in Amendment 2 is: should members of the Armed Forces accused of murder, manslaughter, rape or other sexual offences alleged to have been committed within the United Kingdom be tried by court martial or in ordinary courts? The Mutiny Act 1689, in the reigns of William and Mary, laid down the principle that there should be annual renewals of the Armed Forces Act. The recital to it said:

“No man may be forejudged of life or limb, or subjected … to any kind of punishment … by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of this realm.”


That is the sentiment that the noble and learned Lord, Lord Morris of Aberavon, has just enunciated, and it is a principle derived from the Magna Carta.

But this recital in the Act contained an exception to that stirring principle. In respect of

“every person being mustered and in pay as an officer or soldier in their Majesty’s service, who excited, caused or joined in any mutiny or sedition in the Army, or deserted their Majesty’s service”,

the punishment was death.

The other means of disciplining service personnel was under the Articles of War, issued under the King’s sign-manual, but only for the purpose of operations abroad, particularly in the colonies, not in the United Kingdom.

The Mutiny Act applied throughout Great Britain and Ireland, so that even in peacetime a soldier mutinying or deserting would be tried and punished under martial law, not civil law, and without the protections offered through civil law procedures.

The great jurist Sir William Blackstone, writing in 1765, was incensed that soldiers should be dealt with by court martial in peacetime and regretted that

“a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen!”

When, in 2006, therefore, the Labour Government introduced into their Armed Forces Act a provision which permitted the trial of service personnel by court martial for serious offences committed in this country—a course which I strongly opposed at the time—they were going against centuries of history. The serviceman was now open to court martial for any offence, including murder, manslaughter and rape, even when committed in the United Kingdom. Importantly, he had lost the right to be tried by an ordinary jury of 12 of his peers and was subject to the verdict and punishment of up to seven officers, arrived at by a simple majority.

That is enough history; we must look at the position now, in 2021. We have before us the strong recommendation of His Honour Judge Lyons in his review. As it happens, his first recommendation is that the court martial jurisdiction should no longer include murder, manslaughter and rape when those offences are committed in the United Kingdom, except with the consent of the Attorney-General. The Defence Sub-committee under Sarah Atherton, Member of Parliament for Wrexham, published its report in July, entitled Protecting Those who Protect Us. That report calls urgently for the implementation of His Honour Judge Lyons’s recommendation.

It is true that, in his recent report, Sir Richard Henriques accepted concurrent jurisdiction, as it is called, but the reason he gives is that there may be cases which occur both abroad and in this country, and consequently a single trial would be preferable. That reason would not have any force in respect of murder cases, where there is universal jurisdiction.

I do not believe that a murder case, for a murder committed in the United Kingdom, has been dealt with by way of court martial since 2006. However, I have been able to trace two cases where charges of manslaughter by negligence occurring in this country were tried in that way, both relating to the Castlemartin range in west Wales. In the most recent case, in 2012, a soldier was killed during a live firing exercise. That case was about the planning, organisation and running of that range and required reconstruction of the scene, with accurate grid references and bearings to establish to the criminal standard the origin of the fatal round. Three were convicted and the officer was sentenced to 18 months’ imprisonment, with the others receiving service punishments. It follows, and I do concede, that there may be cases involving complex military issues where a court martial may be appropriate, but these are very rare—two cases in some 14 years.

In reply to the Minister’s comments in Committee, I said that she had misinterpreted this amendment. I have used the word “normally”, which means what it says: that offences committed in the UK would be tried in the ordinary Crown Courts, or in their equivalents in Scotland and Northern Ireland. That would be part of the protocol of the DSP and the DPP. It would be in only exceptional cases of the nature to which I have referred that the Attorney-General would need to be approached. I am not suggesting that he should be involved in the decision-making process of venue ab initio. Incidentally, there is no bar to the Attorney-General making a decision on venue, just as he or she may do in deciding on the commencement of proceedings. The Minister suggested the contrary in her reply in Committee.

Much more common are cases of rape and sexual offences occurring in this country being tried by court martial. It is obvious from the report of Sarah Atherton’s Defence Sub-Committee that complainants, their families and the public simply do not have confidence in courts martial. We can argue about the figures, but if the level of conviction is so low then this perception will have an effect on recruitment and, more importantly, retention. There are many victims within the armed services who will wish to leave for a civilian life if their complaints are not upheld.

The noble Baroness also repeated the justification advanced in 2006 that public confidence can be maintained in the whole service justice system

“only if the service justice system not only has but can be shown to have the capability to deal with all offending fairly, efficiently and in a manner which respects and upholds the needs of victims.”—[Official Report, 27/10/21; col. GC 166.]

That was the justification in 2006 to give a boost to the status of the partly reformed system of courts martial.

I said at Second Reading that I generally welcome the reforms in this Bill. They nearly conclude the long journey since the Findlay human rights case in 1995 towards founding the service justice system on justice rather than, as it has been historically, on discipline. We have finally buried the Mutiny Act, under which General Braddock in the Seven Years’ War could issue the order of the day:

“Any Soldier who shall desert tho’ he return again will be hanged without mercy.”


This amendment is designed to complete the journey towards justice.

[Lord Thomas of Cwmgiedd (CB)]

There is one brief reason that I would add to what has been so eloquently said by the noble and learned Lord, Lord Morris, and the noble Lord, Lord Thomas of Gresford. We have always tried, and marked the seriousness of, crimes set out in the amendment by trial by jury. Magna Carta conferred on defendants the right to trial by jury. Today, we take account of the interests of the victim of such crimes and they have confidence only in trial by jury, particularly as so many of these cases turn on credibility. On that, the judgment of ordinary men and women, drawn from a jury, is the only way to achieve justice. For those three reasons, we should not deprive people of trial by jury in these cases.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak very briefly, having attached my name to Amendment 2 in the name of the noble Lord, Lord Thomas of Gresford. I did that because, as we came to the deadline, I noticed that there was a space, and I really felt that, given the level of support that the issue covered by this amendment achieved at Second Reading, it deserved the broadest cross-party and non-party support possible.

I will also reflect on what I said in Committee on this amendment. Much of our leadership on this has come from Members from legal backgrounds, who focused on the rights of the defendant. I understand that, but I also note that I am the only female Peer who has attached my name to the amendment. There is very much a gender aspect to this. Women currently make up 10% of our full-time military—about 15,000 in number. They are still a significant minority right across the forces.

As the noble Lord, Lord Thomas of Gresford, just alluded to, we have a military culture stretching back many centuries that was, for most of that time, entirely male dominated. Offences such as domestic violence, child abuse, rape and sexual assault are disproportionately committed against women. Last night in this very Chamber on the policing Bill we were discussing how difficult it is to get our civilian justice arrangements to cater adequately for these offences. How much more difficult is it in the military context, with the culture we just heard outlined?

I commend the amendment to the House and, looking back to the Second Reading debate, note the breadth of support it achieved.

15:45

[Lord Coaker (Lab)]

My Lords, it is a privilege to speak after my noble and learned friend Lord Morris, the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Bennett. I support Amendment 2 in our names, an exceptionally important amendment that seeks to build and improve on the current situation, according to the principles laid out by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd, on the need for trial by jury.

As we heard in Committee, the independent review by his honour Judge Shaun Lyons and Sir Jon Murphy recommended that murder, manslaughter, rape, sexual assault by penetration and child and domestic abuse cases, where alleged to have happened in the UK, should be removed from the military justice system, except where the consent of the Attorney-General was obtained. Lyons recommended establishing a serious crime unit and removing murder, manslaughter, rape, sexual assault by penetration and child and domestic abuse cases from the SJS. One did not stop the other.

As noble Lords have pointed out, there is a problem here, in some of the issues of principle that have been raised and in looking at some of the statistics. In Committee, the Minister said that it was not possible to draw

“a meaningful statistical or data comparison between the service and civilian justice systems”,—[Official Report, 27/10/21; col. GC 165.]

because the small database would mean that some changes would result in a “disproportionate effect”.

I looked for some statistics to put before your Lordships, to highlight some of the issues that the noble Baroness, Lady Bennett, talked about. These statistics, regarding the court martial system within the Ministry of Defence, as given by the Government in answer to a Written Question in February 2021, show the issue that has been highlighted, not only by Sarah Atherton MP’s report but by many other reports and stories that come out of the Ministry of Defence. For example, according to the Government’s own figures, in 2015, 31 charges were heard, with three defendants found guilty. There were 40 sexual assault cases that year, in which 21 defendants were found guilty. In 2019, nine cases of assault by penetration were heard, with two defendants found guilty. There are many other figures that can be used. These statistics were issued on 3 February 2021 by the then Minister, Johnny Mercer MP, in response to a question, highlighting some of the issues and the need for us to reflect on whether we can improve the system.

Sarah Atherton MP, his honour Judge Lyons and many others have said that it is not only about a case of justice or the principle of trial by jury. There are very real problems within the military justice system in this respect. Therefore, this amendment takes us to a very important issue of principle and a very important way in which we might do better in bringing justice to some of these women.

In Committee, the Minister said that the Government had

“committed to publishing a defence-wide strategy for dealing with rape and serious sexual offences in the service justice system.”—[Official Report, 27/10/21; col. GC 166.]

However, on 8 November, her ministerial colleague, the Armed Forces Minister, said that the Government have only an intention to publish a defence-wide strategy for dealing with rape and serious sexual offences in the service justice system. Can the Minister comment on whether publishing that strategy is a commitment or an intention, and how that strategy would seek to improve conviction rates in the system?

Supporting the amendment tabled by the noble Lord, Lord Thomas, and the excellent way in which he presented it, is a way of ensuring that we move towards the principles that we seek to ensure for all our citizens, and to do something about some of the problems that we see in the statistics I have mentioned.

[Lord Robathan (Con)]

My Lords, if I may intervene briefly, I will start with a confession: I have not read the Mutiny Act 1689, to which the noble Lord, Lord Thomas, referred so eloquently. But I have a little experience, in that I have sat on a court martial as part of the board. I have never been court-martialled, I am glad to say, but I have experience of military justice—some decades ago now, because I am getting old. I also have some experience of it from working in the Ministry of Defence in the coalition Government. The Bill as a whole tries to make the criminal justice system in the military better. It is all to be applauded, and I am particularly impressed with the setting up of the defence serious crime unit.

I found a slight contradiction in the amendments that we are discussing today; perhaps it might be explained later. Is it because defendants—typically soldiers—are too harshly treated that they should have trial by jury? When I was serving, my experience was that, in the military justice system, there was a certain attitude: “If he is before a court martial”—it was almost exclusively a “he”—“he must be guilty”. Or is it because, as it says in Amendment 25, we need to improve the rates of conviction for serious offences? This seems to be a slight contradiction.

Is it because people do not like the whole courts martial system? That is a serious question to be addressed. In my experience, which is aged and limited, the courts martial system works pretty well, so let us know exactly why it should be that we wish to change it for these matters—and I know Judge Lyons has said so. Notwithstanding the comments of the noble Lord, Lord Thomas, that we should not consider discipline to be part of this, it is very important that we have a disciplined force. That is why we have courts martial, though no longer the death penalty for mutiny.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I am delighted to join your Lordships in the Chamber this afternoon on Report to discuss these proposed amendments to the Armed Forces Bill. This is an important Bill. I know it enjoys support across the Chamber, but interesting issues have arisen and merit discussion.

I also observe that many of the issues that were vigorously and articulately debated in Committee have resurfaced. That was a good debate, probing the legislation for the Bill. Please be assured that I will endeavour again to address the points raised and to dispel the concerns that noble Lords have around the Bill.

Your Lordships may take comfort that I am as passionately driven as anyone in this Chamber to ensure that we deliver the best for our service men and women, our veterans and their families, balanced against the resources to hand. I say with confidence that the Bill seeks to achieve that overriding objective. I am grateful to my noble friend Lord Robathan for acknowledging that this is exactly the improvement that the Bill seeks to deliver.

With that said, I will now speak to Amendments 1, 2 and 25. Just for the avoidance of doubt, I understand that the noble and learned Lord, Lord Morris of Aberavon, will not now move Amendment 25, and therefore I propose not to use my speaking notes and have a Mogadon effect on the Chamber. If the noble and learned Lord is content with that, I can perhaps shorten this debate a little.

Amendments 1 and 2 focus on the service justice system. I thank the noble and learned Lord, Lord Morris of Aberavon, for tabling Amendment 1. It seeks to amend Clause 3 so that a circuit judge or a High Court judge can be nominated by the Lord Chief Justice to sit as a judge advocate only when they are ticketed to deal with cases of murder, manslaughter and rape.

First, I reassure your Lordships that judge advocates hearing murder, manslaughter and rape cases in the courts martial have the same training and requirement for ticketing as judges hearing those cases in the Crown Court. The Judge Advocate-General and all judge advocates sit in the Crown Court for up to 60 sitting days a year and are as qualified, capable and well trained as civilian judges sitting in the Crown Court.

Tickets are allocated based on the Judge Advocate-General’s judgment that a particular judge advocate has the appropriate training, experience and ability to try the case in question. Judges nominated by or on behalf of the Lord Chief Justice to sit as a judge advocate will likewise have whatever tickets are necessary for the case that they will be trying. I trust that this will assure the noble and learned Lord that all the judges sitting in the courts martial are qualified to try whatever case is before them.

There may also be some misapprehension about another situation: when the service courts might need additional judges. As drafted, the amendment would allow only judges ticketed for murder, manslaughter and rape to be nominated to sit in the court martial. The judiciary in the service courts is already able to deal with these serious offences, so the Judge Advocate-General may need to request the nomination of a judge for other reasons. It might be because they have particular expertise or experience that is relevant for another type of offence. There might also simply be a temporary shortage of judge advocates, perhaps when the service courts have an unusually high caseload. A judge nominated to sit in the service court would need to be ticketed only for the particular type of case that they are trying; they would not need a ticket for murder, manslaughter or rape, unless of course they were dealing with those offences. I hope that that reassures your Lordships and, therefore, that the noble and learned Lord will feel able to withdraw his amendment.

I turn now to Amendment 2 in this group, tabled by the noble lord, Lord Thomas of Gresford, and supported by the noble Lord, Lord Coaker, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Bennett of Manor Castle. It seeks to ensure that certain serious crimes—murder, manslaughter, domestic violence, child abuse, rape and sexual assault with penetration—are all tried in the civilian courts when committed by a serviceperson in the UK, unless by reason of specific naval or military complexity involving the service the Attorney-General has specifically consented for such crimes to be tried at courts martial.

By way of preface, I say that it was very clear from our debate in Grand Committee that we all have a common aim: to ensure that, where there is concurrent jurisdiction, each case is heard in the most appropriate jurisdiction. This amendment seeks to achieve this through two procedural safeguards—namely, that there is a presumption that these offences are heard in the civilian courts and that, to overturn that presumption, the Attorney-General’s consent must be obtained.

We accept the need to improve decision-making in relation to jurisdiction, and a key part of that is of course for the civilian system to have a potential role in each case. We differ on the need to restrict the legal principle of concurrent jurisdiction by introducing a presumption in favour of one system over the other, and that is what the noble Lord’s amendment manages to create.

As I said in Grand Committee, the recently published review by Sir Richard Henriques was unanimous on two things, in supporting not only the continued existence of the service justice system but the retention of unqualified concurrent jurisdiction for murder, manslaughter and rape. Importantly, the review found the service justice system to be fair, robust and capable of dealing with all offending. The creation of a defence serious crime unit elsewhere in the Bill will further improve the skills and capability of the service police to deal with these most serious offences. Therefore, we do not believe that a presumption in favour of these offences being heard in the civilian courts is necessary or justified.

We acknowledge that change is required to improve clarity as to how concurrency of jurisdiction works in practice. Instead of introducing an Attorney-General consent function, as recommended by His Honour Shaun Lyons, we believe that a better approach is to strengthen the prosecutors’ protocols and enhance the role of prosecutors in decision-making on concurrent jurisdiction. Independent prosecutors are, after all, the experts on prosecutorial decisions.

16:00

Clause 7, therefore, places a duty on the heads of both the service and the civilian prosecutors in England and Wales, Scotland and Northern Ireland to agree protocols regarding the exercise of concurrent jurisdiction. Well-designed protocols ensure that decision-making is taken at the right level by those with access to the most up-to-date information. In terms of these offences, the Director of Service Prosecutions has already stated, in his evidence to the Bill committee in the other place, that there will be a requirement for the service prosecutors to consult their civilian counterparts when dealing with certain offences so that expertise from both sides can be addressed to the jurisdiction decision.

Further, the Bill makes clear that, where there is disagreement on jurisdiction, it is the Director of Public Prosecutions who will always have the final say. Together, these procedural safeguards ensure that the civilian authorities are always involved in decisions on concurrent jurisdiction in certain cases and can always veto such cases being heard at court martial. I hope that explanation has provided noble Lords with the assurance that sufficient consultation with the civilian authorities will take place to assure that we have good decision-making and cases are heard in the most appropriate jurisdiction.

The noble Baroness, Lady Bennett, raised the important issue of what she described as the imbalance of women in the military. I can say that elsewhere in the Bill we are broadening the pool from which members of the court martial board can be drawn to include rank OR-7. This will increase the number of women who can sit on court martials. The noble Baroness made an important point; it is recognised within the MoD, and we are taking steps to try to improve the presence of women in the court martial system.

The noble Lord, Lord Coaker, raised a point about the proposed defence rape and serious sexual crime strategy. I can confirm that we intend to publish that strategy—a defence-wide strategy—for dealing with rape and serious sexual offences in the service justice system. That will aim to reduce the prevalence and impact of rape and other serious sexual offending in the Armed Forces, and to improve the handling of those cases in the service justice system. I do not know where the preparation of that strategy has got to, but I can undertake to make inquiries. It is my colleague, the Minister for Defence People and Veterans, who is dealing with that. I will make inquiries and write to the noble Lord with further information.

I hope that on the basis of that further information which I have been able to provide that noble Lords will feel able to withdraw or not to press their amendments.

[Lord Morris of Aberavon (Lab)]

I withdraw my amendment.

Amendment 1 withdrawn.

Clause 7: Concurrent jurisdiction

Amendment 2

Moved by

[Lord Thomas of Gresford]

2: Clause 7, page 4, line 27, at end insert—
“(4A) Guidance under subsection (3)(a) must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court unless, by reason of specific naval or military complexity involving the service, the Attorney General consents to trial by court martial.”Member’s explanatory statement
This amendment would ensure the most serious crimes – murder, manslaughter, domestic violence, child abuse, rape and sexual assault with penetration – are tried in civilian courts when committed in the UK unless the Attorney General has specifically consented for such crimes to be tried by court martial by reason of complexity involving the service.

[Lord Thomas of Gresford (LD)]

My Lords, I am most grateful to the noble Baroness for her careful reply, but I feel that I must test the opinion of the House.

16:03

Division 1

Ayes: 210

---

Labour: 98
Liberal Democrat: 58
Crossbench: 44
Independent: 8
Green Party: 2

Noes: 190

---

Conservative: 178
Crossbench: 5
Independent: 4
Democratic Unionist Party: 2
Ulster Unionist Party: 1

16:30

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Baroness, Lady Brinton, will be taking part remotely.

Clause 8: Armed forces covenant

Amendment 3

Moved by

[Lord Coaker]

3: Clause 8, page 9, line 17, at end insert—
“(d) a relevant employment function,(e) a relevant pensions function,(f) a relevant compensation function,(g) a relevant social care function,(h) a relevant criminal justice function, or(i) a relevant immigration function.”

[Lord Coaker (Lab)]

My Lords, it is good to be back. In moving Amendment 3 in my name, I will speak to Amendments 5, 6 and 7. I thank the noble Baroness, Lady Brinton, for signing those amendments. I also thank the noble and learned Lord, Lord Mackay, for tabling Amendment 4, which is extremely important, and the same as an amendment tabled in my name in Committee.

As I said in Committee, we support the aims of this Bill, but at present believe that there is a missed opportunity to deliver real improvements in the lives of our service personnel, veterans and their families. Like all noble Lords, we believe that the Armed Forces covenant represents a binding moral commitment between the Government and service communities, guaranteeing them and their families the respect and fair treatment their service has earned. In Committee, the Minister argued that central government in the Bill is unnecessary. She said:

“The Government are already subject to a legal obligation to report on the delivery of the covenant.” —[Official Report, 27/10/21; col. GC 194.]


But we all know that a reporting function is very different to a statutory provision ensuring that Ministers are subject to the duty of due regard. Ministers are arguing, as noble Lords will see in the Bill, that it is unnecessary for them, but necessary for local authorities, for NHS trusts, for NHS governors, and for a range of other public bodies to have a statutory duty to have due regard for the covenant. As said by the noble and learned Lord, Lord Mackay, it is not only many of your Lordships who are dismayed that the Government seem determined to stand against ensuring that the due regard principle applies to central government, but the Royal British Legion and many others. They believe that the due regard principle should apply to central government in the way it applies to others. I am very supportive of the amendment in the name of the noble and learned Lord, Lord Mackay.

Service charities, including Help for Heroes, the Royal British Legion and the Army and Naval Families Federations are also concerned about the narrow scope of the covenant, concentrating as it does on education, housing and healthcare. Service charities have pointed out that this narrow focus could, in their view, create a two-tier Armed Forces covenant. That is why we have retabled Amendments 3, 5, 6 and 7, extending the scope of the covenant in the Bill to include employment, pensions, compensation, social care, criminal justice and immigration.

The Minister has explained that the new covenant reference group will evaluate the new duty. That is very welcome, and I thank her for that concession, but it is clear that the narrow scope of housing, healthcare and education does not go wide enough to stop all areas of potential disadvantage against members of the Armed Forces, veterans and their families. As the covenant reference group will have that new duty to evaluate how the covenant is working, how will the process of evaluation take place? For example, will it have to report to the Defence Committee on an annual basis?

Not extending the scope of the covenant is a missed opportunity by the Government, and I very much look forward to the Minister’s further justification of why they are resisting that. I also look forward to the noble and learned Lord, Lord Mackay, speaking to his Amendment 4, which I think is particularly important as it would extend the “due regard” principle to central government as well as the other public bodies mentioned in the Bill.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Baroness, Lady Brinton, will not be taking part in these proceedings because she is double-booked in Grand Committee.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I have much sympathy with these amendments. Back in 2010, when I served in the Committee on the Bill, I proposed similar amendments, so noble Lords may ask why I now express some hesitancy about extending the remit. I suppose it comes from my experience as Minister for the Armed Forces and Minister for Defence Veterans, Reserves and Personnel. When we roll back the clock, if I am entirely honest, in the early days of implementing the Armed Forces covenant we struggled to get traction. It took some time to convince all the local authorities within the United Kingdom to sign up and indeed to get employers to sign up. I am delighted that now we have close to 2,000 signatories to the Armed Forces covenant.

My concern really lies around the fact that, as we continue to extend the width, we may struggle to get buy-in into this if we create yet more of a burden for local authorities in particular. Especially after Covid, as they have had a difficult couple of years, they might not see the benefit of this if we simply overburden them with yet more categories. My suggestion in Committee was not that we should not extend the categories but that we should do it incrementally over a period of time. In many ways, had that been suggested today, I would have been happy to accept this amendment, but that is not the case, which is a shame. During that early stage of the process, we also struggled to demonstrate the benefits of this to veterans.

It is a shame that we have an Armed Forces Bill only once every five years because I do not want to have to wait another five years to slowly extend the remit of the covenant. However, I simply feel that at this stage such a step would be a bit too much too soon, for the reasons that I have tried to explain.

[Lord Mackay of Clashfern (Con)]

My Lords, I think it might be convenient for me to speak to my amendments in this group, Amendments 17 and 4. Something about Amendment 4 has been said already and I will not repeat that, but I shall attempt to elaborate on it somewhat.

On Amendment 17, when I was trying to consider this issue more carefully after the Minister’s argument in Committee, I happened to notice that this clause has a curious provision at the beginning: it is the same as the opening clause that was in the 2011 Bill on the Armed Forces covenant report. The only reference to “Armed Forces covenant” here is by dropping the word “report”. That struck me as rather strange in a Bill dealing with the Armed Forces covenant.

My noble friend may be able to put me right on this, but I have not found a definition of that covenant in the Bill. It is true that there is a definition on the website, but the website is not yet by law an Act of Parliament. We have to distinguish between these two. I am happy to think that what I have proposed in Amendment 17 is not very different from what is on the website, but it would at least be in the statute—in the part on definitions and principles that apply to England—and would apply through it.

