Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Geddes) (Con)
If, as is quite likely, there is a Division in the Chamber, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Covid-19 and the Use and Scrutiny of Emergency Powers (Constitution Committee Report)
(1 year, 10 months ago)
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Baroness Drake
That the Grand Committee takes note of the Report from the Constitution Committee COVID-19 and the use and scrutiny of emergency powers (3rd Report, Session 2021-22, HL Paper 15).
Baroness Drake (Lab)
My Lords, in June 2021, the Constitution Committee published its report COVID-19 and the Use and Scrutiny of Emergency Powers, following a broader inquiry into the constitutional implications of Covid-19 chaired by my esteemed noble friend Lady Taylor of Bolton. The social, economic and health implications of the pandemic were profound, the constitutional impact significant. The committee examined the emergency powers sought by the Government, and the extent to which they were used and how. We wanted to determine if there were lessons to be learned for future uses of the emergency powers, their safeguards and the processes for scrutinising them. We addressed four main dimensions: the legislative approach taken and parliamentary scrutiny afforded; co-ordination between the UK Government and the devolved Administrations; the impact of rapid changes to the law on the public and public authorities; and lessons learned. Inevitably, for any Government, national responses to such a fast-moving crisis can sometimes be sub-optimal. However, any Government must be open to learning lessons to inform future contingency planning. Witnesses told us that much could be done differently the next time.
I turn to the legislative approach taken and parliamentary scrutiny. The pandemic unquestionably necessitated a swift response from the Government. Two Acts of Parliament were used by the Government to make regulations: the Public Health (Control of Disease) Act 1984, and the Coronavirus Act 2020. However, scrutiny by Parliament was significantly restricted due to the procedures in the 1984 and 2020 Acts and Covid-driven changes to parliamentary proceedings. A large volume of new legislation came into effect as secondary legislation, much through public health regulations placing unprecedented restrictions on ordinary activities and freedoms, often without parliamentary approval. Of the 425 Covid regulations by the end of the 2019-21 Session, 398 were subject to the “made negative” or “made affirmative” procedures, and 86 were made using the urgency procedures under the 1984 Act. Regulations under the 2020 Act were more targeted on matters such as business tenancy forfeiture and local government elections.
The Government relied on the powers in the 1984 Act, rather than the Civil Contingencies Act 2004, and rather than incorporating a Covid-specific lockdown power in the Coronavirus Act 2020. Either of these latter two options could have resulted in greater parliamentary scrutiny and legal clarity. As a committee, we took the view that, if the use of the Civil Contingencies Act was not considered practically desirable, the Government should have voluntarily subjected themselves to comparable parliamentary scrutiny safeguards in pandemic-related legislation. We recommended that Parliament be consulted on any future draft legislation prepared on a contingency basis to address a potential emergency, ensuring that it provides for sufficient parliamentary scrutiny.
I turn to co-ordination between the UK Government and the devolved Administrations. Joint action was necessary to respond to a UK-wide crisis. The Coronavirus Act 2020 was the product of collaboration, passed with the consent of all three devolved legislatures. In the early stages, the First Ministers of Scotland and Wales and the First Minister and Deputy First Minister of Northern Ireland were invited to attend COBRA meetings. Ministers from the devolved Administrations attended meetings of five new ministerial implementation groups—MIGs—that looked at aspects of the coronavirus response. The different Administrations’ Chief Medical Officers and Chief Scientific Advisers met regularly, sharing information. The chairs of the Scottish and Welsh advisory groups on SAGE outputs were also participants in SAGE.
As the UK moved out of the first lockdown, however, although co-ordination on some devolved areas continued, such as scientific advice, procuring equipment and virus testing, intergovernmental co-operation appeared to decrease significantly. Each Administration started to take independent decisions about lockdown restrictions. On 10 May 2020, the Prime Minister announced the change from “stay at home” to “stay alert” but did not make clear that it applied to England only. This change was apparently made without informing the devolved Administrations. The UK Government set out three phases for easing lockdown restrictions in England. The Northern Ireland Executive set five, the Scottish Government four, and the Welsh Government opted for a traffic light system.
By early June 2020, both COBRA and the MIGs ceased to meet, replaced by two new Cabinet committees. Neither included representatives from the devolved Administrations. Yet the Cabinet Manual makes it clear that this is permitted on an exceptional basis to deal with an emergency response. Differences arose between parts of the UK on the countries exempt from quarantine restrictions and the international travel restrictions. This strained intergovernmental co-operation contributed to a lack of clarity about what rules applied where, causing difficulties for enforcement and compliance.
There is much to learn from the pandemic period to inform improving intergovernmental working. The Secretary of State, Michael Gove, recognised this when he
“described the pandemic as ‘a learning process for everyone’, raising broader questions about ‘making sure the whole devolution settlement works’. He said the UK Government intended to address this through reforms to intergovernmental mechanisms”.
Can I ask the Minister what consideration has been given to how the new intergovernmental relations arrangements could be deployed in the event of another national emergency similar to that created by the pandemic?
Turning to the impact of rapid changes to the law, the Constitution Committee noted that legal changes introduced were often set in guidance, or announced during media conferences, before Parliament had an opportunity to scrutinise them. The law was sometimes misrepresented in these public-facing forums, leading to a lack of clarity about what was legally enforceable. This posed challenges for the police and local government, sometimes leading to wrongful criminal charges. Guidance and media statements, when used appropriately, can enhance access to the law by simplifying legal complexity in a format that is easy to digest, but the committee found that, throughout the pandemic, government guidance and ministerial statements failed to set out the law clearly, mis-stated the law, or laid claim to legal requirements that did not exist.
Sometimes, public health advice was incorrectly enforced by the police as though it were law, and public authorities incorrectly suggested that guidance had the force of law. The report contains the detail of our findings but, as an example, on 23 March 2020, the Prime Minister announced the first England-wide lockdown in a televised address. The following day, the then Secretary of State for Health stated:
“These measures are not advice; they are rules. They will be enforced, including by the police”.—[Official Report, Commons, 24/3/20; col. 241.]
The announcement caused confusion about their meaning, with one police force threatening to search individual shopping baskets in supermarkets to check for non-essential items.
The UK Government’s website included the headline rules:
“Stay at home. Only go outside for food, health reasons, or work (but only if you cannot work from home). If you go out, stay 2 metres … away from other people at all times. Wash your hands as soon as you get home.”
The first instruction was a simplified explanation of a legal obligation. The second and third instructions were public health advice. The chair of the National Police Chiefs’ Council later had to clarify that the two-metre rule was not a legal requirement enforceable by police. The Secondary Legislation Scrutiny Committee also expressed concern that the distinction between legislation and guidance had been unclear, citing further examples.
New strains of the virus and spikes in infections made urgent legislative changes necessary, but sometimes seemingly non-urgent measures were introduced at short notice. In other cases, the urgency appears to have resulted from a lack of preparedness. The repeated repeal and amendment of Covid regulations added to confusion as to what restrictions applied at any one time. For example, on 2 and 3 September 2020 the “protected area” covered by the Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations were amended twice in 12 hours. The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 were amended by three different statutory instruments made on 22 and 23 September 2020. The “all tiers” regulations were amended by eight further statutory instruments between December 2020 and March 2021.
In summary, legal uncertainty, short notice of new measures, and repeated amendment and revocation of secondary legislation combined in certain instances to undermine parliamentary scrutiny and made it difficult for public authorities tasked with enforcement to understand the law. Her Majesty’s Inspectorate of Constabulary reported:
“At times, the introduction of, and variation to, new legislation and guidance affected the police service’s ability to produce guidance and to brief staff. This inevitably led to some errors or inconsistencies in approach.”
The Secondary Legislation Scrutiny Committee recommended that an evaluation of how information about which instruments were superseded or had lapsed could have been provided more effectively. In our report, we strongly recommended that government information
“during a public health emergency conform to”
certain
“essential conditions to enable people … to understand the law”,
one such being
“A consistent approach to use of the terms ‘advice’, ‘guidance’, ‘recommendation’, ‘rules’ and ‘restrictions’”,
because those descriptions clearly did not have the clarity that people needed, and that in enacting any further restrictions,
“the Government should be guided by the principles of certainty, clarity and transparency”.
Finally, as to lessons learned, the Government used a wide range of emergency measures to respond to the pandemic, many introducing significant curbs on civil liberties and businesses. Scrutiny of these regulations by Parliament was significantly restricted. The chair of the public inquiry into the handling of Covid says that public hearings are unlikely to begin before 2023. Can the Minister give an indication of how long the inquiry will take? We recommended a review of the use of emergency powers by the Government, and their scrutiny by Parliament. It should take place in advance of the public inquiry, not after, so that the review can inform both the public inquiry and the planning for future emergencies. Can the Minister tell us the Government’s position on this recommendation from the committee?
It is unquestionable that the Government faced an enormous challenge with Covid-19, and the first responsibility of any Government is to protect their citizens. However, I refer to a conclusion that we made:
“All governments should recognise that, however great or sudden an emergency … powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence.”
That conclusion is probably still valid while we wait to see the outcome of the various reviews that the Government are engaged in. I look forward to the Minister’s response.
Baroness Foster of Oxton (Con)
My Lords, the use of emergency powers is defined in the report as follows:
“Emergency legislation may be necessary in exceptional circumstances, but its use should be limited given its significant constitutional consequences.”
In addition:
“All governments should recognise that, however great or sudden an emergency may be, exceptional powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence … . The vast majority of these regulations became law before being laid before Parliament; in other words, before members of either House”
had the chance to see them. The question is: did this need to be the case, notwithstanding the urgency with which we were required to act?
What is clear is that we can never implement emergency powers in such a cavalier fashion in future. The consequences of lockdowns on health, both physical and mental, and on so many vulnerable adults and children were appalling. Despite many scientists being aware of the effects that would take place, they said nothing. This led to millions of people waiting for treatment, some dying prematurely through lack of referral. Even now, all this time later, we are left with accident and emergency clogged up trying to sort out the mess.
The financial cost to the economy of three lockdowns was £370 billion, with many small and medium-sized businesses going bankrupt and many in the private sector losing their jobs. Thankfully, many have managed to find jobs—which will not do them much good today, if we look at the appalling actions taking place across the country.
Although I criticise my own Government, which of course I can do, while acknowledging the challenges of the decisions they had to make, I would certainly not allow the opposition parties off the hook, because too often, as far as I am concerned, this situation was turned into a political football. If it had been left to many of them, I suspect we would still be in lockdown.
