All 16 Parliamentary debates in the Lords on 26th Apr 2023

Grand Committee

Wednesday 26th April 2023

(1 year, 2 months ago)

Grand Committee
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Wednesday 26 April 2023

Arrangement of Business

Wednesday 26th April 2023

(1 year, 2 months ago)

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Announcement
16:15
Baroness Pitkeathley Portrait The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
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My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes, as I am sure your Lordships know.

Flags (Northern Ireland) (Amendment) Regulations 2023

Wednesday 26th April 2023

(1 year, 2 months ago)

Grand Committee
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Considered in Grand Committee
16:15
Moved by
Lord Caine Portrait Lord Caine
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That the Grand Committee do consider the Flags (Northern Ireland) (Amendment) Regulations 2023.

Instrument not yet reported by the Joint Committee on Statutory Instruments

Lord Caine Portrait The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
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My Lords, the regulations before your Lordships today seek to align flag-flying days in Northern Ireland with the rest of our United Kingdom. A number of changes have recently been made to designated flag-flying days across the UK, following the sad passing of Her late Majesty the Queen in September last year.

The updated list of designated flag-flying days for 2023 was published by DCMS on 9 February. It states that all dates related to Her late Majesty the Queen are removed and several new entries relating to His Majesty the King are added, including the Coronation Day on 6 May, a week on Saturday. There will be a new flag-flying day for the birthday of the Queen and the date of the Prince of Wales’s birthday will be amended.

The Flags Regulations (Northern Ireland) 2000 provided that on certain designated days the union flag and, in certain circumstances, other flags must be flown on government buildings. For the purposes of these regulations, a Northern Ireland government building is one that is occupied wholly or mainly by members of the Northern Ireland Civil Service. The 2000 regulations also set out a number of so-called specified buildings at which the union flag must be flown on the designated days in question. Those buildings were chosen as they are the headquarters of Northern Ireland government departments. In 2002, the provisions were extended to court buildings in Northern Ireland. A number of noble Lords will recall that the New Decade, New Approach document of January 2020 contained a UK Government commitment to align flag-flying days across the whole United Kingdom.

The regulations before your Lordships today will align flag-flying in Northern Ireland with this updated DCMS guidance and the policy followed across the rest of the UK. Prior to publishing the list of designated days, DCMS consulted a range of interested parties and individuals; I can confirm that the updated designation days reflect the wishes of the Palace. Last year, some noble Lords voiced their disappointment that the number of designated flying days was being reduced. These new dates will increase the number of flag-flying days in Northern Ireland by two, bringing the total to 10.

Our approach to flag flying in Northern Ireland through the flags regulations has consistently sought, as I have set out on a number of occasions, to reflect Northern Ireland’s clear and unambiguous constitutional status as an integral part of our United Kingdom, as well as the reality of the different political aspirations that exist across society. The Secretary of State referred the draft regulations to the Assembly on 17 February, as he is required to do, but as the Assembly is not currently sitting, Members have been unable to report back in the usual manner. Taking this into consideration, the Secretary of State has committed to laying the Assembly’s report in Parliament should it be drafted at a later point. In addition, the Secretary of State wrote to all Northern Ireland political leaders to allow a further opportunity for elected representatives to express their views on this issue. I am pleased to report that no concerns were raised.

The flags order of 2000 also requires that consideration be given by the Secretary of State for Northern Ireland to the Belfast agreement when making or amending the regulations. My right honourable friend the Secretary of State is satisfied that these regulations have regard to the Belfast agreement and treat flags and emblems in a manner that is respectful of Northern Ireland’s particular circumstances. The Government will continue to ensure that our approach to flag flying reflects the sovereignty of the United Kingdom in Northern Ireland, and our overall commitments under the Belfast agreement. I look forward to hearing contributions from noble Lords today, I commend this instrument to the Committee and beg to move.

Lord Murphy of Torfaen Portrait Lord Murphy of Torfaen (Lab)
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My Lords, I have to say that of course flags are always a real difficulty in Northern Ireland. I am delighted that the Minister referred to the Good Friday agreement and the fact that this order should not in any way contravene the principles behind it of parity of esteem. I am also delighted to hear that, on consultation, no political parties in Northern Ireland offered any objection to this. Nor should there be. We on this side of the Committee will support the statutory instrument and do so willingly. It means that we can reflect, of course, on what the late Queen and the present King thought about Northern Ireland issues and how much they were involved in them.

16:21
Sitting suspended for a Division in the House.
16:31
Lord Murphy of Torfaen Portrait Lord Murphy of Torfaen (Lab)
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I apologise to your Lordships for jumping the queue; apparently, I should have been at the end rather than at the beginning. I particularly apologise to my very good friend, the noble Lord, Lord Rogan. I have known him for 26 years and this is the first time that, although we have not quite fallen out, something went wrong with our relationship.

I shall not keep your Lordships long; I shall simply say two things. Her late Majesty took a deep interest in the future of Northern Ireland. Interestingly, of course, she visited the Republic of Ireland in 2011 and made a huge impact not just there but in Northern Ireland. She was particularly interested in the peace process, as, of course, is His Majesty the King. From my experience, he would host dinners and other events at Hillsborough Castle on a number of occasions, and he took a deep interest in Northern Ireland, the peace process, and many other issues. It is fitting, having heard that no party has objected to the change to these regulations, that the King should know that there is unanimity in Northern Ireland about his position.

I have one point about the consultation. The Minister said that his Secretary of State has consulted the political parties in Northern Ireland, but, of course, he could not consult the Assembly because there is no Assembly. Last week, the Minister and I, and others, were in Belfast to celebrate the 25th anniversary of the Good Friday agreement. I hope that it is a matter of weeks or months —definitely not years—before we see the restoration of the institutions in Northern Ireland. I know that the King himself would be very much in favour of that, to see that there is stability and peace in Northern Ireland. He obviously does not comment on political issues in Northern Ireland, but all of us want some sort of settlement there. I hope that happens fairly soon.

Lord Rogan Portrait Lord Rogan (UUP)
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My Lords, the flying of the union flag in Northern Ireland can sometimes be a contentious issue, but it should not be so. This month has seen a series of high-profile events in the Province to mark the 25th anniversary of the signing of the Belfast agreement. Friday 10 April 1998 is a day I remember well and with a certain degree of pride. As my late noble friend Lord Trimble said in his lecture when accepting the Nobel Peace Prize in Oslo in 1998, the Belfast/Good Friday agreement

“showed that the people of Northern Ireland are no petty people. They did good work that day”.

Indeed they did, but as current and former Presidents and Prime Ministers have rightly insisted in different lectures over the past few weeks, the Belfast agreement was about mutual respect. It was also about not being petty. As such, I see no reason why anyone should object to the flying of the union flag in Northern Ireland, which the Belfast agreement enshrined as an integral part of the United Kingdom.

As we know, the regulations before us are being brought forward following the passing of Her late Majesty Queen Elizabeth II. She was a great friend and servant to Northern Ireland. The 19 year-old Princess Elizabeth first visited the Province of Ulster in 1945 as part of the victory tour after the Second World War. She was accompanied by her father, King George VI, and her mother, Queen Elizabeth. Two further visits followed before she ascended the Throne.

In all, she made 22 visits to Northern Ireland as our monarch. Her final trip, in June 2016, included a visit to Bushmills, where she unveiled a statue of local man Robert Quigg, who had received the Victoria Cross for gallantry in the face of the enemy in the Battle of the Somme. The royal visit and the unveiling of that monument was a proud day for a fiercely proud and loyal village in Portrush. After civilian service in the Army, Robert returned to Bushmills and was presented to Queen Elizabeth II when she visited Coleraine on her Coronation tour in 1953. That fact feels particularly poignant, given the reason we are debating these regulations today.

Looking at the detail of the regulations, it is understandable why the dates relating specifically to the life of Her late Majesty are being substituted for those relating to His Majesty King Charles III. However, surely it would have been appropriate to keep at least one of these dates in the calendar for the union flag to be flown in Northern Ireland in her glorious memory—either the date of Her late Majesty’s accession or her birthday seem most appropriate.

Noble Lords will have noticed that, while six dates are being removed from the regulations, they are being replaced by only five. I ask the Minister: would it not have made more sense for Monday 8 May, which will be a bank holiday in celebration of His Majesty’s Coronation, to also have been included? I see no logical argument against it and respectfully invite the Minister to try to prove me wrong.

While I have his attention, I also ask him for an assurance that these regulations will apply to Erskine House, with the union flag flying proudly above it on designated days as an absolute minimum. It defies comprehension that the headquarters of His Majesty’s Government in Northern Ireland does not currently fly the national flag. I hope that the Minister will confirm that it will now fly.

I am privileged to have been invited to attend the Coronation of His Majesty King Charles III next week. I am very much looking forward to it. I also look forward to the union flag flying from government buildings in Northern Ireland, including Erskine House, on 6 May, His Majesty’s Coronation Day, for many years to come. Long may he reign.

Lord Browne of Belmont Portrait Lord Browne of Belmont (DUP)
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My Lords, there is nothing in these regulations that one could disagree with, so I am pleased to support them. As the noble Lord, Lord Rogan, said, the flying of flags and displaying of emblems in Northern Ireland can be, and is, an extremely contentious issue among Northern Ireland’s unfortunately divided community. In the past, we have seen it lead to civil disturbance; I hope those days have long passed. To reiterate what my friend, the noble Lord, Lord Rogan, said, in Northern Ireland government buildings are legally restricted to flying these flags on designated days, unlike the rest of the United Kingdom which has the option to fly the flag every day.

I too have a question for the Minister, who I know will be able to answer it well because he has had considerable experience in the Northern Ireland Office. It is over a year since the Northern Ireland Office relocated to its very fine building, Erskine House, in the centre of Belfast, which is eight storeys high. It is my understanding that Erskine House is not bound by these regulations. Can the Minister say whether the department has made any decision on whether to fly the flag every day, on the designated days, or not at all?

On the visit of the President of the United States to Belfast, which people welcomed, many have commented that his official state car did not display the union flag, which I understand is the normal protocol when a head of state visits. Perhaps the Minister can update me on what the protocol is.

Finally, for the celebrations of the Coronation, I am sure that those who wish to display the union flag will fly it with dignity and respect.

Baroness Suttie Portrait Baroness Suttie (LD)
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My Lords, it has been an interesting short debate. I too shall be brief because, clearly, the Liberal Democrats also support the regulations that we are debating today.

As other noble Lords have said, the debate is perhaps an opportunity to remember the late Queen Elizabeth II and all that she did to strengthen the United Kingdom and our relations with Ireland during that extremely historic visit.

I hope the Minister may recall that when we last debated designated flag days last September, I asked him whether further consideration had been given to adding to the number of days through commemorating the Battle of the Somme. Several noble Lords, including the noble Lord, Lord Hannan, gave their support to the idea. Have the Government reached a view on adding that battle to the designated flag days?

While I support the regulations, I think it vital that we repeat the importance of respecting how people feel about the flag and its symbolism. I also support what the noble Lord, Lord Murphy, said about hoping that the Northern Ireland Assembly returns as soon as possible.

I sincerely hope that the Coronation goes smoothly and enjoyably, and that the festivities go well in Northern Ireland as well as elsewhere in the United Kingdom and the wider world.

Lord Caine Portrait Lord Caine (Con)
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My Lords, I am grateful to those who have contributed to this short but well-informed and important debate on the regulations before us. As seems customary on these occasions, I thank the noble Lord, Lord Murphy of Torfaen, with whom I concur on virtually everything he said. He and other speakers, including the noble Baroness, my noble friend Lord Rogan and the noble Lord, Lord Browne of Belmont, rightly paid tribute to the legacy of Her late Majesty Queen Elizabeth. Like other noble Lords, I was privileged to be present at some of those historic occasions; for example, the handshake in the Lyric Theatre in 2012 during the Diamond Jubilee tour of Northern Ireland. Like my noble friend Lord Rogan, I was also present at Bushmills on that day in 2016 when Her late Majesty unveiled the statue of Robert Quigg. It was a poignant and moving ceremony.

I agree also with what has been said about His Majesty the King and his deep commitment to Northern Ireland. Without in any way going into private conversations, I think we can all be confident that His Majesty will do everything to maintain the marvellous legacy of his late mother, whose ability to bring people together from across the community divide in Northern Ireland was a remarkable achievement. I am sure that will continue under His Majesty.

I also agree, of course, with the comments from the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, about the need to get the Assembly back up and running and this being an absolute priority. My noble friend Lord Rogan referred to the events of 25 years ago, with which he was intimately associated—as was the noble Lord who chaired strand 1 of the talks. He referred to the fact that we were together at Queen’s last week for some events to mark the 25th anniversary. It reminded us how important it is to get these institutions back up and running as quickly as possible so that we can start to build a Northern Ireland that works in the interests of the whole community there; that is the surest foundation for Northern Ireland’s position in the United Kingdom.

16:45
In respect of a couple of the questions that my noble friend Lord Rogan put to me, I think he raised the issue of a further bank holiday. As I said in my opening remarks, the changes made in these regulations are at the request of the palace so, in these circumstances, all the Government are doing is reflecting the wishes of the palace as communicated to us. However, I understand and take the point made by my noble friend; as I say, they are the palace’s wishes that we are reflecting in these regulations.
Both my noble friend and the noble Lord, Lord Browne, referred to the position in Erskine House. I am afraid it is slightly complicated. As the headquarters of the Northern Ireland Office, Erskine House does not fall within these regulations for the reasons I set out in my opening speech. For the purposes of the regulations, government buildings in Northern Ireland are those occupied mainly by the Northern Ireland Civil Service, as Northern Ireland government departments. The Northern Ireland Office does not fall into that category. There are also further complications in that the Northern Ireland Office does not own the building and is not the lead tenant in the building; this has complicated matters somewhat.
However, I completely share my noble friend Lord Rogan’s aspiration to resolve this issue as quickly as possible and see the union flag fly in an appropriate place in Erskine House on designated days, if not more. I assure him that I will take this issue back, work with my officials and urge them to seek an early resolution of this issue because it is appropriate that the union flag should fly in some form in that building. As my noble friend will know, when one walks into the building, one sees “UK Government” in large letters and the UK Government’s crest is there so, personally, I see no reason why the flag of the United Kingdom should not be there in some form. I will take this issue back and seek a quick resolution. I am, however, mindful that it took me six years to get the flagpole at Stormont House re-erected after the 2010 election; I will try to resolve this issue in a somewhat shorter time than that.
The noble Lord, Lord Browne of Belmont, referred to President Biden’s visit and the flying of the union flag. I think that the issue there—I will double-check this; if I am wrong, I will come back to the noble Lord—was simply that President’s Biden visit to Northern Ireland was not a state visit and the protocols on flag-flying relate to state visits. His visit to the Republic of Ireland was a state visit, which is why the flag flew there. In my discussions, a great deal of care was taken to follow the right protocols to the letter; that is the reason behind this.
Finally, on the point made by the noble Baroness, Lady Suttie, I am afraid that she has caught me out. I cannot immediately give her an answer on where we have got to with her suggestion about 1 July becoming a public holiday as the anniversary of the first day of the Somme. However, I will take that back and find out where we are with it; obviously, it is mainly a matter for DCMS rather than the Northern Ireland Office but I will go back and find out where we are.
I hope I have covered everything. Once again, I thank all noble Lords who contributed.
Motion agreed.

Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents

Wednesday 26th April 2023

(1 year, 2 months ago)

Grand Committee
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Considered in Grand Committee
16:51
Moved by
Lord Sharpe of Epsom Portrait Lord Murray of Blidworth
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That the Grand Committee do consider the Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents.

Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

Lord Murray of Blidworth Portrait The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
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My Lords, I begin by acknowledging that non-crime hate incidents have attracted a significant amount of controversy, particularly in this place, due to concerns relating to free speech. I am grateful to all those who expressed their views on this topic during the passage of the Police, Crime, Sentencing and Courts Act 2022. The Government fully understand the strength of feeling on this matter, both within this House and among the public more widely, which is precisely why we laid this code before Parliament on 13 March.

Let me first explain that the collection of non-crime hate incident information is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence. This information pertains to incidents which are not crimes and provides the police with the means to understand tensions within communities or cases involving particular individuals before they can escalate into serious harm. In this respect, this data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes or harms which may later occur. 

This Government are absolutely clear that vulnerable individuals and communities must continue to be protected. However, non-crime hate incidents must never be used to inhibit lawful debate, and we must also be very careful about what information is kept on an individual’s record. This balance has unfortunately not always been struck, and this issue is precisely what the code is designed to address.

Free speech is a cornerstone of our democracy. This code addresses concerns that those who express views which some consider offensive but are not against the law are at risk of becoming the subject of a non- crime hate incident report, and that this may result in their personal data being stored on a policing record. It addresses those concerns by introducing new safeguards to ensure that personal data may be included in a non-crime hate incident record only if the event is clearly motivated by intentional hostility and where there is a real risk of escalation causing significant harm or a criminal offence.