My main argument, of course, is in relation to Amendment 4. It is right that central government in the form of the Secretary of State, who is responsible to Parliament for the Armed Forces, should be responsible for respecting the Armed Forces covenant. If he does not have a duty to respect it, it is difficult to put that duty on local authorities, health authorities and so on. In Committee, I referred to what I regard as an important example of where this was really necessary. In the first Gulf War, there was a feeling early on—of course, I have no detail on this that I could go into—that there might be poison gas coming from the opposition in Iraq. A possible protection against that gas was provided to some of our Armed Forces. Needless to say, I do not know what it contained, and I do not think local or health authorities knew either. Importantly, therefore, the illnesses of a neurological character contracted by some veterans were thought to be possibly connected to the protection against the poison gas.

As it happened, I do not think the poison gas ever emerged, but some veterans had had this protection and there was a question about that. I sent the Minister a copy of the Library report on this; there was an inquiry into it by one of my judicial colleagues. The eventual opinion expressed by Her Majesty’s Government was that the illness was not sufficiently definite to be called Gulf War syndrome—it was probable that it was due to a variety of things and, therefore, it was not to be classified in that way.

I cannot see how anybody other than the Secretary of State could be responsible for carrying out an investigation of that kind. It is therefore vital that he should have regard to the principles; of course, the areas that he has to have regard to are in the Bill now and not subject to the extensions of Amendment 3 and the other extensions that the noble Lord, Lord Coaker, referred to. It is a simple case of three zones, as it were, in which the Secretary of State has to have regard to the principles. If anybody has to have regard to the principles of the Armed Forces covenant, I should have thought that the Secretary of State responsible to Parliament for the Armed Forces would be the leading person in that capacity.

It is for this reason that I tabled Amendment 4—having benefited from the copyright very kindly given. I look forward to what my noble friend the Minister has to say. I am sure she will have a good answer which will not be good enough. Unless this is accepted by the Government, or some provisional point of view for the future is accepted, I therefore intend to test the opinion of the House on this matter.

16:45

[Lord Craig of Radley (CB)]

My Lords, I support the noble and learned Lord, Lord Mackay of Clashfern, on Amendment 4, and I support his Amendment 17. He has brought to your Lordships’ attention an example of where due regard is necessary from the Secretary of State. When he did so in Committee, I said that I had another one, and I would like to take the opportunity to spell that out, because this cannot be devolved or left to local authorities to be dealt with.

Some servicemen recruited in Hong Kong were full members of Her Majesty’s Armed Forces, having taken the oath of allegiance and paid full UK taxes on their pay. They held British passports; some trained in this country or elsewhere to fit them for their role in Hong Kong; some were involved in jungle-style warfare training in Borneo; one large unit was sent to Cyprus to release further UK armed personnel for Operation Granby, the first Gulf War in 1991. Many in the Royal Navy Hong Kong Squadron served worldwide on Her Majesty’s ships. Now retired, they are still rightly classified as UK veterans and deserve fair treatment under the military covenant. But a few who served in those units that disbanded in 1997 missed out when allocations to retain their British citizenship were made in 1984. Some but not all of these servicemen were indeed allowed to retain their British passports and citizenships. Those that were missed out and overlooked have long been campaigning for a return of this right, which has been replaced by BN(O) status without the benefit of full British citizenship. This injustice occurred when they were still serving.

Their case was first raised in this House in 1986, over 35 years ago. It has been recommended by the Hong Kong LegCo and was strongly supported by Lord MacLehose, drawing on his long and distinguished tour as governor of Hong Kong from 1971 to 1972. The Minister who wound up that debate about Hong Kong replied:

“I hope that your Lordships will recognise that there are some complex issues to be considered here … But, again, I can assure your Lordships that we shall give this the most careful consideration.”—[Official Report, 20/1/1986; col. 102.]


Note that promise of careful consideration. Nothing happened. Nothing further was said or done. Regrettably, repeated assurance of careful, active consideration by the Home Office to this day still produces no decision. Surely these few veterans deserve better—a definitive answer, not just prevarication and stalling behind a misleading false promise of active consideration. How many more years of consideration do the Government require? Are the Home Office hoping that when the veterans are all dead the problem will be forgotten?

Following the enactment of the convenant in 2011, a small association, of which I am privileged to be honorary patron, was formed by some former members of the Hong Kong Military Service Corps to press their case again. I myself have repeatedly raised it in debates and Questions for Written Answer and written to the Prime Minister to support representations by those affected in Hong Kong. I am far from alone. Over the past nine years or more, many Members of both Houses have approached Ministers, Home Secretaries and Prime Ministers on behalf of these veterans, but over the past decade the response has been increasingly incredible and ridiculous—that is, that it is under active consideration.

Over 18 months ago, at their request, I forwarded 64 individual applications from those Military Service Corps veterans to the Home Secretary. None has been answered. There has not even been an acknowledgment from the Home Office. Understandably, the present situation in Hong Kong has strengthened the wish for this matter to be resolved and for those now few remaining individuals to be treated as full citizens. Will this Government at last do the right thing for these veterans?

Surely this is a further extreme example of the reason for a duty of care and due regard to be placed in statute on the Secretary of State. I am sure in future other issues affecting a group of veterans, not just individuals, will arise, which cannot be dealt with at devolved or local authority level. The Royal British Legion and other service charities have provided cogent arguments why it is not right to exclude central government from a statutory duty of due regard for veterans. I endorse that view based on their detailed and dedicated experience helping the veteran community. I strongly support this amendment.

[Lord Alton of Liverpool (CB)]

My Lords, I am very pleased to support Amendment 4, in the names of the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Coaker, the noble Baroness, Lady Smith of Newnham, and my friend the noble and gallant Lord, Lord Craig of Radley. As the noble and learned Lord, Lord Mackay, told us, his amendment gives us the opportunity to address specific injustices experienced by our ex-servicemen and he is absolutely right in telling us that the lead on this should not be local authorities but national government. That is why not only are we right to hang specific cases on this amendment, but the purpose of the amendment itself is also clear and right.

Over the past decade, my noble and gallant friend and I have knocked on the doors of Ministers and raised questions on behalf of Hong Kong veterans. I know how greatly he is admired and respected by that cohort for his dedication and commitment to their cause. We have also worked with Mr Andrew Rosindell, the Member of Parliament for Romford, who has put great energy into putting right what is a clear injustice. The treatment of Hong Kong ex-servicemen has not been commensurate with the Armed Forces covenant, and the noble and learned Lord and others are seeking to put it right.

I also pay tribute to Roger Ching, the chairperson of the HKOR Benevolent Association, and who says of the treatment of Hong Kong’s ex-servicemen that

“The attitude of successive Governments towards servicemen and women and veterans is appalling.”


In 2014, my noble and gallant friend and I met with the late James Brokenshire when he was a Home Office Minister. He was characteristically courteous, but neither he nor a series of successive Home Secretaries have been able to correct the signal injustice faced by Hong Kong’s ex-servicemen.

It is worth recalling that, from 1857 until 1997, more than 40,000 Hong Kong men lost their lives protecting our interests and the interests of the Crown. In the Great War, 100,000 British-Chinese soldiers served on the Western Front, and by the time of the Armistice the Chinese Labour Corps numbered nearly 96,000 men. In subsequent conflicts, they served alongside British servicemen: in the Second World War, in Korea, in the Malayan anti-communist campaigns and elsewhere, as the noble and gallant Lord has told us. In this month of all months, we should not only honour that contribution but do something practical to show that with memory of past sacrifice comes contemporary engagement with a long-running failure to honour the past.

In July 2006, the United Kingdom granted full British citizenship to all British Gurkha soldiers and their dependants who had served in Hong Kong. It was a generous and good decision. But why has there been such a different treatment for all but a handful of Hong Kong veterans? When Hong Kong was handed back to the Chinese Communist Party in 1997, a points- based system meant that only 159 of the 654 soldiers who applied to live in the United Kingdom were successful.

Campaigners responded to that clear injustice, and one group, 38 Degrees, even set up a petition which gathered more than 117,000 signatures. Yet the response since right of abode was set up in 1997 has failed to bring a settlement, with successive Home Secretaries repeating the mantra of which my noble and gallant friend has reminded us this afternoon: that the applications are “under consideration”. For how much longer are we to be given this unsatisfactory, stalling response?

Last year, Rosie Laydon, a presenter and reporter for Forces TV, was in touch with me. She said:

“British Hong Kong veterans do not feel the current Government offer of visas to those with BNO status offers adequate recognition of their service. They have told me that they believe they should be granted British citizenship unconditionally”—


and I agree. They also told her that, as former members of the British Armed Forces, under Chinese national security laws, now imposed on Hong Kong, they are liable to be charged with spying for the United Kingdom Government.

Here I should declare that I am a patron of Hong Kong Watch, a vice-chair of the All-Party Parliamentary Group on Hong Kong and sanctioned, along with the noble Baroness, Lady Kennedy of The Shaws, by the CCP after taking part, in my case, in an international team monitoring the district council elections in 2019. Since then, we have seen the enactment of the CCP’s draconian national security law, and I should like to hear from the Minister, for whom I have enormous respect, as she knows, what assessment she has made of the implications of loyal service to the Crown for the safety of our ex-servicemen in Hong Kong. We need to see this matter is a question of honour, but we also need to see it as a question of safety and security.

Recently, the noble Lord, Lord Ahmad of Wimbledon, told me in a Parliamentary Answer:

“The National Security Law is being used to systematically stifle rights and freedoms, not protect public security.”


He also wrote:

“The UK is deeply concerned about the situation in Hong Kong and the systematic erosion of rights and freedoms and the high degree of autonomy enshrined in the Sino-British Joint Declaration.”


Perhaps when the Minister replies, she can tell us when the United Kingdom is going to do anything more to hold the People’s Republic of China to account for the destruction of the basic freedoms of Hong Kong.

Meanwhile, I point out to your Lordships’ House that the Times has reported that the Foreign Secretary, Liz Truss, says that the CCP is “committing genocide” in Xinjiang—something that the House will return to on Thursday. In the context of Xinjiang, Tibet and Taiwan, I may add that there have been more than 150 sorties trying to intimidate Taiwan in the course of just five days. In Xinjiang, we have heard the United States Secretary of State, Antony Blinken, say that

“the forcing of men, women and children into concentration camps”—

his words—

“trying to, in effect, re-educate them to be adherents to the ideology of the Chinese Communist Party, all of that speaks to an effort to commit genocide.”

Is it any wonder, then, that loyal servants of the Crown fear for the consequences of being abandoned in Hong Kong? The CCP has imprisoned lawyers, dissenters, pastors and journalists, such as the young woman, Zhang Zhan, tortured and jailed for four years for shining a light into the origins of the Covid pandemic in Wuhan. On Friday last, concerned for her deteriorating health, the United Nations called for her release.

In this context of arbitrary arrest, imprisonment, torture and re-education—even genocide—who can seriously doubt that Hong Kong’s ex-servicemen, like Afghan interpreters or judges, will be primary targets as “two systems, one country” becomes “one system, one party, one ideology”? Recall that this is the same CCP responsible for the massacres in Tiananmen Square and for the enormities of the Cultural Revolution—and the deaths of 50 million Chinese people.

Through the Armed Forces covenant, we have the opportunity to demonstrate that we will not abandon loyal servants of the Crown, that we do not forget our debt of honour and obligations and that Parliament will go on supporting my noble and gallant friend until this wrong has been put right. It is for those reasons that I strongly support the amendment placed before your Lordships’ House by the noble and learned Lord, Lord Mackay of Clashfern.

17:00

[Viscount Brookeborough (CB)]

My Lords, I support these amendments, in particular Amendment 4, tabled by the noble and learned Lord, Lord Mackay of Clashfern. I have special reasons for doing so. I note that the noble Lord, Lord Lancaster, said that, when he was in office, it took a long time to persuade local councils and devolved powers to agree to implement the covenant. I dispute the fact that he got them all to agree; I come from Northern Ireland and there is a particular problem there. For that reason, Amendment 4 is even more important.

In Northern Ireland, the devolved Government and many of the councils do not support the covenant. Therefore, where do we go for support? The only place we can go, without, if you like, disfranchising our veterans, is to a Secretary of State. I am sure the Minister will say that this amendment comes in the part of the Bill that affects England and that it therefore does not affect the other nations and cannot stand on its own. However, it would take just a stroke of a pen to add this for Wales, Scotland and Northern Ireland.

The Northern Ireland issue is colossal. We do not have more veterans than anywhere else but, because of our Troubles and the local security forces, we have an awful lot more in relation to our size. Of course, we have veterans from Iraq and Afghanistan, as well. The number is significant, and these people have nobody at all to be their champion as far as the covenant goes.

At the moment—one does not need to go into the detail—the covenant is actually being administered quite well at a different level, below the radar, and we do not want to bring that up as a subject. However, on the idea of having a final place or person that people can go to, I support Amendment 4 because it brings a Secretary of State into this. It should therefore be written throughout that the Secretaries of State in the devolved areas have responsibility for this and are just quietly overseeing it. It is not necessarily a devolved issue and can be retained through the Secretary of State. He would have an influence on our veterans being supported as they should be. I certainly support these amendments.

[Lord Dannatt (CB)]

My Lords, I also support Amendment 4. I ask your Lordships to reflect on the origin of the Armed Forces covenant, which we find in the Armed Forces Acts, going back to 2011. It was not a new idea dreamed up by the Government of the day but the beginnings of the codification of something that had existed for quite some time as an informal covenant or agreement between those who serve and the Government who require them to carry out certain operations.

The covenant is effective when the balance between the requirements placed on the Armed Forces community and veterans is itself in balance. In the days and years leading up to 2011, when the Armed Forces covenant went into law, and particularly during the most difficult period when operations in Iraq and Afghanistan were being conducted together, the balance was definitely out of kilter and we were out of balance as far as the informal aspect of the covenant was concerned.

Who could better personify and embody the government side of the balance between the Government who require the Armed Forces to carry out operations and the servicepeople who conduct those operations than the Secretary of State? I fully support Amendment 4. I support the further codification of the covenant and any moves to increase its scope, but particularly the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, which would make the Secretary of State a pinnacle and personification of the Government’s side of the covenant. That is absolutely critical.

[Lord Sentamu (CB)]

My Lords, I too support Amendments 4 and 17. What brings me to this conviction is a case in which the widows of four soldiers from the Royal Marines were asked to leave their houses within three months of their deaths. They had nowhere to go. Another soldier who survived the same battle came to see me in Bishopthorpe, together with four other members of the Royal Marines, to say that we had to protest about the way widows were treated. There was talk about the covenant, but it had not yet come through. To raise the profile of this issue, they wanted me to join them in a parachute jump. At my age, this is quite serious business, but I thought that yes, I would join them. We were up there, at 14,500 feet, and, thank God, I survived; there was no real trouble, and I landed properly. Do you know what happened? People who saw this and learned what had been done donated a lot of money, and those four widows were housed in new builds, supported by a landowner who gave them a place to build houses.

That is what the covenant is about in the end: that we should look after anybody who has done their duty for the service of the Crown and the nation. The Bill is right to require local authorities and other places to have due regard to the covenant, but I would have thought that the Government should be first in line to have due regard to it, because the Secretary of State is answerable to Parliament, unlike local authorities. We could have some junior Minister reporting on what is happening and what is not happening, but the issue of democracy at the heart of this is that members of the Government are answerable to Parliament and can therefore be asked questions. The noble and learned Lord, Lord Mackay, is right to include the Secretary of State in Amendments 4 and 17. If they were agreed, the covenant would no longer be given to people of good will to try to do whatever they want—the Government would actually be answerable, and we could ask them questions.

This amendment is timely. I hope we will all support it and that the Government will see it as an improvement, not an attempt to create more jobs and work for the Secretary of State. In the end, our soldiers ultimately look to them for a voice, for help and for support.

I did that parachute jump and was very glad to see the covenant a few years later, but it still did not quite do what this amendment is trying to do. I say to the Government: do not come back to this again—include the Secretary of State.

[Baroness Smith of Newnham (LD)]

My Lords, I will speak to Amendment 4, which I have co-signed, and Amendments 3, 5, 6 and 7 in the names of the noble Lord, Lord Coaker, and my noble friend Lady Brinton. We have already seen this afternoon one of the slight peculiarities of our system, which is currently not quite hybrid: we had a long delay on the first Division, because somehow the technology did not quite work. At the moment, the technology does not quite work either for noble Lords who seek to be both in Grand Committee and in your Lordships’ House, in the main Chamber, simultaneously. For those of us here physically, it can be possible to move very quickly between the Moses Room and the Chamber. Our colleagues appearing virtually have to log on half an hour before an item of business, so my noble friend Lady Brinton apologises for not speaking on this group.

I will speak to the amendments she has co-signed with the noble Lord, Lord Coaker. There is one aspect in particular which ought to be mentioned: paragraph (i) of Amendments 3, 5, 6 and 7, which mentions an immigration function. If we are going to talk—as the noble and gallant Lord, Lord Craig of Radley, and the noble Lord, Lord Alton, have done—about Hong Kong service personnel who served with our Armed Forces, initially as citizens and then losing that citizenship and perhaps having only the right to BNO status, I fear that we need to think about immigration questions and the Home Office.

I am aware that the Minister will be responding on behalf of the MoD, even though obviously she is also responding on behalf of the Government as a whole. I am therefore aware that some of the things we will ask might not be within her gift, but I very much endorse the impassioned calls from the noble and gallant Lord, Lord Craig of Radley, and my noble friend Lord Alton about the situation for Hong Kong veterans. They served for us. We owe them a debt of gratitude and the citizenship rights they expected.

If the Minister cannot commit, as I suspect she will not, to changing this piece of legislation in the way that some of us might want, can she at least undertake to go and talk to her colleagues in the Home Office and discuss ways in which we can look at veterans—not just the Gurkhas or Commonwealth veterans, who will appear in later groups of amendments, but the Hongkongers? This is vital, in part to demonstrate that the United Kingdom respects those who have worked with us. We have a moral obligation. Can we trust the Government to live up to it?

We heard the noble Lord, Lord Lancaster, suggest that he actually had some sympathy with this group of amendments, particularly Amendments 3, 5, 6 and 7. He would like to bring in these additional functions, alongside healthcare, education and housing, but thinks it is too much, too soon. But, as we have heard, we will not have another full Armed Forces Bill for five years. Would it not be appropriate to bring forward and approve these amendments now, acknowledging that maybe they will not all be brought in on day one? Indeed, if they were all brought in on day one, that would be nothing short of a miracle—but, if they are enshrined in the Bill, it means that the Government will have a duty to look at these additional functions, and even the noble Lord, Lord Lancaster, who appears to be most sceptical about the amendments, acknowledges that these functions should be considered. So I ask the Minister to think again about these functions and whether they should be added to the Bill.

I particularly want to speak to Amendment 4, to which I added my name. It seems quite extraordinary for a Government to say, “We are so committed to the Armed Forces covenant that it has to have statutory status, yet it should not place a duty on us. We ourselves should not have to pay due regard to it, but we will ask local authorities, local health authorities and housing associations to do so”. Why are we not asking the Secretary of State for Defence to have a duty? Why are we not asking the Secretary of State responsible for levelling up, houses, communities and whatever else is now part of that portfolio?

We have heard from the noble Viscount, Lord Brookeborough, that it would also be important for the Secretary of State for Northern Ireland to play a part. As he pointed out, the amendment refers only to England. It would be very simple to have additional lines that would give it validity in Northern Ireland, and indeed Scotland and Wales. If the Minister were to say, “We can’t do something that’s for England only”, could she perhaps consider bringing back at Third Reading some amendments that would deal with this?

From the letter that the Minister sent to us last week, we know that she will say that the Government are out of scope of the Bill because, actually, it is at local level that we see problems. Well, if it is only at local level that we see problems, surely it would be of no difficulty whatever for the Secretary of State to find himself in the Bill and for the Government to have a duty enshrined in this piece of legislation. The Government should be leading, not simply setting duties for other—lower—levels of local government. The Government themselves should take responsibility and the moral lead.

17:15

[Baroness Goldie (Con)]

My Lords, I thank all noble Lords for a genuinely interesting and thoughtful debate. I will focus on the amendments that comprise the grouping: Amendments 3 to 7 and Amendment 17. To that end, I thank the noble Lord, Lord Coaker, for tabling his well-intended—I know that that is what they are—Amendments 3, 5, 6 and 7, and I thank the noble Baroness, Lady Brinton, for supporting them.

I was aware during the debate that some contributors made fairly wide-ranging speeches, not least focusing on citizens of Hong Kong and former Hong Kong military service personnel. These are important issues, but I would rather deal with them under Amendment 26, which seems more relevant to that particular area of concern. So, in addressing the amendments in group 2, I will confine my remarks to the issues covered by them.

The purpose of these amendments is to widen the scope of the new covenant duty to the areas of employment, pensions, compensation, social care, criminal justice and immigration in all four home nations. As I made clear in Committee, the new duty created by the Bill is designed to initially focus on the three core functions of healthcare, education and housing. This quite simply reflects those already in statute that are the most commonly raised areas and where variation of service delivery across localities can inadvertently cause disadvantage to the Armed Forces community.

Importantly, future areas of concern can be addressed as and when they arise through the powers in the Bill that allow the Government to widen the scope of the covenant duty, if needed, through secondary legislation. We are working with key stakeholders to establish an open and transparent process by which the scope of the legislation can successfully adapt to address the changing needs of the Armed Forces community.

As a number of your Lordship have indicated, our plan is to use the covenant reference group as the focus of this work. It has a broad representation from the Armed Forces community, service charities, families’ federations, the Local Government Association and senior officials from both central government departments in Westminster and the devolved Administrations. I suggest that the covenant reference group is therefore ideally placed to be closely involved in the future development and running of this process. It will bring the necessary expertise and representation together to best consider suitable additions to the scope of the duty.

I wish to make clear—I am not being evasive or trying to elude or escape responsibility—that we have to be very careful about what we are creating with the Bill, understand how it will work in practice, make assessments, and then have a clearer sense of what may be needed and may require to be added in the future. This will also provide an opportunity for areas of concern to emerge and be highlighted, and it may be possible that these can be addressed through other means.

In adopting this approach, we considered the practicalities of extending the covenant duty to further policy areas, and the timelines involved. Any addition to the scope of the duty will require extensive consultation with stakeholders and the devolved Administrations in order to identify the appropriate bodies and functions to bring into scope and to work through any issues arising as a result of different procedures and legal frameworks in devolved policy areas.

I suggest that a better way forward lies in first working through and resolving any practical implications arising as the new covenant duty in the Bill is implemented. This will give us a good indication of where amendments may be required to better meet the changing needs of our Armed Forces community in the future.

By retaining the flexible nature of the legislation, the Government hope to establish a firm legal foundation for the covenant while avoiding any unnecessary administrative burden. The new duty builds on the existing widespread commitment to the covenant, thereby contributing to a further strengthening of covenant delivery across the entire United Kingdom. That is not in any way dodging the bullet. I am not trying to be evasive; I am trying to explain why I think this a sensible and cautious way to proceed, and I therefore ask the noble Lord not to press these amendments.

I turn to Amendment 4, tabled by my noble and learned friend Lord Mackay of Clashfern, and supported by the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith of Newnham. The purpose of Amendment 4 is to make central government departments subject to the new covenant duty. This new duty arises when a specified public body exercises a relevant function. Those functions, which are specified in the Bill, are exercised by local authorities and other public bodies, and are not matters for which central government has day-to-day responsibility.

The problem with the amendment as drafted is that it would not, as I far as I can see, serve any identifiable meaningful purpose. I can understand the enthusiasm among opposition Members of this House to land anything they possibly can on the Government. I know that my noble and learned friend Lord Mackay is not motivated by these sentiments and that he genuinely believes that there is an omission here that should be addressed, but I am trying to explain that I am not quite clear what the omission is, and I am certainly not clear how the amendment would address it.

It occurred to me that, in addressing the principle of this amendment, it would be useful to explain the Government’s thinking behind the design of the new covenant duty and how we see it establishing a firm foundation from which to build into the future. I hope noble Lords will indulge me: I will go into this in some detail because my noble and learned friend raises an important issue, and I believe it merits serious discussion and a considered response. I will attempt to give due attention to his amendment.