My second point is on school closures. This was never necessary. Sweden and many other countries kept children in school not only for academic purposes but because it meant that their parents could carry on working to prevent the economy closing down. The huge issue of safeguarding was paramount but many children fell through the net, as we have seen from so many recent horror stories concerning child abuse and even murder. We can never allow a situation like that to happen again, where, in fact, many of the trade unions decided who could attend school and who could not.
Finally, there is much in this report to welcome. I hope that one of the most critical lessons will be regarding scrutiny, which has been raised, and making sure that Parliament can properly scrutinise measures and ensure legal clarity where necessary. The blur between guidelines and legally enforceable procedures and requirements left many police forces not even understanding the difference.
I hope nothing like this will happen again in our lifetimes, but if it does we need to have an open and frank debate. We must always be the order of the day, and I hope that, for once, lessons will be learned so that we can deal with future emergencies in a much more grown-up and responsible way, with all countries across the United Kingdom adhering to one set of regulations, while avoiding some of the knee-jerk fear- mongering by too many in the media and in medicine who did nothing to calm a most difficult situation. I hope I never witness anything like that again.
Baroness Bryan of Partick (Lab)
My Lords, I thank the Select Committee for another excellent report. While it is a shame that it has taken so long for it to be considered, many of the issues raised remain very relevant and have constitutional implications that are very much alive and unresolved.
The report rightly identifies that, by its very nature, a global pandemic cannot be contained within borders; there had to be joint action and intergovernmental collaboration. But the report quite rightly states, in paragraph 92:
“A core principle underpinning the UK’s devolution arrangements is the respect that the UK Government and the devolved administrations must show for each other’s areas of competence.”
It notes that communication and co-ordination had been “close and effective”, while at other times that had been “less evident”.
One important lesson is that during the time when the First Ministers participated in COBRA there appeared to be successful co-ordination. What made this effective was a commitment to a shared approach and shared decision-making. Once this broke down, the result was confusion and a lack of trust. We have to ask why, at this point, a joint ministerial committee was not tasked with continuing the collaboration.
The House of Commons Scottish Affairs Committee recommended that there be regular intergovernmental meetings, but this was not accepted by government. With hindsight, this was a missed opportunity that could have built bridges between those making decisions —rather than barriers, which broke down co-operation.
Living in Scotland, I was aware of the confusion among businesses and individuals as to which rules covered the whole UK, which were Scottish regulations and which applied only to one local authority area. The First Minister of Wales, Mark Drakeford, called the situation “utterly shambolic”. It was particularly difficult for people living and working across borders.
I believe the main reason for confusion is the asymmetry of the UK. When the Prime Minister speaks on national television, is he speaking as the Prime Minister of the UK or as the equivalent of the First Minister of England? He does not generally make that distinction, so it is not surprising that others, including the London-based media, do not acknowledge it either.
During 2021 we saw tensions between the devolved Governments and the UK Government, but also between English regions and the Government. Central government imposed different regulations on different regions at different times. Because of the varying devolution deals, this resulted in different levels of support and compensation. It has been suggested that this has raised interest in and support for more regional devolution. Andy Burnham, the Mayor of Greater Manchester, has argued that all parts of the north need substantial regional devolution. He suggests that the House of Lords needs to be an elected senate of the nations and regions.
The committee’s recommendations have been enhanced by its more recent report, Respect and Co-operation: Building a Stronger Union for the 21st Century. I very much look forward to being able to discuss that report—I hope without such a long wait. We have yet to see whether the new structures for intergovernmental relations will contribute to more effective systems of collaboration.
I am sorry that the Government’s response to the report did not cover the sections on co-ordination across the UK, including relations between central and local government. The worry is that, unless there is an acknowledgement that each part of the governance of the UK should be treated with esteem and not simply be subjected to the vagaries of central government, the tensions that occurred in response to Covid will happen again and contribute to the growing lack of trust.
Can the Minister give any explanation as to why there was no response to the concerns raised in recommendations 16 to 20? Could he also say what lessons have been learned from the way in which decisions were taken during this period? Finally, will he share his thoughts on the views expressed by Andy Burnham about regional devolution and a second Chamber of the nations and regions?
Lord Hope of Craighead (CB)
My Lords, I am the other Member of this Committee who was a member of the committee whose report we are considering. I thank the noble Baroness, Lady Drake, for the careful way in which she introduced our report and highlighted the particular matters on which the Minister is being asked to reply.
For myself, I begin by referring to the Government’s response, which I have read with great care and much of which I found reassuring, but two or three points arise out of it that I might mention briefly. The first arises out the paragraph where reference is made to our recommendation 6 that, among other things:
“The pre-legislative scrutiny of what became the Civil Contingencies Act 2004 provides a clear model”
for the approach to pre-legislative scrutiny. I am not sure that the response really picks up the point we were trying to make. It refers to “changes” to the Civil Contingencies Act, but it does not recognise that the way that Act was dealt with was a model. It also raises a question, on which the Minister might feel able to reply, as to whether it is proposed that changes should be made to that Act in the light of the experience of the Covid crisis. That might be desirable, but it would be interesting to know whether changes are in prospect.
The other paragraph that is worth mentioning is on our recommendation 38. It does not quite pick up the point we sought to make. Our recommendation was that
“all future ministerial statements and Government guidance on changes to … restrictions clearly state the geographic extent of the new requirements.”
The response deals with the Covid-19 guidance but does not mention ministerial statements. It is right to say that the guidance, on the whole, was clear—it was written down and made it clear to which part of the UK it referred—but the ministerial statements from time to time did not make it clear that they referred only to England and Wales. That is a matter of concern for the reasons already mentioned by the noble Baroness, Lady Bryan of Partick. Those are the only two points in the response, apart from the third point, that might require further comment.
The third point is the one that the noble Baroness, Lady Bryan of Partick, mentioned, which is that there is no mention in the response of chapter 3 of the report. It is that chapter on which I wish to concentrate, for that reason among others. The chapter was of particular interest to me because, like her, I spent the period when we were in lockdown at home in Scotland. That meant that, especially during the early days, when we sought information about what was going on and what we should do, I found myself trying to obtain it from two sources.
First, there were daily briefings from Downing Street, usually at about 5 pm, which were initially presented by the Prime Minister and, later and more frequently, by the Secretary of State Mr Hancock, against a backdrop of union flags. As has already been mentioned, that tended to suggest that what was being said there applied to the union as a whole. But we also had briefings from St Andrew’s House in Edinburgh, which appeared on BBC Scotland, usually just after midday, and were invariably conducted by Nicola Sturgeon, the First Minister. I believe that similar briefings were being presented from Cardiff by the First Minister for Wales, Mark Drakeford, and from Northern Ireland by the appropriate Minister. In their case, if there were flags, they were appropriate to the parts of the UK to which they related.
There is a question there about whether it is right that, where statements are being made that apply to England and Wales only, they should be set against a background of the union flag without making it absolutely clear that they apply to England and Wales only. Not to do so is the product of confusion.
I take these briefings as a starting point because they were a powerful demonstration—as we say in our report, “unprecedented” in its intensity—of devolution in action. In paragraph 85 we refer to “particularly visible” devolution arrangements in Scotland, and in paragraph 115 to a “dramatic increase in awareness”. As we know, health and education are devolved in Scotland, as they are in Wales and Northern Ireland, so here was the First Minister in each case fulfilling their constitutional roles when they were telling those in those parts of the United Kingdom how they should react to the emergency.
It was clear to us in the evidence we received that the level of co-ordination was good to begin with. There were cases when we really understood that what was being said applied to both nations and that there had been proper discussions between the relevant Ministers and their advisers. The messages from both were consistent with each other: you must stay at home, we were told. That message applied across the United Kingdom, and rightly so, and was promulgated on road signs and so on.
However, as our report points out, there came a later stage, as we began to relax from the lockdown, when different guidance and rules were promulgated north and south of the border. This was because the different Administrations were taking different decisions, looking at the needs and demands to protect the health service, which were different depending on which part of the UK you lived in and as to what needed to be done. We had different rules about the number of people who could gather, where they could go and so on.
In the evidence we received there is a suggestion that, in this situation, co-ordination was not as effective as it should have been. The United Kingdom took a lead in the co-ordination of vaccine development and procurement, much to its credit and to the benefit of all throughout the UK. That was a definite benefit of co-ordination when it was needed, but there seemed to be an increasing disregard, particularly in Whitehall, for the need to co-ordinate the way that restrictions were being adjusted and promulgated. Reference has already been made to the “stay at home” message being changed to “stay alert” in England and Wales, but not in the devolved Administrations; and to research by a school in Cardiff about the extent of the failure to understand the situation in Wales in the light of that change of message.
I do not want to further elaborate the point about confusion, which the noble Baronesses covered very effectively, but I ask the Minister to think about whether there is any value in reflecting on the way the devolved Administrations reacted to the situation according to their own rules and guidance. My impression is that there was less changing of the rules in Scotland than there was in England and Wales. The “rapid changes” referred to by the noble Baroness, Lady Drake, were not reflected in the way that this was handled in Scotland, so there may be lessons that could be learned from looking across the border.
There is another matter that we do not with deal in our report, but for which I can draw on my own experience: there were, and still are, problems for those who live in Scotland about obtaining proof of one’s Covid vaccination status in a form that would be acceptable outside Scotland. This is because NHS Scotland has its own system, which can be accessed by a mobile app, distinct from the system used in England. I have no doubt that they are very similar, but the fact is that they are different systems.
The result is that there have been times when people have travelled abroad, taking the Scottish app with them, only to find that it is not acceptable in France, for example, or any other place where you need to establish your status. I personally found, when I went to Italy in the recess, that the information on my NHS Scotland app was not acceptable to the airline I was using, although it was acceptable when I went to its desk. This situation is being overcome gradually, but I suggest that someone should have a look at the way these two apps failed to interact with each other so that there will be less uncertainty for people travelling abroad—particularly from the devolved Administrations —as to whether their vaccine status would be properly recognised.
Leaving these points aside, I invite the Minister to reassure us that the Government have noted carefully what we say about the practical difficulties that were created for members of the public by the divergences that emerged—occasionally accidentally—between the UK position in England and Wales and the position in the other devolved Administrations. There certainly were occasions when the need for co-operation was overlooked in Westminster when rules were being made or relaxed. I accept, and fully recognise and understand, that there were policy differences that made this difficult, especially in the later stages when it was quite clear that the Prime Minister was conspicuously keener than the other Administrations to lift restrictions to get the economy going. Nevertheless, the fact that they existed means that there were occasions when the rationale behind the differences was not apparent to members of the public.