To be recorded as a non-crime hate incident or NCHI, the police must judge that any perception of hostility is valid; the complaint must not be irrational, trivial or malicious. This will ensure that the police record NCHIs only when it is absolutely necessary and proportionate to do so, and not simply because someone is offended. The code also provides detailed guidance on freedom of expression. Clear case studies to illustrate how this fundamental right should be considered in practice by the police are also set out.

We are confident that the content of the code fully reflects the Court of Appeal’s judgment in the case of Harry Miller v College of Policing, which was handed down in December 2021. The court found that the recording of these incidents is lawful but must be subject to more robust safeguards to ensure that such recording is proportionate and protects free speech. As I have mentioned, this is exactly what the code provides. I particularly thank the National Police Chiefs’ Council, the College of Policing and senior police officers, who have engaged with Home Office officials throughout the drafting process to ensure that this code will work from an operational standpoint.

The College of Policing is also currently updating operational guidance for police on the recording of such incidents to ensure this guidance aligns with the new code. The college will also roll out the requisite training for police officers to ensure that the principles within the code are fully understood and embedded within everyday policing practice. This will ensure that the code is applied consistently by forces across England and Wales.

To reiterate, by taking these steps, we are protecting the vital changes that have been implemented by policing since the Stephen Lawrence inquiry. We continue to recognise the need to record intelligence that enables the police to intervene to prevent serious harms and future crimes, and we are determined to support the police in protecting the public. However, we have listened to the concerns raised in relation to the fact that this recording has at times gone too far, and we have acted on them. This code will better protect people’s fundamental right to freedom of expression, as well as their personal data, while still ensuring that vulnerable individuals and communities continue to be safeguarded. By bringing forward the code, we have also ensured that the process is subject to much-needed democratic scrutiny. With that, I commend the draft code to the Committee and beg to move.

Lord Sandhurst Portrait Lord Sandhurst (Con)
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My Lords, I must begin by acknowledging the role of my noble friend Lord Moylan, who sadly cannot speak in this debate today. My noble friend moved amendments, which I supported, to the then Police, Crime, Sentencing and Courts Bill in the autumn of 2020. We sought to make the Secretary of State responsible for determining five things in particular: first, the basis on which the record of the incident is to be kept; secondly, how those sensitive records are to be kept; thirdly, for how long they are to be kept; fourthly, what provisions there would be for review; and, fifthly, to whom and on what basis the information on them might be disclosed.

I remind the Committee that, until now, there has been no formal basis to ensure a proper system for selecting and recording what is to be logged, what personal data are to be kept, or when, if ever, the matter is to be reviewed. Nor was there any consistent basis as to when the subject would be given the opportunity, if at all, to respond. This code of practice, made pursuant to what is now the Act, is therefore the first such code of practice on this important matter. Having read it with care, I commend it to the Committee and believe we should approve it. It addresses all our core points and it is good to have it on a proper statutory basis.

Looking forward, however, there are a number of things. We must keep the code of practice’s application under review. I understand that the number of reports which are now on record runs well into six figures—a very large number. Remember that the subjects have committed no crime, but in many cases their names have been recorded and remain recorded.

17:00
My first point is therefore that it is important that all police forces act promptly, as the code commends, to review all those reports currently on record to ensure that only those which meet the new requirements remain on record and that others are expunged without delay. To that end, I invite the Minister to ask that each police force in England and Wales reports to the department after 12 months from the code coming into force, and in each year thereafter, to state, first, how many extant reports it has reviewed; secondly, how many reports, if any, remain unreviewed; and thirdly, how many new reports it has recorded. This would ensure that all police forces do their job properly. It should not be burdensome, as they have just to enter it as they do each review, and it would provide valuable data for the Home Office and for Parliament.
Secondly, I stress that the Court of Appeal in December 2021 in the case of Miller, to which my noble friend the Minister referred, stressed the undesirable chilling effect of such reports on lawful free speech. It is really important that this code is henceforth applied with common sense and due regard for the right to freedom of expression.
It is particularly important that the police in the field give full weight to the clear provision in the code that it is not every case which justifies recording the name and details of a particular subject, even if the incident is recorded. The police must adhere tightly to the principle that only if it is proportionate and necessary, and if there is a real risk of harm or of a future criminal offence against a person or group with particular characteristics, should a record be made which identifies the person responsible. These criteria are of no less importance when the vital review of the many existing thousands of reports is conducted.
We must continue to be vigilant. It is important that there is a real change in culture on the part of the police, which keeps the balance properly between protecting vulnerable individuals and groups and ensuring that lawful free speech is given proper weight. So far, so good. I commend the code but let us all remember that it is the start, not the finishing line.
Lord Strathcarron Portrait Lord Strathcarron (Con)
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My Lords, I too pay tribute to my noble friend Lord Moylan for tabling the amendments that have enabled the Home Secretary to issue this new draft code. I repeat how much he regrets being unable to be with us today.

The need for reform of non-crime hate incidents is clear on many levels, one of which is that an estimated quarter of a million of these have been recorded, which works out at about 70 a day. One can only imagine the amount of non-crime police time this has used up. It is worth remembering that nothing illegal has been done during all this police time. The police have taken it upon themselves to monitor our thoughts and opinions, and if they do not like what they find they record against us. This is no trivial matter, as recordings will show up in DBS checks in perpetuity.

This use of resources was first highlighted when Amber Rudd, then Home Secretary, was reported by an Oxford professor for something she said during the Conservative Party conference. But I suspect what really brought everyone to horrified attention were the NCHIs recorded against four young schoolboys in Wakefield, one of them autistic, for accidentally dropping and scuffing a Koran, even though the head teacher found that there was no evidence of any malicious intent. The publicity around this case also brought to light the fact that NCHIs, unlike actual crimes, will not automatically be deleted from the young boys’ records when they reach the age of 18.

Not content with issuing non-crime hate incidents against the schoolboys, we then saw the chief constable appearing to promote the idea of blasphemy law and the public humiliation of the autistic boy’s mother. This is where we find ourselves when we start to police hurt feelings and not crime. So, while I very much welcome this new draft code of practice, my welcome comes with alarm bells ringing about the College of Policing’s reaction to it. It is worth remembering that the whole programme was an invention of the college in 2014 and that it has resisted every attempt at reform ever since, even spending an estimated £350,000 losing a Court of Appeal case against an ex-policeman who had been anonymously denounced for legally tweeting his opinion. At the end of the case, Mr Justice Knowles compared the police’s action to the Cheka, the Gestapo and the Stasi, and reminded the court:

“We have never lived in an Orwellian society”.


Now we have both the Home Office’s draft code of practice and the College of Policing’s interpretation of it, which raises the obvious question of why they are interpreting it at all. Surely, the intention of the Home Office was for this new code of practice to be adopted by the college as its operational guidance, not interpreted in its own way. This matters because the police act on guidance from the College of Policing and not on instruction from the Home Office.

The Home Office provides clear definitions of what constitutes a hate incident, including the requirement that there must be evidence of hostility and not just a vague and often anonymous impression that there has been some hostility. It also focuses on criminality, emphasising that not all incidents that may be perceived as offensive or hurtful should automatically be recorded. Importantly, it also clarifies how the data should be integrated into UK GDPR. To support all these clarifications, it provides 11 case studies as examples of how the new code would work in practice, predicting, as far as possible, real-life experiences that might be faced by officers. So far, so good. In fact, Stephen Watson, the Chief Constable of Greater Manchester, welcomed the guidance, saying:

“It is not automatically unlawful to say or do things which can be unpleasant, hurtful, distasteful or offensive. This guidance is replete with sensible provisions to safeguard victims of hate crime and better distinguishes between that which should involve the police and that which, in a free country, should emphatically not”.


As I said, so far, so good, but then comes the College of Policing’s interpretation of what the Home Office intended. In the Home Office’s code, these 11 examples recommended that in 63% of cases the police are explicitly advised not to record the hate incidents. In its interpretation, the college provides just eight examples and if their advice is followed, only 12.5% would not be recorded. In other words, we will be going back to the status quo ante if the police adopt the existing college code of practice, part of which has already been declared illegal by the Court of Appeal as it disproportionately interfered with free expression. The conclusion can only be that the college clearly believes that there should be stricter limits on free speech than Parliament has voted for, and so has invented new limits for itself and imposed them on us.

Quite why the College of Policing has become a law unto itself is unclear. Recently, it made headlines when it urged 43 different forces to decolonise their training materials and advised them to introduce gender-neutral facilities and become Stonewall champions to make themselves more attractive to transgender applicants, even though the most recent census showed that only 0.6% of the population is transgender. Meanwhile, the police in England and Wales last year solved just 5% of burglaries. No wonder the public are disillusioned with policing and could easily feel that everything seems to be policed except crime.

In conclusion, we should insist that the College of Policing follows the Home Office code in particular and, beyond that, concentrates far more on preventing and solving actual crime. I also suggest that the time is right for an inquiry into the college’s purpose and effectiveness, but that is for another time.

Earl of Leicester Portrait The Earl of Leicester (Con)
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My Lords, I too commend the draft code of practice. The Home Office team has done an excellent job on it. My concern, like that of my noble friend Lord Strathcarron, is to do with the interpretation of the code of practice by the College of Policing.

To add further to what my noble friend was saying, seven of the eight scenarios in the College of Policing’s new guidance, its authorised professional practice, were found in the old guidance, which the Court of Appeal, in the Miller case, subsequently found to be unconstitutional because it had a chilling effect on freedom of speech. The police will not be schooled in the Home Office guidance once the college’s APP comes out; they will be schooled in the guidance given by the College of Policing. This means that we will be exactly where we were before.

The Home Secretary’s intention could not have been clearer—she wants officers to stop policing our tweets and start policing the streets—but the College of Policing now seems determined to thwart her. I ask the Minister whether the College of Policing is allowed to do this and, if so, what he and the Home Office can do to make it follow the guidance. Will they review the college’s own APP now that it is out and make sure that the college redoes it? Paragraph 11.2 of the Explanatory Memorandum sets this out very clearly:

“As set out in paragraph 6.2, operational guidance (known as APP) relating to the recording and retention of NCHIs is published by the College of Policing. An updated version will be produced when the code is approved by Parliament”.


I assume we are doing that today. It continues:

“This operational guidance will ensure that the principles provided by the NCHI Code are operationalised, thus creating consistency across all polices forces in England and Wales”.


I hope that the College of Policing will be required to do that.

I have a point to add on training. Following a freedom of information request to police forces in England and Wales on how many had conducted training on free speech, 78% of the police forces that responded said that they had done no training on Article 10 of the European Convention on Human Rights or on the free speech protections in our own common law. Conversely, 56% of the responding police forces said that equality, diversity and inclusion training was inextricably embedded in their training.

I absolutely commend this Government’s recruitment of 20,000 new police officers, which was a pledge made by Prime Minister Johnson a number of years ago, but it adds to the training issue. I understand that 38% of police officers have had less than five years of service. Training in freedom of speech is a real issue for the Home Office to address because it is really important that police officers understand how important it is to uphold the foundational values of freedom of expression in the democratic and liberal society in which we live.

Lord Jackson of Peterborough Portrait Lord Jackson of Peterborough (Con)
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My Lords, at the outset, I declare my interests as in the register. I am a member of the British Transport Police Authority but, for the avoidance of doubt, none of my comments is aimed at the British Transport Police, its officers or the authority.

I welcome this draft code of practice which, as we know, was legislated for in the Police, Crime, Sentencing and Courts Act 2022. I too pay tribute to my noble friend Lord Moylan for his single-mindedness and persistence in pursuing this issue.

I was brought up in south-east London. I can absolutely understand the horror as a result of the tragic murder of Stephen Lawrence. The Macpherson inquiry was needed at the time. I sincerely believe that we have made huge progress in the way we treat all our citizens. Although the Metropolitan Police has had its issues recently, we have come a long way since that tragedy in 1993.

17:15
It would be remiss of me not to mention the Secondary Legislation Scrutiny Committee’s comments about consultation. It is not unfair to add to them by saying to the Minister that there was some consternation about the lack of consultation with wider stakeholders other than what I might call the police family—in particular, people who are concerned about civil liberties and freedom of speech. This might be something for the Home Office to be cognisant of in future cases of consultation such as this.
I broadly welcome the code and the practical, pragmatic response to alleged hate incidents. In particular, I welcome the focus on common sense and proportionality, which is very important. It is vital that we enshrine the centrality of freedom of speech and expression, which the code does. There is also the important issue of the protection of individuals’ data. The clarification via the new additional threshold test and the need to have the real risk of the escalation of an incident to the threshold of criminality are also important. To come back to what my noble friend Lord Leicester said, the College of Policing needs to be mindful of these areas.
I do not like the term “interpretation”. I do not want to be too previous because I understand that the College of Policing’s consultation on its authorised professional practice document on the recording and retention of non-crime hate incidents has only just closed so it has not yet published a response to it. However, some of the messages seem mixed in terms of the college setting its face against the Home Secretary’s explicit request for it to move away from non-crime hate incidents which have a very low evidential basis. The police are not social justice warriors; they are there to keep the peace. Above all, they should not be partisan because, at the end of the day, all of us—black or white, young or old, north to south—want as British citizens to have strength of belief and faith in the police. The problem with non-crime hate incidents is that, as they have developed over the past few years, they have reduced people’s trust in the police, which can be only to the detriment of society as a whole.
I come back to the point made by my noble friends Lord Leicester and Lord Sandhurst. These are non-statutory guidelines. I can say, quite brusquely, that if the College of Policing does not take on board the comments from the Home Secretary, Ministers, Peers and Members of Parliament we may need to legislate and move it out of the non-statutory field. Otherwise, sand will be thrown in the machine and the cases that we have seen, which have been mentioned—such as the schoolboy in Wakefield, Kellie-Jay Keen being persecuted by Wiltshire Police, and Harry Miller—will continue.
Briefly, it is important that police at all levels understand that they have a duty to comply with Article 10 of the European Convention on Human Rights in respect of freedom of speech. Like other noble Lords, I do not believe that that knowledge is inculcated in the training process or apparent at the operational level. This worries me, because it is a fundamental right. Noble Lords have only to look at the 2021 case of Forstater v CGD Europe, in which Mr Justice Choudhury specifically said that, as public authorities, the police have to maintain neutrality “as between competing beliefs” and should not express
“any judgment as to whether a particular belief is more acceptable than another”.
That is very important.
On EDI training, it worries me that some third parties, such as LGBTQ++ staff networks, are giving training which seems to be at variance with what Ministers wish to happen and that they are unaccountable. The transparency, autonomy, authority and procurement of the training provided by third parties should be looked at again, particularly as a lot of police forces are refusing FoI requests by saying that contractual relationships with third parties are commercially sensitive and therefore confidential.
The Miller case was much needed in exposing the extrajudicial policy of perceived offence, but it still worries me that the cultural paradigm shift that we have seen in the police, which is reflected in the College of Policing’s hate crime operational guidance, is all about the perception of hurt feelings rather than the reality of criminal conduct.
While the NCHI does not create a criminal offence, it can be disclosed in an enhanced criminal records check and therefore has the potential to prevent a person gaining employment. I am a good example—not that I have committed any criminal offences, but I was a special adviser and therefore had to go for enhanced vetting. If I had been the subject of an accusation which resulted in a non-crime hate incident, that could have prevented me becoming a government special adviser.
Finally, this code is overdue and extremely welcome. I very much hope that, for its own good and the good of policing and our country, the College of Policing follows this strong and welcome lead.
Lord Bourne of Aberystwyth Portrait Lord Bourne of Aberystwyth (Con)
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My Lords, I certainly do not want to oppose the adoption of this code but, as the Minister said, it is important that we look at it in a proportionate way, because it is important that these statistics are available to the police and to ensure that we have good communal relations. At the time of the terrorist attacks in Manchester, London and elsewhere it was extremely important that these statistics were available. I would not want—I am sure that noble Lords would not either—a message to go out today that this is to scrap the process of looking at non-crime hate incidents. It is important that we build up a picture and that we say, as my noble friend Lord Jackson just did in relation to Stephen Lawrence and the Macpherson inquiry, that it is recognised how important this is as the basis for acting. There is broad agreement across the country about that, and among police forces.

I do not want to have a pop at the College of Policing—I do not know the substance of what is alleged—but it is important that we preserve the sense of proportionality that is at the essence of this. It is easy to characterise something as Orwellian, but let us dig down to the truth of what is actually happening out there and the importance of keeping this information-gathering in communities up and down the country—communities perhaps not like the ones in which many of us live. Of course, freedom of speech is important, as is the point about not characterising people as criminals. I fully support that, which is why I think that these regulations and the code that we are looking at are so important.

I have a couple of questions for my noble friend the Minister. First, what is the cost of this whole exercise? I appreciate that he might not have the answer to that, so perhaps he can come back to me if he does not have the figures. Secondly, as my noble friend Lord Jackson mentioned, the Secondary Legislation Scrutiny Committee was critical of the process of consultation with regard to these regulations, on two, or possibly three, bases. Why was there not a formal consultation? With regard to the consultation that—

Baroness Pitkeathley Portrait The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
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My Lords, there is a Division in the Chamber. The Committee will adjourn. We understand that there are two back-to-back votes so, for the convenience of the House, we will reconvene in about 20 minutes, after both votes have taken place.