As I have outlined before, in considering how to take forward our commitment to further strengthen the covenant in law, we looked first at what the covenant has already achieved without being brought into any statutory provision. The considerable number of successful covenant initiatives across many different policy areas shows how the covenant provides a framework through which the widespread admiration and support for our Armed Forces community can flourish, allows scope for innovation and permits future growth. That is why we designed the new covenant duty around the principle of “due regard” as a means of building greater awareness and understanding of the lives of the Armed Forces community, which will bolster, rather than weaken, this support.

We considered carefully which functions and policy areas the covenant duty should encompass, including those that are the responsibility of central government. This required an assessment of the benefits arising from their inclusion, focusing on the purpose of the duty: to raise awareness among providers of public services of how service life can disadvantage the Armed Forces community, and so encourage a more consistent approach across the UK.

We were mindful that central government is responsible for the overall strategic direction for national policy, whereas the responsibility for the delivery of front-line services and their impact generally rests at local level. The Government are fully aware of issues impacting on the Armed Forces community. Indeed, we work with other departments and organisations to raise awareness across all service providers. The inclusion of central government in the scope of the duty was therefore not seen as necessary.

The noble Viscount, Lord Brookeborough, raised a particular issue with reference to Northern Ireland. The key front-line services we wish to target are generally devolved issues. They are not the responsibility of the Westminster Government, so any additions to the scope of the duty in respect of central government would not address the concern he has but would cause a greater disparity in covenant delivery if the—

[Viscount Brookeborough (CB)]

I thank the noble Baroness for giving way. I remind her that when we found that the Executive were not operating on things that they should operate on, as in this case—I am talking about abortion—this Government, from here, overrode the Assembly. Therefore, there is a precedent for doing so.

[Baroness Goldie (Con)]

The noble Lord refers to a very difficult and sensitive issue, and I think he is referring to the time when the Executive were not functioning in Northern Ireland. This Bill is concerned with the actual delivery of services that exist at the moment. It is the responsibility of Northern Ireland’s devolved legislature to deliver health, housing and education, although it may not directly be doing any of these things. That is why bringing in central government does not address the noble Lord’s concern. Indeed, there is an argument that, if you brought in the Westminster Government but not the devolved Governments, there would be an even greater disparity in covenant delivery. The reason the devolved Governments are not in this Bill is that it would seem to be beyond its scope.

I have previously explained that, as we look to the future, the vital element in our approach rests with the new powers granted to the Government in the Bill to add to the scope of the duty. This will allow it to effectively adapt to the changing needs and concerns of the Armed Forces community. We are engaging with government officials and covenant stakeholders to establish an open and transparent process, by which possible additions to the new duty can be thoroughly considered and evaluated, and we expect issues of concern to be raised, as they are now, by members of the Armed Forces community, by service charities and by other stakeholders through our existing networks. So, to be clear, we see no restriction to the nature of any issue raised, including those that fall within the responsibility of central government.

My noble friend Lord Lancaster asked wisely whether it would not have been better to approach this incrementally. I think that is exactly what would be better, and that is what the Government are intending to do. His other words, I think, were about being very wary of doing too much too soon. The reason the Government are being cautious about this is that we are breaking new ground. We are going where Governments have not gone before in relation to the covenant. We hope it will lead to improvement right across the United Kingdom, but we have to assess in practice how this will all work once this legislation has gone through.

The plan, as we look to the future, is for the work to be focused through the covenant reference group, which, as a number of your Lordships are aware, is made up of independent representatives from service charities, such as the Royal British Legion, the War Widows’ Association and the families’ federations, and, as I said earlier, includes senior officials from central government departments at Westminster and from the devolved Administrations. That group plays an important role in working with the Government to set out the overall direction of the covenant. It ratifies the grant-awarding priorities of the Armed Forces covenant fund trust, as it is recognised as having a clear understanding of the issues of most concern to the Armed Forces community.

I think it was the noble Lord, Lord Coaker, who asked about the covenant reference group and its terms of reference. The covenant reference group feeds into the ministerial covenant veterans board, chaired by the Defence Secretary and the Chancellor of the Duchy of Lancaster, and that board last met on 8 November. So, at the senior levels of government, this work is very much on the radar screen and being addressed.

In my opinion, the covenant reference group is ideally placed to be closely involved in the evaluation process, both in terms of its development and the conduct of its work. Where there is evidence to support the inclusion of new bodies and functions, a recommendation will be made to the Secretary of State for Defence, who will then consult with relevant stakeholders. Where a decision is made to exercise the power to extend the scope of the duty, further consultation will be required with key stakeholders before making regulations, which would need to be approved by both Houses of Parliament.

Crucially, any evaluation process must also ensure that extending the scope of the new duty would help to address any perceived problem, as it may not always be the appropriate response and there may be other methods of addressing the areas of disadvantage required under the covenant that do not necessarily require statutory powers.

17:30

I am aware that the attraction of trying to attach an obligation to central government is, in the minds of your Lordships, a convenient way of addressing a raft of perceived deficiencies and shortcomings, or issues that have not been addressed. Actually, there is a very good litany of achievements under the covenant that has not required any legislative status as such. I am thinking of things such as the inclusion of veteran-specific care pathways for mental health and prosthetic care in the NHS in England, and of Operation Courage, which brings together all three veterans’ mental health services—the transition, intervention and liaison service, the complex treatment service and the high-intensity service. I am thinking also of the Homelessness Reduction Act 2017, which requires the Secretary of State to refer members of the regular Armed Forces in England to a local housing authority if they believe that they may be made homeless or threatened with homelessness within 56 days. We have the Armed Forces (Flexible Working) Act 2018, providing flexible working opportunities for the modern service family. We have a new schools admission code for England, which came into force in September of this year, specifically to ensure that service families are not disadvantaged by the mobility requirement when applying for school places. The Department for Education allocates additional funding in the form of the service pupil premium to state-funded schools in England with service children. The strategy for our veterans lays out our—

[Lord Kerr of Kinlochard (CB)]

I do not disagree with all the good things that the noble Baroness is describing, which the Government have brought about, but I have not heard her address the central argument of the noble and learned Lord, Lord Mackay of Clashfern: that it might be easier for the Government to persuade others to go on doing good things if the Government bound themselves in the same way as they are seeking to bind others. I suppose the noble Baroness could say that the Government feel bound already, but if so, why not spell it out in the Bill?

[Baroness Goldie (Con)]

I am sure the noble Lord has been listening carefully to the argument that I have been advancing, but I have been trying to distinguish between identified, critical core services—in this case housing, education and health, which the Armed Forces community said mattered most to them—and how we address the delivery of these services. In the main, these services are not delivered by central government but by a range of other agencies, and may be the responsibility of devolved Administrations, in turn delivering them through their agencies. The point I am making is that adding an obligation to central government does not seem in any way to address the need that we have identified that has to be addressed: the current disparity in the delivery of services across the United Kingdom. That, quite simply, is what the Bill is seeking to rectify. That is why trying to attach a covenant obligation to central government is something of a red herring—I do not actually see what it is going to deliver.

Before the noble Lord interrupted me, I was simply explaining, by way of illustration, the point I have just been making: exactly what it has been possible for the Government to do without attaching any statutory obligation on them, and I am not even halfway through my list. At the risk of being tedious with your Lordships, I was also going to mention, finally, a new holistic transition policy that co-ordinates and manages the transition from military to civilian life for service personnel and their families when they leave the Armed Forces. The Defence Transition Services also supports those in that position. We have the Career Transition Partnership, and a range of initiatives and support packages covering a wide range of activity, all of which benefit our Armed Forces personnel. I merely adduce that list to illustrate how alternative processes allow areas of concern to be brought to light more readily and addressed more quickly through other means, if necessary, including action to be taken by central government departments and devolved Administrations, where appropriate.

I think it was the noble Lord, Lord Coaker, who specifically raised the evaluation process. This would feed into our existing commitment to review the overall performance of the covenant duty as part of our post-legislation scrutiny. That review will be submitted to the House of Commons Defence Select Committee and will also be covered in the covenant annual report. This is in addition to regular parliamentary scrutiny, such as Parliamentary Questions and regular reviews by the Select Committee, or whatever form of inquiry Members of the other place and of this House may wish to undertake. The detail of the evaluation process is still being worked on with our stakeholders, but I hope that this background and the outline of the process provides reassurance that it represents a better way forward and that we are committed to continuing our work to mitigate the impact of service life on the Armed Forces community, wherever it may occur.

Listening to some of the contributions, it occurred to me that there may be a misunderstanding of the role of the Armed Forces covenant. My noble and learned friend Lord Mackay of Clashfern recalled an interesting and arguably disturbing situation, in which it is possible that Armed Forces personnel suffered harm. I undertake to look at that instance in detail; he provided a reference for where I can find more information.

However, I say to my noble and learned friend that central government, and the MoD in particular, are directly responsible for the Armed Forces, and the MoD has always looked after the welfare of service personnel. During the Bill’s passage through this House, we have heard how the support provided has improved, expanded and developed over time, particularly in relation to issues such as mental health. Central government and the MoD answer to Ministers, are held to account in Parliament, and may be held to account by the courts of this land. But the covenant is a separate concept: it is a promise by the nation as a whole to the Armed Forces community that they will not be disadvantaged because of their service. It brings in other organisations, such as health providers and local authorities, who are not directly responsible for the Armed Forces community but whose decisions undoubtedly affect them. It is this new duty that will ensure that these organisations consistently apply the principles of the covenant and can be confident of the legal basis for doing so. Based on this fairly lengthy explanation, I hope that my noble and learned friend will not press his amendment.

I turn to Amendment 17, also tabled by my noble and learned friend Lord Mackay of Clashfern. I know that he is motivated by the best and most honourable of intentions, but I am somewhat unclear about its purpose. The new definition contained in the amendment adds nothing to the duties already set out in the Bill. Indeed, perhaps disquietingly, it seems to decrease the scope of that duty, which I know is not my noble and learned friend’s intention.

We are clear that the Armed Forces covenant is a promise by the nation to support our Armed Forces community. The amendment characterises the scope and character of that promise as an agreement between the Secretary of State and servicepeople. But, with the greatest respect to my noble and learned friend, in doing so, it fails to capture its essence: it is a much broader and more widely embracing concept.

The covenant was framed during a time of great pressure on the Armed Forces community. As I have described at some length, it has been delivered highly successfully in the succeeding decade because it captures the spirit of appreciation and voluntary support for that community from people of every walk of life across the United Kingdom. This voluntary spirit is why it is called a covenant and framed as something far greater than the more transactional approach that this amendment could engender. To express the covenant in the way proposed by this amendment goes against the spirit of the covenant and the many successful initiatives that it has produced, built on the widespread admiration and support to which I have referred.

The Armed Forces covenant is described on the government website for the Armed Forces, and on the front of the annual report, as

“an Enduring Covenant Between the People of the United Kingdom, Her Majesty's Government—and—All those who serve or have served in the Armed Forces of the Crown and their Families.”

That definition is not in statue, but the principles of the covenant appear in the Armed Forces Act 2006. That is why this Bill has been taking forward greater detail, to try to assist the delivery of vital services for our Armed Forces community.

The description I have just given of the covenant far better captures its nature, which provides the framework through which support for our Armed Forces community can thrive and grow. I thank your Lordships for indulging me with patience and courtesy, as these were important points which had to be addressed at length. In view of the explanation I have given, I hope my noble and learned friend will feel able to withdraw his amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, I thank the Minister for her very detailed answer to my amendment. It was clear to me, from the beginning of this provision titled “Armed Forces Covenant Report” in the 2011 Act, that all that had been done to make any references to the Armed Forces covenant in this was to delete the word “report”. But it seemed to me that, in the ordinary course of statutory interpretation, you need to know what you are talking about, and I was surprised—I thought I must have missed something, though the Minister now confirms that I did not—that there was nothing in statute to define the Armed Forces of the Crown covenant. A covenant is a contract, and it is obvious that the people of the United Kingdom are represented in this agreement by the Secretary of State. Therefore, it seems to me odd that the Secretary of State is not prepared to have regard to the principles given at the opening of this provision. Of course, the term “Secretary of State” includes the Secretary of State for Defence and other Secretaries of State as well, if that is relevant to the provision in question. I find it hard to have the Government of the United Kingdom say that they are not prepared to be bound to have regard to the principles of the covenant.

If I should by any chance be successful, this will go back to the House of Commons, and the Commons will have to ask themselves whether it is reasonable that the Government of this country should refuse to be bound to have regard to the principles of the Armed Forces covenant. I do not think the Government intend that, but that is the effect of leaving this out. Having this on a website is not equivalent, as yet, to having it in law—the statute book is still distinct from a website. It rather comforts me that the definition on the website includes the Government. I think that something of this kind is necessary, and I had rather hoped that the Minister might think of Third Reading as a time to put in a definition, but there is no offer of that kind, and I understand why she is not a position to do that.

I thank all who have supported me, as I think all who have spoken apart from the Minister have, which is a very good situation so far as I am concerned. I am not concerned about anything except that the Armed Forces covenant should be as effective as possible in law in our country. I do not subscribe to the other extensions that were being suggested in amendments because I can see that there is power to do that and, as and when resources are available, it would be right to bring that in by regulation.

In the meantime, I very much regret to tell my noble friend that in all conscience I do not feel able to withdraw the amendment. It is a matter that has to be faced by those who are responsible for this if they are not prepared to subscribe to having regard to the principles of the Armed Forces covenant.

17:45

[Lord Coaker (Lab)]

My Lords, I believe that in order for the noble and learned Lord, Lord Mackay, to move his very important Amendment 4, I need to withdraw my Amendment 3 as the lead amendment in that group. In doing so, I thank the Minister for her response, which tried to address some of the concerns that I raised about the covenant reference group and the fact that the group could make suitable additions in future. That takes on board the point of the noble Lord, Lord Lancaster, about incrementalism perhaps being a better way forward than the “all in at once” approach in my amendment. I thank the Minister for her reply but, in withdrawing my amendment, I want to say that I very much support Amendment 4.

As the noble and learned Lord, Lord Mackay—and all noble Lords across the Committee apart from the Minister—said, at the end of the day, whatever the rights and wrongs of this, the people of this country would be incredulous to find that the due regard principle was applicable to local authorities, public health authorities and so on, but not to central government. I think people would find that incredible, and that is why it is so important for us to support Amendment 4 in the name of the noble and learned Lord, Lord Mackay. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by

[Lord Mackay of Clashfern]

4: Clause 8, page 9, line 18, at end insert—
“(za) the Secretary of State;” Member’s explanatory statement
This amendment would place the same legal responsibility to have “due regard” to the Armed Forces Covenant on central government as the Bill currently requires of local authorities and other public bodies.

[Lord Mackay of Clashfern (Con)]

I move that the opinion of the House be taken.

17:47

Division 2

Ayes: 219

---

Labour: 94
Liberal Democrat: 64
Crossbench: 38
Independent: 10
Conservative: 6
Democratic Unionist Party: 4
Green Party: 2
Ulster Unionist Party: 1

Noes: 173

---

Conservative: 169
Crossbench: 2
Independent: 2

18:03

Amendments 5 to 7 not moved.

Amendment 8

8: Clause 8, page 15, line 35, at end insert—
“(3A) Guidance under this section—(a) may not be issued unless a draft has been laid before Parliament, and(b) comes into force on whatever day the Secretary of State may appoint by regulations.”Member’s explanatory statement
This amendment would provide for guidance under new section 343AE to be laid in draft before Parliament and for the coming into force of the guidance to be governed by regulations (and is to be read with Baroness Goldie’s amendments at lines 36 and 43 of page 15 and page 18, line 39).

[Baroness Goldie (Con)]

My Lords, I am delighted to speak to the government amendments that will implement specific recommendations of the Delegated Powers and Regulatory Reform Committee in respect of the Armed Forces covenant. Among this group are some minor and technical corrections to the Bill.

The Delegated Powers and Regulatory Reform Committee—whose painstaking work is often unsung and to whom I pay tribute and offer thanks—made two recommendations in respect of the Armed Forces covenant. These relate to the power under new Section 343AE to issue guidance to which public authorities must have regard when exercising relevant statutory functions, and to those who are classed as “service people” and are therefore beneficiaries of the covenant duty. Having considered the committee’s recommendations and recognising the impact these matters may have on the duties imposed on public bodies, we have brought these amendments to provide for greater parliamentary scrutiny in these key elements of the duty.

I will first address government Amendments 8, 9, 11, 12, and 19, which relate to the statutory guidance that we are preparing in support of the duty. These amendments will require the guidance to be laid before Parliament in draft before it can be issued and provide for the guidance to be brought into force by regulations using the affirmative resolution procedure. Given the status of the guidance and its importance in supporting the public bodies that will be subject to the duty, these amendments will provide Parliament with a greater opportunity to scrutinise this document before it is issued.

Amendments 16, 18 and 20 relate to the definition of “relevant family members” for the purpose of the covenant duty. The covenant principles relate to disadvantages arising for “service people”, with special provision being made for such people. The term “service people” is defined in Section 343B of the Armed Forces Act 2006 to include “relevant family members” of service and former service personnel, but this does not include a description of precisely who is a relevant family member for the purposes of the covenant duties. As this group of people will need to be considered by those public bodies in scope of the new duty, we have accepted the committee’s recommendation to specify in regulations who is to be regarded as a relevant family member and that the affirmative resolution procedure is appropriate.

These amendments will therefore amend Section 343B of the Armed Forces Act 2006 to provide for “relevant family members” to be defined in regulations that will be subject to the affirmative resolution procedure. The definition set out in the regulations will apply to both the new “due regard” duty and the Armed Forces covenant report. However, for the purposes of the report, the definition will also include such persons connected with service members and ex-service members as the Secretary of State may decide, as is currently the case under Section 343B.

In addition to the recommendation of the Delegated Powers and Regulatory Reform Committee, the amendments will also require the Secretary of State to consult with the devolved Administrations and other stakeholders he considers appropriate before making the regulations.

There are further minor and technical amendments to Clause 8. Amendments 10 and 13 amend new Sections 343AE(4)(c) and 343AF(7)(c) to correct drafting omissions to ensure that the duty on the Secretary of State to consult a Northern Ireland department on regulations or guidance applies only where the Northern Ireland devolved context is affected. This mirrors the position for Wales and Scotland.

Amendment 14 to new Section 343AF, which is inserted by Amendment 19, removes a superfluous part of the definition of Northern Ireland devolved competence, also bringing it into line with the approach for Wales and Scotland. I hope your Lordships will support these amendments, which will provide Parliament a greater opportunity to scrutinise these key elements supporting the covenant duty before they become law.

Amendments 21 and 22 are minor and technical in nature and are being brought forward to improve the drafting of the Bill and ensure consistency with existing legislation. Amendment 21 will allow the regulations that replicate the effect of Section 10(5) of the Police Reform Act 2002 to also replicate the effect of Section 54(2D) of the Police Act 1996. The service police complaints commissioner and Her Majesty’s Chief Inspector of Constabulary have complementary statutory functions and are charged with the oversight of the service police forces. This amendment will require them to enter into arrangements with each other for the purposes of securing co-operation and providing assistance in the carrying out of their respective functions. Amendment 22 would provide for the records of the service police complaints commissioner to be “public records” for the purpose of the Public Records Act 1958. I beg to move.

[Lord Tunnicliffe (Lab)]

My Lords, we welcome the increased parliamentary scrutiny for the statutory guidance on the application of the duty for due regard. This was a recommendation of the Delegated Powers Committee, which we thank for its work on this. Could the Minister give us some indication of how the consultation with the devolved Administrations on drafting the guidance is going? We also welcome the Government’s acceptance of the Delegated Powers Committee’s recommendation to ensure that regulations defining “relevant family members” are subject to the affirmative procedure.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches, I echo the comments of the noble Lord, Lord Tunnicliffe. The amendments that have been brought forward all seem sensible and, as the Minister said, we owe a debt of gratitude to the Delegated Powers and Regulatory Reform Committee for looking in such detail at this legislation, as in so many cases, and particularly for being glad, as always, to have any changes made with affirmative assent rather than negative approval. There is little to add at this stage. We look forward to the Minister moving these amendments and then moving to other groups that might be a little more contentious.

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith of Newnham. We are working with our stake- holders over the course of this year to develop the accompanying statutory guidance document. Their views are essential to ensure that the guidance is practical, useful and robust. We are also engaging with a wide range of stakeholders, including devolved Administrations, covenant partners across government, the Armed Forces community, local authorities, relevant ombudsmen and the service charity and welfare sectors. As I indicated, the Secretary of State is required to consult the devolved Administrations and other stakeholders whom he considers appropriate before the guidance can be published. Once it is, the document will remain subject to periodic update to ensure that it continues to remain up to date. I hope that answers the points that the noble Lord was interested in.

Amendment 8 agreed.

Amendments 9 to 14

Moved by

[Baroness Goldie]

9: Clause 8, page 15, line 36, leave out “issuing guidance under subsection (1)” and insert “laying draft guidance under this section before Parliament”
Member’s explanatory statement
This amendment is supplementary to Baroness Goldie’s amendment at page 15, line 35.

10: Clause 8, page 15, line 42, after “department” insert “so far as the guidance relates to devolved Northern Ireland functions”
Member’s explanatory statement
This amendment corrects an omission in provisions setting out the Secretary of State’s duty to consult before issuing guidance.

11: Clause 8, page 15, line 43, at end insert—
“(4A) Subsection (3A) has effect in relation to any revised guidance.”Member’s explanatory statement
This amendment is supplementary to Baroness Goldie’s amendment at page 15, line 35.

12: Clause 8, page 16, line 4, leave out “current version” and insert “version currently in force”
Member’s explanatory statement
This amendment is consequential on Baroness Goldie’s amendment at page 15, line 35.

13: Clause 8, page 17, line 39, after “department” insert “so far as the regulations contain provision that is within Northern Ireland devolved competence”
Member’s explanatory statement
This amendment corrects an omission in provisions setting out the Secretary of State’s duty to consult before making regulations.

14: Clause 8, page 18, leave out lines 17 to 21
Member’s explanatory statement
This amendment corrects the definition of “Northern Ireland devolved competence” by removing a redundant limb.

Amendments 9 to 14 agreed.

Amendment 15

Moved by

[Lord Lancaster of Kimbolton]

15: Clause 8, page 18, line 28, at end insert—
“343AG Regional committees(1) The Secretary of State may by regulations make provision to give committees established under section 25 of the Social Security Act 1989, known as Veterans Advisory and Pensions Committees, additional functions specified in the regulations relating to all former members of Her Majesty’s forces and their relevant family members, and a new name.(2) The regulations may in particular provide that it is a function of the committees—(a) to report and make recommendations to the Secretary of State on matters that are or may be relevant to—(i) their armed forces covenant report, and(ii) sections 343AA to 343AD and guidance issued under section 343AE;(b) to provide a distinct, identifiable, and independent point of reference in their region for both the veteran community and all those supporting it;(c) to raise awareness of, and support the implementation of—(i) services provided to the veteran community alone or with others,(ii) the Government’s strategy for veterans, and(iii) the terms of armed forces covenant;(d) to act as an advocate, promoter, facilitator, or communicator of services that are relevant to the veteran community;(e) to report and make representations and recommendations on existing or proposed services that are relevant to the veteran community.”Member’s explanatory statement
This amendment seeks to extend the statutory functions of Veterans Advisory and Pensions Committees (VAPCs), currently limited to functions relating to compensation schemes for veterans and their families (the War Pensions and the Armed Forces Compensation Schemes) to all aspects of veteran life.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I shall be brief. I apologise to your Lordships’ House for failing to remind the House of my particular interest as a serving member of the Armed Forces and therefore subject to the provisions of the Bill. I hope that Amendment 15 is uncontroversial. It relates to the Veterans Advisory and Pensions Committees, among which there are 13 regional committees—nine in England, two in Scotland, one in Northern Ireland and one in Wales. They were created under Section 25 of the Social Security Act 1989 and are mandated to simply do two things: act on behalf of the Ministry of Defence—to be very much its eyes and ears on the ground and be an independent body that can offer candid advice to Ministers—and, equally, to support veterans. But, because of the Social Security Act 1989, they are mandated to act only in the areas of war pensions and the Armed Forces Compensation Scheme. While I will not give a number for this, it applies to only a relatively small number of veterans. At their wish, this amendment simply tries to update their role to that which they are currently carrying out.