This report and the forthcoming inquiries are all about lessons for the future. There is much else in the report that needs to be considered carefully, but there is a message here, as the noble Baroness, Lady Bryan, made clear, about devolution and the necessity of close co-operation at a ministerial level, as well as between officials. That was plain to see in the early stages, but, as I mentioned, it seemed to be increasingly absent as time went on. “Respect and co-operation” is the key message; it is the way in which we are best guided for living with devolution and maintaining the strength of the union, which is so important in the current climate. I hope that the experience of the pandemic will help to reinforce that message about co-operation and the need for it right across the board, to the benefit of everyone in all parts of the United Kingdom.
Baroness Fox of Buckley (Non-Afl)
My Lords, I congratulate the Constitution Committee on this excellent report. I certainly recommend that it is read widely in the public sphere because it is important to try to assimilate what happened and to learn lessons. However, before I recommend that it is read, I might have to issue a warning because, despite my long-standing hostility to “Generation Snowflake”-like trigger warnings, I must say that reading the report brought me out in a rash of post-traumatic stress disorder. All those bad memories that I tried to supress were brought to the fore with my horror at the ease with which civil liberties were suspended and intrusive legislation transformed the minutiae of everyday life. This was something I would rather forget, but we cannot forget it. The unprecedented attack on the freedom of ordinary activities for which, overnight, we needed permission to do anything—from walking outside to visiting loved ones in hospital or having a pint with mates—is something that we do not actually want to remember, but should never, ever forget, because we should never, ever repeat it.
The fact that public life was closed down has totally discombobulated society. The report reminded me of all those last-minute changes. I remember when the rule of six regulations were published only 30 minutes before the law came into force, making it a criminal offence to have more than six people gathering outside, because I was organising to have six people gathering outside; I was the seventh and did not know what to do. There was a sense of confusion and panic.
The report notes:
“1 in 5 … did not know what Tier their area was in”.
I never understood the tier system; I got completely confused. It says that
“only 12% knew the correct amount of time a person is required to self-isolate”
if they tested positive, and that
“53% … did not know whether they were allowed to visit other parts of the UK”.
We all felt disorientated at all these things. Family Zoom calls—maybe it was just my family—were full of angst and arguments about what we were allowed and not allowed to do. In other words, the stuffing was knocked out of spontaneous interactions and everybody became totally preoccupied with trying to decipher the runes of what we were and were not allowed to do by the law.
This might not be a constitutional matter, but it matters for the constitution. Individual agency of grown-up decision-makers, and taking responsibility, became the collateral damage of what this report describes. The confusion and conflation between guidance and law was particularly damaging, as described in the report, which says that
“‘guidance’, ‘guidelines’, ‘rules’ and ‘restrictions’”
were used
“interchangeably, in reference to … legal requirements and public health advice”.
Worse, as Kirsty Brimelow QC rightly notes, we had the added confusion of the police being equally unclear and often acting on the messaging of announcements by the Home Secretary or the Prime Minister at press conferences, rather than on the law. As for the consequences of some of this, I think this has undermined confidence in the police as an impartial, trusted body implementing the law. It has also undermined trust in the law itself if it can become such a shape-shifter, with hardly anybody knowing what it was.
I also fear that the use of the Public Health (Control of Disease) Act 1984 to push through so many of the most draconian measures has damaged the reputation of public health advice more generally. One thing the report does not note is the use of the behind-the-scenes, behind-the-backs-of-the-public devices that we use to soften up public opinion in relation to law changes. It is worth reading Laura Dodsworth’s book A State of Fear, which includes the minutes of SAGE meetings and the discussion on the use of behavioural psychology and nudging, so that the public would be faced with the worst-case scenarios and scared enough to comply with behaviour changes backed by legal force. Rushing laws through, justified by fear, obviously leads to a lack of scrutiny. It has been bad for the constitution that we have allowed fear to push through law.
Moving on, I agree with the report that the Civil Contingencies Act 2004, with its triple lock, would have been a better piece of legislation to use than the Coronavirus Act 2020, which completed its passage through both Houses of Parliament in just three sitting days. Of course, we all know and understand that these legal changes were made in the context of the very real and justified sense that this was an unprecedented health emergency at the start of 2020, but it is the job of the Government to keep society calm. Hyperactive lawmaking, hyped up by using fear, is the wrong approach.
It was not just the Government. While Parliament was complaining about not having scrutiny over the Government, many people on all sides in Parliament went along with this hyped-up, over-the-top, disproportionate fear-mongering. This in turn created a mood of permanent emergency. Even post the vaccine, the misuse of Section 45R of the Public Health (Control of Disease) Act, using the urgency clause for which there is no objective definition, created an atmosphere in which there was no constraint over what could be done. It makes me very nervous now, when I hear people declaring endless emergencies: the climate emergency, the energy emergency, the cost of living emergency. You think, “Oh my goodness; they’re going to bring in emergency legislation for all that, and we’d be locked down for that too”. Some are advocating that we do just that, so I am not exaggerating.
There is a good quote in the report from Professor Hickman:
“Once the true emergency abated … proper legislation should have been put in place. Parliament could and should have insisted on protections such as the ability to amend regulations”.
But Parliament did not, and that is what should have happened. I note that some of us, even if it was a minority, advocated such an approach at the time—not afterwards, as in the report—and were vilified for doing so. Lord Sumption spoke out very early on but was treated as a pariah. When I arrived in this place, I raised certain questions about the legislation; I did so rather anxiously as I was new and arrived here during lockdown. I was treated like a wide-eyed loony libertarian for suggesting a sunset clause in certain legislation and for querying things such as Covid passports. In the House—would you believe it?—a Minister added me and other Members of the House of Lords to a list of Covid deniers for raising this. I felt nervous raising questions or being critical—being not cynical but sceptical.
There is no mention in the report of free speech. You cannot have a constitution report without noting that, although no laws were brought in to attack free speech during this time, free speech suffered by behind-the-scenes methods. I look forward to at least having a discussion about the forthcoming Bill of Rights, which will apparently put free speech as a core societal value; we need to protect it.
This is not over yet by any stretch. I worry that the Government have got a taste for the extensive use of secondary legislation and a lack of checks on executive powers. The new Schools Bill, which I am following at the moment, has rightly been criticised as a power grab to, to quote the noble Lord, Lord Baker, increase
“the powers of the Secretary of State and the Department for Education in a way unprecedented since 1870.”—[Official Report, 23/5/22; col. 689.]
Talking of schools, it is only now that we are admitting, as the noble Baroness, Lady Foster, mentioned, the devastating impact of school closures on young people. We should never forget the human cost of these constitutional changes.
It is interesting to note that, at the moment, there is a panic about those pupils who have not returned to school. That might have something to do with the fact that they were told that school was not so important after all; we locked the gates and education became a secondary matter. Guess what the Government’s response to the increased non-attendance of children at schools is? It is to bring in illiberal legislation that threatens to fine parents. I worry that the legislative track we were on is not over yet.
I make my final point as baroness of Buckley, which is in north Wales; I could not but mention the impact of the legal divergence between the four parts of the United Kingdom. The whole constitutional decision to have legal divergence was completely unnecessary and created a fragmented mood in the country. The mood was almost competitive between the different jurisdictions. My very own north Walian leader, Mark Drakeford, wanted to prove that he was harder on lockdown than anyone else, and Nicola Sturgeon was competing with the UK Government. There were massive arguments in our family about what was an essential good or not, because we lived one mile apart on either side of the border between England and north Wales. If you went on a train, you had to dodge between having your mask on or off as you went down the track. It was ridiculous.
Legal divergence was also bad for scientific advice. If the Welsh jurisdiction said that its science showed one thing, and one mile away the science showed something else, why would any member of the public trust anything that was proved to be scientific evidence? The whole thing became, to be frank, farcical.
Tensions were exacerbated when the country faced a big challenge. Legal divergence has been hugely bad for the union in general and, as I said, was unnecessary. It would have been far better to have had a UK-wide response that we all united around.
Having said all that, I hope there is never a UK-wide response like this again, because I say: never again. This report gives us ample evidence as to why we should think that.
Lord Collins of Highbury (Lab)
My Lords, I thank the committee for its report and my noble friend for her excellent introduction. What I recall most about the pandemic—I appreciate that, because it is such a void in our lives, it is very difficult to remember what we did—was the strength of our communities. Our communities and the people within in them were so determined to support and care for each other. That is something I had not seen before in my lifetime. Perhaps Members who were alive during the war may have seen it. It was that resilience that I was most impressed by; people were determined to care for each other and those most vulnerable in our communities, and we should not forget that.
My noble friend’s introduction highlighted four key themes. The first is on why the Government chose the legislation they did, particularly the 1984 Act and the use of the Coronavirus Act 2020, rather than others that were available to them. I think we all appreciate that with fast-tracking of legislation and the extensive use of secondary legislation, essential checks on executive power are lost and the quality of law suffers. There is no doubt about that. Emergency legislation is never an acceptable alternative to effective government planning for periods of crisis.
The second theme, which all noble Lords have referred to, is to do with the fact that, although the four Administrations in the United Kingdom clearly demonstrated that they were capable of working together, the pandemic created political tensions. One example that the committee highlighted—one I was very familiar with—is how rules on face coverings on public transport in one part of the UK created difficulties when you crossed the Severn Bridge, and things like that. Clearly, that led to confusion.
The third theme is lack of clarity. There were a number of occasions when government publications and statements did not distinguish between public health advice and legal requirements. Rules were identified by the Government as having legal effect without any law having been made—for example, guidance about exercising once per day. My noble friend Lady Bryan highlighted that this confusion created strains on the relationships between the UK Government and certain local government leaders within England during the pandemic. We should not forget that there was obvious public confusion. One study, conducted when the tier regulations were in force, found that one in five did not know what tier their area was in, leading to extensive confusion.
The final theme of my noble friend’s introduction was that no Government should be frightened of learning the lessons, and I will return to that in a moment.
As the noble and learned Lord, Lord Hope, highlighted, the committee recommended that Parliament be consulted on any future draft legislation on a contingency basis to address a potential emergency. That is what we are all looking for, because it provides for the most sufficient parliamentary scrutiny.
The pre-legislative scrutiny of what became the Civil Contingencies Act provided a clear model for that. The Government’s response to the committee’s report merely stated that the Government will “endeavour to provide opportunities”. That is not a sufficiently clear commitment. I hope the Minister can reassure us that it will be more than an endeavour; it is a principle that we all want to ensure is taken on board. I hope he can be a lot clearer in his response today.
On learning the lessons, I read the Covid-19 inquiry final terms of reference, which have just been published. The Constitution Committee recommended that a review of the use of emergency powers by the Government, and the scrutiny of those powers by Parliament, should take place in advance of that inquiry, and for very good, obvious reasons. The results of that could then inform the public inquiry and any planning for future emergencies. I hope that the noble Lord can reassure us on that point and that the Government will consider committing to undertake a full-scale review of emergency powers, as recommended, in time to inform the public inquiry.