17:25
Sitting suspended for a Division in the House.
17:47
Lord Bourne of Aberystwyth Portrait Lord Bourne of Aberystwyth (Con)
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My Lords, this feels a little like that quiz programme, “Just a Minute”: I have now got the subject back and am trying to remember where I was.

I think I had made the point that there were criticisms of the consultation process by the Secondary Legislation Scrutiny Committee, which said:

“These Regulations are drawn to the special attention of the House on the grounds that there appear to be inadequacies in the consultation process which relates to the instrument”.


My noble friend Lord Jackson also raised this point. My points were, essentially, first, why there was not a thorough and full consultation; secondly, given that there was consultation with some bodies, why there was no feedback from that so that we had the benefit of the views of those bodies that were consulted; and thirdly, why those bodies were consulted and not others. We would have benefited from a fuller consultation and, given that there was not a fuller one, from better feedback in relation to those bodies that were consulted and responded.

With that, and bearing in mind what I said about the cost, I hope the Minister will be able to deal with those points.

Lord Faulkner of Worcester Portrait The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
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My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite her to speak.

Baroness Brinton Portrait Baroness Brinton (LD) [V]
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My Lords, in the Explanatory Memorandum, the Government say that they have consulted, although not formally, with “key policing stakeholders” but, as others have said, the Secondary Legislation Committee says in its 35th report that it asked the Home Office whether they had consulted more widely,

“for example, free speech advocates, those representing victims or data protection interest groups—and, if not, why was this not considered appropriate”.

The Government’s response worries me. They said:

“Given the democratic scrutiny that the code will be subject to and the comprehensive policing input received, the Government did not consult more widely”.


I will focus on how some of the other stakeholders might feel with the introduction of this. Parts of it are certainly welcome. My worry is about the boundaries between what are and are not non-crime hate incidents and other offences. I will come on to that.

At this point, I should declare that, as a disabled person who has used a wheelchair for a decade, I have been on the receiving end of hate crimes, non-crime hate incidents and, I am sorry to say, threatening behaviour and even assault. Some 15 years ago, I was also the victim of a harassment and stalking campaign sustained over a period of two years in which 100 incidents of escalating crimes—that is, nuisances then crimes—were committed, even though the initial incidents were not. So, as I read the code of practice, the boundaries between these different categories—especially in some of the examples, which are key to the education of officers in how they will assess what is and is not a non-crime hate incident—have raised questions.

The additional threshold test for the recording of data is helpful, especially if—as noted in paragraph 22 of the code of practice—the person

“who has experienced the incident is considered to be vulnerable”.

The existing guidelines on recognising vulnerability are extremely helpful and sensible, and to be commended. I ask the Minister: is the reference to vulnerability in the code strong enough, with only a passing reference to the guidelines then a need to click on a hyperlink?

This raises another concern: the examples focus on hate incidents, whether crime or non-crime, and ignore other considerations that police officers should perhaps address. In example D on page 15 of the code, which concerns a resident’s report of a number of NCHIs occurring in a dispute between neighbours, the wording in the box focuses entirely on whether or not to record these incidents as NCHIs. My issue is that other flags should be also raised about the neighbours’ dispute because of the volume of incidents reported. This certainly begins to look like harassment but the focus in the code is on the decision of whether to record.

The problem with harassment, especially that type of harassment, is that it escalates, often in a worsening pattern of behaviour. The early decision on whether or not to record is now weighed with the freedom of speech issue only. Part III of paragraph 31, on page 15 of the code, says:

“All recording authorities have a duty to balance the right to free expression … and/or a real risk that a future criminal offence may be committed against individuals or groups with a particular characteristic(s). All efforts should be made to avoid a chilling effect on free speech (including, but not limited to, lawful debate, humour, satire and personally held views)”.


My concern is with the phrase “all efforts”. The focus of that entire paragraph is free speech. Can the Minister assure me that the issues around an already visible pattern of behaviour—some criminal, some not—in a matter that might be, or progress to be, a crime of, say, affray, assault or harassment, are being considered only in terms of the narrow issue of crime/non-crime hate incidents and in relation to freedom of speech?

My next area of concern relates to two different points, one in paragraph 34 and one in example J, on pages 18 to 19 of the code. First, example J says:

“An individual who uses a wheelchair reports to the police that a man approached her during a house party and threatened her in circumstances that could amount to a crime under section 4 of the Public Order Act 1986. In doing so, the man also made derogatory comments about her disability. A police officer is of the view that this incident would have been recorded as a disability hate crime had this occurred in a public place given the demonstrable threat and hostility that was evident”.


The response to the scenario then focuses entirely on the Public Order Act not being enforceable in a private dwelling, therefore making the incident a non-crime hate incident, but says that, because of the threatening language and the possibility of future escalation, it should be processed and recorded.

I am horrified by this example. Assuming that threatening behaviour that could have amounted to a crime occurred, this is not just a Public Order Act offence. It could also be affray, assault or harassment, all of which are crimes. It also might not be a private event—as in a domestic one, implied by the use of “private dwelling”—even if it is in a private dwelling. If I went to a large party and was threatened—the word used at the beginning of the example—including with disability abuse, I as a victim would not understand why the Public Order Act negates my complaint. My concern would be about what just happened to me. Someone saying, “Sorry, madam, it just happened in the wrong place”, is not going to make me feel safer.

That is part of the problem with the lack of consultation with victims and community groups: this code is written for the police, with no understanding at all of where individual citizens and what happens to them fits in. Example J also illustrates a wider point for disabled people about how this code of practice will be viewed and operated, but it could equally apply to anyone with a protected characteristic.

About six years ago, I was waiting to exit through the wide ticket barriers at Euston. The woman in front of me was shouting down her phone and then, completely randomly, started to shout at me, complaining about my wheelchair being in her way and disabled people in general. This escalated into her trying to use a kick-boxing kick at me; fortunately, she missed me and hit the wheelchair, which I think left her worse off. Everyone else stood back until she ran off and then, too late, came to my aid. I had not said one word during this. I have to say that I was in shock. The noble Lord, Lord Jackson, will be pleased to hear that the British Transport Police was very helpful and supportive. The police found the CCTV and were absolutely clear that this was an attempt to assault me—the combination of shouting directly into my face and then the kick. They were also convinced that she targeted me because I was an easy target and disabled, so it was also recorded as a hate crime. But now the emphasis is on free speech.

As I read Example J, officers will spend their time focusing on whether it is or is not a hate crime incident or a non-crime hate incident and whether it needs to be recorded, rather than the highly abusive behaviour in which that woman used hate language to threaten me and attempted to physically hurt me. Can the Minister say how officers will be reminded that the priority must be to look at every incident as a whole, including other potential crimes, rather than solely to look at the code of practice?

Secondly, on the issue of reporting, I, along with many other disabled travellers, am on the end of abusive verbal incidents on trains. It happens regularly. Comments such as “People like you shouldn’t be allowed on the train during rush hour” or “Why are people like you taking up space where I want to sit?” are regular. They can and do also use abusive language, right in your face—“cripple”, “retard” or even worse. It may be a generic statement and fall under the Home Secretary’s definition of free speech, but the delivery of it leaves the recipient in no doubt that it was intended to be personal. It is personal, and train conductors say that they repeatedly see the same people behaving badly. The ability to record these incidents as NCHIs is therefore important, because it means that a pattern of behaviour can be tracked and followed, as needed. My concern is that police officers, always under pressure, might ever look only at the one incident in front of them; then, if they decide not to record it, there is no trail of consistent abusive behaviour.

Finally, the chair of a hate crime panel in the south-east said to us that they are concerned that this instrument will impact negatively on confidence in reporting. We know that confidence in the police is already low in some communities and these Benches are very concerned about it. For these reasons, starting with the lack of proper consultation as highlighted by the Secondary Legislation Scrutiny Committee’s report, and the unclear narrative in the text and examples about how this fits into broader incidents and crimes, and where the boundaries are, I give notice from these Benches that we may well want to bring this matter to the full House.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, this new Draft Code of Practice on the Recording and Retention of Personal Data in relation to non-crime hate incidents has been created following the ruling of the Court of Appeal in 2021 in Miller v the College of Policing. The court found that the recording of non-crime hate incidents was lawful, but must be subject to more robust safeguards to ensure a better balance between responding to hate incidents and protecting freedom of speech. The Labour Party supports this revised code.

The code puts a lot of weight on using common sense, but I do not believe we should rely on that phrase too much to ensure its fair and uniform application at an operational level. What is common sense to an experienced officer may not be to a new recruit having to apply these rules for the first time. It also opens the code up to being abused. A number of noble Lords have talked about the importance of the education and training of officers.

18:00
I also want to comment on the language of the Government on this matter. The Secretary of State published an article last month stating that the very concept of non-crime hate incidents is
“largely Orwellian and wrongheaded”,
and that they
“distract the police from their core duties”.
We believe that it is right to create a more balanced code, but to attack the principles of NCHIs and suggest that seeking to protect people from more serious and potentially violent crimes is outside the core remit of the police undermines the code before it has even been brought in.
We need to ensure a reasonable, measured and respectful debate on this issue. We should remember, just after the 30th anniversary of the murder of Stephen Lawrence, why the comprehensive recording of hate incidents was introduced in the first place. It was to help protect against more serious hate crimes down the line and stop what happened to Stephen from ever happening again.
As I said, the contributions from the other side of the Committee were largely on education and training, and on implementing this new code of practice in as fair and uniform a way as possible. I too remember the debate on the PCSC Bill, which was led by the noble Lord, Lord Moylan. Although I do not agree with many of the sentiments that were expressed here or in that debate, I welcome this revised code of practice.
The closing speech by the noble Baroness, Lady Brinton, gave a very interesting critique of the examples given in the code of practice and why they may not be the best examples, in her view. The points that she raised highlighted the complexity of administering it, and of the decisions that we will be asking police officers—including young police officers—to make on whether to record these incidents.
I have a specific question for the Minister regarding family courts. As he will know, we get disclosures of police records in family courts. About 80% of the cases that we see in family courts have domestic abuse allegations made. We also get disclosure of police callouts. If there are non-crime hate incidents, my understanding from reading the code is that they could, at the discretion of a chief constable, be included in the enhanced DBS check. Am I right? My assumption is that if it is relevant, it can be disclosed to the family courts. That is the one important question for me, given the nature of the other roles that I do. I look forward to the Minister’s response.
Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I thank all noble Lords for participating in this very interesting and important debate, particularly for the supportive and constructive atmosphere in which it has taken place. I reiterate my gratitude to the College of Policing and the National Police Chiefs’ Council, and to senior police officers who helpfully have ensured that the code was fit for purpose. Its introduction will be another step forward in our effort to embed common-sense policing across the system, while ensuring personal data and the fundamental right to free speech are better protected.

I will begin by responding to the various points raised by noble Lords and commence with those raised by my noble friend Lord Sandhurst. I thank him for his support for the code. On his request relating to forces reporting NCHIs, it is important to avoid creating additional burdens on the police. As I said, NCHIs are vital for building community confidence and ensuring that significant harm and future criminal offences can be averted. The key thing is to ensure that this recording is properly regulated and that personal data is recorded only when it is necessary and proportionate to do so. This is precisely what the code does.

I also want to be clear that we will not ask forces to delete all existing records because valuable police intelligence would be lost and, fundamentally, it would not be a proportionate use of police resources to undertake a review of all existing records. However, where these records exist and if in any context they are reviewed—for example, during general policing inquiries for the purposes of an enhanced DBS certificate or when a person makes a subject access request—the code makes it clear that particular care should be taken to review the record before considering disclosure. Part of the consideration will include deciding whether, applying the threshold and processes set out in the code, the record should have been created in the first place. If not, the record should be deleted. Individuals can also seek removal of data held by forces via subject access requests. In addition, any records which no longer have a policing purpose and are older than six years will automatically be deleted in line with force record retention practices.

To address the final point raised by the noble Lord, Lord Ponsonby, in relation to family courts, if a non-crime hate incident meets the threshold to be recorded it might be disclosed to the family and other courts by the police in accordance with the Family Procedure Rules and the Civil Procedure Rules in the usual way.

Various noble Lords raised particular cases in the course of their speeches. I am sure noble Lords will appreciate that it would not be appropriate for me to comment on particular incidents, but I can say that the new code is designed to ensure that the police record NCHIs only when it is absolutely necessary and proportionate to do so, not simply because somebody is offended.

In his speech, my noble friend Lord Strathcarron raised issues on the role of the College of Policing. I empathise entirely with much of what he said, and his points were echoed by other noble Lords in the Committee. The Home Office is working very closely with the College of Policing to ensure that its authorised professional practice accurately reflects the contents of the new code. Much of the content of my noble friend’s speech was correct.

In the same vein, I welcome my noble friend Lord Leicester’s speech supporting the code of practice. To be clear, the college will publish operational guidance documents for the police on how to deal with the many different types of crimes and incidents, which will be known collectively as the authorised professional practice. It will be considered the official source of professional practice for policing. As it is vital to forces and will cover a number of technical matters, it important for the college to determine how best to operationalise the content set out in the code. However, we are clear that the college’s guidance must be consistent with the provisions and principles in the code before the Committee today, which will have statutory effect once it is approved by Parliament. That means that when the police are taking relevant decisions, they must give due consideration to what the code says.

The college has recently consulted on the draft updated version of the APP, which has been amended to ensure that it aligns with the principles set out the code. It is currently considering the responses received and will make any necessary changes before the code comes into effect. The college will then publish the final, updated version of the operational guidance, once the code is approved by Parliament, which will take account of the points raised during the consultation.

On my noble friend’s point about training for officers, the College of Policing is responsible for determining the training requirements for forces and has developed an e-briefing pack which will be made available one week before the updated guidance enters into effect. The College of Policing will also communicate with forces, via chief constables, about the changes prior to the code and the updated operational guidance coming into effect.

I will take away the point raised about Article 10 training and raise it with the college.

18:11
Sitting suspended for a Division in the House.
18:20
Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I turn to the speech of my noble friend Lord Jackson of Peterborough. Of the issues he raises, I will just address the question of how the code interrelates with DBS checks. This code does not prohibit disclosure of non-crime hate incident personal data as police information on an enhanced criminal record certificate issued by the Disclosure and Barring Service—the DBS. This is for two main reasons. First, NCHIs are simply one form of police intelligence that sits alongside many others—missing persons data, anti-social behaviour, unproven allegations of sexual assault and so on. They exist in line with the police’s common law powers to prevent crime. There are circumstances where police non-conviction information of various kinds will be considered for disclosure in enhanced DBS checks used in relation to roles which involve close working with vulnerable adults or children. Maintaining this regime is essential for safeguarding the rights of others, particularly the most vulnerable.

Secondly, the rules surrounding disclosure of this type of data are already governed by statutory disclosure guidance produced by the Home Office. Non-crime hate incident intelligence is not an exceptional form of police intelligence; it is simply a type of non-crime incident data, collected by the police to prevent crime, hence why it is covered in the same statutory guidance. This statutory disclosure guidance has been tested by the courts, and assists chief officers of police in making fair, proportionate and consistent decisions in determining when local police information should be included in enhanced criminal record certificates. Singling out this category of police data for non-disclosure would be inconsistent with the principles set out in the statutory guidance and probably unnecessary and disproportionate.

The safeguards in the statutory disclosure guidance are very robust. Should a chief officer consider that information is relevant to the purpose for which the check is sought, it ought to be disclosed in line with the guidance and the applicant invited to make representations. Only in cases where there is no room for doubt that the information should be disclosed should a decision to disclose be taken without first giving the applicant an opportunity to make representations. Should the decision to disclose be confirmed following any representations, that information will be included on the certificate that is sent to the applicant only. The applicant also has a right to appeal that disclosure through the independent monitor who considers cases where an individual believes that information disclosed within a DBS enhanced criminal records certificate is either not relevant to the purpose that the check is to be used for, or that it ought not be disclosed. The safeguards therefore balance the rights of job applicants and those of vulnerable people they might have contact with.

Alongside the existence of this strict statutory disclosure guidance, I can reassure your Lordships further. DBS records suggest that, in any event, it is rare for non-crime police information of any sort to appear on an enhanced criminal records certificate supplied to a potential employer. This type of information featured in only 0.1% of the 3.9 million enhanced checks issued by the DBS between April 2019 and March 2020. It is imperative that we do not set an unhelpful precedent by legislating in a way that undermines the police’s ability to build intelligence on possible offending and risks to life more broadly.

The first of the two questions raised by my noble friend Lord Bourne was in relation to the cost of this scheme. Information is published in the economic note on the code on the GOV.UK website. At paragraph 19, there is an explanation of the costs:

“Costs related to this are estimated at £9,200 in the central scenario and cover 10 per cent of chief inspectors and 1 per cent of sergeants being required to read the update”.