Indeed, the Government have recognised for some time that this needs to be done. When I was a Minister some seven years ago, we were potentially going to include a similar amendment in the Armed Forces Act 2016 but we did not, so I am simply trying to correct that wrong. It is important because there is a feeling that, for some years now, the Government have been advertising that they should be acting on behalf of veterans when it comes to the Armed Forces covenant—but they are not mandated to do so, and this amendment simply attempts to do that.

18:15

I recognise, however, that it is potentially a slightly clunky amendment. While the Minister can say many things, there are some things she cannot say. It would probably be much better if there were to be a government-supported Private Member’s Bill. I have no doubt there would be lots of keen champions and Members of Parliament at the other end itching to take it on. But I recognise that because due process has to be followed it may be difficult for my noble friend to be specific in supporting that today.

I am pleased that, by bringing this amendment forward in Committee, there has been progress. For example, since then terms of reference have been agreed with the VAPCs to enable them to set up an informal parallel structure so that they can begin to support veterans through the Armed Forced covenant. That will be renewed after one year. All that my amendment tries to do is empower the Secretary of State after that review after one year to put the new role on the statutory footing we have talked about for some time.

While I do not intend to divide the House on this amendment, I hope that my noble friend will be able to recognise why this is important, and that she will be able to say she will potentially look at this and that legislation may well be necessary; mind you, we have said that before. I hope that we can finally move forward on this issue.

[Baroness Smith of Newnham (LD)]

My Lords, the noble Lord, Lord Lancaster, brought a similar amendment forward in Committee, which we discussed. He has made very clear why there is a case for expanding the role of the Veterans Advisory and Pensions Committees. He seems to be exhorting various people to think about Private Members’ Bills but, as that is not the role of your Lordships’ House today, could the Minister say how far the Government would be willing to explore his ideas? Is there a neat way in which she might be able to bring forward a suitable amendment at Third Reading which means that, while he does not need to divide the House today, the intentions could be brought on to the face of the Bill?

[Lord Tunnicliffe (Lab)]

I thank the noble Lord, Lord Lancaster, for tabling Amendment 15. I have not much more to add than my comments in Committee, so I will not hold up the debate for long. I again thank everyone involved with the Veterans Advisory and Pensions Committees across the country. These committees help to ensure that veterans and their families receive the help and care they need on pensions, allowances and other issues, and act as an important bridge between the veteran community and national government.

[Baroness Goldie (Con)]

I thank my noble friend Lord Lancaster for retabling his amendment. I understand his motivation for doing so. I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith, for their contributions. I will not rehearse the whole structure behind the VAPCs, which my noble friend very eloquently did. I will make two points in response to him. First, for several years, VAPC members have undertaken activities that go above and beyond the scope of the statute. They have undertaken these additional activities on a non-statutory basis instead, and there have been no substantive issues with them doing so.

My second point is to acknowledge—and I hope this reassures my noble friend—that there may be ways in which we can improve on this arrangement. The Government are committed to looking again at the role of the VAPCs. That is why the MoD and the Office for Veterans’ Affairs recently agreed with the chairs of the VAPCs a new set of non-statutory terms of reference to guide their activities. The terms of reference envisage that VAPC members will undertake many of the activities listed in his amendment, such as raising awareness of the strategy for our veterans and the proposed new duty to have due regard to the covenant. The terms of reference are set for an initial period of 12 months. I confirm to my noble friend that we intend to use this period and the evidence we gather during it to work with the VAPCs to review what they have done, how effective they have been in doing it, and whether and how their statutory role might need to be amended in the future.

Anticipating the point from the noble Baroness, Lady Smith, I hope my noble friend will understand why seeking to amend this Bill at the present time is premature. The Government have already set themselves on a course to review the role of the VAPCs, but we are doing this first via the introduction of new terms of reference, and we want to give the VAPCs a chance to perform under them before we take firm decisions about their longer-term future.

Legislative change may well need to follow and the evidence we gather over the coming months will help to inform us on this point. As it is, we are not sure that the legislative provision proposed in my noble friend’s amendment is necessarily the most suitable or effective way of achieving the desired outcome. For example, it would provide for only a specific and rather limited adjustment to the VAPCs’ statutory role, when instead we might want to consider more fundamental changes.

My noble friend will appreciate that I cannot speculate about the precise vehicle or timing for any future legislative change. However, I am very willing to commit to him that I and my officials will explore what changes we can make in this area and I hope that, with that reassurance, my noble friend will be content to withdraw his amendment.

Amendment 15 withdrawn.

Amendment 16

Moved by

[Baroness Goldie]

16: Clause 8, page 18, leave out line 32 and insert—
“(b) subsection (4) is amended as follows— (i) in the definition of “relevant family members”, after “means” insert “such persons as may be prescribed, and for the purposes of section 343A also includes”;(ii) at the appropriate place insert—”Member’s explanatory statement
This amendment and Baroness Goldie’s amendment at page 18, line 37 would provide for “relevant family members” to be defined in regulations.

Amendment 16 agreed.

Amendment 17 not moved.

Amendments 18 to 20

Moved by

[Baroness Goldie]

18: Clause 8, page 18, line 37, at end insert—
“(c) after subsection (4) insert—“(4A) In subsection (4) “prescribed” means prescribed by regulations made by the Secretary of State under this subsection.(4B) Before making regulations under subsection (4A) the Secretary of State must consult—(a) the Welsh Ministers so far as the regulations contain provision that is within Welsh devolved competence,(b) the Scottish Ministers so far as the regulations contain provision that is within Scottish devolved competence,(c) the relevant Northern Ireland department so far as the regulations contain provision that is within Northern Ireland devolved competence, and(d) any other persons the Secretary of State considers appropriate.(4C) Subsections (8) to (10) of section 343AF apply for the purposes of subsection (4B) as they apply for the purposes of that section.””Member’s explanatory statement
This amendment and Baroness Goldie’s amendment at page 18, line 32 would provide for “relevant family members” to be defined in regulations. This amendment also imposes requirements with regard to consultation.

19: Clause 8, page 18, line 39, at end insert—
“(eda) regulations under section 343AE(3A),”Member’s explanatory statement
This amendment supplements Baroness Goldie’s amendment at page 15, line 35 and would apply affirmative resolution procedure to regulations bringing guidance into force.

20: Clause 8, page 18, line 40, at end insert—
“(ef) regulations under section 343B(4A),””Member’s explanatory statement
This amendment supplements Baroness Goldie’s amendment at page 18, line 32 and would apply affirmative resolution procedure to regulations prescribing persons as “relevant family members”.

Amendments 18 to 20 agreed.

Clause 11: Service police: complaints, misconduct etc

Amendment 21

Moved by

[Baroness Goldie]

21: Clause 11, page 23, line 6, at end insert—
“(2A) If regulations under subsection (1) include provision corresponding (with or without modifications) to section 10(5) of the Police Reform Act 2002 (general functions of Director General), the regulations may also provide for subsection (2D) of section 54 of the Police Act 1996 (functions of inspectors of constabulary) to apply (with or without modifications) in relation to the Service Police Complaints Commissioner as that subsection applies in relation to the Director General of the Independent Office for Police Conduct.”Member’s explanatory statement
This amendment would enable regulations to impose on the chief inspector of constabulary duties which would be reciprocal to duties imposed on the Service Police Complaints Commissioner by the same regulations.

Amendment 21 agreed.

Schedule 4: Service police: complaints, misconduct etc

Amendment 22

Moved by

[Baroness Goldie]

22: Schedule 4, page 52, line 23, at end insert—
“2A_ In Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act 1958 (definition of public records), at the appropriate place insert—“Service Police Complaints Commissioner.””Member’s explanatory statement
This amendment would provide for records of the Service Police Complaints Commissioner to be public records for the purposes of the Public Records Act 1958.

Amendment 22 agreed.

Clause 12: Framework for establishment of tri-service serious crime unit

Amendment 23

Moved by

[Lord Thomas of Cwmgiedd]

23: Clause 12, page 24, line 20, at end insert—
“(3A) After section 115A insert—“Further provision in relation to independence of investigations115B Further provision in relation to independence of investigations(1) The tri-service serious crime unit must contain a victim and witness care unit, funding for which is to be made available by the Secretary of State.(2) The Deputy Provost Marshal for serious crime must be a civilian appointment.(3) The tri-service serious crime unit must carry out its investigations in a manner that is operationally independent of the military chain of command.(4) The Provost Marshal for serious crime must produce a report annually to the Minister chairing the Service Justice Board, who must arrange for the report to be laid before Parliament.(5) Before the tri-service serious crime unit is established, a Strategic Policing Board, consisting of a non-executive director (who is also a member of the Service Justice Executive Group), a retired chief constable, a recently retired senior military officer, and a retired judge, must be established to provide assurance and governance of the Provost Marshal for serious crime and the Defence Serious Crime Unit.(6) The tri-service serious crime unit must be established by 1 April 2022.(7) By 1 July 2022, the Provost Marshal for serious crime, Director of Service Prosecutions and Judge Advocate General must agree protocols on fatalities and ill-treatment cases.”” Member’s explanatory statement
The amendment is intended to strengthen the independence of the tri-service serious crime unit in accordance with the recommendations of the Henriques Report.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise to move Amendment 23 and support Amendment 27. The issue addressed by Amendment 23 is quite clear: the adequacy of the statutory provisions to protect the independence of the Armed Forces police and, in particular, this new unit.

I do not think there is any difference about the constitutional principle. It was set out in one of the cases dealing with the Iraq war, Ali Zaki Mousa (No. 2), where it was said that the Armed Forces police

“must be able to make their decisions entirely independently of the Secretary of State for Defence, any civil servant in that Ministry and, even more importantly, of anyone in the hierarchy of the armed forces.”

That was the principle applied by Sir Richard Henriques in his report, which set out the practical way in which that principle could be given effect and applied.

This amendment seeks in particular to fill in the essential areas of protection needed to ensure independence. They are all set out in the proposed new subsections of the amendment. We went into these in Committee, but I will highlight three of them.

First, the deputy head must be a civilian. It is important to bear in mind that, in the cases that went into the independence of the investigations in Iraq—the Ali Zaki Mousa cases—IHAT had a civilian head, and he brought a different perspective. This is a very important point made by Sir Richard.

Secondly, there can be no watering down of the principle of the operational independence of the military command. I will come to the provision of the Bill which does water it down.

Thirdly, there is the establishment of the strategic police board. When you occupy a position where you can be put under pressure, it is very important to have the protection of someone. Within the Armed Forces, the Director of Service Prosecutions has the Attorney-General. The Judge Advocate-General has the Lord Chief Justice. There can be no reason for not putting into statute a very clear provision that the strategic policing board can support the head of the unit if he or she comes under pressure, which he or she no doubt will.

Why are these statutory provisions necessary? I am grateful to the Minister for her very careful letter, in which she sought to deal with the adequacy of what is in the Bill, which is, essentially, the appointment of the provost marshal of the tri-service unit, the method of his appointment and, if I may say so, a somewhat watered-down expression of the principle of independence, and in particular operational independence. There are three reasons why I urge your Lordships to consider this amendment as important in strengthening the position.

First, as the Minister, with the assistance of her lawyers, has set out, there are a number of cases, two of them in particular involving Ali Zaki Mousa, that looked at the independence of the way in which the investigation was made of the conduct of the Armed Forces police. But it is critical to remember that in those cases what was put under the microscope was the particular structure that had been carefully set up. There is no case that says that the current position is adequate. Indeed, that must be the position, otherwise would why would Sir Richard have gone to the trouble to which he went in making these recommendations? What is set out in the report, which I have already mentioned, is what is required.

The second reason why statutory provision is needed is to protect the Armed Forces. Indeed, my principal reason for moving the amendment is to try to protect the Armed Forces from the risks of it being able to be argued that the position of the Armed Forces police is not independent. In the cases that related to IHAT, on which the Ministry of Defence relies, there was a very careful examination. For example, in the Ali Zaki Mousa case there were five days of hearings spread over a considerable period of time, a vast quantity of documents, statements from very senior people across the Armed Forces, and some cross-examination. It is obviously undesirable to have a repetition of that process and it is therefore essential that the position is made clear in statute.

Noble Lords might say that this is a one-off circumstance. I referred in Committee to something that happened during the Malaysia emergency in 1948 that came up for investigation in the courts many years later in 2011. One of the central issues there was that the investigation had not been independent. Again, issues arose during the course of the Blackman case as to the independence of the investigation. Much more recently, there have been reports in the Sunday Times, of which we are all well aware, that again cast doubt on the independence of the investigation. All I feel it necessary to say is that all these attacks on the independence of an investigation could and should be avoided by putting the matter beyond doubt in legislation. The current legislation simply does not go far enough.

The third reason for saying that the current legislation is not correct is that it does not reflect the proper constitutional position, and these matters ought to be put on a statutory basis. The duty set out in Clause 12(3), which is to try to ensure operational independence, is not enough. There must be operational independence, and that should be a statutory principle.

18:30

Furthermore, experience has shown that the measures recommended by Sir Richard are measures that are needed to ensure and protect independence, particularly the points I have mentioned in relation to a statutory policing board and a civilian deputy. It is also important for the perception of independence to have a properly constituted witness and victim unit.

I may be very old-fashioned, but I believe that it is Parliament’s job to specify in circumstances such as this what is necessary to protect the independence of a body, not leave it to the Executive, which is the body against which it needs protection—the Executive whether it be in the form of the Ministry of Defence or the Armed Forces. It is entirely consistent with the principle that we legislate for a standing Army every five years that, when legislating, we deal with issues that have arisen, and when an issue has plainly arisen, for which Sir Richard Henriques has set out what needs to be done, Parliament should legislate and it should not be left to the Executive.

I regret, therefore, that I do not accept what the Minister said in her kind and detailed letter. There is no real reason given in that letter why these provisions should not be put on the statute book, to put the matter absolutely beyond doubt. I urge your Lordships that we all in Parliament do our duty and do not simply leave it to the Ministry of Defence to decide what is necessary or unnecessary for the protection of independence.

[Lord Robertson of Port Ellen (Lab)]

My Lords, I speak to Amendment 27, in my name and those of other noble Lords, which calls for an independent defence representation unit. The amendment moved by the noble and learned Lord, Lord Thomas of Cwmgiedd, is the principal amendment in this group, but this amendment is important and I am sure the Minister will have been well briefed on the subject. As the noble and learned Lord said rhetorically in Committee:

“I do not understand why we always expect the Armed Forces to have second best.”—[Official Report, 2/11/21; col. GC 295.]


And, in respect of independent representation, I fear that that is precisely what they get at the moment.

In Sir Richard Henriques’ fine report, he points to the fact that there is independent representation in Canada, Australia and South Africa but not for the British Armed Forces. There is talk that the present representation is a mere sticking-plaster solution. In Committee, the Minister said in mitigation of the stance that these proposals would not be accepted that,

“approximately 40 of these recommendations require policy and legal analysis … and I cannot accelerate that at the moment”

and

“we have so far been able to undertake only a light-touch analysis of some of his recommendations.”—[Official Report, 2/11/21, cols. GC 295, 297 and 288.]

I put it to the House that this recommendation is simple, clear cut and very necessary indeed. There is no reason why the Government need postpone further consideration of it. The Minister said in Committee that further consideration will be given when legislative time was allowed, and most of us know that that is usually shorthand for a long time in future. I strongly believe that a defence representation unit is urgent.

In his report, Sir Richard says he has considered the arguments carefully here, and that

“The Unit must be fully independent of the military command and act under the general supervision of the Attorney General. Any guidelines or instructions issued by the Attorney General must be published.”


He also makes the very strong point that

“there should be a significant saving on Legal Aid from the creation of this Unit. … Many of the delays at Court Martial may be avoided by the services supplied by the Unit.”

I do not intend to take up the time of the House this evening as we move through the consideration of this Bill, but I shall also read out paragraph 8.3.10 of Sir Richard’s report:

“Budgeting can only be a speculative process in this sphere. I have no doubt that there will be a saving in Legal Aid expenditure, the cost of Services Legal Aid approximating £1.8 million in the year 2019/2020. The cost of adjourned trials in the Court Martial caused by a lack of, or by delayed representation cannot be assessed. The provision of this facility to Service personnel and veterans should not be dictated by budgetary speculation, but by the moral obligation to provide proper support to those who serve or have served their country.”


His final sentence needs to be emphasised and repeated:

“The knock on the door will carry markedly less menace with the knowledge that competent legal assistance will be readily available.”


For the last couple of years, we have come to know precisely the anxiety and mental cost to serving and former members of the Armed Forces caused by that knock on the door. I therefore suggest to the Minister that Sir Richard Henriques’s recommendation that a defence representation unit be created to provide a triage service to service personnel and veterans under investigation for criminal conduct be a matter of some urgency. I look forward to the Minister saying to us tonight that that will be brought forward.

[Lord Thomas of Gresford (LD)]

There is no doubt that serious crimes are more difficult to investigate in the military than in civilian life due to the exigencies of service. On the other hand, serious crimes occur less often than they do in the territory of every civilian police force. That is why Sir Robert Henriques concluded that

“there should be a senior civilian appointment within the Defence Serious Crime Unit … with experience of major investigations and the ability and necessary experience to control a major incident room.”

He thought that such a number two should have the

“experience and ability to record, retain, manage and process several hundred allegations simultaneously using the most up to date technology.”

I would hope that the noble Baroness could explain, if she resists that particular proposal, that there is some system of training somebody up to the standard Sir Robert Henriques was talking about in his recommendation. How is a person going to get that experience to control a major incident room and carry out the various tasks he is referring to? It is not possible. That is the practical reason why he wanted a civilian as number two.

In recommendation 13 of his report, he said that the candidate would have

“achieved sufficient rank and recognition within civilian policing to act as an ambassador for the interests of Service police within the wider policing community.”

It is important that the service police are seen to be a first-rate service; there should be nothing second rate about the legal service provided to the Armed Forces on whichever side of a particular trial they may be. It is important that the service police should have status and expertise in all fields. I recall, for example, a court martial in Germany involving a German victim, where it was necessary to fly in a criminal pathologist from England to examine a body and later give evidence, and other scientists had to be imported as well. That was only one aspect of the case—the management of a large case is extremely difficult. I respectfully suggest that you cannot get that experience within the service police because they are scattered and do not organise themselves in that way.

I commented at very considerable length in Committee on the necessity to maintain the serious crime unit in a manner that is operationally independent of the military chain of command—for all the reasons that I gave then, and those so eloquently advanced by the noble and learned Lord, Lord Thomas of Cwmgiedd. I do not propose to repeat those comments but very strongly support what he has said.

I emphasise the need also to set up a strategy policing board of experienced civilians—as referred to in paragraph (5) of this amendment—to which the provost marshal for serious crime and the defence serious crime unit should be accountable. That should be done now. There was some suggestion that the provost marshal for serious crime had already been chosen—that is the wrong way round. You need to get together the body of people who will provide support and to whom these various bodies will be accountable.

I will say a brief word about Amendment 27. I strongly agree that there should be a defence representation unit. There are a number of very competent and able solicitors around the country who carry out this task, but it is not well paid, and they have to travel considerable distances to do it; legal representation is frequently delayed as a result.

I remember my great friend Gilbert Blades, who was the solicitor in the Finlay case that started all this off in 1995. His method of attracting clients was to drive around in a pink Rolls-Royce, the arrival of which at an army unit would cause something of a stir. I do not imagine that a defence representation unit would pay the sort of fees that would enable a person employed there to buy a Rolls-Royce, but there we are. It is very important that such a unit be set up; I support that amendment too.

[Lord Coaker (Lab)]

My Lords, we strongly support Amendment 23 moved by the noble and learned Lord, Lord Thomas of Cwmgiedd, to which my noble friend Lord Robertson, the noble Lord, Lord Thomas of Gresford, and I have added our names. I thank the noble and learned Lord for the clear and concise way in which he outlined the need for this amendment and why the Government should think again with respect to it.

We welcome the establishment of the DSCU but remain concerned as to why the Government will not accept something as seemingly sensible as this amendment. It seeks only to implement Henriques’ full vision for the unit. Without it, independence is not necessarily guaranteed—a point that a number of noble Lords have made—and nor are the other recommendations for how the unit will function. If the Government accept such recommendations, why not put them on the face of the Bill?

The Minister has argued that the other Henriques recommendations remain in the mix but do not need legislative underpinning; however, there is a difference of opinion between what does and does not need legislative underpinning. For example, the noble and learned Lord, Lord Thomas, has argued that there needs to be a statutory provision for the witness and victim care unit, but the Government seem to say that it is not needed. Can the Minister tell us what legal advice the Government have received to come to such a very different conclusion?

18:45

By giving the other recommendations legislative underpinning, the Government would demonstrate to Parliament, personnel and victims how seriously they are taking the reform of the services justice system and the reforms being proposed. What the noble and learned Lord, Lord Thomas, is suggesting in Amendment 23 is an important and fundamental principle: a guarantee of the independence of the serious crime unit. It is seeking not a promise of future government action or a written statement—well intentioned as those are—but a guarantee of the independence of the serious crime unit. That is something that this Parliament, this Chamber and this House have said is of such importance that we should put it on the face on the Bill, so that it becomes not a choice for the serious crime unit but a legislative necessity. That is at the heart of what is being suggested. I find it difficult to understand why the Government do not accept that point.

There is another disappointment. Another key point that Henriques made was the importance of civilian representation; the noble and learned Lord, Lord Thomas, mentioned that with respect to the strategic policing board and other measures that he has put forward. It is deeply disappointing that the Ministry of Defence has dismissed the idea of the deputy provost marshal being a civilian. Again, that would have demonstrated to the public the importance that the Government attach to the independence of the unit. That is another mistake that the Government have made with respect to these amendments.

The point made by my noble friend Lord Robertson about the defence representation unit in Amendment 27 is important. He made his points really well, so I will not repeat them, but the necessity to ensure that Armed Forces personnel and veterans are properly supported when they face legal action is a principle I am sure we would all support. My noble friend may not put that to a vote, but it is an important point of principle that the Government need to consider.

[Baroness Goldie (Con)]

My Lords, I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for his amendment. I know this is an issue in which he is keenly interested and one which he has pursued with vigour. I will speak first to Amendment 23 in his name and supported by the noble Lords, Lord Coaker, Lord Robertson of Port Ellen and Lord Thomas of Gresford.

We had a useful and, I think, constructive debate in Grand Committee on the defence serious crime unit and this amendment. The DSCU is an important part of Sir Richard Henriques’ recent review. Indeed, 20 of the 64 recommendations of that review relate to that unit. I am extremely pleased that we have been able to take swift action to make the necessary changes to primary legislation in order to deliver that unit, and I think everyone shares that view.

Let me address at the outset the specific issue of the number of Sir Richard’s 20 recommendations on the DSCU that the Government are accepting. I think noble Lords were left with the impression that only a small number had been accepted, because the government amendments in Grand Committee related only to three recommendations on the DSCU. It is certainly not the case that only a small number of recommendations have been accepted. Let me explain. With one exception, where we are taking a slightly different approach to civilians, the Government accept all Sir Richard’s recommendations on the DSCU. All the recommendations that we accept and that require primary legislation are dealt with in the Bill. The three recommendations I referred to in Grand Committee reflect those that require primary legislation to constitute the DSCU. These are the changes needed to deliver an operational unit. In particular, they give the provost marshal for serious crime the same powers and duty of investigative independence, on the same terms, as the existing provost marshals. The other recommendations that the Government accept do not require primary legislation.

This mirrors the usual position of a review of this nature, where some recommendations require primary legislation to be implemented and others simply do not. I have sought to explain this in clear terms today, but I have also made available a fact sheet to set out in detail the Ministry of Defence’s work on the DSCU. Indeed, a number of your Lordships helpfully referred to that. I have circulated that fact sheet to opposition defence spokespersons, but I have copies with me in the Chamber today if anyone wishes sight of one.