Of course, no one knows when the next pandemic or national emergency will occur. Despite what I heard from the previous speaker, I have no doubt that there will be one, and we need to be better prepared. That is one of the most important lessons that we can learn. I hope that the Government will commit to an expedited review of the CCA, because that would also allow for fuller parliamentary scrutiny.
As we have heard, the Government introduced a large volume of new legislation in response to the pandemic. Because the Government chose not to use the Civil Contingencies Act, some argue—I am inclined to that view as well—that they evaded the Act’s important constitutional safeguards and that, as a result, parliamentary oversight of significant policy decisions was limited. A Law Society Gazette article in 2020 argued that the CCA represented a legal landmark:
“It updated and consolidated laws which enabled public authorities to prepare for, and respond effectively to, emergencies”.
That is the key theme that we should focus on. How do we ensure that public bodies and people responsible for safeguarding our communities are better prepared in advance for something that we know will come to hit us again?
The first of two points in my conclusion is on the committee’s recommendation on sunset clauses. I have read the Government’s response on that. There is a strong case for ensuring that when we bring in these special powers, there is no keeping them on for longer than is necessary. I understand that the Government have been rescinding these powers as we go on, but some still remain. We need a clear commitment that in future the Government will adopt the principle of presumption in favour of sunsetting regulations. I think that will reassure us all about the taking of emergency powers.
I will conclude on the question of confusion. One of the committee’s recommendations was that the Government adopt alternative drafting practices to make the regulations more accessible to members of the public and lawyers alike. It asked that the Government should set out in the Explanatory Memorandum, first, the regulations being amended; secondly, the substance of the amendments being made; and, thirdly, the reasons for the amendments, following a practical approach that would ensure that people understood what they were about.
The Government’s response to the report did not appear to acknowledge the case for improvements in drafting the Explanatory Memorandum, so what does the Minister think will be necessary in future national emergencies to ensure less confusion among the public—and perhaps even a less confused Prime Minister? Surely improvements to the drafting of future Explanatory Memorandums will be a critical part of that.
Ultimately, we hope that the national inquiry will ensure that we all learn the lessons, but I do not want us to forget that the most important lesson for all of us is the importance of community and supporting each other.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, I thought that the way the noble Lord, Lord Collins, opened and closed his speech was totally appropriate. Some of the finest moments in these terrible times—which, to agree with my noble friend Lady Foster, none of us wishes to see again—involved the sense of solidarity, togetherness and defiance which is a great part of human character. All those things were there, along with the great dedication of the public servants and the responders who served in every part of these islands, whatever the nature of their Government of the time. That part of this experience was a great good, and one that we should carry with us; perhaps we forget it rather too often. I am grateful to the noble Lord for reminding us of that.
I begin by thanking the noble Baroness, Lady Drake, and the Lords Constitution Committee for the comprehensive reports—not just this one, but the three reports—published during its inquiry into the constitutional implications of Covid-19. It is absolutely right that regulations made by Governments—every Government—are thoroughly scrutinised. Such scrutiny improves the legitimacy of, and respect for, legislation in wider society. It is a fundamental part of the principles of our historic democratic polity. I acknowledge and own the duty on behalf of the Government.
Although the most recent report from your Lordships’ committee was published in June last year and responded to in writing by the Government in October—not in every respect satisfactorily, I hear; if I fail to respond satisfactorily I will take away and reflect on what I have heard in the debate—I very much welcome the report and the fact that the Committee has taken the opportunity to debate this important issue today. I am grateful to all noble Lords for their contributions. I candidly acknowledge the importance of the points made by so many in the debate.
The coronavirus pandemic had an unprecedented global impact that severely affected public health, the economy and society in sometimes devastating and disorienting ways, as the noble Baroness, Lady Fox, described. The Government, faced with an unprecedented and unknown enemy, took early and decisive action by introducing a range of measures to combat the virus, increase testing, support detection, reduce transmission and engage in research to improve our understanding of the virus.
Legislation was needed to make this work possible, and that legislation had to be addressed swiftly. When the virus started, I was not even a member of the Government; I was in retirement, living happily in Italy, rather bemusedly reading reports in the Italian newspapers of towns in the north of Italy being eccentrically cut off by the Italian Government because this virus had arrived. Some time later, I found myself being presented with comprehensive legislation to deal with a virus that, we then knew, represented a profound threat of loss of life.
Having moved from being a private citizen to being a Minister who was partly responsible, I was struck by the enormity of some of the measures put forward. My reaction was that they would be severely contested and challenged in Parliament, because of their enormity and gravity, only to find that there was swift and general agreement across the parties to take these pieces of legislation through. It is important to remember that context: legislation had to be developed very rapidly.
I will provide a brief summary of these pieces of legislation. Although they are well known to your Lordships present, they are worth placing on the record in Hansard. The Public Health (Control of Disease) Act 1984 was designed to give the Government appropriate powers in the event of a serious public health situation. These powers, set out in Part 2A of the Act, were added following the global SARS outbreak in 2008. As many noble Lords have said, this was the main legislation used to deliver the Government’s response to Covid-19. It enabled the public health response to the pandemic and the rapid implementation of restrictions, including local and national lockdowns. I will come on to the variations later. This public health Act was the legal basis for many of the measures essential to limiting social contact, including the “stay at home” order in March 2020, which has been referred to, subsequent national and local lockdowns, measures requiring face coverings and isolation, and those on international travel.
It was felt that the fast-moving, urgent and often unpredictable nature of the pandemic—that was how it was seen—necessitated the use of the emergency procedure under Section 45R of the 1984 Act in a number of instances. Regulations made using the emergency powers in Section 45R were not always debated before they came into force, but they required debate and approval within 28 days or they would lapse. Parliament specifically approved the Secretary of State’s ability to use Section 45R to cover an emergency such as the pandemic. The decision to use it was deemed necessary based on the urgency of the situation with the rapid progress of the virus at the time and the transmission risk that the statutory instrument was designed to tackle.
The “made negative” procedure, which allows a measure to become law without debate, under Section 45Q of the 1984 Act, was also used in a number of instances. For example, travel regulations made under Section 45Q were made under the negative procedure, so were not debated before they came into force. That has been the subject of complaint and comment in your Lordships’ debate and is noted in the report.
For nationally significant Covid-19 legislation made under the public health Act, including that implementing national lockdowns, the Government have sought to provide a vote in Parliament ahead of any regulations coming into force, but this was always subject to the urgency of the situation, to parliamentary timetabling and to the sitting of Parliament. Parliamentary approval is needed to approve any regulations made using the emergency procedure within 28 sitting days, otherwise they would cease to have effect. Inevitably, the fast-moving and urgent nature of the pandemic led Ministers, at the time, to use the “made affirmative” procedure in a number of instances and the “made negative” procedure for travel-related regulations.
The other instrument that is the subject of this distinguished report, the Coronavirus Act 2020, came into force on 25 March 2020—a month after I returned to join the Government—and has played a critical role in the Government’s Covid-19 response. That Act was introduced during a period of extreme uncertainty, when the future course and potential impacts of the pandemic were unknown. It was designed to be a facilitative and supportive piece of legislation, creating a framework to supplement the public health measures enacted via the public health Act.
The Coronavirus Act did not introduce lockdowns or restrictions. Some have commented that, in their belief, it might have, but it did not. It enabled action in five key areas: increasing the available health and social care workforce; easing and reacting to the burden on front-line staff; supporting people, including through setting up the Coronavirus Job Retention Scheme, which supported 11.7 million jobs, and the Self-employment Income Support Scheme, which protected the livelihoods of nearly 3 million individuals; containing and slowing the virus; and managing the deceased with respect and dignity.
Sunsetting is an interesting and important concept in legislation. The temporary provisions within the Act had a two-year lifespan from when the Act was passed by Parliament. These sunset provisions ensured that the Government had the necessary powers to respond to the pandemic for a proportionate amount of time. The Government removed powers throughout the pandemic as and when they were no longer needed. Thanks to the progress made in the fight against the virus, the Government were able to expire 20 non-devolved temporary provisions in the Act early and suspended a total of four provisions which have since expired. The majority of the remaining temporary non-devolved provisions expired at the end of 24 March 2022. The Government have extended just five temporary provisions within the Act for up to six months beyond 24 March.
I was asked about co-ordination across the United Kingdom. This was a theme of the debate; many noble Lords—the noble Baronesses, Lady Drake and Lady Bryan, the noble and learned Lord, Lord Hope of Craighead, and others—raised this question. The noble and learned Lord referred to what he thought was a failure to respond to chapter 3 of your Lordships’ report. The noble Baroness, Lady Fox, came at this from a slightly different direction from other noble Lords.
The UK Government determined the lockdown rules that applied in England, while the Scottish Government, the Welsh Government and the Northern Ireland Executive were responsible for introducing and lifting restrictions in their respective parts of the United Kingdom. This is the result of devolution arrangements that have been in place for more than 20 years. Yes, they became particularly visible during the Covid-19 pandemic, but the way to proceed in each of the jurisdictions was a matter for the Administration there.
I slightly took issue with the noble and learned Lord, Lord Hope. I understand the point he was making when he was complaining about a union flag being displayed behind the Prime Minister. The union flag is the flag of our United Kingdom. There are many people in Scotland and every part of this kingdom who have been proud to go out to serve and, indeed, shed their blood under the union flag. I do not believe that one needs to apologise for the display of that flag by the Prime Minister of the United Kingdom.
That said, the Government have been determined to work collaboratively with the devolved Governments. Working together on health and social care is ingrained in the values of our National Health Service and our social care sector, and your Lordships’ committee is right to ask and press about this. The Secretary of State for Health and Social Care continues to have regular engagement with the devolved Governments’ Health Ministers to deliver responses that benefit people across the whole of the United Kingdom.
Between March 2020 and May 2022, 65 United Kingdom Health Minister forums were held, and there was further engagement at junior ministerial level. This engagement included sharing information, resolving issues and progressing areas of mutual concern in responding to and recovering from the pandemic. Key issues of discussion in these meetings have included: vaccine development; the national testing programme, including testing resilience; social care; review of the Coronavirus Act; Covid certification; and winter planning and recovery. On Covid certification and the app, again, it is a matter for the Scottish Government if they wish to design an app. Of course one would wish that there were joined-up relations; this is what the United Kingdom wishes to see.
Ministerial engagement and intergovernmental communication are ongoing. That has been underpinned by ongoing engagement between civil servants across numerous policy areas. It has also included conversations between the Chief Medical Officers, as well as joint devolved government representation on key programme boards within the UK Health Security Agency to co-ordinate various programmes.