My noble friend will see that paragraph 21 states:

“The range of estimated costs vary from the central estimate of £9,200 with a low estimate of £3,500, and a high estimate of £0.4 million”.


A careful analysis has been made of the potential costs and the time taken to consider the code. I hope that that addresses the cost question.

During the debate, my noble friend Lord Bourne and a number of other noble Lords raised a question about consultation. This, of course, is the issue that was raised by the Secondary Legislation Scrutiny Committee. As I mentioned earlier, the Government consulted relevant policing stakeholders, including the College of Policing, the National Police Chiefs’ Council and senior police officers. The code is designed to be used by the police on a day-to-day basis, so it is right that we consulted them. Let me be clear that extensive legal and operational nuances were considered during the drafting of the code. These nuances were worked through with experts in the policing, data protection and legal fields, and the Government are confident that this is the right approach for such a specialised code.

Lord Bourne of Aberystwyth Portrait Lord Bourne of Aberystwyth (Con)
- Hansard - - - Excerpts

I accept what the Minister said and thank him for it, but I was keen to find out why the feedback was not published.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
- Hansard - - - Excerpts

I will make inquiries in relation to that and write to my noble friend.

I turn to the remarks made by the noble Baroness, Lady Brinton. We were all shocked and saddened by the offending to which she was exposed that she described to the Committee. It is the Government’s view that the code takes particular care in relation to vulnerable individuals. The examples it gives are designed to be examples of non-criminal offences. The matters which were described by the noble Baroness were criminal offences, and the police will follow other guidance if an actual crime has occurred. The incident at Euston which she described sounded to me like an offence of assault at the very least.

The scope of the code is limited to non-crime hate instances. The examples in the text are hyperlinked and are used to illustrate non-crime hate incidents. The code states that,

“where the behaviour of the subject falls short of criminal conduct but may later be evidence of a course of criminal conduct”

the threshold to record a non-crime hate incident may be met. I hope that provides some reassurance to the noble Baroness.

I believe I have addressed the points raised by the noble Lord, Lord Ponsonby. I commend the draft code to the Committee.

Motion agreed.

Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling) (No. 2) Order 2023

Wednesday 26th April 2023

(1 year, 2 months ago)

Grand Committee
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
Motion to Take Note
18:31
Moved by
Lord Davies of Brixton Portrait Lord Davies of Brixton
- Hansard - - - Excerpts

That the Grand Committee takes note of the Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling) (No. 2) Order 2023, given the impact of current increases in the cost of living on pensions payable by the Pension Protection Fund.

Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee

Lord Davies of Brixton Portrait Lord Davies of Brixton (Lab)
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My Lords, this order is routine and has little practical impact on the PPF. The levy that is currently payable is only 16% of the cap set by the order. However, having it before us provides an opportunity to discuss the operation of what is becoming—a bit under the radar—one of the country’s biggest financial institutions.

I have a particular interest as I like to think that the PPF, or at least the name, was my idea. Back in 1995, following the Maxwell scandal, I drafted a paper for the TUC that proposed, among other things, that there should be a central discontinuance fund that should be called—wait for it—the Pensions Protection Fund, or PPF. Of course, the proposal was not accepted at that time, but it was introduced subsequently in the Pensions Act 2004.

Before getting to the focus of my speech, I have a couple of questions. First, the Minister should provide the Committee with some explanation of the error that was made with this order. I am not trying to embarrass anyone, but it surely suggests excessive pressure on DWP staff, so the question is: has the situation been rectified?

Secondly, as was raised in the 30th report from the Secondary Legislation Scrutiny Committee, can the Minister tell us where we have got to in following the recommendations in the departmental review? I will highlight two recommendations from the review. First, recommendation 2 is that

“the DWP and the PPF work together to understand the implications of the PPF’s funding position in light of expected future developments in the population of Defined Benefit (DB) pension schemes and plan well ahead for any legislative changes that might be needed; for example, to address what happens to any funding which is surplus to requirements”.

It is worth noting that the current legislation says nothing about what should happen to any assets that, in the event, are not needed to pay members’ benefits. Given the PPF’s policy of building up a substantial buffer that, even on its own figures, is unlikely to be needed, the question needs to be addressed.

Any money that is left over cannot go back to the employers, because things will have moved on and employers will have moved on. It also seems wrong that it should go to the Government. The only just solution is for it to be used, as far as possible, to provide benefits for members. In practice, this means that the buffer should not be excessive. In these circumstances, where there is no residual legatee, bigger is not necessarily better. It might be unjust, and its level therefore becomes not just a technical issue but an issue of fairness to members.

Recommendation 6 states:

“The PPF should consider how the Board could hear more directly about the member perspective to inform its deliberations”.


It should be a matter of concern that currently there is no formal procedure to reflect the interests of members. So what thought are the Government giving specifically to these two recommendations in the context of the review?

These two recommendations also bring me to focus on the central issue of my remarks: the impact of high rates of inflation on pensions in payment from the PPF and the scope for the fund’s assets to be used to protect their real value. The problem is that the limits on annual pension increases are severe in current circumstances: none at all for benefits accrued before 1997 and only 2.5% per annum for benefits accrued thereafter. Until recently, the PPF operated in a period of relatively low inflation. The problem of inflation has always been there, but it has become more salient now we have moved into a period of materially higher rates of inflation—most obviously in the current year, but the issue is not going to go away.

The net effect of these limits is that the real value of members’ pensions has been cut significantly. Pre-1997 benefits have already been cut by up to one-third, while benefits accrued after that date have fallen by up to one-sixth. It is important to understand that these are reductions so far; they are going to continue. There is bound to be another cut next January, which will be based on the level of inflation this coming May. It is potentially another 7% if we believe the OBR’s forecasts. In the longer term, I am a relative pessimist about inflation —but even optimists do not expect a return to CPI increases of 0% or even 2.5%. So the need to protect the real value of members’ benefits will only increase.

The reductions in the real value of members’ benefits must be seen in context: the funding position of the PPF, in its own words, is “strong”. As a result, the PPF levy has, quite rightly, been reduced and there are plans to reduce it further. I have no problem with that. According to the PPF’s latest annual report and accounts, the scheme held £39 billion in assets as at 31 March 2022. At that point, the PPF estimated that, of that figure, £11.7 billion—almost £12 billion—was in excess of what it needed to pay every current member and their dependants their compensation for life. This represented a funding ratio of 137.9%. I think that would be broadly recognised as going a bit beyond “strong”.

Given the experience of the last 12 months, it is likely that the position this March will be materially stronger. It also needs to be understood that these figures are already being calculated—I presume—on a prudent basis. The general practice is to undertake these valuations on a prudent basis. Unless the PPF advises me otherwise, I assume that this is the case here, so we have prudence placed on top of prudence.

The problem with all this is that PPF members have not shared the benefits of this strong funding position. Indeed, it is the reduction in the real value of their benefits that has been one of the contributing factors to the strong position. This situation is wrong and should be remedied as soon as possible. This will probably require legislation because the board of the PPF has limited ability to pay compensation over the levels set in the Pensions Act. The lack of increases for compensation in respect of pre-1997 service is devastating for the members who are affected, especially during the current cost of living crisis.

As well as the size of the impact, it is also important to appreciate the differential effect on various groups of members. Information released to the trade union Prospect through a freedom of information request shows that the lack of inflation protection for pre-1997 service disproportionately impacts women and older members. There is no rational justification for this discriminatory treatment. Ministers have sought to justify the discrimination by saying that there was no statutory right to increases before 1997—true, but there was no statutory right to have an occupational pension at all. The idea that the initial pension is the real benefit and the increases are an optional extra is fundamentally wrong.

In practice, the majority of pre-1997 scheme members were either accruing benefits to which they were entitled through RPI increases, typically capped at 5%, or were in the many schemes funded on the basis that such increases were going to be provided and members had a reasonable expectation of receiving them. In other words, such increases were part and parcel of the package of scheme benefits, and their effective exclusion from protection must be open to legal challenge. Such a challenge becomes more likely as higher rates of inflation persist. So we should, first, provide higher rates of protection to better reflect modern rates of inflation and, secondly, eliminate the arbitrary and unfair difference in treatment for compensation in respect of pre-1997 and post-1997 service.

On a Brexit note, it is a matter of much regret that the Retained EU Law (Revocation and Reform) Bill does not provide for the retention of the minimum levels of compensation established in the Hampshire and Bauer cases. When that Bill was debated in the Commons, a Minister even went so far as to state that the Hampshire case

“is a clear example of where an EU judgment conflicts with the United Kingdom Government’s policies”.—[Official Report, Commons, Retained EU Law (Revocation and Reform) Bill Committee, 22/11/22; col. 169.]

To conclude, is it the Government’s intention to cut the potential benefits that members might receive from the PPF to below the level to which they are entitled at present? I beg to move.

Baroness Drake Portrait Baroness Drake (Lab)
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My Lords, the PPF provides real support to some 295,000 pension scheme members who have entered it, including through the £1.1 billion paid out in compensation each year. It provides security to those in current DB schemes who may need to call on it in future. Add to those figures the Financial Assistance Scheme, which covers a further 150,000 members and, following the Pensions Act 2004, is administered by but not funded through the PPF, and we are providing a blanket of considerable security to heading for half a million people.

It is very important to remember that, before the 2004 Act, members could lose all or much of their pension savings when employers became insolvent or simply walked away from their liabilities. When the Labour Government created the PPF, there were many doomsayers who predicted that it would not be sustainable. In fact, the PPF has defied those doubters: it is financially resilient, has been well run, and has weathered the various economic storms that have occurred over the past 15 years.

18:45
However, the financial resilience of the PPF over the very long term still needs careful consideration. I probably take more comfort from the cosiness of prudence than my noble friend does, but the past few years have seen a significant improvement in overall scheme funding through increased employer contributions, rising interest rates and, more recently, rising gilt yields. I acknowledge that, but there is always the risk of the economic environment worsening and future large claims on the PPF. There will be a decline in the number of PPF levy payers resulting from schemes transferring into the PPF, and the number of schemes likely to buy out with an insurance company. Schemes underfunding is one of the biggest risks that the PPF faces, and there are still scenarios in which scheme funding could deteriorate. We have seen rapid movements in the level of scheme funding. What we have witnessed over the past 15 years confirms that.
The funding regime for the remaining open schemes is also important. Many of the larger such DB schemes have considerable deficits on a Section 179 basis—that is, the basis for funding to provide a PPF level of benefits. The Purple Book shows that open schemes are around 20% worse funded than closed schemes, on a Section 179 PPF benefits level basis. Such schemes presenting to the PPF could have a significant impact on the PPF’s funding, if they made a claim. There is also a long tail of small schemes which, together with stress schemes, collectively constitute, as I understand it, over one-third of the remaining 5,100 DB schemes. The estimates suggest that the annual capacity of the buy-out market is £50 billion to £100 billion, but it is likely to be the stronger schemes that buy out, with the less financially resilient schemes left in the PPF universe.
I mention all those things because, although the PPF is resilient when looked at today, we know that the risks that it has to be embrace and deal with can move against it. What work is being done to assess the impact and extent of a future decline in the number of levy players and the implications for the annual levy and the financial resilience of the PPF? In the light of the PPF’s current improved resilience, I understand that the DWP and the PPF are jointly considering the potential for more flexibility in setting the levy. Is the Minister able to report on when we are likely to know the outcome of those deliberations?
Improved PPF financial resilience, against a background of current high inflation levels, is bound to raise questions about current compensation levels paid to scheme members who entered the PPF. Looked at over the long term, an important part of maintaining the financial resilience of the PPF and the fairness towards levy payers has been the level at which PPF compensation payments are set. As my noble friend spelled out, current compensation payments are inflation indexed only on pension benefits accrued since 1997, not on benefits accrued before then, and the index is capped at 2.5%.
Understandably my noble friend is concerned that, in the face of high inflation and its impact on members of the PPF, the annual levy for 2023 is being reduced to 16% of the levy ceiling, given that there are some strong arguments for saying that the level of compensation payments should be improved. Again, I go back to my natural affection for prudence. Changing the PPF compensation levels, specifically to provide improved inflation indexing, would have a material financial impact on the PPF and wider implications for DB schemes, and, by association, the funding of the Financial Assistance Scheme. Changes to indexing would need consideration of the level of increase on the PPF’s future liabilities and the impact on the number and size of claims that the PPF would receive in the future, and it would almost certainly raise arguments about the cost of backdating any index payments.
We would also have to deal with schemes that had wound up outside the PPF through buyout at a level of benefit above current PPF benefits but which, if compensation payments are increased, would have been better off if they had transferred into the PPF. More schemes will become underfunded on a Section 179 basis. In looking at ways in which compensation could be improved, particularly for benefits accrued prior to 1997—I am hesitating on my memory—there are some quite serious issues to reflect on.
I am aware that the Work and Pensions Committee is looking at the system and the level of PPF compensation. Without treading on its toes, I ask the Minister whether there are any plans to increase the transparency of reporting on the department’s consideration of the annual levy raised, and about the scope for increasing the level of compensation to members in a high-inflation environment, and the need to ensure financial resilience of the PPF in the face of other risks evolving over time.
The other issue is that the PPF will be entering its own maturing phase, which will require it to have a greater focus on maintaining financial resilience. Reading the various papers that we had before us, I did wonder whether, in those circumstances, the PPF is right to decide to build reserves at a significantly slower pace than it had been building them. Certainly, in the DB scheme world, the regulator often encourages DB schemes to get assets in while the covenant is strong, and not wait until it is weak and seek the money. I wondered whether it is such a good idea to slow down the building at pace of reserves.
Finally, is it possible to update the Committee on the DWP’s view on the maturing of the PPF, which is a kind of shift in its position? I appreciate that it may not be possible to make a verbal response to that, but a written response would be helpful.
Baroness Altmann Portrait Baroness Altmann (Con)
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My Lords, I congratulate the noble Lord, Lord Davies, on securing this debate; it is an important one. At the outset, I say that I believe that the Pension Protection Fund has done and is doing an excellent job, and member experience in the PPF seems to be very positive—for me, that is one of the big tests of whether this is working well. The administration is very efficient, and the amount of compensation being paid is reaching those who need it, and are entitled to it, well.

I also congratulate the noble Lord on his foresight in 1995. I recall first becoming involved with Allied Steel and Wire and the various other pension schemes whose members had lost their entire pension very close to the point at which they were expecting to start receiving it, together with all their other life private savings —in those days, if you wanted to have any extra pension contributions you had to put all of it into your employer’s pension scheme. I remember reading about the proposals for a central discontinuance fund and thinking, “If only”. It informed my conversations with the No. 10 Policy Unit, the Treasury and the economic advisers to the Prime Minister at the time as to which way we needed to go to improve the situation the country faced. Over the subsequent two to three years, more and more pension schemes failed, and more and more members started losing their pensions; it was a serious and heartbreaking time. Members, having been told that they were fully protected, would have expected that all their money was safe. They were told that, regardless of what happened to their employer, their money was safe and that their pension was protected—but it turned out not to be the case.

Instead of the proposal from the noble Lord, Lord Davies, of a central discontinuance fund, we got the actuarial profession’s minimum funding requirement. Unbeknown to members—and, indeed, to most pension professionals outside actuarial circles—that was designed to deliver only a 50:50 chance of people receiving their full pensions, and yet members, trustees and employers were told that, on that basis, their fund was fully funded or in surplus. Unfortunately, what happened subsequently, around the end of the 1990s, with the market crash, was that those surpluses melted away. It looked as though the benefits had been secure but, suddenly, the market crash made that position unsafe. We saw that those so-called surpluses were in fact buffers against bad markets, rather than real surpluses—you could judge that only with hindsight in the end.

This is my concern about the Pension Protection Fund. I absolutely want to try to ensure that anyone who has a pension insured by the Pension Protection Fund receives as much as possible. If there were a secure way of ensuring that they did not fall behind while we are suffering this cost of living crisis, I would be the first to support it. My thinking has perhaps been coloured by my experience during those dreadful years, before we got the Financial Assistance Scheme sorted out in 2007—it started around 2008—of seeing people who thought that their pensions were in surplus and that their position was secure finding that, because markets had moved suddenly and unexpectedly and in a way that had never been properly forecast, their pension had disappeared.

I also believe that, although the PPF looks as though it is in surplus now, we need to address what happens should there be a severe economic dislocation causing some of the huge pension schemes, which currently seem safe—and even some of the open schemes —to fail and fall into the same problem. This is an insurance policy rather than a pension, which, for me, is an important distinction.

I would love the Government to find a way to underwrite more generous increases for the Pension Protection Fund. I am particularly mindful of the fact that, before 1997, benefits had no inflation protection at all, yet many schemes—but by no means all—offered full inflation linking, or at least up to 5%. In that pre-1997 period, the older the member was when their scheme failed, the more pension they lost as a result of the failure, because they would have had more accrual.