I also want to assure noble Lords that the Ministry of Defence is now taking forward the DSCU project, both the legislative and non-legislative elements, with considerable speed and energy. As well as the swift work on the primary legislation, work on the necessary changes to secondary legislation is well under way. In Grand Committee, noble Lords agreed a power to make consequential secondary legislation, which will facilitate this once the Bill is passed. A DSCU implementation team has been established, led by a senior civil servant. It is a multidisciplinary team of project management and service police specialists representing the three services. An individual has now been selected to be the provost marshal for serious crime designate. Their initial focus will be to lead the implementation of the DSCU to full delivery. I noticed the comment by the noble Lord, Lord Thomas of Gresford, that he thought this was putting the cart before the horse, but I disagree. This is a sensible, logical, structured way in which to proceed.

I now turn to the specific issues raised in this amendment. In general terms, I do not believe that adding these further Henriques DSCU recommendations to primary legislation is necessary. They will form part of the work that is already under way to establish the DSCU. I am happy to confirm that we are already working towards a DSCU by April 2022 and will look to implement a victim and witness care unit shortly after. In addition, the implementation team has already started work on the establishment of a strategic policing board, which is also to be in place by April 2022. The provost marshal for serious crime will produce an annual report to the Minister for Defence People and Veterans, which that Minister will provide to Parliament. None of these matters requires primary legislation.

Let me say a bit more about three specific issues: the independence of the DSCU, the role of civilians, and the investigative protocols. On independence, the amendment includes the language:

“The tri-service serious crime unit must carry out its investigations in a manner that is operationally independent of the military chain of command.”


However, I respectfully suggest to the noble and learned Lord, Lord Thomas of Cwmgiedd, that this is already reflected in the Bill. I remind your Lordships of the recommendations from Sir Richard regarding the implementation of a defence serious crime unit. He was specific. He said:

“The Provost Marshal (Serious Crime) should have a duty of operational independence in investigative matters owed to the Defence Council, on the same terms as that owed by the”


existing

“Provost Marshals under section 115A of the Armed Forces Act 2006.”

That is what we achieve in this Bill and what we are delivering under Clause 12(3).

As the noble and learned Lord indicated, the UK courts have already found that, under the existing structure, the service police are capable of being

“hierarchically, institutionally and practically independent”

of those that they are investigating. It is therefore right that the duty on the new provost marshal for serious crime is the same as the existing duty on the provost marshal of each of the service police forces. I urge noble Lords to look at Clause 12(3) if anyone is in any doubt about the impact of that clause.

The Ministry of Defence shares Sir Richard’s ambitions for an increased role for civilians in the DSCU. It is already possible under existing arrangements for civilians to work alongside the service police in delivering service police functions. There are examples of civilians taking on leadership roles in the service police, and of secondments from civilian police forces to the service police. As part of the work of the DSCU implementation team, we will look at options to appoint a civilian in a senior leadership role and at how experienced civilian police can work with the unit. I say specifically to the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lords, Lord Thomas of Gresford and Lord Coaker, that what we cannot do at this stage is have a civilian as deputy provost marshal, because that is a role for service persons and currently subject to Armed Forces systems of command and discipline. At present, simply making them a civilian might give them the title of deputy provost marshal but without the concomitant mechanisms of accountability and control. I am sure that is not what the amendment desires to achieve, but it would be its effect. The role of civilians therefore needs further consideration and work as part of the implementation exercise. However, I hope I have indicated that there is no antipathy within the MoD to the role of civilians in this important process.

I want to address the protocols regarding fatalities and ill-treatment cases referred to in the amendment. As we set out in the ministerial Statement, and as I confirmed in Grand Committee, the non-legislative protocols for dealing with fatalities and ill-treatment cases on overseas operations—between the service police, the Director of Service Prosecutions and the Judge Advocate-General—should rightly be considered by those independent bodies in the first instance. I draw noble Lords’ attention to Sir Richard’s own view on this, which is that “an agreed protocol” is “preferable to legislation”. That particularly avoids compromising the independence of the Director of Service Prosecutions. We support Sir Richard’s recommendation that the protocols should be non-legislative. Taking that approach will allow for more flexibility as the protocol text can be amended at speed in response to lessons learned during its application. Sir Richard also made the point that agreements along the lines that he proposed,

“doubtless with variations to achieve flexibility”,

could be achieved but only once the issue of coronial jurisdiction had been resolved. That was his recommendation 41, and we will engage with the Ministry of Justice on it.

We will be supporting the service police, the Director of Service Prosecutions and the Judge Advocate-General in this important work. The principles of timeliness, regular reviews and consultation are extremely significant. However, there are likely to be issues for these bodies and individuals to consider. In particular, they would need to be comfortable that the arrangements respected the proper relationships between the police, the prosecutors and the judiciary. Further work will be needed to ensure that we address Sir Richard’s concerns over investigations without falling foul of the constitutional principles of the independence of the investigation, the prosecution and the judiciary.

As I have set out, these are important but complicated matters, and the service police, the Director of Service Prosecutions and the Judge Advocate-General need time to properly consider them. While I am sure they will seek to undertake the necessary work to progress them as quickly as possible, it is vital that they get them right and it is important to respect their independence. I do not think it would be appropriate for Parliament to set a timeline of July 2022 for their implementation. I therefore urge the noble and learned Lord to withdraw his amendment.

I will speak to the other half of the group—Amendment 27—which has been tabled by the noble Lord, Lord Robertson of Port Ellen, and supported by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Thomas of Cwmgiedd. This amendment seeks an early decision—one month after Royal Assent of the Bill—on whether the MoD is going to accept or reject the recommendations in the Henriques review report for the establishment of a defence representation unit and, if the recommendations are accepted, requires the Minister to lay a report before Parliament, setting out a plan and timeline for establishing the unit by July 2022.

19:00

As I set out in Grand Committee, we have prioritised our efforts within the MoD on ensuring that we have the appropriate statutory framework in place for the establishment of the defence serious crime unit. I make no apology for prioritising that work; it is critical and necessary, and it will bring vast improvement to the service justice system. But, beyond that, the department has not yet been able to undertake the necessary detailed analysis of the rest of Sir Richard’s recommendations.

The recommendations for the establishment of a defence representation unit, covered by this amendment—recommendations 48, 49 and 50—are included in a larger group of recommendations that we have identified as needing further detailed policy and legal work to determine how we might take them forward. We are currently undertaking work that we hope will allow us to prioritise this larger group of recommendations, taking into account work that is already in hand on the Lyons/Murphy recommendations. When that work is complete, we will be in a better place to manage and track progress on what is clearly an ambitious programme of work.

In respect of the recommendations to establish a defence representation unit, we absolutely agree with the principle of ensuring appropriate legal advice and support to individuals under investigation. But further careful consideration is required to determine the most appropriate and effective way of delivering that support. Until that work is completed, it is not possible to determine whether we can accept the recommendations on the DRU as presented. Therefore, I hope that the noble Lord will understand why we do not wish to be time-bound in this work. I hope that your Lordships are reassured that we are taking the time now to develop a sensible programme and significant body of work so that we can ensure proper oversight and management of the work on Sir Richard’s recommendations.

I understand the interest in these matters, and I do not doubt for one moment the sincerity of the intentions of the noble Lord, Lord Robertson, in relation to them. He is interested, he wants progress to be made and he wants to make sure that the MoD’s feet are held to the fire. I totally understand that. I am happy to repeat the undertaking that I gave in Grand Committee to keep the House informed of progress on these matters: I shall undertake to do that. But I hope that, in these circumstances, the noble Lord will withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

I am grateful to all noble Lords and noble and learned Lords who have spoken in this part of the debate. I will first say something briefly about Amendment 27. It is critical to a justice system that you have a properly defended and functioning defence service, and therefore I very much hope that, in the event that this amendment is not pursued, the undertaking given to keep the House closely informed of developments is greatly appreciated.

I turn to the main amendment, Amendment 23. I accept that the police in the armed services are capable of being independent, and indeed in most cases they are—but, as has been shown by recent cases, that has not always been the case, to the enormous damage of the Armed Forces. Therefore, with this amendment, I seek to put the principle and the protections on a clear basis to save future damage.

The Minister asked noble Lords to look at the difference between what is in the Bill and what is in the amendment. On the duties of the provost marshal, the Bill says that he owes

“to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”

There is nothing there at all that reflects the proper constitutional position that they should be operationally independent of the military chain of command. That is what is set out in the amendment. I simply do not understand why this fundamental principle of the way in which the police operate in the Army, Navy and Air Force should have second best. It is in their own interests to ensure independence.

Then there is the quibble that you cannot, for some reason, fit a civilian into the structure. I do not begin to understand that. In the cases I did which involved this area, one of the principal reasons why the courts concluded that the Iraq Historic Allegations Team was independent was that it had a civilian head. I therefore do not understand what the objection is, not only for the reasons given by the noble Lord, Lord Thomas of Gresford, namely that civilians bring experience, but because they also bring an outside perspective.

The real issue in this case is the need for statutory protection. Perhaps the Ministry of Defence lawyers take the view that all that is required are the three provisions in the Bill. I accept that the Government want to proceed with the implementation, but our difference of opinion relates to whether Parliament should do its duty and specify this in the legislation and put a proper duty in relation to operational independence into the Bill, with the necessary vital safeguards. Without those safeguards, a duty will not work—or do you take the very narrow view that it is not required?

For the good of Her Majesty’s Armed Forces, we ought to stop speculation about investigations not being independent. We must make sure they are seen to be independent by Parliament itself providing on this occasion, as part of the five-year review, that there are sufficient safeguards for independence. Therefore, for the good of Armed Forces and the service police, I would like to take the opinion of the House on this issue.

19:07

Division 3

Ayes: 153

---

Labour: 71
Liberal Democrat: 60
Crossbench: 15
Independent: 5
Green Party: 2

Noes: 160

---

Conservative: 152
Democratic Unionist Party: 4
Crossbench: 2
Independent: 2

19:20

Amendment 24

Moved by

[Lord Coaker]

24: After Clause 19, insert the following new Clause—
“Independent defence authority
(1) The Secretary of State must review whether it is desirable to establish an independent defence authority which is responsible for interpersonal conduct within the armed forces and which has a remit, in particular—(a) to assess cultures of behaviour and to identify where inappropriate behaviour is systemic,(b) to promote good behaviour and, where necessary, cultural change,(c) to investigate specific instances of inappropriate behaviour, (d) to mediate employment-related grievances, and(e) to advise service members about their rights in relation to service discipline.(2) Within the period of one year beginning with the day on which this Act is passed, the Secretary of State must conclude the review and lay a report before Parliament.(3) If the Secretary of State recommends that it is desirable to establish an independent authority, the report must—(a) set out details of a reporting and investigation system which is outside of the chain of command and outside the single services, and(b) explain how the authority is to have properly trained staff and a properly resourced budget.”Member’s explanatory statement
This amendment is based on recommendations in the report of the House of Commons Defence Sub-Committee on Women in the Armed Forces, “Protecting Those Who Protect Us: Women in the Armed Forces from Recruitment to Civilian Life”.

[Lord Coaker (Lab)]

My Lords, I beg to move Amendment 24 in my name. I am grateful to the noble Baronesses, Lady Smith of Newnham and Lady Bennett of Manor Castle, for supporting this amendment, which seeks to establish a defence authority responsible for cultures and inappropriate behaviours outside the chain of command. This is a direct recommendation from both Wigston and the Defence Sub-Committee’s recent report into women in the Armed Forces.

I am sure one of the arguments we will hear from the Minister again is that we do not need an independent defence authority, as the Government established the diversity and inclusion directorate in April this year. But I remind the Minister of the conclusion of the Defence Sub-Committee’s report, which stated that:

“the Directorate’s mandate differs in key ways from the Authority recommended by the Wigston Review. For instance, the Directorate will not handle the most serious behavioural complaints outside of the Single Services, centrally.”

Therefore, there is a clear difference. The report was also clear that

“the MOD has not fulfilled the recommendation for a Defence Authority”

with the directorate. I would be grateful to know what the Minister says to that.

The report found that

“the Services are failing to help women achieve their full potential … Within the military culture of the Armed Forces and the MOD, it is still a man’s world … There is too much bullying, harassment and discrimination—including criminal behaviours like sexual assault and rape—affecting Service personnel.”

I know the Minister and all noble Lords will agree that this has to change and we need to do better. The debate is about how we do that.

The Minister will understand how much this is a real issue. We read in our newspapers and heard on the news recently:

“Army boss announces culture audit after defence secretary talks.”


This is a probing amendment, not something I will seek to divide the House on. Notwithstanding that, the amendment deals with a very important matter, which I know all of us will be concerned about. The news continued:

“The head of the British army has announced an independent audit of its culture amid concerns over bullying, sexual harassment and discrimination. Gen Sir Mark Carleton-Smith said the audit will ‘reinforce the best and weed out the worst’ It comes after Defence Secretary Ben Wallace met Army leaders earlier over concerns about culture and discipline.”


I am really pleased that the Defence Secretary and General Sir Mark Carleton-Smith have done that. The debate is whether an independent defence authority, established according to the recommendations of Wigston and the Defence Sub-Committee, would help deliver that and ensure that the changes that we all want occur quickly and make a real difference.

In closing, I ask the Minister whether we have yet been told the date on which the Government will publish their response to the Defence Sub-Committee’s report. I understand that it may be next week. Can the Minister confirm that? I gently say to the Minister that it would have been helpful for the passage of the Bill had we had the Government’s formal response to that report before the conclusions of our deliberations—with Third Reading next Monday.

As I said, this is a probing amendment. I know the Minister cares about these issues and wants change to occur. All I am saying is that the Army, the Defence Secretary and everyone agrees, but it is how we deliver it, whether we cannot get a little bit of a move on, and whether an independent defence authority—as recommended by the bodies I have mentioned—would help with respect to that.

[Baroness Smith of Newnham (LD)]

My Lords, I support the amendment in the name of the noble Lord, Lord Coaker, which I and the noble Baroness, Lady Bennett of Manor Castle, have signed.

In the first group of amendments this evening, the noble Baroness, Lady Bennett, pointed out that she was the only female Peer speaking in that group. At that stage, I did not speak, not because I did not think it was important to speak on service justice but because we felt from these Benches that it was appropriate to have one person speaking, and that person was my noble friend Lord Thomas of Gresford. He is rather more expert on the military justice side of things than I am. I would like to add my support to tackling the range of issues that are faced by women in the military.

The noble Lord, Lord Coaker, pointed out that this is a probing amendment, but it is an important amendment because the report that was done for the House of Commons Defence Sub-Committee, brought forward by Sarah Atherton, was a very revealing one. I know that the Minister is aware of the report, not just from iterations in this Chamber but because, at some point during the Summer Recess, I happened to turn on “Woman’s Hour”, and I heard none other than the Minister and Sarah Atherton MP talking about the report.

These are issues of concern not only within the Armed Forces and the Palace of Westminster; they are issues that have traction much more broadly. They are important issues and, while it might not be necessary to include this amendment in the Bill, it is vital that the Government take notice of the issues that have been raised by serving female personnel and veterans.

As the noble Lord, Lord Coaker, pointed out, there is a set of issues that needs to be thought about. Bullying and harassment have no place in the Armed Forces. Some of the issues that have been revealed, as mentioned in the previous group of amendments by the noble and learned Lord, Lord Thomas of Cwmgiedd, are actually very damaging to public understanding of the Armed Forces. We need to be very careful to make sure that, if discipline is not maintained and there are issues affecting people in the Armed Forces—particularly women—they are looked into. If the Minister is not able to accept the language of this amendment, we would be grateful if she would explain a little bit more about what the Ministry of Defence is doing to help bring about behavioural change.

Statements from the Secretary of State might be of interest, but the current Secretary of State seems to talk to the media an awful lot. Sometimes it feels as if he is rather shooting from the hip. It would be nice to know that some of these comments are actually based on practice and ways of effecting change. Can the Minister give us some comfort in this regard?

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for tabling this amendment. He is quite right: it raises issues that all of us care about very deeply, as the noble Baroness, Lady Smith, so eloquently described.

In essence, the amendment proposes a new clause requiring the Secretary of State to review whether an independent defence authority is desirable. It might be helpful to your Lordships if I try to set a little bit of context for this, and then try to address the specific questions that the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith, raised.

First, we believe that the vision of a central defence authority, as it was foreseen in the Wigston review, is being delivered through the diversity and inclusion directorate. The noble Lord, Lord Coaker, specifically raised this point, so let me try to address these issues and reassure him. Eleven out of the 12 Wigston recommendations relating to the authority have now been achieved. They have been delivered. Your Lordships may remember that Danuta Gray was ordered to carry out a progress assessment one year after the Wigston review to see how it was getting on. She is independent of the MoD, and she concluded that a new diversity and inclusion directorate would, in effect, fulfil the functions of a central defence authority.

19:30

Of course, the new diversity and inclusion directorate is independent of the single service chains of command; I think that is a very important detachment. It carries out a number of important functions to improve the lived experience of all those working in defence. This includes ownership of the policy for behaviours, informal complaints and service complaints, while also holding the services to account through the department’s performance and risk-monitoring process. The director of the diversity and inclusion unit is working closely with the Permanent Secretary and the Chief of Defence People, so the directorate is embedded at a high level within the MoD. The director of the D&I directorate is someone with not just influence but authority and the ear of everyone at the top levels of the MoD.

Indeed, since it was established, the directorate has delivered a number of initiatives. These include a pan- defence climate assessment tool for heads of establishments to understand their culture; changed policy to mandate mediation; and the establishment of a fully confidential and independent 24-hour bullying, harassment and discrimination helpline for both civilian and military personnel to raise concerns. The directorate also continues to develop programmes to support victims and has introduced a new harassment investigation service. That is a dedicated outsourced service, independent of the MoD, and it has been set up to support the whole of defence in delivering fair, efficient and effective investigations for complaints of bullying, harassment, discrimination and victimisation.

Further, to improve the independence of the service complaints system and the consistency of decision-making, we will be mandating the use of central teams within each service to determine whether a service complaint is admissible. This is quite an important change in culture and process, and it will be a positive development in bringing reassurance to those who seek to make a complaint and who wish to have confidence in the process. But the net effect of that will be to remove the complainant’s direct chain of command from that part of the process, which is an important development.

While we consider that the D&I directorate satisfies the role of an independent defence authority, we will continue to review our policies and processes to ensure that they are fit for purpose. That will include undertaking an annual review of behaviours across defence, as well as a review of the service complaints system two years after implementation of the changes we are currently making. This review will confirm whether the reforms we are making, both in legislation and policy, have achieved the benefits that we expect.

Therefore, while I totally understand the sentiment behind the noble Lord’s amendment and would absolutely be pushing this if I was in his position, the arrival of the diversity and inclusion directorate—not just its creation but the bedding in that it has enjoyed and the progress it is making—is significantly delivering on what it was anticipated that the independent defence authority would do.

The noble Lord, Lord Coaker, raised a couple of points. He raised the recent Army audit, which is part of the service’s continuous efforts to hold itself to account and to transform at pace the Armed Forces output so that service personnel are getting the service they deserve if they have concerns or issues about behaviour, conduct, attitudes and culture.

A lot of measures are in place. It was interesting that “audit” was used. It was not a review or an investigation but is much more concerned about what is in place and whether it is working and delivering what needs to be delivered. The noble Baroness, Lady Smith, was not cynical but a little sceptical of my very good friend, the right honourable Secretary of State for Defence, Mr Ben Wallace. He has an absolute passion for tackling this, to change cultures, change attitudes, change how things are happening, and this Army audit, to which the noble Lord, Lord Coaker, referred, is testament to that. This Army board was summoned because the Defence Secretary said, “I want answers and explanations. I am not going to be fobbed off. I am going to have you all before me, around a table, explaining what is going on.” Coming out of that was a willingness to carry out an audit, which is a perfectly healthy and positive measure.

The noble Lord, Lord Coaker, asked for a specific date on the response to the House of Commons Select Committee. I am unable to give that. I thought that it was imminent, but I gather that there are still some bits of contact between the Secretary of State and the committee, so that the committee chair and sub-committee chairwoman are absolutely in the picture. Obviously, when we give that response, and the clock is ticking—I am not talking about it being weeks away—it will be for the committee to determine what it does with that response, since it is not the MoD’s property as such but the property of the parliamentary committee.

I do not think that I am telling any tales out of school if I say that the best thing that happened in that Select Committee inquiry was permission, given by the Secretary of State, for serving women to be allowed to give evidence. That was a big shift from what might have been a previous government attitude to these issues. I felt it was courageous and absolutely the right thing to do, and I told them so. As a result, although the evidence of these ladies made uncomfortable reading for the MoD, none the less it was critical that these brave women were not just permitted to give their evidence and had the courage to give their evidence but could understand that it would be used to good effect. We owe a huge debt to those serving personnel and veterans who gave their evidence in such a brave manner, for sharing their experiences. There is no shadow of a doubt that it has formed not only what the committee said but the response which the MoD will be giving to the committee.

While I understand what is behind this amendment, which reflects something that we all care very deeply about, progress is being made. I understand the frustration of the noble Lord, Lord Coaker, that the response to the committee is not available to inform this debate. I am afraid it is an issue of timing. It is a very substantial response, and so there is a healthy reason for the delay. I cannot go further than that at the Dispatch Box.

In these circumstances, I ask your Lordships to understand that very good progress has been made, and I invite the noble Lord to withdraw his amendment.

[Lord Coaker (Lab)]

I thank the Minister for her comments. I also thank the noble Baroness, Lady Smith, for her comments. As she said, this is a probing amendment, but it is an extremely important amendment. The way in which the Minister answered reflected the seriousness with which she takes this, and I know that the Defence Secretary is working hard on this.

What we all want to see now is progress. In my remarks, I said that I was very pleased to see that the current head of the Army, General Sir Mark Carleton-Smith, is undertaking the audit—I know that he will take it seriously. Change is out there, and there is a need for Ministers and the Defence Secretary, with senior officers in all three branches of the services, to continue to push this. As we have seen, there are very real problems in cases that have been reported in the papers—I will not go into the detail of them—and some very serious issues remain.

But the only thing I ask—perhaps I need to ask the question every now and again—is for the Ministry of Defence to consider how it keeps all of us updated on the progress that is made over the coming months. With that, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendment 25 not moved.

Amendment 26

Moved by

[Lord Tunnicliffe]

26: After Clause 19, insert the following new Clause—
“Indefinite leave to remain payments by Commonwealth, Hong Kong and Gurkha members of armed forces
(1) The Immigration Act 2014 is amended as follows.(2) In section 68(10), after “regulations” insert “must make exceptions in respect of any person with citizenship of a Commonwealth country (other than the United Kingdom) who has served at least four years in the armed forces of the United Kingdom, or any person who has served at least four years in the Royal Navy Hong Kong Squadron, the Hong Kong Military Service Corps or the Brigade of Gurkhas, such exceptions to include capping the fee for any such person applying for indefinite leave to remain at no more than the actual administrative cost of processing that application, and”.”Member’s explanatory statement
This new Clause will ensure that Commonwealth, Hong Kong and Gurkha veterans applying for Indefinite Leave to Remain following four years of service will only pay the unit cost of an application.

[Lord Tunnicliffe (Lab)]

My Lords, I rise to move Amendment 26, in the name of my noble friend Lord Coaker. We have retabled this amendment from Committee due to the strength of feeling on this issue across the House. Commonwealth service personnel and other non-UK personnel have contributed an enormous amount to our national defence, and we owe them a debt of gratitude.

Extortionate visa fees have left non-UK veterans facing financial ruin and feeling abandoned by the country they served with courage and distinction. I was shocked when the noble and gallant Lord, Lord Craig, said in Committee that Hong Kong veterans feel that

“they are being treated as aliens, not veterans of Her Majesty’s Armed Forces.”

I remember how the noble Lord, Lord Dannatt, said that the welcome approach to former Afghan staff means that government policy towards

“foreign and Commonwealth soldiers who have stood shoulder to shoulder with us and fought in many campaigns … is an anomaly and it is bizarre.”

I also remember how the noble Lord, Lord Lancaster, said that the MoD policy change that now allows Gurkhas to apply some 18 weeks before leaving service

“does not address the issue of cost”.

The Minister stated:

“We recognise that settlement fees place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge”.


So why is action on this issue so slow? I am grateful that the Minister told the House that 6,398 responses were received in the Government’s consultation, but we are still not further forward when the Minister says only that

“the Government will publish their response in due course.”—[Official Report, 2/11/21; cols. GC 337-41.]

This answer is no longer acceptable. We need to know when and how the Government will act, and they should not hide behind the usual ministerial lines to kick the can down the road.