People ask why, therefore, there have been such different approaches to Covid across the United Kingdom. Ministers and officials from the United Kingdom Government have worked closely with the devolved Governments to ensure a co-ordinated approach to the response to Covid-19 across the United Kingdom. Although many, and perhaps even I may regret the differences in public health approaches in reflecting and responding to different local circumstances, this diversity is a strength of our devolved systems. This has always been asserted by many in your Lordships’ House and many in our nation, and has been delivered by successive Governments.
In July 2020, the United Kingdom Government reaffirmed their commitment to frequent engagement with the devolved Governments on areas of shared interest. To take up a point directly asked by the noble Baroness, Lady Drake, following the review of intergovernmental relations the Secretary of State for the Department of Health and Social Care will continue to engage regularly with counterparts through the interministerial group on health and social care. The group will continue to consider and discuss matters relating to health and adult social care policy and strategic policy developments between the portfolio Ministers leading on these issues within the United Kingdom Governments.
I was also asked about the Covid inquiry. The Government are very grateful to the noble and learned Baroness, Lady Hallett, for leading such a full and extensive consultation on her terms of reference and producing a detailed set of proposed refinements to the draft terms of reference. She has published a set of proposals. Under the Inquiries Act, the Prime Minister must also consult the devolved Administrations before finalising the inquiry’s terms of reference. That will be done and, once these steps have been taken, he will publish the final terms of reference and the formal work can begin. The Prime Minister is considering fully the noble and learned Baroness’s proposals, is consulting the devolved Administrations and will publish the terms of reference.
I was asked when the inquiry will start and finish. It would be presumptuous of a mere Minister of the Crown to dictate to the chair of such an important inquiry. It will begin its formal work once the terms of reference are finalised. From that point, the process, procedure and timing of the inquiry stages will be for the independent chair to determine. The noble and learned Baroness, Lady Hallett, has set out that her investigations will begin once these terms of reference are finalised. She said that she intends to gather evidence throughout this year, with public hearings beginning in 2023. She has made it clear that she will do everything in her power to deliver recommendations as soon as possible.
I acknowledge that lessons must and will be learned for us all. The Covid inquiry has two key aims: to understand the facts and to learn lessons from the pandemic. Although the timing is up to the chair of the inquiry, those are the fundamental things we must all address. It is expected that government departments also conduct post-legislative scrutiny on government legislation within three to five years of the Act obtaining Royal Assent. This will be another opportunity for further lessons to be learned.
Nothing is perfect, and certainly Governments are not perfect. In this extraordinary situation throughout the pandemic, to aid parliamentary scrutiny, the Government maintained a constant dialogue with parliamentarians, making regular Statements in both Houses. Since March 2020, in both Houses, the Department of Health and Social Care has led on 56 Oral Statements, 14 general debates, five Lords debates, 113 SIs, 53 Oral Questions, 28 Lords Topical Questions and so on. This engagement with the House was supplemented by regular No. 10 press briefings—about which some have complained—including direct questions from members of the public.
I agree that here too there are lessons to be learned, and your Lordships’ report will be a document of lasting relevance. The Government will always endeavour to provide opportunities for pre-legislative scrutiny. We firmly believe that decisions are made stronger through scrutiny and debate. Any changes to the public health Act or other emergency legislation, such as the Civil Contingencies Act, will be subject to parliamentary scrutiny.
In conclusion, I thank your Lordships again for your valuable contributions in this debate. As we move forward from the response to Covid-19 it is crucial that we learn lessons wherever possible and ensure that our democratic values and our love of liberty are upheld. I reiterate my thanks to the Constitution Committee, which produced these reports, and those who have continued to uphold the values of this House in scrutinising the work of the Government. Any Government is stronger for facing your Lordships’ House.
The Government remain fully committed to ensuring that Parliament has ample opportunities to scrutinise the actions taken during the pandemic and our continuing approach to emergency legislation. Emergency powers and temporary legislation must always be used with the utmost discretion. They should be effective but proportionate to the circumstances that present themselves. That is the challenge that your Lordships’ Constitution Committee has added to; that is the affirmation I make from the Dispatch Box.
The Government will continue work to ensure that the correct legislative vehicles are in place to deal with any emergency scenario that presents itself. This includes retaining the Part 2 powers in the Civil Contingencies Act as an option of last resort while keeping other options with which to react to specific issues. Any changes to legislation, powers or the processes by which we use them will always be subject to parliamentary scrutiny, and the Government, whatever their past failings and whatever the difficulties of the situation we went through, achieved many things for this country in responding to this unprecedented pandemic and led us through difficult circumstances into what we hope are better times. We will always endeavour to provide opportunities for pre and post-legislative scrutiny.
Baroness Drake (Lab)
My Lords, I thank everyone who has contributed to a really important debate, in terms not only of efficiently dealing with a national crisis of huge relevance to its citizens—I am sure this will not be the only one—but of integrity around a Government and a Parliament in how they go about protecting citizens in that emergency.
I am very grateful to the noble and learned Lord, Lord Hope, for his contribution, and particularly for stressing the importance of pre-legislative scrutiny in any amendment of the legislation. The Minister referred to any changes to legislation being subject to parliamentary scrutiny, but the Constitution Committee puts a powerful case as to why that should also include pre-legislative scrutiny. Again, I thank the noble and learned Lord for the importance he placed on the need to ensure that we work with the devolved Administrations across the UK so that we can deal with UK-wide emergencies as efficiently as possible. I thank everyone who contributed.
I will reflect on some of the points the Minister made. He took us in some detail through the 1984 public health Act and how it operated. Although I do not disagree with a lot of what the Minister said, there are two or three key messages from the Constitution Committee. The Act could have been added to by incorporating a lockdown power in the Coronavirus Act. It was not that the emergency procedures needed to be used—quite clearly there were several cases where they did need to be. The question was whether it was an emergency in every instance that they were used.
I absolutely acknowledge that a Government faced with the challenges that this Government were faced with need to move with speed on regulations, but that raises the bar for the expectations of the level of confidence that people need in the scrutiny of those actions taken by government.
On going forward with pan-UK working with the Administrations, I welcomed the Minister’s comments in respect of the initiatives being taken by the Secretary of State for Health. The Constitution Committee also produced quite a large report on the whole issue of governance within the UK, Respect and Co-operation. In a sense, the response in an emergency is part of a wider governance structure that applies, so I hope some of our recommendations in that report will also apply.
In conclusion, there is no question but that the Government faced an enormous challenge. They had to respond quickly and to protect their citizens. In an emergency, Parliament transfers to the Executive so that they can move at the speed necessary to do that, but the efficiency with which the Government deploy those powers is therefore so critical. The extent to which they are open to checks and scrutiny on the deployment of those powers becomes even more important, and that was the thrust of the Constitution Committee’s report. What are the lessons learned, and what is the experience that informed those lessons, so that the preparedness for the next emergency—I hope we never have one—and the confidence in the level of scrutiny and checks are there? However, I thank the Minister very much for his response.
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, before the next Motion for debate is called, I advise the Committee that the noble Baroness, Lady Brinton, is unable to take part due to technical communication problems.
Equality Act 2010: The Impact on Disabled People: Follow-Up Report (Liaison Committee Report)
(1 year, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Deech
That the Grand Committee takes note of the Report from the Liaison Committee The Equality Act 2010: the impact on disabled people: Follow-up report (2nd Report, Session 2021–22, HL Paper 60).
Baroness Deech (CB)
My Lords, I have had the privilege of being involved with disabled people’s rights since 2015. I say privilege in a personal sense, because albeit that there are 14.6 million self-reported disabled people in the UK—22% of the population—what we discovered on our committee was that, unless we are very lucky, as we get older we are all likely to suffer from mobility, sight and hearing problems without necessarily identifying as disabled, and yet in need of the adjustments made for disabled people. In the seven years of my involvement with disability, my arthritis has progressed and I completely empathise with step-free access, for example.
I know that the Minister is a caring and compassionate person, but I have to tell her that my involvement with disability rights has also been the most disillusioning and disappointing issue I have faced in my years in this House. What I have to say now will explain that. In sum, there has been hardly any progress: no central champion in the Cabinet; no will to be proactive rather than reactive; and always jam tomorrow, not jam today—witness the National Disability Strategy. Shockingly, I have to report that in January a High Court judgment, in the case of Binder v the Secretary of State for Work and Pensions, found that the strategy was unlawful because a proper consultation involving specific proposals to be put to disabled people was not carried out.
There is no strategy and the Government have not, as far as I am aware, started the process to reconsult and create a fresh strategy that takes account of what disabled people need and want. Rather than moving forward with disability rights, the Government have gone backwards. Moreover, it is an affront to parliamentary sovereignty that major parts of the Equality Act 2010, from 12 years ago, are still not in force.
The disability committee was fortunate and grateful that our report of 2016 was chosen for follow-up by the Liaison Committee, and we are appreciative of the boost that gave to our recommendations. The Government’s response, however, is almost entirely unsympathetic. I enumerate it here theme by theme. In the follow-up report, we expressed the hope that the Inter-Ministerial Group on Disability and Society and the ministerial disability champions would drive our recommendations forward. I have to confess that I do not understand the difference between the two groups but, in any case, there is little published information about the interministerial group. It is reported that it met three times and then lapsed. I see that the Government are advertising for regional stakeholder chairs of disability groups; that seems to me to be spreading tomorrow’s jam even more thinly so that it leaves no taste at all. Can the Minister tell us the difference between the two groups, whether they are functioning and what has been reported from them?
We made recommendations about government leadership in this field. In their response to our 2016 initial report, the Government said that they were committed to creating a public service ombudsman combining local government and parliamentary and health remits. It was announced in the Queen’s Speech in 2015. We saw that as an opportunity to support the Equality and Human Rights Commission and disabled people’s organisations, and secure compliance with the Equality Act 2010, but the Government now say that they are not bringing forward this legislation. Yet they have announced a new ombudsman for private landlords. Why should that have priority, and will it do anything for disabled tenants?
Coinciding with the Liaison Committee review, last summer the Government announced a National Disability Strategy. We immediately expressed the view that this new venture should not displace or put aside the need to implement recommendations already made, in favour of setting up new targets. The strategy is now null and void because of the High Court judgment I referred to. Where is the programme for starting again on consultation and creation, this time taking account of the recommendations in our report rather than setting them aside in favour of vague future promises?