I support the concept that the noble Lord, Lord Davies, is promoting: that in a time of economic difficulty, with inflation roaring away, we do not want to leave pensioners behind. It is clearly the case that the Pension Protection Fund is, to some degree, leaving pension members behind in real terms. To some degree, it was modelled on the American PBGC, the Pension Benefit Guaranty Corporation. Generally speaking, in America there is no inflation protection at all on these DB schemes, so the UK has always been a little unusual in that regard. Having said that, it makes sense to look at the structure of the levy and I echo the questions for my noble friend about plans for the future management of it.

19:00
Finally, to pick up on the remarks of the noble Lord, Lord Davies, on the arbitrary and unfair treatment of pre-1997 members, that applies particularly strongly to members in the Financial Assistance Scheme. This scheme is not funded by all other pension schemes or employers; it is a part of government spending. Members in the Financial Assistance Scheme were never told that there was a Pension Protection Fund that would reduce their pension when they reached retirement; they were always told that their pension was completely “safe and protected by law”, to cite government documents sent to them at the time. They would be particularly at risk, because their schemes failed before the schemes that belonged to the PPF. They would be at risk of losing more because, by definition, they had more pre-1997 benefits.
May I put in a plea? Given that the Financial Assistance Scheme’s membership is more than half the size of the membership of the PPF, if there were any consideration of increasing the generosity of inflation protection for members of the Pension Protection Fund, even on a one-year basis, for example could that be applied to the Financial Assistance Scheme as well? It would be an option to offer them extra on a temporary period. On that basis, does my noble friend know, or will he write to me about, how much extra money the Government have so far added to the assets that were gathered in from Financial Assistance Scheme schemes to supplement the amounts paid out for members of those schemes?
I congratulate the noble Lord, Lord Davies, on this. I echo the words of the noble Baroness, Lady Drake, who knows so much in this area, about a need to be mindful of the longer-term potential risks. I look forward to hearing my noble friend’s response.
Baroness Sherlock Portrait Baroness Sherlock (Lab)
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My Lords, I thank all noble Lords who have spoken, especially my noble friend Lord Davies of Brixton for giving us this opportunity to reflect on the role and operation of the Pension Protection Fund.

My noble friend Lady Drake was right to remind the Committee of the huge value of the PPF to the thousands of members of DB schemes—both those who benefit directly from the £1 billion-plus of compensation it pays out every year and those who are happily sailing in calm pension waters but benefit from the security of knowing that the lifeboat is there, should they find they need it. Certainly, every day is a school day. I have learned a certain amount of history today, for which I thank noble Lords who have spoken, including the noble Baroness, Lady Altmann, and my noble friends on this side. They reminded me that the PPF was created by the Labour Government to protect the hard-earned pension savings of workers. It is important that we never take it for granted and that we, in our time, do all we can to keep it sustainable.

The Pensions Act 2004 requires the DWP to make an annual order to increase the PPF levy ceiling in line with the growth in earnings. As my noble friend Lord Davies noted, this year we have had two orders, as the first draft omitted the relevant figures in favour of “X”s. I do not want to make life harder for whichever poor person found that they had done that by accident, but I have to note that it is not the first error in recent times that we have had in a DWP order. When I was a non-exec on boards, we were always told that if an error is reported, the question to ask is: is it systemic? Clearly, one error is not systemic, but this is not the first. Can the Minister tell the Committee whether he is confident that his department is sufficiently well resourced with the people whose job it is to draft legislation and make sure that it is checked before it goes out?

The levy ceiling was set in primary legislation to be uprated annually in line with the growth in average weekly earnings, the rationale being that this would allow the increases in the ceiling roughly to track the increases in the pension liabilities of DB schemes, which are, in turn, linked to members’ earnings. In its 30th report, the Secondary Legislation Scrutiny Committee asked whether the policy of annual increase by the growth in earnings is still producing a sensible outcome, or whether it is far outstripping actual usage. It highlighted the gap between the levy ceiling and the actual levy. As we have heard, in 2023-24, the levy will be 16% of the ceiling, compared with 33% in 2022-23 and 43% in 2021-22.

The answer provided to the committee in that 30th report was that

“PPF investment performance has consistently performed ahead of target and combined with the PPF’s levy collection and risk reduction strategies, has resulted in a reserve of £11.7 billion and assets of £39 billion (as of 31 March 2022)”—

as mentioned by my noble friend Lord Davies. It was this which enabled the drop in the levy. The recent PPF funding review concluded that

“the PPF’s financial position has significantly strengthened in recent years, driven principally by strong investment performance, and a changed risk profile. As a result, the PPF is making a step change in its approach and entering a new phase where the focus will shift from building to maintaining its financial resilience”.

As somebody who likes the Janet and John version, I think that means that it has been building up reserves steadily and feels that the time has come to build them up more slowly in future.

The challenge for the PPF is that it has to tack a course between levying enough for its likely needs in the year ahead while ensuring that it is still able to bring in enough additional revenue if it suddenly faces large claims or a significantly riskier environment. Since it can increase the levy by only 25% a year, the decision on the levy can never just be a short-term consideration with a 12-month horizon. Is the Minister confident that the PPF has landed in the sweet spot?

I am also interested to hear the answers to the questions raised by the noble Baroness, Lady Altmann, and my noble friend Lady Drake about the consideration that is being given by the department and the PPF as to whether there is a need for more flexibility in the way that the levy is set and constructed.

Clearly, if the PPF is deemed to have more reserves than it needs, it can do one of two things: reduce the levy or spend more. My noble friend Lord Davies has come down clearly on one side of that, namely that it should choose to spend more. He rightly pointed out that this is a time of very high inflation and, therefore, the impact of the 2.5% cap on indexing is being felt particularly acutely at the moment. Clearly, that has put pressures on all pensioners, including those who rely on PPF payouts. My noble friend’s proposal has attracted support in principle from the committee. The obvious question to the Minister is: has any modelling been done on the cost of removing or raising the cap and, if so, what can he share with us on that—what did it show?

My noble friend Lord Davies also raised two of the questions from the independent review of the PPF. Can the Minister tell me whether the Government have responded to that review? I could not find it, but that may just be because of my search skills. Perhaps he could let us know.

I add another question that had been raised. The costs of administering the PPF are borne by the PPF administration fund and amounted, I gather, to £13.3 million last year. The independent review recommended folding the administration levy into the general PPF levy. Did that proposal find favour?

I am interested to hear the Minister’s take on this delicate balance facing the PPF, especially as it matures. It has been suggested that is in a healthier position than ever, but also that, as more schemes prepare to move into buyouts, the environment could get riskier in future than it has been in the past. It is perhaps time for more of the workings to be made manifest so that there is more clarity for all stakeholders—pension schemes, savers and pensioners—as to the balance of decisions that are being taken. I look forward to hearing the Minister’s reply.

Viscount Younger of Leckie Portrait The Parliamentary Under-Secretary of State, Department for Work and Pensions (Viscount Younger of Leckie) (Con)
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My Lords, I thank the noble Lord, Lord Davies of Brixton, for providing this opportunity to discuss the Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling) (No. 2) Order 2023. This order enables the board of the Pension Protection Fund to raise a pension protection levy that is sufficient to ensure the safe funding of the compensation it provides, while providing reassurance to business that the levy will not be set above a certain amount in any one year.

I thank all noble Lords who have spoken in this short debate. As ever, I am somewhat daunted by the level of expertise, bar none, in this Committee. A good number of questions have been raised and, as ever, I will endeavour to answer them all—mostly at the end of my remarks, just to manage expectations.

I emphasise the Government’s continued commitment to supporting pensioners and protecting their hard-earned retirement savings. Ensuring that those who have worked hard all their lives receive a retirement income that provides them with dignity and financial security is one of our core objectives, and so it should be. We recognise that recent increases in the cost of living have placed particular pressure on pensioners’ household budgets, so we are taking action to target support specifically at pensioners. Around 12 million pensioners in Great Britain will benefit from the 10.1% increase to their state pensions from this month, fulfilling the Government’s manifesto commitment to apply the triple lock. More than 8 million pensioner households across the UK will receive an additional £300 cost of living payment this winter. To aid the most vulnerable, the pension credit standard minimum guarantee has also been increased by 10.1%.

As the Committee will know, combating inflation is one of the Government’s top priorities. Forecasts indicate that inflation is still likely to fall sharply by the end of 2023, in line with the Prime Minister’s pledge to reduce it by half by the end of the year.

I will return to the Pension Protection Fund in a moment, but first I will take a step back to consider the wider context of the schemes it protects. I pay tribute to the noble Lord, Lord Davies, for all that he has done; I was interested, pleased and perhaps not surprised that he had such a hand in the naming and setting up of the PPF—I am not sure of the precise date—back in the 1990s. With around £1.7 trillion of assets over 5,000 schemes and supporting nearly 10 million members as of March 2022, the defined benefit sector is critical for the UK population.

Set against this backdrop, the PPF’s £39 billion in assets under management as of March 2022, including £11.7 billion in reserves, certainly seem proportionate to the scale of its task. As of March 2022, since its inception in 2005 the scheme has stepped in to protect close to 300,000 members who might otherwise have received a greatly reduced retirement income. The noble Baronesses, Lady Drake and Lady Sherlock, referred to the success of this.

Despite the strength of its financial position, the PPF continues to face risks, the biggest being future claims for compensation and increased longevity. It uses its stochastic modelling tool, the “long-term risk model”, to help determine the funding it requires to protect against these future risks. Like other major financial institutions, the PPF protects against risk by holding reserves. The size of its reserve should therefore provide reassurance not only to existing members of the PPF but to members of all eligible pension schemes.

The noble Lord, Lord Davies, asked about the Pension Protection Fund’s reserve of £11.7 billion and asked whether that could be shared with its members—I think that was the gist of his question. It enables the Pension Protection Fund to protect financial security for current and future members. As I said, despite the strength of its financial position, the PPF continues to face a number of risks, the biggest being future claims to compensation and increased longevity, so there is a balance that I am sure the noble Lord could tell me much about.

The compensation provided by the PPF makes it a critical partner in delivering on the Government’s objective of ensuring financial security for pensioners. The PPF provides a crucial safety net to members of eligible pension schemes who are at risk of losing their pensions because of the insolvency of their employer. This safety net could not be more important in these challenging times.

I reiterate, however, that the Pension Protection Fund is therefore a compensation scheme; I know that my noble friend Lady Altmann defined it as an insurance scheme, which is fair enough. As such, it seeks not to replicate the benefits of underfunded pension schemes but rather to ensure that members are compensated fairly and sustainably. A balance must be struck between the interests of those who receive compensation and the levy payers who fund it. It is only by striking this delicate balance, perhaps, that the long-term stability of the PPF can be ensured.

19:15
As it is a safety net, the PPF indexation rules are broadly in line with the minimum legal requirements for defined benefit schemes, which vary depending on the time the benefits were accrued. This means that some members receive lower levels of indexation than they would have done had the scheme not entered the PPF. Changes to these rules would be costly and complex, with significant consequences for the pensions system. The PPF’s current liabilities would increase, as would the deficits of the schemes it protects, which use PPF compensation levels to measure their funding. This would mean an immediate increase in costs as well as an increase in the potential scale and likelihood of future claims for compensation. As a result, the PPF would have to alter its funding strategy, likely increasing the burden on levy payers. It would not be appropriate for the Government to increase the burden on levy payers for the purpose of providing more generous indexation than the minimum as laid out in legislation.
The noble Lord, Lord Davies, expanded on this theme by asking why compensation paid by the PPF does not increase in line with inflation. As he knows, compensation based on benefits accrued after April 1997 is increased in line with inflation up to a maximum of 2.5%, which is broadly in line with the legal requirements for defined benefit pension schemes. However, as I mentioned earlier, it is a compensation scheme and was never intended to replicate the benefits. Legislation limits what the PPF can do and there is no discretion either to pay the uplifting of the pre-1997 funds or to pay more than the 2.5%; I may say more about that later.
As my noble friend Lady Altmann said, the PPF has been highly successful in securing the funding required to pay for the compensation that it currently provides. The strength of its financial position, combined with improvements in the funding levels of the schemes it protects, means that it expects to be able to reduce its reliance on the levy. In 2023-24, it intends to collect approximately £200 million—around half of last year’s levy estimate. Reducing the levy will ease the burden on levy payers without risking the long-term funding of compensation.
I thank the Secondary Legislation Scrutiny Committee for the attention that it has paid to this instrument. I hope that the information provided by the department about the levy ceiling has been helpful for noble Lords’ understanding of this successful compensation scheme. I repeat the department’s apologies for the technical errors contained in the original version of this order. They were spotted by the statutory instrument registrar, and this allowed the department to act swiftly to lay this order—it also revoked the defective order—and minimise any inconvenience. Understandably, this matter was raised by the noble Lord, Lord Davies.
To expand on what I have just said, as the noble Lord knows, the technical error in the original version led to the order having to be revoked. This order, No. 2, now revokes and replaces the original instrument and introduces the increase in the levy ceiling as intended. To reassure the Committee, in order to prevent future errors of this type, the department has put in place stronger and clearer processes to ensure accuracy in statutory instruments; that is more of a general comment. The department will continue to work with the PPF as it adapts to the changing landscape of defined benefit pension schemes and takes opportunities to enhance its role in the pension protection network.
I turn to the questions raised in much more depth. The noble Lord, Lord Davies, asked—this was added to by the noble Baroness, Lady Sherlock—about the follow-up planned by our department since the publication of the departmental review of the PPF. The departmental review, published in December 2022, made a limited number of recommendations that focused on finding opportunities to enhance the profile of the PPF and take advantage of its expertise. I can reassure the Committee that the department is currently working with the PPF to explore the recommendations and options for implementing them, including the funding of the Pension Protection Fund and improving member engagement. I hope that that gives some answer to the noble Baroness, Lady Sherlock, who asked whether we had responded; that is where we are at the moment.
The noble Lord, Lord Davies, asked why the Pension Protection Fund does not pay the indexation provided for in the scheme rules. As he will know, the rules on indexation can vary significantly across schemes, so trying to replicate scheme rules would introduce complexity into the broadly standardised indexation rules. The PPF is a compensation scheme and, as such, was never intended to replicate, and I mentioned earlier the balance that has to be struck.
The noble Lord, Lord Davies, also asked how it is fair that the PPF indexes of pre-1997 accruals are so different from more recent accruals. PPF’s indexation rules simply allow for benefits accrued before and after a certain date to be treated differently for the purposes of indexation, which broadly reflects the statutory requirements for defined benefit pension schemes. There is no statutory requirement for defined benefit pensions relating to service before April 1997 to be increased when in payment, apart from any guaranteed minimum pension element.
The noble Lord, Lord Davies, and my noble friend Lady Altmann alluded to the point about why the Government do not legislate to introduce indexation on pre-1997 accruals. I think I may have alluded to this earlier, but changes in the indexation rules would significantly impact the PPF’s funding strategy and the wider pensions system. Increasing the indexation provided on compensation would incur significant direct costs for the PPF.
The noble Lord, Lord Davies, asked an interesting question about retained EU law, particularly in respect of the Hampshire judgment. I can give a short answer which I hope may be of help to him, which is that the Government intend to retain the Hampshire judgment beyond the sunset date. I hope that gives him the answer that he was looking for—there is a nod there, which is helpful to me.
The noble Baroness, Lady Drake, asked a number of questions, the first being what consideration our department has made of the fall in the levy population as a product of the rise in the number of schemes buying out. I think that that was the gist of her question. Stronger regulation has led to scheme funding positions improving significantly in recent years, and the department and the PPF have been considering the implications for the pension protection levy. Maybe I can give some assurance by saying that early discussions between the two organisations have focused on the potential rebalancing of the levy, so that it is more aligned with the evolving universe of defined benefit schemes that the PPF is there to protect.
The noble Baroness, Lady Drake, also asked about the materiality of increasing the indexation of the PPF payments above the 2.5% cap, and I believe that that theme was raised by one or two other Peers. Increasing the indexation provided on compensation would incur significant extra direct costs, as mentioned earlier. The deficits of eligible schemes that use the PPF levels as a way of measuring funding would increase, and therefore the size and likelihood of future claims would grow. I alluded to this in my main speech; I am afraid I cannot add much more to what I have already said.
The noble Baroness, Lady Drake, asked what consideration the department has given in terms of the increasing maturity of the PPF and the resulting changes to its cash flow—a slightly different question. The PPF new funding strategy recognises that its population is maturing and seeks to provide security for its current membership, while holding adequate assets for its future claims. Its investment portfolio is aimed to ensure that it has a stable, long-term cash flow for its current membership, while growing its reserve over a period of time.
My noble friend Lady Altmann asked about financial assistance from the financial assistance scheme and, linked to that, there was a theme about improving the generosity of the scheme. A brief answer is that the indexation rules on financial assistance are broadly in line with the legislation for pension schemes more widely but, further to this, the financial assistance scheme is funded from general taxation and thus this balance—this goes back to this balance—has to be struck between the interests of members of the schemes which are unable to secure their liabilities and the wider taxpayer interests.
As regards a question that my noble friend asked about how much remains of assets transferred from the financial assistance schemes to the Treasury, that is a very specific question on which I will have to write, which I am very happy to do.
The noble Baroness, Lady Drake, asked about DWP’s plans for improving transparency of the PPF’s funding and indeed the levy. The PPF publishes its annual report and accounts and consults on the basis on which it collects the levy. That is the answer I have, and I will consider that and look at Hansard later and see whether I can expand on it.
Baroness Drake Portrait Baroness Drake (Lab)
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I appreciate that there is a lot out there, but there are three elements: the scope for raising the levy, the compensation levels and the resilience of the PPF over time. Clearly, there is a sort of inflection point for revisiting and managing that. It was just about understanding that and getting more transparency around it.