I remind the Minister of the large sums involved. Under current rules, Commonwealth personnel face a fee of £2,389 per person to continue to live in the UK, after having served for at least four years. This means that someone with a partner and two children could face a bill of £10,000 to stay in Britain. I will listen very closely to the Minister’s reply.

[Lord Dannatt (CB)]

I will make two points, a broader one and a narrower one that is particularly germane to this amendment. My broader point picks up the discussion in your Lordships’ House about the wider duty of care standard, which we debated in the context of the overseas operations Bill, introduced at Second Reading of this Bill and discussed and debated in Committee. I am encouraged by the Minister’s various responses at the various stages of these two Bills. The Ministry of Defence appears to be going very much in the right direction, which is why an amendment requiring the Secretary of State to put in place a duty of care standard has not featured on Report of this Bill.

My narrower point still relates to duty of care and duty of care standards, with particular regard to former service men and women who served in Hong Kong, Gurkhas, and foreign and Commonwealth individuals. The latter make up a large proportion of the British Armed Forces today. I come back to the very narrow point I made in Committee: it is an anomaly that among those withdrawn from Afghanistan in Operation Pitting in August were former members of the Afghan national army, who have now been given right of residence in this country and are in a better position than foreign and Commonwealth soldiers, and Gurkha soldiers who have served shoulder to shoulder with us for at least four years, and in many cases for much longer.

19:45

This is bizarre and it is an anomaly. It really must be addressed favourably and in a short timeframe. As the noble and gallant Lord, Lord Craig of Radley, said earlier, this issue, particularly in relation to Hong Kong, has been raised time and again, not year after year but decade after decade. The time to solve this one is now. I very much hope that the noble Baroness and the Government will move quickly on this issue. It is high time to do so.

[Lord Craig of Radley (CB)]

My Lords, I support Amendment 26. I believe that, until the issue of citizenship is resolved in favour of the few remaining veterans of the Royal Navy Hong Kong Squadron and other military members of Her Majesty’s Armed Forces recruited there, they deserve de minimis to benefit from this financial concession on the grounds of their full status as veterans. I have already in Amendment 4 explained the full background to these claims. Let us see whether the Government are finally able to make up their mind in favour of these long-standing requests. What response will the Minister make now—and please will she not just respond that it will be actively considered?

[Baroness Smith of Newnham (LD)]

My Lords, I support this amendment. Many of the issues have been rehearsed at earlier stages of this legislation, as the noble Lord, Lord Dannatt, pointed out. We have even heard some of the arguments rehearsed in the second group of amendments this afternoon. However, I feel I need to speak again at this stage to try to bring together a few issues, because the question of service personnel who have put their lives on the line for the United Kingdom, whether from Hong Kong, the Commonwealth or the Gurkhas, needs to be recognised. We need the Government to do more than give lip service to this.

As the noble and gallant Lord, Lord Craig of Radley, pointed out just now, until citizenship is resolved for those from Hong Kong who have served with our forces, the very least we can do is look at ways to ensure that indefinite leave to remain does not cost people a king’s or a queen’s ransom. The cost of securing indefinite leave to remain is unconscionable. If somebody has a right to indefinite leave to remain, surely it is appropriate that the cost of securing it is the cost of administering it. If those of us who are British apply for a passport, we pay an amount of money that seems a lot to many individuals but is essentially an administrative cost. The cost of securing indefinite leave to remain is far more than that administrative cost.

I am aware that decisions on this are down not to the Secretary of State for Defence but to the Home Office. Therefore, rather than asking the Minister to commit at this stage to reducing the cost of applications for indefinite leave to remain, all we can ask her to do is to go back and raise this question again with the Home Office.

I also ask the Minister whether we cannot help her. Is there some way in which Parliament can say to the Home Office, “This is something you must do”? It goes beyond questions of how many individuals are coming to live in the United Kingdom or targets of tens of thousands of people. It is about the UK’s duty to those who have served with us. Is there some way in which Parliament can make that case to the Home Office? Can we, as Members of your Lordships’ House and the other place, help the Ministry of Defence do the right thing and put some pressure on the Home Office to reduce the costs?

It is not appropriate to ask for £2,000 or more from somebody who served with us, or from their family. If somebody who has a spouse and children wants and needs indefinite leave to remain, surely they do not want that on their own; they want to come with their families. The noble Lord, Lord Dannatt, pointed out at this stage and in Committee that people who have come from Afghanistan under ARAP have come with their dependants. If we think that there is a right for citizens from the Commonwealth and Hong Kong and the Gurkhas who have served with us—and for us—to come and live in this country, surely we should give them the opportunity to do so without making the cost prohibitive.

If the Minister cannot give us a guarantee on reducing the costs—I suspect she cannot—can she at least give us some guidance on how we might be able to help her to persuade the Home Office to do the right thing?

[Viscount Brookeborough (CB)]

My Lords, this was brought home to me when I was presenting Iraq campaign medals to returning soldiers a number of years ago. Since then I have met many who have returned from Afghanistan at official events. It is extraordinary when you hand out the medals and you come to somebody who is quite obviously of Commonwealth origin, and you actually have discrimination standing there in front of you. You have wounded people, if not physically then mentally, who are on parade. You are standing there and giving them a medal, and under your breath you are saying, “This is horrifying. I am totally horrified that you do not have the same or similar rights as the man or lady next door.”

This—our regard and respect for those people—surely comes under the spirit of the covenant. We simply cannot let this lie. It is not a great number of people, compared with the number receiving money put out as a result of Covid or, dare I say it, the number crossing the Channel. This could be killed here and now, in one go, and all those people would be not only happy but that much prouder to be as British as we would like them to be for their service abroad. I support this amendment.

[Lord Alton of Liverpool (CB)]

My Lords, we had a good debate earlier when my noble and gallant friend Lord Craig spoke to Amendment 4 tabled by the noble and learned Lord, Lord Mackay of Clashfern. There was a degree of unanimity around the House that this issue needed to be addressed. The Minister was good enough to say that, although she would not reply on Amendment 4 to the issue of Hong Kong ex-servicemen, when we reached this part of our proceedings on Amendment 26 she would be able to give us some reply. I rather hoped that might mean she wanted some space to try to digest some of the points that he and I tried to make earlier.

I particularly reinforce what the noble Baroness, Lady Smith of Newnham, said about the relationship between the MoD and the Home Office on this. If nothing else comes of this evening, will the Minister agree to facilitate a meeting involving perhaps those who have participated in this debate but also her noble friend Lady Williams of Trafford, at which we might try to make some progress on these two questions—one about citizenship and the other about the specific position of the Hong Kong ex-servicemen?

If the Minister has the figures, I wonder if she could share with the House the number of people we are talking about who fall into the category—whether the figures I gave earlier are correct or not. Sometimes it is what you do in small things that matters most, and we are talking about very small numbers of people. It was a point alluded to my noble friend Lord Brookeborough a few moments ago, that when you compare this very small group with the number of people who try to arrive in the United Kingdom—some illegally—it is how we behave towards them that will matter.

This brought me back briefly to debates in another place in 1983, when I spoke on the nationality Act about citizenship and the effects it would have on people in Hong Kong. Sadly, many of the things predicted during that debate have come to pass. The trajectory we all hoped that Hong Kong might be on post 1997 —“one country, two systems”, and an honouring of the difference between Hong Kong and mainland China —has clearly not happened. That has left people in a precarious position, and none more so than those who served the Crown. I reinforce the point I made earlier: these people’s lives are clearly now in danger, and we have a duty to do something about that. It is a point that my noble friend Lord Dannatt made as well.

That is all I wanted to say. I know I had the chance to speak earlier on. I hope the Minister will think about how she can, in a practical way, take these two relatively small questions forward and see if we can get some justice for those involved.

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for tabling this amendment and the noble Lord, Lord Tunnicliffe, for his remarks in support of it. I am also grateful to those who have contributed to the debate, not least the noble and gallant Lord, Lord Craig of Radley, the noble Baroness, Lady Smith, the noble Viscount, Lord Brookeborough, and the noble Lords, Lord Dannatt and Lord Alton.

I think your Lordships will understand that I am at the Dispatch Box as MoD Minister. I cannot speak on behalf of the FCDO or the Home Office, but let me try and address some of the more technical issues to at least give context to what the amendment seeks to achieve. The first thing I want to say is that the Government highly value the service of all members of our Armed Forces, including: our Commonwealth nationals, our Gurkhas in Nepal, who have a long and distinguished history of service to the UK both here and overseas; and former British Hong Kong service personnel.

Before I address the detail of the proposed new clauses, I would like to say a few words about the process for setting immigration fees. Application fees for immigration and nationality applications have been charged for a number of years. They are charged under powers set out under Section 68 of the Immigration Act 2014. They play a vital role in our country’s ability to run a sustainable borders and immigration system, reducing the burden that falls on taxpayers.

Sitting beneath the Immigration Act are a fees order and fees regulations, all of which are scrutinised by both Houses before they come into effect; there is a democratic prism to all this. This system ensures checks and balances, and it seeks to maintain the coherence of the immigration fees framework as set out in legislation. If we were to remove these fees during the passage of this Bill, as the noble Lord, Lord Coaker, suggests in his amendment, it would undermine the existing legal framework for fees, without proper consideration for either the sustainability of the system or fairness to the UK taxpayer. It would also reduce clarity in the fees structure by creating an alternative mechanism for controlling fees which sits outside the immigration fees regime.

When non-UK service personnel, including Commonwealth citizens and Gurkhas from Nepal, enlist in the regular Armed Forces, they are granted exemption from immigration control status for the duration of their service. That is to allow them to come and go without restriction. They are free from any requirements to make visa applications or pay any fees while they serve, and that is unlike almost every other category of migrant coming to work in the UK. Those who have served at least four years or been medically discharged as a result of service can choose to settle in the UK after their service and pay the relevant fee.

As a number of your Lordships are aware, the time before discharge that such settlement applications can be submitted has been extended this year from 10 to 18 weeks. Those applying for themselves do not have to meet an income requirement, be sponsored by an employer, or meet any requirements regarding their skills, knowledge of the English language or knowledge of life in the UK, again putting them in a favourable position compared with others who seek to settle here. We recognise, however, that settlement fees may place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge, and we recognise the strength of feeling of parliamentarians, service charities and the public on this issue.

20:00

Your Lordships will be aware that the Ministry of Defence, together with the Home Office, ran a public consultation between 26 May and 7 July 2021 regarding a policy proposal to waive settlement fees for non-UK service personnel in HM Armed Forces. The results of the consultation have been used to advise Ministers and, once collective agreement has been secured for a final policy, the Government will publish their response, make any associated changes to fees through fees regulations, which are updated at least twice a year, and appropriately address tax implications through the relevant secondary legislation.

For those non-UK veterans of the Armed Forces who do not have settled status in the UK, we are also exploring what options there are to assist them. Under the British nationality selection scheme, a limited number of personnel who were settled in Hong Kong could apply to register as British citizens. All veterans would have been eligible to acquire British National (Overseas) status between 1986 and 1997, and therefore many should hold that status already. Those who hold that status may be eligible for the BN(O) visa that was launched in January of this year. This provides a route to settlement in the UK, meaning that many former British-Hong Kong service personnel, their spouses and dependants will already have, or be on the path to having, settlement and subsequently British citizenship. The fees they pay are therefore connected to their BN(O) status and not their former service.

I am aware that the Minister for Safe and Legal Migration, Kevin Foster MP, met with a delegation of Hong Kong Military Service Corps personnel in May this year and listened to their representations. The Home Office is continuing to consider the representations made on behalf of those personnel who were unable to obtain citizenship through the selection scheme, but there are currently no plans to reopen applications for BN(O) status or expand the eligibility for the BN(O) route. As the noble Baroness, Lady Smith, helpfully observed, this is a Home Office responsibility and not an MoD one.

[Lord Alton of Liverpool (CB)]

Can we press the Minister further on this point about the link between the MoD and the Home Office? She is of course right, but she has just said that it is a continuing process of consultation. The Home Office has been saying that for year after year, as referred to by my noble and gallant friend in his remarks earlier. When does the Minister think that that will conclude, and will she respond to the point made by the noble Baroness, Lady Smith, and me about the importance of facilitating a meeting between the Home Office, the MoD and noble Lords who are involved and interested in this issue?

[Baroness Goldie (Con)]

I would say to the noble Lord, Lord Alton, that I understand the strength of feelings so ably articulated by him, the noble Lord, Lord Coaker, the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Dannatt, the noble Baroness, Lady Smith, and the noble Viscount, Lord Brookeborough. I understand the strength of feeling expressed in the House in relation to individuals who have served this country. But, as I have explained, there is an existing legal framework in place for immigration fees which already enables proper consideration to be given by government and Parliament to the full range of issues in setting those fees.

The issues raised by this amendment are already subject to a consultation that is entering its final stages. I can tell the noble Lord, Lord Alton, that I have no magic wand that I can wave, and that this is another department’s responsibility. I can also confirm that the specific issues around Hong Kong are also under consideration.

[Viscount Brookeborough (CB)]

The Minister talks about consultation. I ask her to let us know who has been consulted and how many of the cohort group have been. Clearly, it will be very wide of the mark if none of them has been spoken to. So how many people, who, when, and has it involved the cohort?

[Baroness Goldie (Con)]

All I can do is undertake to write to the noble Viscount, because I do not have the specific detail in front of me. The consultation process ran and it was a joint process, but I will find out the specific information that he requested and write to him.

The noble Lord, Lord Coaker, helpfully indicated that this is a probing amendment, and I am very grateful to him for proposing not to press this to a Division. As I said earlier, I sense the strength of feeling, and Hansard will be testament to that strength of feeling. I give the noble Lord, Lord Alton, the assurance that through the conduit of the MoD I will indicate the desire of your Lordships for some clarity in seeing how these matters are to unfold. Therefore, while I cannot give the answers that noble Lords are no doubt impatient to receive—I sympathise with their impatience but think they will understand that I am in an impossible position in terms of providing the answers—I certainly undertake to use my offices as a Minister in MoD to see whether I can do anything to facilitate the provision of information. In these circumstances, I hope the noble Lord will withdraw his amendment.

[Lord Tunnicliffe (Lab)]

Well, as the number two member of this team, I am glad I managed to imitate my boss with such accuracy that it was unnoticed—but I will recover.

I note that all noble Lords who have spoken in this debate have spoken in favour of a change of heart by the Government. It is time the Government got a grip on this. The sense that this is simply a detail in a wider issue simply does not understand the concept. These people have demonstrated a loyalty that most of us have never had to. We are honoured to have a couple of people here who have demonstrated that loyalty: to be willing, on the whim of a politician, to go out and fight for us—not for their country but for Britain. You cannot ask for more loyalty than that; it is a test that I am not sure I would have passed. But these people came along and served. The history of Commonwealth soldiers, sailors and airmen fighting for this country is a long one, and they deserve to be considered quite separately from these wider issues.

I am not going to divide the House—frankly, there is not enough of the House around to be worth dividing—but I hope the Minister will take away the enormous strength of feeling on this issue. What really came out to me from this is that it is crucial that the Government, at the most senior level, understand that this is not an immigration issue; it is about people who have been willing to demonstrate ultimate loyalty to our Government and who would make the perfect citizens of this country. I hope the slightly warm sense that we got from some of the Minister’s words will bear fruit very soon. With that, I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendment 27 not moved.

Amendment 28

Moved by

[Lord Russell of Liverpool]

28: After Clause 19, insert the following new Clause—
“The minimum term for service
In section 329 of the AFA 2006 (terms and conditions of enlistment and service), after subsection (2) insert—“(2A) Where time is prescribed under subsection (2)(c) by reference to number of years from the date of enlistment, the age of the person on that date may not be taken into account.””Member’s explanatory statement
This amendment ensures that soldiers aged under 18 are not required to serve for a longer period than adult personnel.

[Lord Russell of Liverpool (CB)]

My Lords, I shall speak to Amendment 28. I do so in place of the noble Baroness, Lady Massey, who would otherwise be here, but is indisposed. I thank her for having introduced this amendment and another one so ably in Committee.

In Committee, this was grouped with another one that came before it which talked about trying to achieve a total cessation of the recruitment of under-18s by the United Kingdom, a practice that we are singular among all the members of NATO in pursuing. In the event, because the two were grouped together, the former amendment took about 98% of the airtime of the debate and there was very little discussion of this one, which is in part why we have decided to bring it back here for debate today. I emphasise that this is for debate; I do not intend to divide the House.

I will try, together perhaps with some other noble Lords who have put their name to this amendment, to put a case for the Government to look very carefully at their current practice of asking junior entry soldiers to serve two years more than entrants at age 18. This is to see whether this is the right thing to do in the first place and, more profoundly, whether the entire approach to junior entry is fit for purpose.

In Committee, the Minister made it very clear that, up until their 18th birthday, junior entrants have a statutory right to ask for discharge. However, after 18, they are in for four years and, under the current system, no allowance is made for the first two years at the Army Foundation College in Harrogate. A judicial review in 2015 concluded that this is unequal treatment in law, but is not unlawful, since the Equality Act 2010 exempts the Armed Forces from its prohibition on age discrimination.

In 2015, the Army carried out a review and estimated that, if it equalised the minimum service period for all recruits, it would have to recruit and train approximately 40 additional personnel each year to compensate for the relatively small number of junior entrants who might choose to leave after four years. To put that into context in 2015 terms, 40 personnel would be 0.5% of the Army’s enlisted intake for that year, which totalled 8,020 individuals. While the Navy and Air Force both take on a small number of junior entrants, neither service chooses to discriminate in the same way as the Army.

The 2019 junior entry review, undertaken following a recommendation from the Defence Committee in another place, suggested an amendment to the terms of service to a Type S engagement, whereby 18 year-olds can either opt to leave or convert their engagement to a short career versatile engagement, which would recognise the first two years of service and count towards the four years’ minimum length return of service.

The review recommended that this approach be considered, saying that it

“could be deemed a positive change”

and was

“unlikely to be contentious”

to either a junior entry cohort or their “gatekeepers”—I assume that means the staff at Harrogate, although I am not sure how they would feel about that term. The review continued that

“any move to implement”

the new terms of service on leaving the Army as an under-18 year-old

“would make the process … more transparent, which would bring an increase in the confidence of recruits and their gatekeepers.”

Its only caveat was whether this would enable the Army to achieve its desired manning balance along with other assessments of length of service.

In light of the announcement this year that the Army will be further downsized by 10,000 troops, does the Minister agree that this would be an opportune moment to institute the proposed new terms of service and put the matter to rest? Will she tell the House what the Government’s current thinking is? Can she inform us on any actions or, if not, tell us how she might consider progressing this? Will she undertake to come back to the House and report on any progress and timings?

There are two further issues I want to explore to test the MoD and Army’s thinking on the current junior entry structure and content. First, in 2021, is it recruiting the right people for today’s and tomorrow’s Army? This Government and our current, rather busy, Home Secretary frequently refer to an immigration policy that should be focused on attracting and admitting “the brightest and the best”. At the same time, the Army is increasingly conscious that it needs to recruit more young people who are interested and competent in STEM studies and in furthering their education, particularly the sort of technical education that the Army of tomorrow will need to manage challenges such as cyber warfare and the use of artificial intelligence.

20:15

The 2019 junior entry review highlights the heavy reliance—70% of the intake—on a segment of young people which is named Get-On Community Pride, not a particularly attractive brand. This cohort is described as unambitious, tends to live in poorer areas and is likely to be actively demotivated by the prospect of further education, which “would potentially jeopardise inflow”. The review further states that

“introducing more education/STEM into the JE scheme could potentially damage levels of attraction among the existing”

core main target audience. Simply stated, the dilemma is that the Army is on the record as stating that it needs to recruit more females, more BAME individuals and more STEM-literate entrants and those interested in education, but is hamstrung by the fear—increasingly irrelevant and unhelpful, I think—of demotivating its current predominant recruiting pool.

I refer briefly to the recommendations made by the independent advisory panel, which works very closely with the college at Harrogate, and each year produces a report with some recommendations. These are the highlights of its recommendations. In its opinion,

“the relatively frequent change of Commanding Officers and other senior staff at”

Harrogate

“every two years, means that there is a loss of leadership momentum and organisational memory.”

Remember, this is an educational establishment. Imagine if in a school, every two years the leadership was recycled and completely new people came in, perhaps with little or no relevant experience. The report states:

“A longer period of command would be beneficial.”

Secondly, the panel sees “a strong benefit” in the leadership of the college itself having much “more input into the selection of key personnel”—that is, the people who will be recycled into replace them, because at the moment it appears that they have little or no say in whether those nominated to replace them are fit for purpose and will be good at that task. It also notes that

“the growing awareness of the emotional and mental health needs of a significant minority of young people”

at Harrogate creates growing pressures and that Harrogate must do more to make appropriate provision. Finally, it says:

“We have observed over the last year”—

this is 2018-19—

“a growing frustration at the number of JS who arrive at the College on reception days but who for either medical or other reasons leave very soon afterwards, sometimes within a matter of days.”

I was a headhunter for 30 years, and I would not describe that as a particularly effective or successful recruitment or screening policy. Does the Minister acknowledge this dilemma that is faced by the Army looking at its current junior entry strategy? Does she agree that the status quo is becoming increasingly untenable, and can she tell us what discussions and plans, if any, are evolving to deal with it?

Given the emerging research findings about the incidence of mental health issues and trauma experienced by some serving and retired Army personnel, mentioned in particular in Committee by the noble Lord, Lord Browne of Ladyton, is the Army certain that the support, training and guidance that the junior entry cohort currently receives is conducted using best practice and is not inadvertently causing some of them—who, in law, are children—harm?

The Minister asked for the relevant research to be forwarded to her by the noble Lord, Lord Browne. I suggest to her that these emerging findings, taken together with the findings and recommendations of the 2019 Wigston report on inappropriate behaviours in the UK Armed Forces, and some of the incidents and alleged incidents of bullying at the Army Foundation College, be looked at with great care and attention.

As I said earlier, I will not divide the House. I move this amendment in the spirit of wanting to work with the Government and with the Army in moving quickly to implement the new terms of service and to redefine and craft a junior entry policy that is fit for the 21st century and not the 19th century. I beg to move.

[Lord Browne of Ladyton (Lab)]

My Lords, I have added my name to this amendment and propose to speak for a few minutes in support of it. First of all, I congratulate the noble Lord, Lord Russell of Liverpool, on the concise way in which he put the arguments for this amendment—he has exhausted nearly all my notes. I do not want to take up unnecessary time in the House this evening—we are running later than expected—as I think he made the arguments very well, but I want to reinforce a couple of them.

Before I do that, I want to go back to the genesis of my involvement in these amendments. I did not put my name to either of the two amendments debated in Committee, although I do support raising the minimum recruitment age for the Army to 18. I support that because, in studying and researching these amendments, I came across some quite persuasive evidence of an inappropriate level of potential damage to young people who had gone through that. I investigated further why that could be the case and learned quite a lot about the immaturity of people at 16 and their physical and mental ability to handle properly what they may have gone through in training. I have now discovered other things about this which worry me even more. I did not think that the benefit to our military, or to other young people, justified potentially damaging such a significant number of young people. That is why I spoke to it in that fashion in Committee.

This amendment was tagged on to that. When I looked at it, I honestly thought that, in this day and age, in the 21st century, there was no justification for continuing this discrimination. It seemed that we were on the wrong side of history on this, and there was no justification for pursuing or sticking with it—I thought it was a no-brainer. I was not surprised that there was not much debate about it; it seemed pretty straightforward, and I more or less said that.

When the Minister responded to the debate and seemed not to concede that this was even discrimination, I intervened and asked her a specific question about what the Army thought it got out of this and why it persisted in doing it. She again gave me an answer, which is to be found in Hansard at col. GC 461. She did not quite say that it was not discrimination but suggested that the Army was not intending to discriminate. She promised to write to me, and she did so today. Her letter expands on what the Army is intending to do.

The truth is, of course, that there was a review in 2015, and the Army put its best case forward at this attempt at judicial review. Two things came out in that very clearly, particularly in the evidence of the brigadier who was then the Army’s chief witness—whose name does not really matter but whose evidence is in the public domain.