Maybe the reason why disabled people are not heeded is that there is no Cabinet voice for them. We recommended that the Minister for Women and Equalities should be a stand-alone, full-time role with the right to attend Cabinet. This was dismissed as a matter for the Prime Minister’s choice. Who holds the role of Minister for Women and Equalities currently? It is Liz Truss, who is, as we know, Secretary of State for Foreign Affairs. Not even a superwoman, which no doubt Ms Truss is, could possibly carry out the exceptionally onerous job of Foreign Secretary while also concentrating on women and equalities. With all due respect to her competence, this is farcical.
We also recommended that the Minister for Disabled People be made a member of the Cabinet’s social justice committee. This mirrored a recommendation by the Commons Women and Equalities Committee. The social justice committee was set up about 10 years ago on the understanding that a cross-department attitude was needed. While Wales and Scotland have similar committees, the English one was disbanded in 2016 without its duties being redistributed to other committees. Why was this done? Who in Cabinet is leading on disability rights issues? What committees are taking these on?
As an aid to achievement of disability rights, we recommended that the public sector equality duty in Section 149 of the Equality Act be amended so that the public authority would be under a duty to take proportionate steps towards the achievement of disability issues. The way the PSED works now tends to be passive rather than proactive. The Government rejected our recommendation on the ground that it would involve opening up the Equality Act as a whole to amendment. They feared that such an alteration would lead to court litigation concerning actions that claimants alleged should have been taken and whether they were proportionate. The Government have left this untouched. Our 2016 criticisms remain. The wording of the PSED means that a public authority can make no progress at all towards the aims of the general duty and yet be judged compliant with it by the courts.
On a similar theme, we recommended that regulations should change so that public authorities would be required to develop and implement a plan of action setting out how they will meet the requirements of the PSED in all their functions. The Government pushed this into the long grass, commenting only that it would be considered in any future work to review the specific duties placed by the PSED on public authorities.
Perhaps the most egregious of all the failings to implement the Equality Act relates to Section 36, which would mandate reasonable adjustments to the common parts of buildings, paid for by the tenant, where needed for disability access. In 2016, we said we could not understand why another review was needed. Six years later, still nothing has happened, and again we recommended that Section 36 be brought into force within six months. The Government’s response was to refer to difficulties the Scottish Government had faced in implementing equivalent provisions, and to say that a consultation was imminent. When is this consultation? What is the timetable? Why is it necessary? How can the Minister defend non-implementation of a section of an Act 12 years after its passage? Is this not an affront to the legislative work of Parliament?
Disabled people’s access to sports grounds is a well-known problem. The noble Lord, Lord Faulkner, has tried to improve matters with his Accessible Sports Grounds Bill, which would have given local authorities a discretionary power to refuse a safety certificate to large sports stadia that were not accessible. It did not get through the Commons. The Government’s response was that existing legislation was sufficient to ensure access to sports stadia for disabled fans. It is a delicate issue because legal action can be initiated only by an individual, and no single fan wants to upset his club and come into conflict with it. While there has been some progress and recognition of the issue, a recent survey by Level Playing Field found that many disabled fans suffered abuse and that there was a poor level of staff disability awareness, inaccessible public transport and general access barriers at stadia. In 2015 the Government set out a sports strategy promising action and said that they would work with the football and safety authorities to improve the situation. But there are no metrics of success. What progress can the Minister tell us of in the last seven years?
I expect the Government will tell us that the number of disabled people in work has increased, but the gap between disabled and non-disabled working people remains the same. The figures look better only because more people are identifying as disabled and more people are in work. The Government’s aim to help disabled people into employment will be thwarted if public transport is not accessible, but Section 163 of the Equality Act, which would make taxi licences conditional on compliance with accessibility regulations, remains uncommenced after 12 years.
In addition, we recommended that the accessibility requirements apply to private hire vehicles. The Government did not accept our recommendations. They have launched a consultation on taxi and private hire vehicle best practice and have said that, at some time in the future, they will legislate to mandate disability awareness training for all drivers. When will the Government take the steps necessary to ensure that every disabled person can get into a hired vehicle and get to work? The new Taxis and Private Hire Vehicles (Safeguarding and Road Safety) Act, passed in May, is not relevant to disabled people, as it is, as it says, about reporting safeguarding and other dangerous issues relating to drivers.
Not just disabled people, but all citizens, need to be able to access justice to enforce their rights. Even where litigation can be afforded, it may present particular challenges to disabled individuals, who may find barriers to understanding and navigating their way through the legal system. We recommended that the costs should be mitigated by implementing qualified one-way cost-shifting in claims concerning discrimination under the Equality Act. This means that a successful defendant cannot recover their costs from the losing claimant, except in precise circumstances. It makes bringing reasonable legal action less of a costly risk.
Costs have an adverse effect on the rights of disabled people to enforce their legal rights. The Government said last year that they were considering the issue. Can the Minister tell us what progress has been made in amending the Civil Procedure Rules to achieve this? Can she explain future plans and timetables, given that a commitment has been made to do this? Our recommendation was that it be achieved within six months.
In general, disabled people need legal aid to enforce their rights, especially as it is for the individual to take action, and it is a brave and well-resourced individual who embarks on this. We salute the handful who have taken their issues to court. Legal aid may be available for legal advice concerning unlawful discrimination. Income thresholds qualifying for the help with fees remission scheme have changed in line with inflation, but not capital thresholds.
The Equality and Human Rights Commission launched an inquiry in May 2021 to examine whether legal aid enables people who raise a discrimination complaint to get justice. We do not know the result but, whenever it comes, it is intended to inform the Government’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. What progress has been made, if any, are the Government changing the Lord Chancellor’s guidance on legal aid in discrimination cases?
All in all, this is a sorry tale: no progress in implementing the 2010 Act; barriers to getting justice; poor treatment of sports fans; difficulty in getting transport to work and elsewhere; and a general sense that the Government prioritise the supposed interests of business over the needs of disabled people for adjustments and support. This has the effect of putting a large segment of the population out of the job market and out of contact with their fellow citizens. Why do the Government not have more empathy with them? Do Ministers not look at their ageing relatives—and indeed colleagues in this House—and realise that, in the fullness of time, they too will be in wheelchairs, on Zimmer frames, hard of hearing and worse still? They should act now to uphold parliamentary sovereignty as expressed in the Equality Act and for the sake of justice for a large segment of the population. I beg to move.
The Deputy Chairman of Committees (Lord Young of Cookham) (Con)
My Lords, the noble Baroness, Lady Thomas of Winchester, is taking part remotely. I invite her to speak.
Baroness Thomas of Winchester (LD) [V]
My Lords, I welcome the chance afforded us by the Liaison Committee taking the Equality Act 2010 and Disability Committee report of 2016 out of the long grass and producing its report, published last July. I was a member of the Equality Act 2010 and Disability Committee and I endorse all the comments of our admirable chair, the noble Baroness, Lady Deech.
It really is quite shocking that so little has improved for disabled people since our report, which was careful not to advocate remedies that would involve large spending commitments. It is telling that the Liaison Committee reserved its most damning criticism for the Government dragging their feet on bringing into force Section 36 of and Schedule 4 to the Equality Act 2010, which include provisions on reasonable adjustments to the common parts of buildings such as blocks of flats. If those components of the Act had been brought into force, those responsible for the common parts of buildings, such as a landlord in a leaseholder block of flats, would, after consultation, have to agree to reasonable adjustments, the cost of which could be entirely met by the disabled person.
A good example, which is worth quoting, is given in the report:
“An elderly leaseholder has a flat on the second and third floor. There is absolutely no reason why she cannot live independently, save that she has mobility issues. She wants to install a stair lift … She asks the freeholder for permission. The freeholder says no. She offers to pay the installation costs and all the running costs herself”.
The freeholder, quite legally, still says no.
The Government have announced their intention to bring this section of the Equality Act into force. Indeed, in the National Disability Strategy, published nearly a year ago and foreshadowed in the Liaison Committee’s report, they say:
“We will take immediate steps to … extend disabled tenants’ rights on accessibility”.
Now, we are told, it will happen in due course, with no timescale given. The Liaison Committee is not impressed. It says:
“The Committee finds it objectionable that parts of the Equality Act, now over 10 years old, are still not in force. It is an affront to Parliament that its will expressed in legislation has been ignored or set aside by the executive.”
The Government’s response points to the consultation, saying that any change has “significant implementation issues”. Yes, I am sure it does, but a way must be found to improve the housing stock for all disabled people as a matter of urgency. After all, we are told in the National Disability Strategy that nearly half of all disabled respondents had difficulty getting in and out of where they live. I do not know whether yesterday’s Statement on private rented housing will address this point.
I remind the Government that there are 14 million disabled people in the country and that this figure will increase in future years, so more accessible housing is crucial. If levelling up means anything, surely it should mean using the power of the law to make sure that disabled people do not lose out in basic ways such as being able to live, travel and enjoy leisure activities that are accessible. Will the National Disability Strategy make a difference? It is full of commitments to this and that to try to improve the lives of disabled people, but without concrete proposals with timescales, and updates on progress, it is difficult to get excited.
What is needed is someone with a driving ambition to find solutions to some problems that have been left unresolved for far too long. That person should first ask disabled people themselves what should be done.
Baroness Thornton (Lab)
I am up to speak slightly earlier than I expected. It is a shame that the right reverend Prelate the Bishop of Blackburn has found himself trapped in a previous debate in which he spoke: that is why he is not here. I am also sad that the noble Baroness, Lady Brinton, is not with us. She and I fought together, as it were, on these issues for many years and I was looking forward to seeing her again. I welcome the debate and compliment the noble Baroness, Lady Deech, and her committee. I share her disappointment and that expressed in the report, and the disappointment in the inadequate government response to the impact follow-up report.
I decided, as one of the government team which helped to put the Equality Act on the statute book in 2010, to delve back into Hansard to get a flavour of what we were aspiring to, and what was said by those participating in the debate then, who worked hard to put this important document on our statute book. It took a year to write that Bill. I attended meetings with counsel and others on behalf of the then Leader of the House for a year in the writing of that Bill, because it was a consolidation Bill and a very large and important piece of legislation.
When it came to your Lordships’ House at the end of the end of 2009, we discussed it through the spring—
Baroness Thornton (Lab)
I was reminiscing about the passage of the Equality Act 2010. We miss some of those who took part then and, in today’s debate, we miss perhaps most of all the noble Baroness, Lady Campbell of Surbiton, who is not able to be with us. I am sure all noble Lords wish her well and look forward to her return.
It is clear, if you look at the record of the passage of the Equality Act, that there was a great deal of optimism and of consensus, which allowed the Bill to be improved and amended as it went through your Lordships’ House. For example, on employment, the Labour Government responded to disability organisations and others by bringing forward amendments that addressed the compelling evidence of disabled people being discriminated against once employers were aware of their disability. They prohibited the use of pre-employment questionnaires, except in prescribed circumstances, thus stopping the inhibition of people with disabilities or mental health problems applying for jobs.