Viscount Younger of Leckie Portrait Viscount Younger of Leckie (Con)
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Absolutely. That plays well into what I said in that I will reflect on what I and the noble Baroness have said, and there may well be a letter coming to add to the one that I will send to my noble friend.

I will address a couple more questions before I wind up finally. The noble Baroness, Lady Drake, and indeed the noble Baroness, Lady Sherlock, asked whether the PPF is right to build reserves at a slower pace than it has been doing. It is a fair question but that is, as the noble Baroness will expect me to say, very much a matter for the PPF board.

On whether there will be an update on the levy discussions, I may have alluded to this earlier—it was raised not only by the noble Baroness, Lady Drake, but by my noble friend Lady Altmann and indeed the noble Baroness, Lady Sherlock. I will certainly happily make inquiries, and that will be an addition to the letter which is growing bigger by the moment. There may be some other questions that I have not answered, but I will certainly look very closely with my team at Hansard.

To conclude, again I thank the noble Lord, Lord Davies, for providing us with this opportunity to discuss the UK’s flexible and robust regime for funding and protecting defined benefit pensions, which, as was mentioned, is an important subject. This regime has enabled most schemes to weather the severe economic downturns following the crash in 2007-08—the financial crisis, I should better call it—and the Covid pandemic, as well as the prolonged period of historically low interest rates. In fact, the aggregate scheme funding position on a Pension Protection Fund basis improved from 83.4% on 31 March 2012 to 113.1% on 31 March 2022 —an interesting statistic to reflect on. These improvements to scheme funding mean that fewer and fewer members of DB schemes will require the safety net of the PPF. That is of course good news for members, who are increasingly likely to receive their full pension entitlement. This is progress indeed but there is more to do, although of course we cannot eliminate all risk. When employers become insolvent, the PPF continues to stand by as a well-funded and responsibly managed safety net.

Lord Davies of Brixton Portrait Lord Davies of Brixton (Lab)
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I thank the Minister for his detailed and considered response to what I have certainly found a useful debate. I just need to say that I do not think that the issue will go away. As I suggested, the attrition of members’ benefits will continue, and pressure to do something will get stronger. It would be useful if a meeting could be organised—it is probably just as easy to do it directly with the PPF, but Ministers and officials might like to be involved in it as well, so I will write and suggest that. I thank the Minister again for his attention to this important topic.

Motion agreed.
Committee adjourned at 7.29 pm.

House of Lords

Wednesday 26th April 2023

(1 year, 2 months ago)

Lords Chamber
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Wednesday 26 April 2023
15:00
Prayers—read by the Lord Bishop of Guildford.

Life Expectancy: Pensions, Health and Insurance

Wednesday 26th April 2023

(1 year, 2 months ago)

Lords Chamber
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Question
15:07
Asked by
Lord Rooker Portrait Lord Rooker
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To ask His Majesty’s Government how changes in life expectancy as measured by the Office for National Statistics have affected planning for pensions, health and insurance.

Lord Markham Portrait The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
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The Government consider a range of metrics when determining our approach to pensions, health and insurance, including life expectancy where relevant. We are committed to improving health life expectancy by five years by 2035 and to reducing the gap between areas where it is highest and lowest by 2030. Our major conditions strategy will focus on health conditions that contribute most to morbidity and mortality.

Lord Rooker Portrait Lord Rooker (Lab)
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I thank the Minister, but is he aware that Office for National Statistics figures show that life expectancy, which is a key indicator of national health, has stalled in the UK since 2010 for the first time in 120 years? Is he aware that one consequence of this is that over half of families in England cannot get a funeral in less than three weeks, and 17% cannot get one for over a month? Funeral directors are running out of storage space because of what is happening. There are far too many early deaths under this Government, as shown in the report from the Government Actuary’s Department, placed in the Library last week, which states that before the pandemic the UK had the lowest life expectancy of any major European country.

Lord Markham Portrait Lord Markham (Con)
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I am aware that there has been a similar phenomenon across all the G7 western nations. Life expectancy has been plateauing for the last few years, and the only country to buck that trend is Japan. A lot of this is to do with obesity, which I know noble Lords regard as a very important issue. While we are improving issues such as alcohol intake, the impact of obesity on healthy lifestyles is an important factor that we will need to tackle.

Lord Allan of Hallam Portrait Lord Allan of Hallam (LD)
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My Lords, as well as falls in overall life expectancy, there have been significant falls in disability-free life expectancy, as shown in the recent ONS figures. Can the Minister describe the steps his department is taking to understand why more people are acquiring long-term conditions earlier in their lives, and to ensure that health and social care services are geared up to meet that extra demand?

Lord Markham Portrait Lord Markham (Con)
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This goes very much to our strategy of improving healthy life expectancy by five years by 2035. “Healthy” is a key component of that, taking the major conditions strategy and looking at the six major causes of death—cancers, heart disease, respiratory issues, dementia, and mental health and musculoskeletal issues—and what we can do on each one to improve lifestyles.

Lord Forsyth of Drumlean Portrait Lord Forsyth of Drumlean (Con)
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My Lords, considering inflationary pay demands in the health service, has my noble friend given enough emphasis to the benefits provided in the form of final salary index-linked pensions? Is there not a conflict between being concerned about inflation and knowing that you will be protected? How long is it possible to sustain such a system?

Lord Markham Portrait Lord Markham (Con)
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I know that my health brief is broad but including pensions and insurance in it is quite a challenge. Like other noble Lords, I am very aware of the impact of inflation on the final salary scheme and on lifestyles, and of the fact that not many employers can afford the schemes any more—apart from, dare I say it, government. That has an impact. However, I am happy to meet my noble friend to go through this in further detail.

Lord Winston Portrait Lord Winston (Lab)
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My Lords, the Government have made a pledge that they know perfectly well they cannot keep. There is no way that this massive morbidity will be reduced: obesity is not the answer. If he looks carefully, he will see what the Science and Technology Committee—chaired by the noble Lord, Lord Patel, who may want to comment—showed: that it is clearly due to deprivation in poorer parts of the country, which leads to a much shorter life. The Government need to deal with this holistically; it is not the problem of the Department of Health and Social Care but a much wider issue.

Lord Markham Portrait Lord Markham (Con)
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As ever, there are multiple factors at play. That is what the Office for Health Improvement and Disparities is all about: making sure that we are tackling this in exactly the holistic way the noble Lord mentioned, going back to all the major conditions that are causes of death and tackling each one by one. The 10 million cancer screenings save 10,000 lives a year, and our breast cancer screenings save 1,300 lives. There is a lot to do but a lot that we are doing already.

Lord Patel Portrait Lord Patel (CB)
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My Lords, in his introductory remarks, the Minister quoted the Government’s ambition to extend healthy life expectancy by five years by 2035. Can he put some numbers to it? What age are we talking about?

Lord Markham Portrait Lord Markham (Con)
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My understanding is that people are predicted to live a healthy life until around age 63. It is about looking at that aspect as well; it is not just about the length of life but how well we live it.

Lord Robathan Portrait Lord Robathan (Con)
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My Lords, last week, the Institute for Government issued a paper that said that every obesity strategy since the first one, in 1992, had failed. It also pointed out that taxes would have to rise to deal with the epidemic in obesity and type 2 diabetes. Can the Government bring together a decent strategy to help all the people who are overweight, so that they live longer and we have a healthier society?

Lord Markham Portrait Lord Markham (Con)
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My noble friend is correct: it is a key issue. There have been successes such as the sugar tax levy, which has reduced sugar consumption by about 40%. But clearly, you need only to look at the statistics to see that all western nations, including the UK, are facing this problem. It is a challenge that we have to attack. We can learn a lot in this space from Japan, where employers and the whole society are very much involved in the healthy lifestyles of their workers and people.

Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, life expectancy for those with a learning disability is particularly shocking: only four in 10 live to see their 65th birthday, nearly half of their reported deaths are avoidable, and those living in the north-west and the Midlands are at greater risk. What action are the Government taking to address the specific barriers faced by people with learning disabilities in getting access to the timely, quality healthcare which could perhaps extend their life expectancy?

Lord Markham Portrait Lord Markham (Con)
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As noble Lords are aware, we have been putting significant investment into mental health; from memory, there has been a £2 billion-plus increase over the last year. In recognition that learning disability is an issue we particularly need to tackle, as the noble Baroness is aware, we are putting investment into schools so they can identify it early on. Some 35% of schools now have the right educational leads in this space, and the figure will rise to 50% next year. It is a big improvement, but do we need to do more? Absolutely.

Baroness Cumberlege Portrait Baroness Cumberlege (Con)
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My Lords, my noble friend will be aware that for many years, the UK has enjoyed increases in life expectancy but now we are getting reports that the rate of increase is declining. What plans—I have given my noble friend notice of this question—do the Government have to reverse this trend?

Lord Markham Portrait Lord Markham (Con)
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My noble friend, whom I thank for that question, has characterised this issue in exactly the right way. Life expectancy is still increasing, but not at the rate it was. That is why the major conditions strategy was launched. I can give one example: cancer is one of the six major killers, and we are seeing 20% more cancer patients this year than we were pre-pandemic. So there are improvements in this space, and that is what the major conditions strategy is all about; but clearly, the record investment we are putting in needs to show that sort of output.

Baroness Wheatcroft Portrait Baroness Wheatcroft (CB)
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My Lords, the Minister’s ambition to increase life expectancy is not being helped by the current wave of doctors strikes, with extended waiting lists certainly bringing down life expectancy rates in some quarters. Can he tell the House why he and other Ministers will not get round the table now, with no preconditions, to discuss how this might be brought to a speedy end?

Lord Markham Portrait Lord Markham (Con)
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The noble Baroness is absolutely correct: any strike action is regrettable, and we have a part to play, as do the unions, in trying to make sure that we reach a sensible place. We feel we have done that for nurses and ambulance drivers with the Agenda for Change, and clearly, we want to do the same for doctors. I think all noble Lords can agree that we do not want the impact on patients and healthy outcomes that strikes cause.

Performing Arts: GCSE and A-level Qualifications

Wednesday 26th April 2023

(1 year, 2 months ago)

Lords Chamber
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Question
15:17
Asked by
Baroness Wilcox of Newport Portrait Baroness Wilcox of Newport
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To ask His Majesty’s Government what assessment they have made of the decline in the number of entries to GCSE and A-Level qualifications in the performing arts over the last decade.

Baroness Barran Portrait The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
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My Lords, this Government remain committed to pupils receiving a high-quality cultural education, including in music, dance and drama. GCSE entries in arts subjects as a proportion of all entries went from 11.8% to 9.7% between the academic years 2011-12 and 2021-22, while A-level entries in arts subjects over the same period went from 13.1% to 11.2%. Over half of pupils in state-funded schools currently enter for at least one arts GCSE or technical award.

Baroness Wilcox of Newport Portrait Baroness Wilcox of Newport (Lab)
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I thank the Minister for that Answer and I will give her some figures back. There has been a reduction of 25% in entries for GCSE music, 30% for drama and, significantly, 60% for performing arts, with similar figures at A-level. Are any steps being taken by the department to ensure that this trend is reversed in future and, specifically, have the Government considered the merits of reimagining publicly funded performing arts provision, as is being done, for example, in Wales? Is it not time the Government guaranteed access to arts, music and drama clubs for every child, irrespective of background and wealth?

Baroness Barran Portrait Baroness Barran (Con)
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The noble Baroness cited a number of statistics, but I would say in response that, since 2016, uptake of the speech and drama vocational technical qualification has more than doubled, as has uptake of the music VTQ. My understanding is that the performing arts GCSE no longer exists, but the broader point the noble Baroness makes is being addressed through our cultural education plan and the national plan for music education, which aims to reach just the children the noble Baroness refers to.

Lord Storey Portrait Lord Storey (LD)
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The Minister will be aware of the importance of the creative industries to our national economy. She will also be aware that the EBacc does not include creative subjects. She will also be aware that schools are under great financial pressure, so to save money why would they have creative subjects if pupils do not have to enter exams as part of the EBacc? Is it not time to realise the damage that the EBacc is doing to the creative subjects in our education system? Might the Minister not consider being more relaxed about how schools face GCSEs and A-levels and not be hidebound by an EBacc?

Baroness Barran Portrait Baroness Barran (Con)
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I do not accept either that the EBacc is damaging entries and activity in relation to creative subjects or that it is wise to judge the value of the EBacc only in relation to creative subjects. It is clear from all research and evidence that our children in need a broad grounding, which the EBacc offers.

Earl of Clancarty Portrait The Earl of Clancarty (CB)
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My Lords, can the Minister confirm whether discussion of the national curriculum and of accountability measures will be within scope of the cultural education plan, to which she has just referred? These matters are clearly vital, as the present discussion demonstrates.

Baroness Barran Portrait Baroness Barran (Con)
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More of the details on the cultural education plan will be published shortly, but my understanding is that it will highlight the importance of high-quality cultural education and the important role that wider cultural institutions can play, working with schools. I know that my noble friend Lord Parkinson recently visited West Bromwich and saw an example of that, where the Shireland Academy and the City of Birmingham Symphony Orchestra are opening a new school with a particular focus on music education.

Lord Archbishop of York Portrait The Archbishop of York
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My question is about the variability of access. I think we all recognise that the statistics quoted are going the wrong way. What we observe particularly is that it is far worse in some parts of the country than others. That is something I particularly observe in the north, where I serve. The DCMS Committee’s report last year spoke about how the creative industries themselves are saying that there is a shortage of the skills that we need. What is being done about this and, particularly, how do we know about the situation? In about 2014, Ofsted changed the way its inspections investigated the arts. For instance, dance was looked at as part of PE. Does the Minister think that this lack of joined-up thinking has had an impact on where we are now and, in particular, on the way that some parts of the country are suffering much more than others?

Baroness Barran Portrait Baroness Barran (Con)
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The most reverend Primate is right that there are currently differing levels of engagement, take-up and opportunity in relation to the creative industries around the country. I respectfully disagree with him on the fact that we are not joined up. Actually, a great deal of work is going on between DCMS and the Department for Education in relation to the creative industries sector vision and the cultural education plan, to which I referred. In relation to Ofsted, it did a deep dive into a number of cultural and arts subjects in 2019 and highlighted their importance within the curriculum.

Lord Cormack Portrait Lord Cormack (Con)
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As my noble friend may know, our noble friend Lord Parkinson very kindly attended a dinner which I hosted last week for the Royal School of Church Music. He was of course wearing his arts and heritage hat. Has the Minister had a chance to talk to the Royal School of Church Music? It is bringing music of a very high quality to many who go to primary schools where they hardly have the opportunity to learn any music. We all ought to be working together on this one to bring quality music to children throughout the whole of the United Kingdom.

Baroness Barran Portrait Baroness Barran (Con)
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My noble friend is right that we absolutely should be working together. I thank all the charities and voluntary organisations, which are so varied and bring so much richness to our children’s lives, including the Royal Society of Church Music.

Baroness McIntosh of Hudnall Portrait Baroness McIntosh of Hudnall (Lab)
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On that point, will the Minister join me in paying tribute to the extraordinary work being done by many arts organisations across the whole country in engaging with schools and the education system? However, often what they are doing is filling a gap, and their ability to engage is very dependent on individual head teachers’ willingness to make time and resources available for what they have on offer to be delivered to their young people. Will she acknowledge that at the moment the deficit that is being discussed in this Question is being filled largely by arts organisations, which are themselves under enormous pressure?

Baroness Barran Portrait Baroness Barran (Con)
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I just do not fully accept the deficit that the noble Baroness describes. I absolutely agree with her that arts organisations bring an important, valuable and different perspective, but schools themselves are also doing an extraordinary job. As we can see from our incredibly successful creative industries, we are getting something right.

Lord Addington Portrait Lord Addington (LD)
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My Lords, the Minister has given responses that say, “Yes, we like the things outside the formal GCSE structure”. Will the Government go a step further and identify those who are interested in arts activity—that is, performing—and positively channel them towards those who are doing it outside? If you are not going to give exams or structure, you must at least help people get to those who will do it voluntarily.

Baroness Barran Portrait Baroness Barran (Con)
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If I may, the Government like “both/and”. We have the arts clearly in the national curriculum and over half of children in schools are doing either GCSE or a vocational technical qualification —but, in terms of the richness of children’s education, the opportunity to engage outside brings a great deal of added value.

Baroness Bull Portrait Baroness Bull (CB)
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My Lords, when might we see the arts premium that was promised in the Conservative Party manifesto?