It was about force level—about the ability, for a longer period, to take advantage of people in whom they had invested a lot of training. It seems from the noble Baroness’s letter to me that it is now more about what the recruits get out of this than what the Army gets out of it; that is a welcome development. We could go back to the debate about whether it is justifiable for some of these recruits, with the potential for damaging others, but I do not want to rehearse all that.

We debated all this on 8 November. The issue was not been raised in the debate at all, but Corporal Kimberly Hay was convicted of punching two recruits in the very establishment that everybody was singing the praises of just a couple of days later. I was surprised. I had no knowledge of this, obviously, but it had not been mentioned. That incident led me to delve into this issue a bit more. I discovered that, between 2014 and 2017, 50 cases of assault went to court martial but with no findings of guilt. This seemed to have been for process reasons rather than because any witnesses were deemed not to have been telling the truth. The criticisms made about the unsatisfactory nature of the prosecution were about the way in which the Army police had investigated the matter, rather than that any of the many witnesses who gave evidence against some 17 trainers had not been believed. Around the same time, between 2014 and 2020, there were 60 complaints by trainees or parents about the way in which trainees were treated at AFC Harrogate.

None of this seems to have been reflected in the debate or the information given in the debate. That certainly makes me want to reconsider many of the things said in support of AFC Harrogate and what it was actually doing with these young people. My suspicion is that this issue will not go away—that, like many issues over the last 10 years that have become apparent about institutions, it will be a slow burner but eventually much more will come out. Of course I cannot ask noble Lords to make decisions about changing legislation on the basis of an argument as weak as that, but history tends to suggest that there is something there that needs to be investigated.

My final point is to ask what the Army in the current circumstances gets out of this. Over the last decade, the size of the Army’s core recruitment pool— 16 to 24 year-olds—in the United Kingdom has remained steady at about 7 million potential recruits. I am not suggesting that the Army seeks to recruit them all, but that is the cohort. The stability of this demographic is projected to continue—it will not go down—but the targeted strength of the Army has reduced by 29% from 102,000 in 2011 to a planned 72,500 by 2025. In broad terms, for every four new soldiers the Army needed to recruit and retain a decade ago, it needs only three now, drawn from a demographic that has stayed about the same size.

The Army’s own evidence to the judicial review—which failed because of the terms of the Equality Act, not because the distinction was not discrimination—was that, if it lost those recruits for those extra two years, it would then need to recruit 40 more recruits each year. That was the evidence that it put in. I cannot take all these complicated figures to their logical conclusions, but it suggests to me that the problem is solved for the Army. I do not see what the justification is now for continuing with this discrimination. The Army should follow the logic of its own junior entry review of 2019, which is to change the terms in which they sign up 16 year-olds into the service.

20:30

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak very briefly. I was not able to take part in the debate on these amendments in Committee because I was at the COP 26 climate talks, but at Second Reading I very much majored on the issue of the recruitment of 16 and 17 year-olds into the Army in particular. I would have attached my name to the amendments in this group had there been space. I am following two extremely powerful and important speeches, which I really hope the Government are going to listen to, approached in a very constructive, positive spirit.

I want to make one point. The noble Lord, Lord Russell of Liverpool, outlined for us how the judicial review found that this was unequal treatment, but that the Army was not covered by the Equality Act. The fact that there is a legal exemption does not mean it needs to be used. The Army could choose to say that it will accept, at least in this manner, to follow the Equality Act. That would be a step towards justice for young people, many of whom come from extremely disadvantaged backgrounds and are trying to find their best way forward in life. We need to give them that opportunity.

[Lord Coaker (Lab)]

I will make a very brief comment based on what the noble Lord, Lord Russell of Liverpool, and my noble friend Lord Browne have just said. There was some debate in Committee about raising the age of recruitment, and there was disagreement about that. It is incumbent upon the Government to take very seriously the points that the noble Lord, Lord Russell, and my noble friend Lord Browne have made, about the allegations and reports there have been, whatever the rights and wrongs of that. Also important is the point raised in the amendment about the length of service and what is taken into account.

For those of us who, like me, do not support raising the age of recruitment, it is particularly incumbent upon us to ensure that reports and allegations of the sort we have heard from the noble Lord, Lord Russell, and my noble friend Lord Browne, alongside some of the other concerns raised, are taken very seriously by the Government. They should address them as quickly and urgently as possible and report the results of their deliberations into the public domain.

[Baroness Smith of Newnham (LD)]

My Lords, I do not quite support this amendment but will speak in rather the same spirit as the noble Lord, Lord Coaker. From the Liberal Democrat Front Bench, in Committee, I also spoke against raising the age of recruitment, but of course that is not what this amendment seeks to do.

The debate has focused on three issues: first, the age of recruitment, which is not formally the subject of this amendment; secondly, the question of the minimum term for service, which is, officially, what is in the amendment; and, thirdly, the issue of Harrogate, which has been discussed at some length. The noble Lord, Lord Browne of Ladyton, suggested that everyone spoke in laudatory terms about Harrogate in Committee; while the noble Lord, Lord Lancaster, spoke in laudatory terms, I think the rest of us were very much looking forward to the Minister facilitating a visit, so that we could understand what happened at Harrogate a little better—although I think the noble Lord, Lord Coaker, might have visited.

There is clearly a need to separate three different issues here, one of which is how the current facility works. The sorts of cases that the noble Lord, Lord Browne of Ladyton, mentioned clearly need to be looked into. It would be very helpful if the Minister could explain what the MoD is doing to investigate the sorts of cases that are currently hitting the headlines and reassure the House that appropriate action is being taken. That needs to be separate from whether or not we believe that the age of recruitment is actually right.

However, it is important to consider the age of recruitment and what happens to 16 and 17 year-olds when we look at what is in this amendment. It may be only a probing amendment, but it is nevertheless one where we need to look at what is actually understood by “service”. It is very clear that there is a difference in the language that is used by those who oppose recruitment at 16 and the arguments against child soldiers, for example, which seems to suggest that, somehow, 16 year- olds are being allowed to go off to the front line—they are not; you cannot go to the front line until you are 18, and then only if you have been trained.

What do the Government understand by “service”? Is it that 16 and 17 year-olds can be recruited and trained, but that somehow that does not count as service for the purposes of the minimum service requirement? If that is the case, could the Government make it very clear? If Harrogate, or whatever an appropriate equivalent might be, is about training, is it seen as an appropriate alternative to continuing education in school or a further education college, which, as some of us believe and as the noble Lord, Lord Coaker, argued in Committee, can be very relevant for some 16 and 17 year-olds who want not to go back to mainstream education but to do something different? Clearly, if that is the case, what is happening for 16 and 17 year-olds needs to be appropriate.

All of us must surely agree with the comment of the noble Lord, Lord Russell, that we need to craft a recruitment policy fit for the 21st century and not the 19th century. Could the Minister reassure us that what is available is fit for the 21st century, and that what is happening at Harrogate has been investigated and we do not have anything to worry about? Can she explain to us the Government’s understanding of service that is accrued from the age of 16 to 18, inclusive?

[Baroness Goldie (Con)]

My Lords, I know that you are all waiting agog for my response to what has been a wide-ranging and very interesting debate, but I am required to make a correction in relation to our previous debate on Amendment 26. I have been informed that the process that I described is slightly different. The precise fees payable are made through both the affirmative and the negative resolution procedure, which is different from what I may have read out from the speaking notes. I am pleased to put that correction on the record.

I thank the noble Lord, Lord Russell, for raising this issue, which is important and which we are all interested in. Clearly, some of your Lordships have concerns about it. As I said, it led to a very interesting debate. The essence of the amendment is that your Lordships are concerned that those who join the Armed Forces before their 18th birthday are obliged to serve longer than those who join after it.

Obviously, this is a bit of reprise of what I said in Committee, but I clarify that this is a matter not of length of service but of discharge. The statutory “discharge as of right” rules allow all new recruits, regardless of age, to discharge within their first three to six months of service, depending on their service, if they decide that the Armed Forces is not a career for them. In addition, service personnel have a statutory right to claim discharge up to their 18th birthday, subject to a maximum three-month cooling-off period. These rights are made clear to all on enlistment. Ultimately, all service personnel under the age of 18 have a statutory right to leave the Armed Forces up until their 18th birthday, without the liability to serve in the reserves, which would be the obligation on an adult aged over 18 who was leaving the services.

The noble Lord, Lord Russell, referred to a specific example, and I confess that I was not familiar with it. I understood that he referred to the RAF, but if he would care to write to me with the details, I will certainly look at that in detail.

The noble Lord, Lord Russell, was specifically concerned about the perceived unfairness to the under-18 group who serve longer than a new start of 18 years or over if they pursue a career in the Armed Forces. The noble Lord, Lord Browne, alluded to some extent to the letter I sent him in an endeavour to explain what these arrangements are about and the rationale behind them. I reiterate for the benefit of the Chamber that the policies in place covering the recruitment of young people below the age of 18 are designed carefully to be lawful, fair and fit for purpose, both for the individual and the service they volunteer to join.

The primary reason for the minimum period of service in the Army for those under 18 is that the Army must ensure that it maintains the right workforce levels to enable it to deploy personnel over the age of 18 on operations at home and abroad. Recruits under the age of 18 are not fully deployable on operations, and their notice period therefore runs from the point at which they become fully deployable alongside those who enlist after their 18th birthday. This minimum period of service for those under 18 also allows the Armed Forces to provide our young people with world-class training. It develops well-rounded junior personnel, both morally and conceptually, and, in turn, all this quite simply brings huge benefit to the individual, the Armed Forces and wider society. I feel that is positive and something that we should celebrate.

I acknowledge the recent reports of entirely unacceptable behaviour at the foundation college resulting in the conviction of an instructor, and the noble Lords, Lord Russell, Lord Browne and Lord Coaker, and the noble Baroness, Lady Smith, referred to this. That is something we all deplore. It indicates to me that there is a system which works: that if somebody behaves absolutely unacceptably in a criminal fashion, they are dealt with within the system. I do not think we should be complacent about this in any way. I was as disturbed to read that report as anyone, but it suggested to me that there are systems in place.

I think the noble Baroness, Lady Smith, particularly sought reassurance about this. I want to reassure her and your Lordships that for under-18s any reports of bullying are taken extremely seriously, and tough action is taken against those who fall short of the Army’s high standards. The duty of care for all our recruits, particularly those aged under 18, is of the utmost importance, and we recognise the need to treat under-18s differently.

The Armed Forces foundation college—

[Lord Browne of Ladyton (Lab)]

I am very much obliged to the noble Baroness for giving way; she is very generous. However, at this point I think it is appropriate to ask her specifically if it is true that there were 60 complaints between 2014 and 2020 from parents or trainees about bullying behaviour at AFC Harrogate. Is that true?

[Baroness Goldie (Con)]

I do not have that information before me. I will certainly undertake to investigate, and I will write to the noble Lord with whatever I find out.

[Lord Browne of Ladyton (Lab)]

With respect, if it is true, will the noble Baroness also express in that letter whether she is concerned that that does not appear to have been reflected in the inspections of AFC Harrogate? If it had been, I am sure the noble Baroness would have shared that when we discussed this in Committee.

[Baroness Goldie (Con)]

As I said to the noble Lord, all I can offer to do is to look at Hansard and the detail of what he said, and to check that out and see what I can ascertain. I will undertake to do that and write to him, and I will offer any comment that seems appropriate depending on what I find out.

What I was going on to say, particularly in response to the point raised by the noble Baroness, Lady Smith, is that—as the noble Lord, Lord Browne, has indicated—the foundation college, alongside all phase 1 and phase 2 training organisations, is subject to Ofsted inspection on a routine basis. Ofsted is an independent inspectorate. I and the Government have no control over what it says and does; it is for Ofsted to enter establishments, ask its questions, make its inspections and come to its conclusions.

What I can say to the noble Baroness is that the college was independently inspected by Ofsted in May 2021 as part of the 2020-21 inspection cycle into welfare and duty of care in Armed Forces initial training. Harrogate was awarded an overall grade of outstanding by Ofsted at the inspection, which followed the outstanding grade it received in October 2017. That grade was awarded due to the excellent standard of provision of duty of care and welfare encountered by Ofsted at the college.

20:45

As I said, I read the news report of the conviction of an instructor with great concern, as everyone in this Chamber would, but I have simply to set before your Lordships the broad context of the environment of the college. I will look into the matters raised by the noble Lord, Lord Browne, to see what I can find out and I shall respond to him. As I indicated, we are also satisfied, because of our awareness of and concern with our duty of care to under-18s, that there are systems in place at the college whereby young people can have a voice and speak out. Contact with parents is maintained. Parents who are concerned will have a point of contact with the college and one would expect any parent who was concerned to activate that contact. Notwithstanding the negative aspect of that newspaper report, I still commend the college to you all and repeat the invitation to those who would like to visit it. I would be very happy to co-operate and co-ordinate that to make it possible.

The difficulty with a debate such as this is that there will be some Members of your Lordships’ House who just do not like the idea of young people aged under 18 having anything to do with the Armed Forces. I accept that that is a view that they might wish to hold and of course they are entitled to hold it. I do not agree with it. I happen to think that what we do with these young people is positive and beneficial. In fact, the Armed Forces remain one of the UK’s largest apprenticeship providers, equipping young people with valuable transferable skills for life. Some of them might leave before they become 18, but they do not leave with no equipment. They will at least have received instruction in numeracy and literacy. Irrespective of age, all recruits who need it receive education in these key skills of literacy and numeracy. Also irrespective of age, more than 80% of all recruits enrol in an apprenticeship programme, equipping them with the skills they need to succeed and which they will continue to build on throughout their careers. They will serve them well when they leave.

As I said, there is probably a fundamental divergence of view on this. I, on behalf of the MoD, think that this is a good system for young people aged between 16 and 18. It serves them well and is good for the Armed Forces. I totally understand the natural interests in issues of governance, well-being and welfare where this training is provided. I absolutely accept that and it is right and proper, but it would be quite wrong to cast this college in a negative light. The evidence is that it has been doing a very good job and a lot of young people have benefited as a result of their attendance at it.

I am probably not providing the answers that the noble Lord, Lord Russell, wanted to hear, but that is the Government’s position. I hope that, with that explanation, he will feel able to withdraw his amendment.

[Lord Russell of Liverpool (CB)]

My Lords, I thank the Minister for her response and all noble Lords who took part in this brief debate. I must confess that, as I listened to the Minister and I reflected on her response to the previous amendment, I was reminded of the saying that is often used about ourselves and the United States of America, which is that we are two countries divided by a common language. On many occasions I felt that the discourse coming from all sides of the House seemed to be of a different nature or dialect from the response we received from the Front Bench.

To be clear, Committee saw an end to the argument—certainly for this Bill—about the rights and wrongs of recruiting junior entrants at 16. That is not what we are talking about.

The point I was trying to make was to probe the Ministry of Defence on whether it has actually thought and reflected on whether what it is currently doing with its junior entry programme is fit for purpose. I could imagine that, if you are dyed deep blue right the way through and support the Conservative Party, you might regard the Army Foundation College as a particularly wonderful example of what is known as “levelling up”. It is taking a cohort of young people, primarily young men, from difficult neighbourhoods and complicated backgrounds, who are completely unenthused by conventional education and find attraction and allure in going into the military.

But, as we have seen from the evidence, the process the Army goes through to select these individuals appears to be seriously flawed on two counts. First, as we heard from the independent appraisal, the number of young people who are leaving within days of arriving in Harrogate does not speak very highly of the efficacy of the recruitment process. So at the very least I think the Army should look carefully at that.

The second point I come back to is more fundamental. The noble Baroness, Lady Smith, echoed my appeal to try and think of a junior entry programme that is fit for the 21st century rather than the 19th century. I have every sympathy with the cohort in question, which takes up 70% of the intake. But the size of our Army is reducing and the technical challenges we are faced with are increasing. Your Lordships may have read about this slightly alarming supersonic missile that has apparently gone around the world at five times the speed of sound and apparently has the Americans very rattled. That is the state of the world we are moving into and, with the best will in the world, even the most outstanding students among the cohort the Army is currently recruiting from are unlikely to be of great help in trying to deal with the sort of warfare that the remainder of the 21st century may expose us to.

I do think there are some fundamental questions that the briefing notes—which the Minister has followed assiduously—do not seem to have prepared her for. So what I would ask her to do is, at a minimum, reflect on some of the comments that have been made, particularly some of the more profound questions about looking at the current junior entry strategy, and try to see whether it is fit for purpose.

At the very least, I would have hoped there was an acknowledgement in the briefing of the junior entry review that was conducted at the request of the Defence Committee in the other place, which had inside it a suggestion of new terms of service that would solve what this amendment asks for. The fact that it was not even referred to, either in her briefing notes or in her response to me, is disappointing, and I would ask that she and her officials look carefully at the content of what has been discussed, isolate those questions that have been asked and undertake to write back to us with answers. I would be most grateful. In the meantime, I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Amendment 29

Moved by

[Lord Browne of Ladyton]

29: After Clause 19, insert the following new Clause—
“Use of novel technologies by the UK Armed Forces: review
(1) Within three months of this Act being passed, the Secretary of State must commission a review of the implications of increasing autonomy associated with the use of artificial intelligence and machine learning, including in weapons systems, for legal proceedings against armed forces personnel that arise from military operations, and produce recommendations for favourable legal environments for the United Kingdom’s armed forces, including instilling domestic processes and engaging in the shaping of international agreements and institutions.(2) The review must consider—(a) what novel technologies could emerge from the Ministry of Defence and the United Kingdom’s allies, and from the private sector, which could be used in military operations,(b) how international and domestic legal frameworks governing conflict need to be updated in response to novel technologies,(c) the United Kingdom’s engagement with current and new routes of international efforts to secure a new legally binding instrument governing the use of novel technologies in conflict, and(d) what protection and guidance armed forces personnel need to minimise the risk of legal proceedings being brought against them which relate to military operations in response to novel technologies. (3) Within the period of one year beginning on the day on which the review is commissioned, the Secretary of State must lay a report before Parliament of its findings and recommendations.”Member’s explanatory statement
The amendment mandates a review within three months of the passing of the Act of implications of increasing autonomy associated with the use of AI and machine learning in weapon systems. The review must focus on the protection and guidance that Armed Forces personnel need to ensure that they comply with the law, including international humanitarian law, and how international and domestic legal frameworks need to be updated.

[Lord Browne of Ladyton (Lab)]

My Lords, this amendment is also in the names of the noble Lord, Lord Clement-Jones, and the noble and gallant Lords, Lord Houghton of Richmond and Lord Craig of Radley. Once more, I am grateful to them for their continuing support of this amendment.

This is the fourth time this amendment, or a variant of it, has been debated in your Lordships’ House in a relatively short time. This version of it has been shaved. The specific references to overseas deployment and overseas operations have been taken out, but subsection (2)(c), which relates to

“engagement with current and new routes of international efforts to secure a new legally binding instrument governing the use of novel technologies in conflict”

has been added to it as part of what the review that it would mandate needs to consider. I will explain that, hopefully in a relatively short period of time.

The amendment mandates, within three months of the passing of the Act,

“a review of the implications of increasing autonomy associated with the use of artificial intelligence and machine learning … in weapons systems”.

The review would be required to focus on the protection and guidance that Armed Forces personnel need to ensure that they comply with the law, including international humanitarian law, and how international and domestic legal frameworks need to be updated.

I have no intention of repeating the points I have previously made. I will just take a few seconds to remind noble Lords of assurances we have been given by the Minister thus far. I draw noble Lords’ attention to cols. GC 437-38 from the Grand Committee. I accept that we have been given some reassurances that the MoD is “alert to” the complex issues that this amendment raises and is working and

“has worked extensively on them over the … last 18 months.”

I also accept that presently the Government’s position is that the Minister

“cannot set out details until these positions have been finalised, but work to set a clear direction of travel for defence AI, underpinned by proper policy and governance frameworks, has reached an advanced stage”—

so we are in keen anticipation—and that:

“Key to this is the defence AI strategy”,


which, it is hoped, will be published

“in the coming months, along with details of the approaches we will use when adopting and using AI.”—[Official Report, 8/11/21; col. GC 437.]

These are substantially the Minister’s words. I do not intend to read all of this; people can read it for themselves.

Withdrawing the amendment in Committee, I indicated that I expected the issues, which are moving at a dramatic pace, to have moved on by the time we got to Report, and that the probability was that this amendment would come back, because there would be developments. There have been developments. Some of them are that my knowledge of matters relevant to this amendment has increased, but another of them was much more dramatic.

Last Wednesday the “Stories of Our Times” podcast published a podcast—do we publish podcasts?—entitled “The rise of killer robots: The future of modern warfare”. This was hosted by a journalist, a woman, a podcaster, Manveen Rana. The guests were Matthew Campbell, a Sunday Times foreign affairs features editor, General Sir Richard Barrons, former Commander of the UK Joint Forces Command, and General Sir Nick Carter, Chief of the Defence Staff. I think a British academic based in the United States also contributed. If I can find a way to do this—I think it might be possible—it is my intention to ensure that every parliamentarian in this building, here and in the other place, gets access to this podcast because, more dramatically and probably with better effect, it makes the points that I have been trying to get across in the last three attempts and this one, explaining why it is crucial that this work is done.

21:00

For reasons I will come to, it is crucially important that this work is done in a context in which responsibility for these weapon systems is taken by elected politicians at the highest level. We in Parliament must know that the politicians who are responsible for decisions about them fully understand the implications of these weapon systems and exactly what their capabilities are and may become. In my view—I cannot overstate this—this is the most important issue for the future defence of our country, future strategic stability, and potentially peace: that those who take responsibility for these weapon systems are civilians, that they are elected, and that they know and understand.

Anyone who listens to this podcast will dramatically realise why, because there are conversations going on among military personnel that, in my view, demand the control of politicians. I have no intention of going through all of this, as it takes 33 minutes; it would have been helpful if we had all heard it before I spoke. That was impossible, though I did share it with a limited number of your Lordships, and I sent it to the Minister. I gather that she was not able to access it, but she would be surprised at some of the vocabulary used in it. In it, there were some sentences deployed which the House must know and understand.

General Sir Richard Barrons says that

“artificial intelligence is potentially more dangerous than nuclear weapons.”

If that is a proper assessment of the potential of these weapon systems, then that is the reason they must come under the control of elected politicians who know and understand their implications. That debate, after nuclear weapons were first used, occupied the United States of America for the best part of a decade. They decided, at the end, to split responsibility for nuclear weapons between the civilian side of the government and the military, but that the civilian side would have responsibility. That is why we talk of these weapon systems, as we do in the United Kingdom, as being the Prime Minister’s weapons. They are awesome in their abilities. These weapon systems as described in this podcast are equally awesome. Even more worrying, once we make the development from AI to AGI, they potentially have the ability to develop at a speed we cannot physically keep up with.

There is an existing context, under the United Nations Convention on Certain Conventional Weapons known as the GGE process, which seeks to find a way at the UN level of making a regulatory agreement in relation to artificial intelligence and artificial general intelligence enabled weapon systems. There is a frustration developing in that discussion, and 68 countries are calling for a new legal instrument to regulate lethal autonomous weapons. These sorts of frustrations in that environment are not unusual; they led to the cluster munitions convention and antipersonnel landmines treaties. The UK was involved in helping to lead both. Developments there also led to the ban treaty relating to nuclear weapons. They are an unhelpful development sometimes but at others the only way that progress can be made in relation to certain weapon systems. If this happens, it is incumbent on us to decide where we will be in this discussion, which is why subsection (2)(c) is added to the amendment in its current form.

Specifically, these states that are pulling away are calling for a combination of both prohibitions and regulations in the form of a legally binding instrument. A smaller subset of them have mentioned their support for the less nuanced approach of a simple ban. Presently, there are no NATO states in this group, but Austria, which is a partner for peace with NATO, is on the list, and Belgium looks like it is close to national support for a new international instrument. Its Parliament recommended incorporating a ban into national legislation in 2018 and there is some indication that the defence committee in Belgium is considering making another powerful recommendation on this. Therefore, this will impact the alliance that we depend on for our strategic and other defence if it develops.