That is a good example, as we knew the words in the Act would and should tackle the discrimination faced—in this case disability—and therefore were very important. Being a practical politician, because it was in the run-up to a general election, there was an agreement to put measures in the Act that would need the new Government—in whatever form they took—to pick them up and implement them. In some cases, it was simply changing “may” to “must”. For example, I believe it was the coalition Government that, quite late on, approved the change of “may” to “must” on the monitoring of wage discrimination in companies of, I think, over 500 people. That was done long after the Act was passed.
This follow-up report builds on the recommendations of the March 2016 report by the House of Lords Select Committee on the Equality Act 2010, that I think the noble Baroness, Lady Deech, also led. What we saw, when we put the Act on the statute book, is that it created a positive duty to anticipate the needs of and make reasonable adjustments for disabled people. The issues that have been discussed today say that,
“in the context of services, the objective of the duty is to, so far as is reasonably practicable ‘approximate the access enjoyed by disabled people to that enjoyed by the rest of the public. The purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large’. The duty is contained in section 20 and comprises three requirements … to: avoid putting disabled people at a substantial disadvantage where a provision, criterion or practice would put them at that disadvantage compared with people who are not disabled—for example, adjusting a ‘no dogs’ policy for visually impaired people … remove, alter or provide means of avoiding physical features where those features put disabled people at a substantial disadvantage compared with people who are not disabled—for example, providing a wheelchair ramp alongside stairs … provide an auxiliary aid where disabled people would, but for the provision of that aid, be put at a substantial disadvantage in comparison with people who are not disabled—for example, providing an induction loop for hearing impaired people.”
As noble Lords have said, those duties are really very clear, so the shame of this is that they have not been fully enacted 12 years later. I can see that the disability organisations are both disappointed and disheartened by that. For example, on Section 36, no reasonable explanation was given to the noble Baroness’s committee about the continued delay. I quote from the report:
“The Committee could find no reasonable explanation for the delay in bringing section 36 into force in 2016, and the evidence received in 2021 paints a similar picture … asked why the Government had failed to commence this section of the Act, Catherine Casserley said: ‘I really do not understand why the provision has not been implemented’.”
Further down in the evidence section, when asked about Section 36, Melanie Field, who is an absolute veteran of the 2010 Act and worked with us all the way through it, said:
“We often draw government’s attention to the need to implement that provision, and we hope that progress will be made.”
I would like to ask the Minister when. When will progress be made? It really is shameful that it has not been made already.
Turning to making the public sector equality duty more effective, can the Minister expand on the statement and the Government’s answer to recommendation 8 about the public sector equality duty? There, the Government note that amendments to Section 149 will be considered or the Act will be replaced in the future. Can the Minister give the Committee the likely timetable for bringing forward the amendments? Can she please tell the Committee whether the Government intend to replace the Equality Act altogether, and when they intend to do that?
I draw specific attention to the report’s challenge that the Government do not produce data on their interministerial group on disability and society, so it is unclear whether it still exists or not. I ask whether it does in fact exist and, if so, in what form. If it does, will the Government commit to publishing data on it regularly so that it is embedded at the heart of government decision-making—as disabled people have demanded quite rightly and as they need? Do the Government intend to follow up on the recommendation that the Women and Equalities Minister becomes a full-time Cabinet-attending post?
As the noble Baroness, Lady Deech, said, the court challenge suggests that the national strategy for disabled people was not legal because the consultation did not take place in a proper fashion. I echo the question: when will we see a new strategy and how will the proper consultation take place? This draws particular attention to the lack of trust in this area. This report, the one before it and this debate show that there is a lack of trust in the Government’s commitment to disabled people and the reforms that are required, many of which are very straightforward. When the Prime Minister called the strategy a “down payment” in February 2022, when it was first launched, you could almost see the eye roll across the whole disability sector. I would like the Minister to go back and re-establish trust, which has been eroded, and work out how best to do that.
The last words I say should go to the noble Baroness, Lady Campbell, because, during the debate in 2016 on the impact of the Equality Act on people with disabilities—led by the noble Baroness, Lady Deech—she said, quoting Sir Bert Massie:
“‘It is now ... 35 years since disabled people called for the right to be treated as equal citizens. Yet the Government still wants to ... talk and meet. It is no wonder disabled people are ... becoming increasingly angry. The Government’s tepid response to the Committee’s report clearly demonstrates a deep lack of understanding and concern about Britain’s disabled people’.
I am afraid that this just about sums up how the committee and disabled people feel about the Government’s disability agenda”—[Official Report, 6/9/16; cols. 980-81.]
today.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott) (Con)
My Lords, I thank the committee chair, the noble Lord, Lord Gardiner, the noble Baroness, Lady Deech, and other members of the committee for calling for this debate on a very important subject for our society. I hear the strong and impassioned points that have been made; there have been some forceful interventions and relevant questions that I will address in this closing speech.
I take the point raised by the noble Baroness, Lady Thornton, about re-establishing and rebuilding trust and, in my role as Minister for Women and Equalities in this House, I start by answering noble Lords’ questions and then offer a meeting to see if we can start to rebuild that trust as we go along.
I ask noble Lords to be in no doubt of this Government’s determination to promote the interests of disabled people and increase their participation in the labour market and wider society. This is even more important as society recovers from Covid and faces a number of post-pandemic challenges. This Government are committed to disability policy that supports all areas of life, and to taking action to create a society that works for everyone so that we can build back better and fairer for all. Our aim is to transform the everyday lives of disabled people across the country, through delivering long-term change through practical plans.
Since the start of 2022 alone, our wider work to support disabled people is having a real impact. We have supported two landmark pieces of legislation, the British Sign Language Act and the Down Syndrome Act, which have both been granted Royal Assent in the last few months. The BSL Act came about, with widespread support across government, from a Private Member’s Bill put forward by Rosie Cooper MP and with the help of personalities such as “Strictly Come Dancing” winner Rose Ayling-Ellis and of deaf people’s organisations. It promotes and facilitates the use of BSL, with legal recognition as a language of England, Scotland and Wales—a recognition that I know has been awaited for many years.
The Act provides a specific duty on the DWP Secretary of State to prepare and publish a British Sign Language report. This describes what each ministerial department has done to promote and facilitate the use of British Sign Language in its public communications. The Act specifies that these public communications should include: any public announcement that a government department makes about policy or changes to the law; the publication of any plan, strategy, consultation document or consultation response, or any explanatory or supporting materials; and its use of press conferences, social media or a government website to publicise any of its activities or policies.
The Act places a duty on the Secretary of State for Work and Pensions to issue guidance on the promotion and facilitation of BSL, which will be developed together with D/deaf BSL users as part of a non-statutory board of BSL signers. We hope to produce this guidance in 2023. A BSL advisory board will bring to bear the perspectives and priorities of those with lived experience, from BSL signers living across England, Scotland and Wales. It will be established in autumn 2022 with a broad remit to advise the Government on matters related to BSL, including how to increase the number of BSL interpreters and to review how the DWP might work to ensure that the Access to Work fund helps BSL users.
The Down Syndrome Act is an enabling framework to give a voice to people with Down syndrome. This will ensure that local government meets the needs of people with Down syndrome to ensure they receive better services now, and to transform their future experiences across social care, healthcare, education and housing services.
I know that the noble Baronesses, Lady Thornton, Lady Deech and Lady Thomas, raised issues relating to Section 36 of the Equality Act 2010. In the six months since the Government responded to the Liaison Committee’s report, I am pleased to update this Committee on important progress on an issue in which the Liaison Committee, and before it the 2015 Select Committee, took a close interest—namely the commencement of the remaining parts of Section 36 of the Equality Act.
As many noble Lords know, commencement will enable a disabled tenant or leaseholder to require their landlord to make reasonable adjustments to the common parts of their homes—for example, entrances, hallways and stairs. I am aware that progress has been slower than all noble Lords would like, because we have been looking at the cost implications of implementation and how it fits with wider leasehold law and practice. However, on 9 June, the Government launched a consultation on implementation. This is important because disabled tenants and leaseholders are being given a real voice in how the detail of the policy is being shaped.
Regulations will be needed to set out some of the detail prior to commencement. Feedback from the consultation will be key to this. For example, we are asking all interested parties whether they would like a specified structure for reasonable adjustment agreements and further views on how works might be fairly financed. Via GOV.UK, we are offering a variety of formats to help people understand what switching on the provisions means and to enable views to be fed back as easily as possible. We are keen to give maximum opportunity to those affected by this change to feed in their views, so the consultation will last 10 weeks.
The noble Baroness, Lady Thomas of Winchester, raised accessibility to buildings and housing. We are also assessing disabled people’s needs in the built environment more generally. In June 2021 we commissioned research, as part of a full review of Part M of the building regulations, on the prevalence and demographics of impairment in England and the ergonomic requirements and experience of wheelchair users and disabled people. The research is looking at the size and layouts in toilets and the range of facilities needed to suit our population. Work is under way to develop robust data and evidence to help government consider what potential changes can be made to statutory guidance covering access to and the use of buildings.
As part of the review, government consulted from 8 September to 1 December on options to raise the accessibility of new homes, recognising the importance of suitable homes for older and disabled people. The consultation proposed whether to wait to see the full impact of recent planning policy changes on the use of the optional technical standards, or whether and how changes could be made by either mandating a higher standard or reconsidering the way existing optional standards are used, including set proportions for wheelchair user homes.
This is a technical and important piece of work. We have analysed all the responses, which have been comprehensive and have helped inform our work on how best to raise accessibility standards of new homes. We will set out our plans in due course. Evidence gathered will help government consider what changes can be made, including reviewing and potentially tightening the regulatory framework to deliver accessible new homes and updates to statutory guidance.
Our planning rules already mean that councils must consider the needs of older and disabled people when planning new homes. We have also given councils guidance on options they should consider, such as housing with improved accessibility, to enable older and disabled people to live more safely and independently.
The noble Baroness, Lady Deech, raised private hire vehicles. The committee’s report, and noble Lords’ contributions to this debate, raised accessibility to taxis. On 28 March we launched a public consultation on the updated best practice guidance document aimed at local licensing authorities, incorporating strengthened recommendations on the provision of an inclusive service. The consultation closed yesterday, and work is now starting to assess the views of stakeholders.
A wide range of stakeholders responded to the consultation, and we will consider their responses carefully before finalising the guidance. We hope that, once published substantively, the guidance document will support licensing authorities to ensure that the taxi and PHV services they regulate provide a genuinely inclusive and accessible service, meeting the needs of those who rely on it.