Baroness Barran Portrait Baroness Barran (Con)
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I was hoping the noble Baroness might ask when we were going to see the cultural education plan, which I know she is keen to get on with—and I take this opportunity to thank her for agreeing to chair the expert advisory panel for that. We absolutely remain committed to cultural and music education and the arts but, with the impact of Covid on children’s learning and the importance of focusing on their recovery, sadly we have had to reprioritise education recovery within this spending review period.

Corruption

Wednesday 26th April 2023

(1 year, 2 months ago)

Lords Chamber
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Question
15:27
Asked by
Lord Hain Portrait Lord Hain
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To ask His Majesty’s Government what assessment they have made of the United Kingdom’s record in combating corruption.

Lord Sharpe of Epsom Portrait The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
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My Lords, the Government are committed to the fight against corruption. Corruption and illicit finance undermine national security and global stability. They impede global prosperity and erode trust in institutions while harming their victims. Since 2010, the Government have led international efforts to combat corruption through the delivery of the United Kingdom Anti-corruption Strategy 2017-2022, and we will continue to build on this with the new anti- corruption strategy that is currently under development.

Lord Hain Portrait Lord Hain (Lab)
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My Lords, in that case, why has the UK slumped to its lowest ever score in Transparency International’s latest global corruption index, falling sharply to number 73—a 10-place tumble from eighth to 18th over the last 10 years in its global rankings? Is it because of a collapse in government standards, or the recent scandalous government reversal of their previous admirable decision to suspend Bain & Company from UK Government contracts after Bain was found by a judicial commission to have been up to its neck in state corruption in South Africa? Are corruption and money laundering not now a real UK problem, and should not Ministers be utterly ashamed?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I cannot improve on the words of the Prime Minister when he was asked about this subject. He pointed out that there has been

“widespread recognition and support for the UK’s approach to transparency and tackling corruption. … the most recent report from the Financial Action Task Force commended the UK for the steps it had taken”,—[Official Report, Commons, 1/2/23; col. 334.]

and those steps are significant. Obviously, a number of Bills going through your Lordships’ House and the other place at the moment deal with some of these issues. As for the specific question about Bain, I note that Bain has agreed to a period of rigorous monitoring for a minimum of two years during which its continuing compliance will be assessed. The UK arm of Bain has agreed that it will engage further with the Cabinet Office to provide evidence that its governance, organisation and internal processes are now working. I could go on, but I think that is enough.

Lord Wallace of Saltaire Portrait Lord Wallace of Saltaire (LD)
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My Lords, would it not be evidence of the seriousness of the Government in combating corruption if the agencies concerned with it were adequately staffed? Is not one of the fundamental problems of the Government’s approach to corruption and economic crime that the NCA and other agencies concerned with it are inadequately staffed to deal with this?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, the noble Lord will be aware that this subject has come up in discussion during the passage of the Economic Crime and Corporate Transparency Bill. The agencies are adequately resourced. The funding for the SFO is rising —gradually, but it is rising—and I know that people are being recruited into these operations.

Lord Marlesford Portrait Lord Marlesford (Con)
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My Lords, can I remind my noble friend that there are in Hansard two Written Answers which list over 50 Home Office officials between 2005 and 2018 who were convicted of misconduct in a public office? Many of them were sent to prison—several for very long terms. Is this not a most disturbing figure?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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It is a most disturbing figure. Public sector integrity is certainly a feature of the Transparency International downgrade of the UK, but that is being dealt with, as noble Lords will be aware.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, it has been well over a year, as many of us remember, since the noble Lord, Lord Agnew, resigned in this House from that Dispatch Box. Noble Lords will remember that he did it over a government decision to write off £4.3 billion in fraudulent Covid loans. He went on to accuse the Government

“of arrogance, indolence and ignorance”—[Official Report, 24/1/22; col. 21.]

in dealing with fraud. What has improved since then?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, the noble Baroness will be aware that the publication of the new fraud strategy is imminent. As I referred to in my earlier Answer, the second iteration of the anti-corruption strategy is also being worked through at this moment. There will be a lot more to say on that in the very near future.

Lord Vaux of Harrowden Portrait Lord Vaux of Harrowden (CB)
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My Lords, may I push the Minister on resources, as 41% of all crime against the individual is fraud and 1% of law enforcement resources are applied to it? Is that really sufficient?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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When put in numbers like that, no. However, as I have just said, the fraud strategy is due to be published next week. That is a multiagency approach to tackling fraud. It will be outlined in considerable detail.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, can the Minister answer the question put by my noble friend Lord Hain? Why has the UK slumped to its lowest ever score in Transparency International’s global corruption index? How has that happened and what are the Government going to do about it?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I think I have already said what the Government are going to do about it. In terms of analysis, the data indicated that the drop is likely due to two factors. The first is heightened criticism on issues of public sector integrity, which I have already dealt with. The second is criticism of the public procurement processes during Covid. As the noble Lord will be aware, the Procurement Bill currently on Report is dealing with many of those issues. I could go on at significant length about PPE and so on if he wishes.

Lord Pickles Portrait Lord Pickles (Con)
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My Lords, one of the key parts of the Government’s anti-corruption policy was the register of beneficial ownership. Could my noble friend give us an update on how it is being brought in? It seems that it is still possible to hide true ownership behind companies and third parties.

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I am unable to answer that question. I will have to write to my noble friend.

Lord Allan of Hallam Portrait Lord Allan of Hallam (LD)
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Further to the question from the noble Lord, Lord Pickles, a key element in fighting corruption is transparency around offshore companies which own property in the UK. Could the Minister supply to the House two figures? What is the number of offshore companies which own property in the UK, and what is the number of those which have failed to register their ownership details with Companies House, as they should have done by the end of January 2023?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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Again, I am afraid I am going to have to write on this.

Network Rail: Funding and Reliability

Wednesday 26th April 2023

(1 year, 2 months ago)

Lords Chamber
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Question
15:34
Asked by
Baroness Randerson Portrait Baroness Randerson
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To ask His Majesty’s Government what assessment they have made of reports of analysis by Network Rail that the funding plans for the next five years are insufficient to maintain current levels of reliability.

Baroness Vere of Norbiton Portrait The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
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My Lords, the Government published funding objectives for Network Rail for control period 7—2024 to 2029—on 1 December 2022, placing the highest priority on punctuality and reliability. The funding provided £44.1 billion—a real-terms increase of 4% above the current settlement. This demonstrates the Government’s continued commitment to the railway.

Baroness Randerson Portrait Baroness Randerson (LD)
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My Lords, from a leak from Network Rail itself, we now know that funding is so bad that basic infrastructure cannot be repaired and that we should expect more delays and more accidents. We need to know what the Government are planning to do to reverse this downward spiral in our railways. Can the Minister promise that no more train operators will be rewarded for failure with new contracts? Can she specifically guarantee that, at last, there will be legislation in the King’s Speech to create Great British Railways with the independent power to reform this ailing industry?

Baroness Vere of Norbiton Portrait Baroness Vere of Norbiton (Con)
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The noble Baroness referred to the source of her Question being a leak in the Independent. It was not really a leak, because we are not even half way through the process of the business planning, and, as I said, the real-terms increase in funding is up 4%. In fact, it was some slides prepared by a mid-level National Rail employee presenting the industry with some ideas for different funding scenarios for CP7—so never believe everything that you read in the newspaper. On contracts for TOCs, we look at each TOC on a case-by-case basis, and I am aware that another contract will be up for consideration in due course. Legislation for rail reform will arrive as soon as parliamentary time allows.

Baroness Deech Portrait Baroness Deech (CB)
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My Lords, I would like to know what the Minister considers to be the current levels of reliability. I commute from Oxford. The main line from Oxford to Paddington is closed until at least June, because of a broken bridge which should have been fixed ages ago. The main road from west Oxford to the station is closed at the end because another bridge is being repaired. Without any co-ordination, it is almost impossible to leave the city. Should it not be a human right to be able to get in and out of one’s own city?

Baroness Vere of Norbiton Portrait Baroness Vere of Norbiton (Con)
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The noble Baroness raises some very important points, which demonstrate exactly why we need this uplift in funding. However, it is not always about just funding; it is about how we make the necessary repairs and how we do maintenance. She mentioned bridges, which are incredibly important, as there is a bow wave of older assets which need to be maintained. However, by using box structure flyover bridges to replace old flyovers and bridges, one could do that at a vastly reduced cost. Those are the sorts of modernisations we need to get into our maintenance regime.

Lord Haselhurst Portrait Lord Haselhurst (Con)
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My Lords, does my noble friend the Minister agree that, if a list of the major projects awaiting attention were published, this might attract support from industrial sources and local areas? The additional station in Cambridge is a case in point.

Baroness Vere of Norbiton Portrait Baroness Vere of Norbiton (Con)
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My noble friend is absolutely right that there are many sources of funding for improving our transport sector. The discussion today around the £44.1 billion of funding does not even include enhancements—that would be in addition. Those projects will be set out in the RNEP, the pipeline of public sector projects, but there is also the opportunity for local government and the private sector to get involved.

Lord Browne of Ladyton Portrait Lord Browne of Ladyton (Lab)
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The Minister cautions me not to believe everything I read in the paper. Recently, I read in the paper that Avanti West Coast was rewarded with over £4 million in taxpayer-funded bonuses and that the payout was awarded for a

“period in which Avanti was UK’s worst train operator for delays”.

Should I believe that?

Baroness Vere of Norbiton Portrait Baroness Vere of Norbiton (Con)
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Funnily enough, I do not wholly recognise those figures, but all the contracts and the rationale behind them are set out and published. All the performance information that goes into the award of any financial returns is assessed by an independent evaluator, and discussions are made on that basis. The contracts are prepared well in advance, and we must abide by them.

Lord Wigley Portrait Lord Wigley (PC)
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The Question refers to the maintaining of “current levels of reliability”, but is the Minister aware that the current levels of reliability on the Holyhead to London line are totally unacceptable? In the recent past, we have had trains going the other way, from Euston to Holyhead, turning round at Chester and leaving the passengers to their own devices to find connecting trains. Only this week, trains from Holyhead to London were advertised as fully booked and not available for that reason. Is not that totally unacceptable, and what are the Government going to do to improve the service?

Baroness Vere of Norbiton Portrait Baroness Vere of Norbiton (Con)
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I completely agree with the noble Lord. I am not content with current levels of reliability. That was obviously in the Question, and it would not have been in any response that I have given. We are aware that, despite 10% lower passenger demand on our trains at the moment, and slightly fewer trains running, performance is unacceptably low. The causes of that are many. Industrial action has had a huge impact on the performance of our railways, but we are working with the industry, and we would like to improve our relationship with the unions such that everybody can work together to give us the reliable and modern railway that we need.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, the Minister in responding to my noble friend Lady Randerson’s supplementary question said, “Don’t believe what you read in the press”, and that this was not a leak, simply some work-in-progress from a mid-ranking official. Could she then confirm to the House that it is the view of His Majesty’s Government that Network Rail has sufficient funding for the next five years to maintain the current levels of reliability? If not, what will it do to improve things—and, if it does, could it consider improving reliability?

Baroness Vere of Norbiton Portrait Baroness Vere of Norbiton (Con)
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If I may, I will explain to the noble Baroness what the process actually looks like. It is one that goes on for the whole of the year. The statement of funds available has been set and the Secretary of State has set out very high-level objectives. That is then given to Network Rail, which spends the process of the year doing the business planning. It does not do that in isolation; it does it under the scrutiny of the independent Office of Rail and Road. There are two determination periods—one that will happen in June and one that will happen by the end of the year, by when we will see how the £44.1 billion, which is quite a lot of money, will be spent, and what the performance outcomes will be.

Lord Berkeley Portrait Lord Berkeley (Lab)
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Has Network Rail really run out of money, or have some of the new projects been paused—or has all the money been put into HS2, leaving nothing for the rest of the railway?

Baroness Taylor of Stevenage Portrait Baroness Taylor of Stevenage (Lab)
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My Lords, over the past few months, passengers across England have continued to suffer from really unreliable services, as we have heard this afternoon. Fares have increased by 5.9%. Between October and December last year, 4.5% of all trains were cancelled—the highest rate since 2014. Can the Minister therefore explain why the FirstGroup franchise and Govia Thameslink have recently reported dividend payments of £65 million and £16.9 million respectively in their annual accounts for 2022, despite their continued failings? Does the Minister not agree that that would be better invested in the future of railways?

Baroness Vere of Norbiton Portrait Baroness Vere of Norbiton (Con)
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My Lords, once again we shall address the notion of dividend payments, because it is really important that we are clear about it. The dividend payments declared during the financial year 2022 related to periods far preceding that 2022 period, and therefore were earned by the train operating companies under contracts that were in existence at that time. One cannot retrospectively go back and take away money without completely tearing up the contracts and starting again. Maybe a Labour Government would do that, but we will not. We will stick to the contract and work with the industry, and we will get improvements to our rail system that way.

Lord McLoughlin Portrait Lord McLoughlin (Con)
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Can my noble friend reassure the House of the vast importance that the Government attach to the whole rail industry, and the fact that it is incredibly important to our economy? To get that investment, we also need to see levels of service, which is the responsibility of the train operators but the rail unions too. To make the case for investment, we have to have good services.

Baroness Vere of Norbiton Portrait Baroness Vere of Norbiton (Con)
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My noble friend is absolutely right. Sometimes it saddens me greatly how some of the unions are potentially undermining the long-term future of our rail sector. ASLEF train drivers withdrew, without warning, their rest-day working agreement. I now understand that a new rest-day working agreement was agreed, which would have vastly improved services on the TransPennine Express. However, within 24 hours, ASLEF then withdrew again on an entirely unconnected matter. Once again, we are left without rest-day working. There is a very easy way to improve services, which is to encourage the unions to reach an agreement with the TOCs, particularly on rest-day working.

Service Police (Complaints etc.) Regulations 2023

Wednesday 26th April 2023

(1 year, 2 months ago)

Lords Chamber
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
Motion to Approve
15:45
Moved by
Baroness Goldie Portrait Baroness Goldie
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That the draft Regulations laid before the House on 23 February be approved.

Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 19 April.

Motion agreed.

Co-operatives, Mutuals and Friendly Societies Bill

Order of Commitment
15:45
Moved by
Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
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That the order of commitment be discharged.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.
Commons Reason
15:46
Motion A
Moved by
Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom
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That this House do not insist on its Amendments 6H and 6J to which the Commons have disagreed for their Reason 6K.

6K: Because it is not necessary to amend the stop and search powers contained in Clause 11.
Lord Sharpe of Epsom Portrait The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
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My Lords, I thank all noble Lords for their engagement throughout the passage of this Bill. As I have already said, the Bill has undoubtedly received the scrutiny that the British people would want and expect, and it is only right to acknowledge that, through the scrutiny of this Chamber, important compromises have been made along the way.

I do not wish to detain noble Lords for longer than necessary. We have debated the contents of this Bill scrupulously and there remains just one disagreement. It is still the Government’s position that we do not support the changes proposed by your Lordships to Clause 11 on the power to stop and search without suspicion. This has been reiterated by the other place, which voted to disagree with your Lordships’ Motions 6H and 6J. Our position has been, and remains, that these changes are unnecessary.

As I mentioned in the previous debate, I remind noble Lords that a legal framework already exists for all stop and search powers. Section 3.8 of PACE Code A requires an officer conducting a search to give the following information to the person being searched: that they are being detained for the purposes of a search; the officer’s name and the name of the police station to which the officer is attached; the legal search power that is being exercised; the grounds for the search; and that they are entitled to a copy of the record of the search and can ask for this within three months from the date of the search. I have already committed, as has the Policing Minister in the other place, to amending PACE Code A to further improve transparency of the use of all stop and search powers. We will make it a requirement to communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for the order where it is operationally practical to do so.

There is a good reason for these changes to be made to PACE Code A and not to the Public Order Bill, which is consistency. We want these changes to apply across the board to all stop and search powers, not just those being debated today. Placing them in the Bill would create one rule for stop and search for protests and another for stop and search for other purposes. This would inherently complicate officers’ training, increasing the chance that these powers are misused. I am sure that all noble Lords agree that this is something we must minimise.

I would also like to reassure all noble Lords that amending PACE Code A does not deny these changes to the principle of stop and search-appropriate scrutiny. Changes to the code require a full consultation with external stakeholders, such as the APCC, MOPAC, the NPCC, the Bar Council, the Law Society and others on the proposed changes and must be brought back to the House for us to consult upon before they are enacted into law.