The second point in addition to what I have said before comes from the words that the Minister deployed in Committee. Several times in debates of this nature, parliamentarians, including my noble friend Lord Coaker and the noble Baroness, Lady Smith of Newnham, have asked for an unequivocal statement that there will always be a human in the loop when decisions over the use of lethal force are taken. Responding to these calls most recently, the noble Baroness repeatedly said that the UK does not use systems that employ lethal force without “context-appropriate human involvement”. It has been brought to my attention that this novel formulation offers less assurance over the UK’s possible future use of these weapons than the UK’s previous position, which was that Britain does not possess fully autonomous weapons systems and has no intention of developing them.

I have a letter written on 8 December 2017, from the Foreign and Commonwealth Office, and therefore dated now. It is to the United Nations Association of the UK:

“The UK commits to maintaining human control over its weapon systems as a guarantee of oversight and accountability. The UK does not possess fully autonomous weapon systems and has no intention of developing them.”

That was a strong reassurance, but it seems that the language has changed. If it has, can the Minister tell us why the UK is no longer stating that it has no intention of developing LAWS, and why the UK appears unwilling to state that humans will always remain in control of the decision to use lethal force?

Finally, on the issue of the long-awaited AI strategy, it appears that the MoD, through an FoI, has confirmed that it has carried out no public consultation in relation to this. There has been some informal consultation but, surprisingly, there is no public consultation or open consultation about this. When it is eventually published, will it be a done deal, or will it be in White Paper form for further discussion in a public and open way?

I have nothing more to add today. Bearing in mind everything that I have said about these weapons systems in the past, I have made my position plain. I do not think the issue is going to go away. The way the amendment has been formed has been interpreted as a one-off event but I have to make it clear to Parliament, the House and the Minister that this is not my intention. The review that I think has to take place, which has to be reported on to Parliament by senior Ministers, who must come and explain it in a way that makes it clear that they fully understand these weapons and why they have made these decisions, is just the beginning of a long-standing process. This is an issue that will be with us for a long time, and we need to start thinking, in a relationship between the Government, Parliament and the country, about where we want to be with these weapons systems.

[Lord Craig of Radley (CB)]

My Lords, the noble Lord, Lord Browne of Ladyton, has given us a very thoughtful, well-researched and deeply troubling series of remarks about the future in this area. I wanted to concentrate on a rather narrower point. Those who are ordered to fight for the interests of this country must do so—now and in the future, as more novel technologies find their way into kinetic operations—in the certain knowledge that their participation, and the way in which they participate, is lawful in both national and international jurisdictions. As has become evident in some of the asymmetric operations of recent years, there is real evidence that post-conflict legal challenges arise, and future operations may prove impossible to clear up quickly and comprehensively unless we have thought deeply about it.

Risking one’s life is a big ask, but to combine it with a risk of tortuous and protracted legal aftermath is totally unacceptable. I support the simple thrust of the amendment to demonstrate that the Government indeed have this matter under active review, as one must expect them to. It is infinitely better that the answers to these issues are there before a further operation has to be waged, not after it is over, when issues that should have been foreseen and dealt with press on individuals and others in our Armed Forces. Should the protection of combat immunity not be brought into the frame of discussion and resolution of this seriously troublesome issue?

[Lord Clement-Jones (LD)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Browne of Ladyton, and the noble and gallant Lord, Lord Craig, in supporting Amendment 29, which the noble Lord introduced so persuasively, as he did a similar amendment on the overseas operations Bill that I signed and in Grand Committee on this Bill—I apologise for being unable to support him then. Since we are on Report, I will be brief, especially given the hour. Of course I do not need to explain to the Minister my continuing interest in this area.

We eagerly await the defence AI strategy coming down the track but, as the noble Lord said, the very real fear is that autonomous weapons will undermine the international laws of war, and the noble and gallant Lord made clear the dangers of that. In consequence, a great number of questions arise about liability and accountability, particularly in criminal law. Such questions are important enough in civil society, and we have an AI governance White Paper coming down the track, but in military operations it will be crucial that they are answered.

From the recent exchange that the Minister had with the House on 1 November during an Oral Question that I asked about the Government’s position on the control of lethal autonomous weapons, I believe that the amendment is required more than ever. The Minister, having said:

“The UK and our partners are unconvinced by the calls for a further binding instrument”


to limit lethal autonomous weapons, said further:

“At this time, the UK believes that it is actually more important to understand the characteristics of systems with autonomy that would or would not enable them to be used in compliance with”


international human rights law,

“using this to set our potential norms of use and positive obligations.”

That seems to me to be a direct invitation to pass this amendment. Any review of this kind should be conducted in the light of day, as we suggest in the amendment, in a fully accountable manner.

21:15

However, later in the same short debate, as noted by the noble Lord, Lord Browne, the Minister reassured us, as my noble friend Lady Smith of Newnham noted in Committee, that:

“UK Armed Forces do not use systems that employ lethal force without context-appropriate human involvement.”

Later, the Minister said:

“It is not possible to transfer accountability to a machine. Human responsibility for the use of a system to achieve an effect cannot be removed, irrespective of the level of autonomy in that system or the use of enabling technologies such as AI.”—[Official Report, 1/11/21; col. 994-95.]

The question is there. Does that mean that there will always be a human in the loop and there will never be a fully autonomous weapon deployed? If the legal duties are to remain the same for our Armed Forces, these weapons must surely at all times remain under human control and there will never be autonomous deployment.

However, that has recently directly been contradicted. The noble Lord, Lord Browne, described the rather chilling Times podcast interview with General Sir Richard Barrons, the former Commander Joint Forces Command. He contrasted the military role of what he called “soft-body humans”—I must admit, a phrase I had not encountered before—with that of autonomous weapons, and confirmed that weapons can now apply lethal force without any human intervention. He said that we cannot afford not to invest in these weapons. New technologies are changing how military operations are conducted. As we know, autonomous drone warfare is already a fact of life: Turkish autonomous drones have been deployed in Libya. Why are we not facing up to that in this Bill?

I sometimes get the feeling that the Minister believes that, if only we read our briefs from the MoD diligently enough and listened hard enough, we would accept what she is telling us about the Government’s position on lethal autonomous weapons. But there are fundamental questions at stake here which remain as yet unanswered. A review of the kind suggested in this amendment would be instrumental in answering them.

[Lord Houghton of Richmond (CB)]

My Lords, I support this amendment. I am sorry that my name has not found its way on to the Order Paper; I had Covid last week and I failed the IT test of getting it properly registered.

I come at this from perhaps a different angle. I have spent perhaps rather too much of my latter career in the Ministry of Defence and understand the way it functions. It spends the vast majority of its time—and I think this is understandable—managing the crisis of the moment. It spends very little time, in truth, on strategic foresight, and therefore it spends quite a bit of the other part of its time on making good that lack of strategic foresight—and much of what this whole Armed Forces Bill is about is making good that lack of foresight. The thing that I support so much about this amendment is that it is an attempt to get ahead of the game.

The MoD properly stops and looks to the future in the times of its periodic reviews, and there was much to commend the last integrated review. There are two things I would pluck from it that are relevant to this amendment. First, the review was littered with the idea that the country was making a strategic bet on the future by way of investment in technology: technology would be the source of our new prosperity; it would be the source of our technological edge; we would become a superpower; it was the reason that we could reduce the size of our Armed Forces; it was through the exploitation of novel technology that we could hold our heads up high and not fear for our safety.

At the same time, elsewhere in the review—this is my formulation, not the review’s—two forms of warfare were identified. There is the one we do not want to fight—the reversion to formalised war at a scale above the threshold of kinetic conflict—and then there is this grey area of hybrid war; the war that we are currently engaged in, where our malevolent and malicious enemies seek to exploit every trick in the book and the rules of warfare in order to exploit new vectors of attack to effectively defeat us during peacetime in mendacious ways.

You can read as much as you want into the second thing, but this idea of a permanent competition for relative survival and advantage is undoubtedly a feature of the current global security situation. Therefore, in those moments of strategic foresight in the integrated review, we have in some ways identified the fact that the advantage given by novel technologies will be decisive and that we have enemies who will be mendacious in ways that we cannot quite comprehend.

I worry that, in the months to come, this Chamber might revert to its defence arguments being about counting the number of ships, air squadrons or tanks. The amendment will hold the Ministry of Defence and its generals to account by parliamentarians for the ways in which these weapons evolve—they will evolve at pace—and the rules that are to be employed by not just us but our adversaries and what is and is not their proper exploitation.

Having paused in that integrated review and discerned the future, however darkly, it would be gross negligence if we did not wish upon ourselves an instrument by which the evolution of these weapons and the rules involved in their employment were not the closest interest of parliamentarians and this House. The Ministry of Defence should be held to account over the coming months and years to see how it all plays out. This amendment would do so, and it has my unreserved support.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I apologise again for not speaking in Committee due to being at COP. I offer support and regret that I did not attach my name to this amendment. What the noble Lord, Lord Browne, said about public consultation in this process is really important, as is what the noble and gallant Lord, Lord Houghton, said about parliamentary scrutiny. Those two things very much fit together.

I am very aware that the Minister started this day, many hours ago now, promising to read a book, so I will refer to a book but not ask her to read it. It is entitled Exponential: How Accelerating Technology is Leaving Us Behind and What to Do About It, and it is by Azeem Azhar. The thesis is that there is an exponential gap: technologies are taking off at an exponential rate, but society is only evolving incrementally. In terms of society, we can of course look at institutions like politics and the military.

Another book is very interesting in this area. Its co-author, Kai-Fu Lee, has described it as a scientific fiction book, and it posits the possibility of, within the next couple of decades, large quantities of drones learning to form swarms, with teamwork and redundancy. A swarm of 10,000 drones could wipe out half a city and theoretically cost as little as $10 million.

It is worth quoting the UN Secretary-General, António Guterres, who said:

“The prospect of machines with the discretion and power to take human life is morally repugnant.”


That relates to some of the words in the podcast that the noble Lord, Lord Browne, referred to; I have not listened to it, but I will.

Fittingly, given what the Secretary-General said, the United Nations Association of the UK has very much been working on this issue, and communicating with the Government on it. In February, the Government told it that UK weapons systems

“will always be under human control”.

What we have heard from other noble Lords in this debate about how that language seems to have gone backwards is very concerning.

This is very pressing because the Convention on Certain Conventional Weapons will hold an expert meeting on 2 December, I believe, which will look at controls on lethal autonomous weapons systems—LAWS, as they are known. It would be very encouraging to hear from the Minister, now or at some future point, what the Government plan to do if there are no positive outcomes from that—or, indeed, whatever the outcomes are. While the Government have ruled out an independent process, both the mine ban convention and the Convention on Cluster Munitions were ultimately negotiated outside the CCW.

Finally and very briefly, I will address proposed new subsection (2)(d) and how individual members of the Armed Forces might be held responsible. There is an interesting parallel here with the question on deploying autonomous vehicles—the issue of insurance and who will be held responsible if something goes wrong. Of course, the same issues of personal responsibility and how it is laid will face military personnel. This may sound like a distant thing, talking about decades, but I note that a report from Drone Wars UK notes that Protector, the new weaponised drone, is “autonomy enabled”. I think Drone Wars UK says it has been unable to establish what that means and what the Government intend to do with that autonomy-enabled capability, but the first of an initial batch of 16 Protectors is scheduled to arrive between 2021 and 2024, and the Protector is scheduled to enter service with the RAF in mid-2024.

So I think this is an urgent amendment, and I commend the noble Lord, Lord Browne, and the others on this, and I would hope to continue to work with them on the issue.

[Baroness Smith of Newnham (LD)]

My Lords, I would like to support this amendment, in the name of the noble Lord, Lord Browne of Ladyton, the noble and gallant Lord, Lord Craig, and my noble friend Lord Clement-Jones. The noble Lord, Lord Browne, has probably spent an hour, this evening and in aggregate, explaining to the Chamber the need for this amendment.

As the noble Lord and my noble friend Lord Clement-Jones have pointed out, on 1 November, some of the issues raised about novel technologies and autonomy were raised; I am not sure the House was wholly persuaded by the answers the Minister was able to give on that occasion. I think it is essential that the Government think again about how they might respond to the noble Lord, Lord Browne, and to this amendment, because we have heard how vital it is that we understand the danger that the world is in. We cannot just ignore it or say we might think about it at some future date because it is not a matter for today.

If we are keen to recruit for the 21st century, recruitment is not just about cannon fodder; it is about people who are able to understand the legal aspects of warfare and the moral issues we need to be thinking about. We need service personnel, but we also need—as the noble Lord, Lord Browne, so eloquently argued—politicians and officers who are able to make decisions. There are questions about autonomy that need to be understood and focused on now, and it is crucial that we talk with our partners in NATO and elsewhere. We cannot simply say we are not interested at the moment in debating and negotiating international agreements; we absolutely have to. The time to act on this is now; it not at some future date when the Government think they might have time. We need to do it today.

[Lord Coaker (Lab)]

My Lords, this is one of these debates that takes place very late at night that should have a packed Chamber listening. It is not a criticism, but the importance of the debate is immense. I thought the introduction from my noble friend Lord Browne was tremendous—I really did. We went from a situation where we all thought “Hopefully we won’t be too long on this amendment” to everybody listening to what he had to say and then thinking they had important contributions to make.

Lots of noble Lords have made outstanding contributions, but this is a bit of a wake-up call, actually. This is happening. My noble friend Lord Kennedy mentioned that he was in a Home Office debate and they were talking about what the police were looking at and, no doubt, what Border Force and all sorts of other people are looking at. But in the sense of the military here, as the noble and gallant Lord, Lord Craig, pointed out, we are going to ask people to operate within a context and a legal framework. What will that be? Because we are going to order them to do things.

21:30

This is the change—I make no apology for spending a couple of minutes on it—which my noble friend Lord Browne mentioned. The Government’s policy was:

“The UK does not possess fully autonomous weapon systems and has no intention of developing them.”

I asked the Minister in Committee just a couple of weeks ago to unequivocally state that there will always be a human in the loop when decisions over the use of lethal force are taken. The Minister said, as my noble friend Lord Browne said:

“UK Armed Forces do not use systems that employ lethal force without context-appropriate human involvement.”—[Official Report, 1/11/21; col. 995.]

We all know what that means. It is a very careful use of language, but it has shifted considerably from one statement to the next. As the noble and gallant Lord, Lord Houghton, asked, as did my noble friend and other noble Lords, where is the parliamentary accountability? Where has the decision for that been taken? What parliamentary debate took place that said it was now okay for the UK to make that quite considerable change of policy?

It may be, I suspect, that some of the answer we get from the Minister will be, “We can’t talk about this, it’s secret”. Yet it is not secret, so what is going on? This is why I said it was a bit of a wake-up call. Parliament needs to debate this; I could not agree more with the noble and gallant Lord, Lord Houghton. It is for this Parliament as the democratic part of the process of government that runs this country to determine what is appropriate. It is not for meetings—wherever they take place—to determine that.

The most important part of the amendment before us is proposed new subsection (3), which talks about the review commissioned by the amendment being reported to Parliament with its findings and recommendations, so that Parliament would have the opportunity to debate and discuss what the policy of Her Majesty’s Government, those who represent it and the establishment of this country, was with respect to the use of artificial intelligence, increasing autonomy, machine learning and all of those sorts of things.

The one thing I would say to the Minister is that she is a member of Her Majesty’s Government. She is the representative of the Government that all of us here are collectively talking to around this amendment. I think what noble Lords want—certainly what I want—is for the Minister to go back and say “These were the sorts of comments that were made in Parliament by numerous Lords”—and no doubt it would happen in the other place as well—“so what is it that we going to do about this? What is going to happen as a consequence of the crucial amendment that Lord Browne put before us?”

Knowing the Minister in the way that I do, I know she will go back and ask this. But the system needs to respond to us, to this Chamber, to this debate and to all the various points that have been made; that is what democracy is about. It is about the Chamber that represents the people speaking up for the people to the system and demanding that it change and respond to them. That is what we expect from this debate. I thank my noble friend Lord Browne again for putting the amendment and for his continued efforts with respect to this really important issue.

[Baroness Goldie (Con)]

My Lords, the noble Lord, Lord Coaker, is right: we have kept until the end of the day—unfortunately when few people are around—one of the best debates we have had during this stage of the Bill. I thank the noble Lords, Lord Browne and Lord Clement-Jones, and the noble and gallant Lord, Lord Craig, for tabling this amendment. I know that their interest is informed and determined, and I can tell them that it is welcome. Having debated this issue with them now on several occasions, I understand the depth of their concern in this important area. I am grateful to them for the way they have engaged with me and officials and I look forward to further engagement, for we will surely debate these issues in this House for many years to come. I say to the noble Lord, Lord Coaker, that any Government would expect to be accountable to Parliament in respect of matters of such significance.

As with so many issues relating to the rapid march of new technology, this is both complex and pressing. The Government continue to welcome the challenge and scrutiny being brought to this question, and, as I noted on previous engagements, I do not dispute the noble Lords’ analysis of the importance of proper legal consideration of novel technologies. Indeed, I attempted to access the podcast to which the noble Lord, Lord Browne, referred. I do not know whether the Chamber will be delighted or disappointed to learn that, such is the security of my MoD computer, I could not get anywhere near it, so I have still to enjoy the benefit of listening to that podcast, which I intend to do.

As I said, I know that the amendment is extremely well intended and timely, but I hope to persuade your Lordships that the proposed review is not the right means of addressing these issues. However, I assure your Lordships that the department is alert to these questions and has been working extensively on them over the course of the last 18 months. Indeed, the noble Lords, Lord Browne and Lord Clement-Jones, have been engaging with officials in the department. They might have a better understanding than most of what is taking place.

Setting a requirement for a review in law would actually risk slowing down the work needed to develop the policy, frameworks and processes needed to operate AI-enabled systems responsibly, and to address the legal risks that service personnel might otherwise face. That is an issue of profound importance and one in which the noble and gallant Lord, Lord Craig of Radley, is rightly interested.

Noble Lords will understand that I cannot set out details of the department’s position until these have been finalised, but I can assure your Lordships that work to set a clear direction of travel for defence AI, underpinned by proper policy and governance frameworks, has reached an advanced stage. The noble Lord, Lord Browne, will I am sure have a sense of where that is headed. Key to it is the defence AI strategy, which we hope to publish in early course, along with details of the approaches we will use when adopting and using AI.

These commitments, which are included in the National AI Strategy, reflect the Government’s broader commitment that the public sector should set an example through how it governs its own use of the technology. Taken together, we intend that these various publications will give a much clearer picture than is currently available, because we recognise that these are vital issues that attract a great deal of interest and we need to be as transparent and engaged as possible. I wish specifically to reassure the noble Lord, Lord Coaker, about that.

I know from their contributions, to which I listened, that noble Lords will understand that this AI strategy cannot be the last word on the subject, but I hope that, when we do publish details, your Lordships will be substantially reassured that we are on the right track, and that substantial effort and engagement will follow. There is no end to the march of technology—that is one of the reasons why we have questioned the utility of a snapshot review process—nor will there be an end to our challenge of ensuring that we do the right thing with that technology, especially where grave matters of life and death and national security are concerned.

As we undertake this work, one of our top priorities must be to develop the terminology and vocabulary necessary to ensure we illuminate, clarify and improve understanding and awareness, and to find the right way to debate these issues. This is by no means a comment on any of the discussions that we have engaged on in this House; it is more a general observation on the difficulty of debating concepts such as lethal autonomous weapon systems when there is no definition and different views are not always clearly differentiated.

Are we concerned that AI could usher in a new era of weapons which, whether controlled by a human or not, could result in devastation and atrocities? Or are we concerned at the ethical implications of a machine, rather than a human, taking decisions which result in the death of even a single human? The answer is both, but the discussion is not best served when it jumps between such disparate topics.

The MoD has to keep pace with the threats that confront this country and consider how to deal with them. When I spoke in Grand Committee, I commented, in response to the noble Baroness, Lady Smith, that context-appropriate human involvement could mean some form of real-time human supervision, which might be called “human in the loop”, or control exercised through the setting of a system’s operational parameters. The noble Lord, Lord Browne, correctly observed that some might call the latter a fully autonomous weapon. But I wonder whether they would use that term, or perhaps more importantly be concerned, if the use case they had in mind was a system mounted on a Royal Navy vessel to defend against hypersonic threats. Such a system might well be lethal—that is, capable of taking human life—but in many ways it would not be considered fully autonomous, even if it detected the threat and opened fire faster than a human could react.

We must be careful to avoid generalisations in this debate. We in the Ministry of Defence have a responsibility to ensure that our position is properly communicated. That is a responsibility we acknowledge, and I say again to the noble Lord, Lord Coaker, that it is a responsibility of which we are cognisant and about which we will be vigilant.

The crucial point, which is also the reason why this amendment is unnecessary, is that all new military capabilities are subject to a rigorous review process for compliance with international humanitarian law. Any determination as to the exercising of context-appropriate human involvement will similarly be done carefully on a specific case-by-case basis. We also adjust our operating procedures to ensure that we stay within the boundaries of the law that applies at the time.

International and domestic frameworks provide the same level of protection around the use of novel technologies as for conventional systems because their general principle is to focus on the action, rather than the tool. These frameworks therefore offer appropriate levels of protection for our personnel. We are committed to ensuring that our Armed Forces personnel have the best possible care and protection, including protection against spurious legal challenges. I think I said in Committee that, earlier this year, we acted to bolster this protection in historical cases through the overseas operations Act.

This is a fascinating and complex area. I hope my remarks provide reassurance to your Lordships that the Ministry of Defence takes these matters very seriously, is already doing all that needs to be done and is planning to be proactive in communicating its approach appropriately to Parliament and the public. On this basis, I suggest that this amendment is not needed. The noble Lord, Lord Browne, has been kind enough to indicate that he will not press it, but I hope that he and other Members of this House will remain engaged with us in the MoD, as we will remain engaged with our international partners and allies, and our own public and civil society, so that we can make rapid progress on these important and challenging questions.

[Lord Browne of Ladyton (Lab)]

My Lords, I thank all noble Lords who contributed to this debate, including the noble Baronesses, Lady Bennett of Manor Castle and Lady Smith of Newnham, my noble friend Lord Coaker, the noble and gallant Lord, Lord Craig of Radley, and the noble Lord, Lord Clement-Jones. I am sorry that the noble and gallant Lord, Lord Houghton, could not add his name to the amendment, but in my head it is there.

I thank the Minister, who was characteristically engaged with the debate and the issues. At this time of night, I do not want to start debating with her on whether some of her comments about this amendment and what it would do are justified. I do not believe that this would slow down the work; it is just a compilation of the things that the Government ought to be doing anyway. I do not care about the three months; a promise that this will be done, and done transparently, is what I, as a parliamentarian, demand of the Government. At some point, this will need to be done and need to be shared with Parliament. We will need to take joint responsibility for these weapons systems if we seek to deploy them in any fashion—even limited versions of them.

My second point is that I am glad to see that our country is complying with its international legal obligations to subject new technology to a rigorous review to make sure that it is compatible with international humanitarian law. I am satisfied that that is happening. I do not understand why my Government do not publish those reviews. The United States and many other countries publish such reviews. Why are they not published, so that we, the politicians who engage, not so much in this House but in the other House, in paying for them with taxpayers’ money, know that we are complying with this? Other countries can do so perfectly well.

I have been obsessed with this issue since 2013, when I read the Resilient Military Systems and the Advanced Cyber Threat report of the US Department of Defense’s Defense Science Board. It said specifically that the United States did not have a resilient weapons system that could not be penetrated by cyber, because it had penetrated them. It went on to say that the same was true of “all of our allies”. It did not say in the report that it did that to all of their allies, but I would not be surprised if it did.

In 2013, I took that to the then Ministers in the Ministry of Defence and said, “Have you read this? We are deploying some of this tech that has been penetrated, and it can be penetrated by cyber threat.” I have to say that it was penetrated with software downloaded from the web; no one wrote a single line of code in order to do it. I have yet to meet a Defence Minister of that generation who ever even bothered to read the report.

This is where we are now—this will be my last word on this. General Sir Richard Barrons, Commander Joint Forces Command from 2013 to 2016, is publicly saying of autonomous weapon systems that it is not a question of tomorrow—the technology exists now, it is unstoppable and we need to get on to that bandwagon. He has been saying that for years. I do not know how many senior military officers who have worn our uniform are involved in this and saying this, but one of them doing so publicly terrifies me, because I am far from satisfied that I—a former Secretary of State for Defence —or any of our current Ministers understand this well enough to keep people who think like that under proper control. That is what concerns me. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

House adjourned at 9.48 pm.