In the meantime, the Government remain committed to improving the experience of disabled taxi and PHV passengers—a commitment the committee welcomed in its report. Subject to parliamentary time, we will legislate to mandate the completion of disability awareness training by taxi and PHV drivers as part of national minimum standards. We also recently supported the Taxis and Private Hire Vehicles (Disabled Persons) Bill, which gained Royal Assent on 28 April, introducing improved rights for disabled people travelling by taxi and PHV. Together, we hope these measures will allow more disabled people to use this vital mode of transport with much greater confidence.
I am sure that noble Lords will also want to know what advice and support is available to disabled people concerned about taxis, and indeed the full range of service provision across the economy. The Government sponsor a free helpline, the Equality Advisory and Support Service, which provides support and advice to anyone in England, Scotland or Wales who feels they may have suffered discrimination. It receives approximately 35,000 contacts per year, of which about 70% are queries relating to disability. This means that the government helpline assists in more than 24,000 disability-related issues a year.
The EASS works closely with organisations such as Disability Rights UK to ensure that its services are widely accessible to those with a range of disabilities, offering: a textphone system alongside the main telephone number; British Sign Language via a video conference call that a deaf individual can access via the EASS website; video calls to individuals who are visual learners within the autistic spectrum who would find it difficult to process advice via voice channels; a webchat service that offers an accessible route for people who choose to type rather than use the telephone; documents in accessible formats such as large print alongside different font options, colours and sizes, which are posted to individuals; documents in Braille; and an email, transcript or audio file of a call or advice for individuals who find it difficult to recall information provided.
Finally, government services are working for disabled people across a range of other important areas, including the following.
As more disabled people are starting new jobs, there has been an increased number of people applying for support through Access to Work. We have delivered improvements to the Access to Work programme to meet this increase in demand.
The autumn 2021 spending review has allowed the Department for Education to deliver an additional £1 billion for children and young people with more complex needs, including those with a disability, in 2022-23, bringing the total high-needs budget next year to over £9 billion.
In collaboration with ACAS, BEIS launched an online advice hub in July 2021, containing clear, accessible information and advice on employment rights for disabled people.
The DfE contributed £9.3 million in the 2021-22 financial year to fund the training of more educational psychologists, increasing the number of trainee educational psychologists each year to over 200.
The Rail Delivery Group and the Department for Transport have introduced a new Passenger Assistance app, with over 80,000 users of the app supported to receive over 400,000 different forms of assistance.
To make housing more accessible, the Department for Levelling Up, Housing and Communities published a new National Model Design Code in July 2021, setting out comprehensive guidance on the design of homes and neighbourhoods for local planning authorities. The guidance emphasises the importance of designing new development, including public spaces and play areas, in a way that creates safe, inclusive, accessible and active environments.
To support people in court proceedings, the MoJ brought a new revised victims’ code into force in England and Wales on 1 April 2021, which set out enhanced rights for disabled people, as well as other victims.
The Cabinet Office has launched an enhanced programme of disability and access ambassadors, expanding to include 19 ambassadors, senior business leaders who help to ensure businesses are doing all they can to support their disabled customers.
BEIS published a consultation on making flexible working the default in September 2021. Flexible working can be particularly valuable for those who need to balance their personal lives with their working lives, including those with caring responsibilities. The consultation closed on 1 December, having received over 1,600 responses.
The Department of Health and Social Care’s adult social care reform White Paper, People at the Heart of Care, published in December 2021, reflected the needs of disabled people.
I will try to answer some of the specific questions that noble Lords raised. Both the noble Baronesses, Lady Deech and Lady Thornton, raised the issue of the disability strategy, in particular in relation to the judicial review. The national disability strategy set out our ambition to improve the lives of disabled people. We are disappointed by and strongly disagree with the High Court’s finding, and the Secretary of State has sought permission to appeal its declaration. While awaiting a decision on permission to appeal from the Court of Appeal, we are required to take steps to comply with the court’s declaration. We will do everything we can to limit the impact of this ruling on disabled people but, to ensure compliance with the court’s declaration, we are obliged to pause a limited number of policies which are referred to in the strategy or are directly connected to it. We remain committed to improving opportunities and outcomes for disabled people as we await the outcome of the appeal.
As I said, in less than a year, we passed the British Sign Language Act and the Down Syndrome Act. Our intent is still to create more opportunities for disabled people to participate and thrive; to protect and promote the rights of disabled people; and to tackle the barriers that prevent disabled people from fully benefiting from and contributing to every aspect of society.
The noble Baroness, Lady Deech, raised issues about the progress of legislation in relation to the public service ombudsman. The Government do not anticipate bringing forward legislation at this time. Should the Government take forward any ombudsman reform, we would run a full public consultation, including responses from equalities and disability organisations.
I have already referred to many of the things the Government are doing in taking leadership of these issues, and I am very happy to say that the ministerial disability champions were appointed in summer 2020 at the request of the Prime Minister to help drive the development and delivery of the national disability strategy. The champions meet quarterly through the year; during the development of the national disability strategy, it was set out that the Minister for Disabled People will continue to chair a quarterly meeting of the champions to drive progress.
Noble Lords raised the status of the role of the Minister for Women and Equalities, and how that needs to be a Cabinet post. I am unable to give noble Lords any good news on that. All I can say is that, as well as it being the prerogative of the Prime Minister to determine who sits in Cabinet, I will do my best in my role in the Lords to support all disabled people, and I will work as hard as I can. My colleague, Chloe Smith, Minister for Disabled People, is equally committed and, as I said, it would be good for us to meet after this debate to see what progress, if any, we can make.
The noble Baroness, Lady Deech, raised the point of the Cabinet social justice committee. Again, the Cabinet and its committees provide a framework for Ministers to consider and make collective decisions on policy issues, covering the full range of government business, including issues of equality and fairness.
The noble Baroness, Lady Deech, raised the issue of sports and accessible facilities. The Government’s sports strategy
“commits us to work with the football authorities to ensure that all clubs meet their legal obligations under the Equality Act 2010 to provide reasonable adjustments to accommodate disabled spectators.”
We expect all sports and clubs to take the necessary action to fulfil their legal obligation under the Equality Act 2010 to make “reasonable adjustments” so that disabled people are not placed at a substantial disadvantage when accessing sports venues.
The noble Baroness, Lady Deech, raised the public sector equality duty. It has very wide application, applying to all functions of most public bodies, to the public functions of other organisations and to every protected characteristic in the Act. It is often added to other grounds as part of a claim for judicial review, although a requirement to take all proportionate steps would be a positive duty. Inevitably, claims made against public authorities for failing in this duty would be setting negative, and possibly counterfactual, terms that the authorities should have taken this or that step—or, indeed, several successive steps—but had failed to do so. Arguments in the courts would focus on actions that had not happened and whether they would have been proportionate if they had happened. Adoption of the 2009-10 Bill amendment, as a way of moving to an outcome-focused duty, would, therefore, not simply be a shift in policy terms but raise potentially significant issues for legal bodies. The Government, therefore, take the view that the amendments to the public sector equality duty set out in Section 149 of the Equality Act should, in due course, be considered if or when any more general decision is taken to revise or replace the Act in future.
The noble Baroness, Lady Deech, also raised the issue of access to justice and the legal aid system. The Government remain committed to ensuring that access to justice is a reality for disabled people in exercising their rights and are continuing to carefully consider the issue. This includes examining the possibility of consulting on the feasibility of a potential pilot scheme testing the advantages and disadvantages of extending cost protection to disability claims. This is a key issue on which we aim to set out the way forward in the coming months.
The noble Baroness, Lady Thomas, raised the issue of disabled people’s access to housing. I have already referred to that in my closing speech, but the Government have consulted, as I said. We will wait to see the outcome of the consultation. Again, the consultation is part of a full review of Part M of the building regulations. Evidence gathered will help the Government consider what changes can be made, including reviewing and potentially tightening the regulatory framework to deliver accessible homes and update statutory guidance.
The noble Baroness, Lady Thornton, asked what accessible support and advice are available for disabled people who face discrimination. As I said, the Government sponsor a free helpline, which works in the ways I already described: textphones, sign language and video calls for those who need it.
We will continue to be ambitious to deliver meaningful policies to improve disabled people’s lives, and we will continue to ensure that the voice of disabled people is properly heard. We will continue to work closely with disabled people and disabled people’s organisations.
Baroness Deech (CB)
My Lords, I thank all those who have joined this debate. The absence of certain members of our committee who are disabled is really rather poignant and illustrates just how difficult it is for disabled people to participate, whether it is by video or whether they cannot get here on public transport. I know that several of them would have wanted to be here.
I very much welcome the Minister’s offer to meet, and I apologise to her most sincerely for not having spotted her email of about a week ago offering a meeting. Had we had one, our speeches would have been a bit less like ships passing in the night. I would very much like to take up her offer and look forward to working with her, because I know that she cares about this. We have seen her attitude in various welfare matters, and I know her to be a caring person who wants to do the right thing by disabled people.
I welcome the Government’s efforts in sign language. When we heard witnesses in our committee six years ago, some people managed to come and give evidence in sign language and interpretation was provided—however, at very great expense. Anything that improves the ability of people who use sign language to get their message across and be heard is very welcome.
I welcome the fact that a consultation has been launched on Section 36, on new homes and, I think, on various other things too. An awful lot of consultation is going on, and I must remind the Minister that the judgment in the Binder case said that a consultation should not just be vague and unspecific; it should put forward specific proposals that the Government are making, in order that there be a specific response from disabled people. The court also said that disabled people and all their various organisations should be consulted. I hope that we are not back again in future saying, “Another consultation has gone wrong”. I urge the Minister and all her assistants to make sure they get those consultations, of which she mentioned about half a dozen, right according to the judgment in the Binder case.
I also hope that consultations will not hold things up. We would like a date of commencement of, for example, Section 36 and when new homes will be required to be accessible. There was a little bit too much use of the words “commitment” and “subject to parliamentary time”. Those phrases always raise red flags with me.
On sport, I have to respond that sports stadia do not know exactly what is required of them under the Equality Act. There is a need to be more specific, which is why the noble Lord, Lord Faulkner, put forward his Bill. They are bound by the Equality Act to make “reasonable adjustments”; it would seem by past practice over the last few years that either they do not know or they wilfully do not know.
Finally, it is disappointing that some of the responses that the Government gave in their answer to the Liaison Committee’s report, for example on PSED, are still there. The main flaw in the approach is the lack of a strong champion in the Government and of a strategy. I hope that, one day, we will have both of them. In the meantime, I thank the Minister and I look forward very much to having a meeting with her very soon.