Finally, on the requirement for a charter, it remains our view that this would be unnecessarily burdensome. The legislation already makes it clear when these powers can be used, and this is bolstered further by the additional requirements for the use of stop and search contained within PACE Code A. This will provide the right balance between tackling these disruptive protesters and protecting the rights of each citizen when these powers are used, so I call on all noble Lords not to insist on their amendments and to pass the Bill as presented. I beg to move.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, the Minister said that there is only one disagreement remaining. He was, of course, referring formally to what the House as a whole disagrees about; but we on these Benches have opposed police stop and search in relation to protest from day one, as any stop and search power will have a chilling effect on those wishing to exercise their rights to freedom of expression and freedom of assembly. These are fundamental human rights that are even more important to those who feel excluded from the parliamentary process, such as black and other minority-ethnic people. These groups are less likely to be registered to vote, less likely to have the correct form of voter ID even if they are registered to vote, and more likely to be stopped and searched by the police. Black people, for example, are between seven and 17 times more likely to be stopped and searched by the police than white people, depending on whether the power used is with or without suspicion. That is despite the legal safe- guards the Minister referred to.

The Commissioner of the Metropolitan Police, in response to the Baroness Casey Review, accepts the fundamental need to reset relationships between the police and the public, especially on the back of the findings of racism, misogyny and homophobia. Sir Mark Rowley acknowledges the past tendency of the police to impose tactics, rather than collaborate with, listen to and engage with communities. That is exactly what the noble Baroness, Lady Casey of Blackstock, said needed to happen, and the wording of the Lords amendment that we should insist on today is taken exactly from the Baroness Casey Review.

On the one hand, we have the Commissioner of Police for the Metropolis and the noble Baroness, Lady Casey of Blackstock, both pulling in one direction, wanting stop and search to be based on collaboration, listening and engaging. On the other hand, we have this Government pulling in the other direction, rejecting the Lords amendment that would require police forces to draw up a charter on the use of stop and search, in consultation with local communities. This House should insist on the implementation of the recommendations of the Baroness Casey Review and not reject them.

I understand that some noble Lords have been concerned about the precise wording of the amendment. But as the commissioner has found to his cost, not accepting the exact wording of the Baroness Casey Review can result in diverting attention away from actually getting on and doing things instead of debating the meaning of words. However, with other important votes to come this afternoon, and without the support of the Labour Opposition, we appear to have reached the end of the road.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I thank the Minister for his response and the noble Lord, Lord Paddick, and many others for the detailed scrutiny and the way this Chamber has tried to hold the Government to account. To be fair, the Government have made one or two changes with respect to suspicionless stop and search, and I will go to them in a moment. But before we do, it is important to reiterate that the Bill is about giving powers to the police that the Government say they need, where—I think it is worth repeating—many of us believe they have the powers necessary to deal with the protests that have caused such alarm in government and beyond over the last few months.

In the last couple of months, it has come down to stop and search without suspicion—for the avoidance of doubt, to deal with protest rather than knife crime, terrorism or serious offences such as those. I welcome what the noble Lord, Lord Sharpe, has agreed to in the amendments to PACE Code A: to require, where operationally practical, to communicate the extent of the area authorised for suspicionless stop and search, the duration of the order and the reasons for it. I think the noble Lord, Lord Hogan-Howe, said that this would be important to include in any change to the PACE code, so I thank the Government for listening and including it, as well as for placing data collection in the legislative framework of PACE Code A and therefore including a breakdown of suspicionless stop and search by age, sex and ethnicity. Can the Minister confirm my understanding of the changes that the Government are proposing?

While it is welcome, it is to say the least a missed opportunity, as the noble Lord, Lord Paddick, said, to respond to the Casey review. If noble Lords refer to page 22 of that review when they return to their offices, they will find that the amendments we put forward, which were supported by the House, are a complete lift from what the noble Baroness, Lady Casey, recommended. My contention is that, given their significance, it was and should have been a real necessity for the Government to put them in the Bill. If things were working with respect to PACE Code A, why was she so insistent that, to restore trust and confidence in the police, this needed to be placed in the Bill? The Government have rejected that, saying that it is fine because of what is in PACE Code A.

Let me share the view expressed on Monday in the other place by David Davis MP:

“why should it not be on the face of the Bill? After all, that would broadcast in clear terms what we want to happen”.

Many noble Lords said this, including the noble Lord, Lord Paddick, and I. That was precisely the point: not to tuck it away in regulation but to say clearly that, such is the significance of suspicionless stop and search related to protest, the Government would put it in the Bill and demonstrate to everyone what they believe should happen. They rejected that for what I consider to be no good reason. It was not only David Davis; Wendy Chamberlain MP said that, in line with the Casey review,

“we need this provision on the face of the Bill”.—[Official Report, Commons, 24/4/23; cols. 550-51.]

The Government say that they absolutely agree with the Casey review and accept its recommendations. Why then do they choose to ignore what the noble Baroness believes is one of the most important things that the Government need to do to restore trust and confidence in the operation of suspicionless stop and search? It is a real missed opportunity and chance for the Government to demonstrate how serious they are about the use of this power and the need to restore that confidence.

16:00
We accept that the Minister and the Government have moved, and we will not take this any further. However, the Government have missed an opportunity to state in the Bill what should happen, and I think that is to be regretted quite significantly because it would have spoken to the communities out there who mistrust the police. The Government should have got behind what the Casey review said, included it in the Bill and avoided any doubt. In spite of the point of difference that remains with us, given that I think the use of suspicion in stop and search with respect to protest is a bridge too far, by and large it is fair to say —it would be churlish not to—that the Minister has moved.
Whether it is with respect to this, or other policy matters we will be debating in the next few weeks, the Government of the day need to have the confidence to govern and not panic in response to the latest headlines
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I will not detain your Lordships by repeating my profound concerns about this Bill at a time when peaceful protest is under attack all over the world, and policing is in such a parlous state in our own country. I must thank all noble Lords who supported the modest improvement that includes some protection for journalists who report on protests, without fear or favour. It is a small but vital protection, and came about because of the biggest defeat of the Government in this House, by about 100 votes that included many incredibly senior and distinguished Conservative noble Lords. I am grateful to everyone who supported that provision, which will now pass into law as a result of this otherwise terrible Bill. I must thank the Minister for the way he has engaged inside and outside the Chamber, and for perhaps helping the Government to see a little sense on that vital protection for journalists.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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Just for the record, I am absolutely furious about the Bill. I think the Government have panicked. It is unworthy of any Government who think freedom of speech is important. Shame on you all.

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I thank almost all noble Lords for their contributions to another fruitful debate. As I have already said, there is no doubt that the Bill received the scrutiny it deserves. I will not go on at great length, but noble Lords have raised the subject of the Casey review. To remind the House I point out that the review said that, as a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and search and a receipt confirming the details of the stop. As I outlined in my opening remarks, it is fairly clear that our amendments to Section 3.8 of PACE Code A go beyond that. I accept the point the noble Lord made about the face of the Bill, but PACE codes are statutory.

The noble Lord, Lord Coaker, asked about the data that we will collect. I refer to a previous debate and reiterate what was said then:

“The Home Office already publishes an annual statistics bulletin which analyses the data from forces across England and Wales. We will also amend PACE Code A to place data collection within the legislative framework. This will include a breakdown of both suspicion-led and suspicionless searches, cross-referenced with protected characteristics such as age, sex and ethnicity”.—[Official Report, 28/3/23; col.131.]


The British public are rightly sick of the disruption that has been caused by a very selfish minority and expect the Government to act. That is what this Bill does, and it is time for it to become law.

Motion A agreed.

Arrangement of Business

Wednesday 26th April 2023

(1 year, 2 months ago)

Lords Chamber
Read Full debate Read Hansard Text
16:04
Lord Gardiner of Kimble Portrait The Senior Deputy Speaker (Lord Gardiner of Kimble)
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My Lords, I now call the Report stage of the Strikes (Minimum Service Levels) Bill—Lord Callanan?

None Portrait Noble Lords
- Hansard -

He is not here.

Lord Davies of Gower Portrait Lord Davies of Gower (Con)
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My Lords, I beg to move that the House adjourn for five minutes.

None Portrait Noble Lords
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Not content.

Lord Gardiner of Kimble Portrait The Senior Deputy Speaker (Lord Gardiner of Kimble)
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My Lords, I suggest that the noble Lord, Lord Callanan, arrives in the House very quickly.

Report
16:07
Relevant documents: 10th Report from the Joint Committee on Human Rights, 27th Report from the Delegated Powers Committee, 14th Report from the Constitution Committee
Schedule: Minimum service levels for certain strikes
Amendment 1
Moved by
1: The Schedule, page 3, line 31, at end insert—
“(5) The powers conferred by this section must not be exercised unless a consultation on the potential impact of their use has been carried out, published, and reviewed by a committee of each House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations in question relate.(6) Such consultations must—(a) be carried out by the Secretary of State and involve representatives of any relevant unions, employers and other interested parties,(b) include an assessment of the potential impact of the minimum service regulations on the rights of workers to strike, the effectiveness of the relevant services, and the impact on the wider public,(c) consider services in all categories listed in subsection (4), and(d) include reference to respective service levels outside of strike action.(7) The results of the consultation and the reviews by committees must be published in a report, and the Secretary of State must lay a copy of the report before Parliament.”Member’s explanatory statement
This amendment would require a consultation to be carried out and reviewed before the powers in section 234B can be used.
Lord Fox Portrait Lord Fox (LD)
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My Lords, I welcome the Minister to his chair.

Amendment 1 is in my name and that of the noble Lord, Lord Collins. This amendment is agnostic about what is thought about the legislation’s purpose; you might support its intentions or you might reject them, and there are groups coming up after this one that will give your Lordships a chance to have that debate. This amendment revolves around what you think of Parliament and its role in making important laws that affect people in a big way. I will explain that briefly.

The central focus of the Bill is to establish legally binding minimum service levels for a range of services, some of which are delivered via the state and some of which are delivered via private companies. You will hear arguments later about how this is designed to work, but suffice to say the key element of the Bill is what constitutes a minimum service level that should be expected during a strike. The nature and quantum of this is critical to determining how many workers are effectively compelled to go to work on a strike day. The service levels are critical, and yet Parliament is effectively sidelined in the process of their development.

In the Commons, that celebrated supporter of the labour movement, Jacob Rees-Mogg, called the Bill “badly written” and an

“extreme example of bad practice”.

He criticised the lack of detail and said that it should instead

“set out clearly what it is trying to achieve”.

He added:

“This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere”.—[Official Report, Commons, 30/1/23; cols. 89-92.]


Your Lordships will have seen the less colourful response from the Delegated Powers and Regulatory Reform Committee, which makes a similar plea for more detail in this primary legislation.

Despite this being a Bill that deals with minimum service levels during strikes—that is what it says on the cover—there is nothing in it to say what those minimum service levels are, or indeed the nature of what a minimum service level is. That is left to the Secretary of State. The vital details will follow the enactment of the Bill, when the Secretary of State makes regulations. The DPRRC describes this as “small comfort to Parliament”. The Government say that the detail required to set the level of service for each relevant service is not appropriate for primary legislation. However, the DPRRC notes that

“the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament”—

as we know—

“is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike”.

Instead, the process of adding flesh to this skeleton is left to as yet unspecified regulation. The additional irritant to the scrutiny of the Bill has been the absence of a coherent or comprehensive impact assessment.

This amendment seeks to bolster Parliament’s oversight. It would require a consultation to be carried out and reviewed before the powers in new Section 234B for the Secretary of State to specify minimum service levels can be used. The amendment would insert three new conditions. First, proposed new subsection (5) would mandate proper consultation on the potential impact of the use of minimum service levels to be carried out, published and reviewed by a committee of each House of Parliament. Next, proposed new subsection (6) would ensure that the consultation includes all those involved; covers the potential impact of the minimum service regulations on the rights of workers to strike and the effectiveness of relevant services, and the impact on the wider public; and takes into consideration service levels outside of strike days. Finally, the amendment would insert new subsection (7), which would ensure that the results of the consultation and the reviews by the committees are published in a report, and that the Secretary of State lays a copy of it before Parliament. The Minister will say that extensive consultation is under way, but it is non-binding and bypasses Parliament.

In conclusion, this is a modest amendment that in no way impedes the purpose of the Bill. It is about democratic process—something your Lordships have often had to defend. Amendment 1 seeks to bring Parliament back into this process at the expense of undemocratic executive action. I beg to move.

Baroness Meacher Portrait Baroness Meacher (CB)
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My Lords, very briefly, I support this amendment. It seems to me that we have seen Bill after Bill in which this Government have chosen to bypass Parliament and leave too many decisions to Secretaries of State. Therefore, for me, as a former member of the Delegated Powers and Regulatory Reform Committee, the most important aspect of this amendment is the requirement, following consultation, to present these matters to committees of both Houses of Parliament. I do not want to say any more; the case has been made very clearly. However, I would like it noted that I support this amendment very strongly.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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My Lords, I too will be brief in strongly supporting this amendment. Whatever your Lordships’ views about the state of industrial relations in this country, we should all agree, across this House, that a rushed process which puts power over making laws into the hands of Ministers without proper parliamentary scrutiny and oversight is simply not right. I appeal to all Members of the House to support Amendment 1.

As the noble Lord, Lord Blencathra, said in the debate on his committee’s report,

“when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual”.—[Official Report, 12/1/23; col. 1532.]

That is absolutely true when it comes to this Bill. There is no clear understanding of the form that minimum service levels are likely to take or of the impact on workplace relations and services to the public.

I draw noble Lords’ attention to the excellent briefing from NHS Providers, which is responsible for managing the NHS and 1.4 million staff. It says that the Bill

“risks damaging relationships in the NHS between trust leaders and their staff, and between trust leaders and local union representatives at a particularly fraught time, without addressing any of the issues underlying current strike action or providing a useful alternative approach to managing service provision during periods of strike”.

16:15
We have heard that the impact assessment from the RPC found that the Bill was red-rated. Not only did the impact assessment for the predecessor legislation make the point that it could lead to more and longer strike action but the impact assessment for this Bill, which received a red rating, said that the impact assessment
“does not consider or discuss the rationale behind workers’ decisions to strike, or consider the actions short of striking that may be taken. The IA could have considered this”.
As the noble Lord said, this amendment seeks not to prolong, delay or frustrate but to ensure that Parliament has proper oversight and that there is proper consultation with all those involved before the statutory legislation and the statutory instruments are laid. I support the amendment.
Lord Callanan Portrait The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
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My Lords, I apologise for keeping the House waiting for the start of the debate; the previous business finished much earlier than everyone expected.

I am grateful to those who have contributed to this debate, although clearly we have repeated a lot of what was discussed in previous debates. The House will be unsurprised to hear that my position is similar to what it was in Committee. As I did then, I resist this amendment relating to consultation requirements, parliamentary scrutiny and assessment of impacts of the legislation.

As I made clear in Committee, it is my firm view that sufficient checks and balances are already built into the legislation before regulations can be made. This includes the need to carry out consultations—indeed, we are undergoing consultations at the moment on some draft regulations—which, of course, relevant parliamentary committees are able to and almost certainly will contribute to, as well as the requirement that regulations must be approved by both Houses before they can be made. Impact assessments will also be published for all subsequent regulations on minimum service levels.

Key stakeholders, including employers, employees, members of the public, trade unions and their members are all encouraged to participate in the consultations—some of which, as I said, are live even now—and have their say in the setting of the appropriate minimum service levels, and all that will happen before the minimum service levels come into effect, and only then if they have been approved by Parliament.

I am therefore of the view that this approach is both appropriate and in line with the normal way in which secondary legislation is made. As such, the Government believe that the amendment adds unnecessary duplication into the process, and therefore I hope that the noble Lord will feel able to withdraw his amendment.

Lord Fox Portrait Lord Fox (LD)
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My Lords, I thank both noble Lords for their support for this amendment. The Minister is right that much of this debate has been had before in Committee. He is also right when he describes this as the normal way. I am afraid it has become the normal way that this Government operate to shunt as much power as possible to the Secretary of State and marginalise Parliament as often and as broadly as they can. This is a highly skeletal Bill—it is almost impossible to get one that is smaller. For that reason, I would like to test the will of the House.

16:19

Division 1

Ayes: 221

Noes: 197

16:32
Amendment 2
Moved by
2: The Schedule, page 4, line 23, leave out from “to” to end of line 24 and insert—
“(a) whether the person is or is not a member of a trade union,(b) whether the person has or has not—(i) taken part in the activities of a trade union, or(ii) made use of services made available to the person by a trade union by virtue of the person’s membership of the union, or(c) whether or not—(i) a matter has been raised on the person’s behalf (with or without the person’s consent), or(ii) the person has consented to the raising of a matter on the person’s behalf,by a trade union of which the person is a member.(6A) In subsection (6) “a trade union” includes—(a) a particular trade union, and(b) a particular branch or section of a particular trade union.”Member’s explanatory statement
This amendment provides for additional matters that an employer must not have regard to in deciding whether to identify a person in a work notice.
Lord Callanan Portrait Lord Callanan (Con)
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My Lords, I beg to move Amendment 2 in my name. The House will know that the Government were clear at the introduction of the Bill that employers must not have regard to a person’s trade union status when producing a work notice. Employers should identify the workers who are best placed and most appropriate for each role, so that that minimum service level can be achieved. In our view, a person’s trade union status has no place in this process.

I thank the Joint Committee on Human Rights for its report on the Bill and for its feedback, as well as feedback from the debates in Committee on protections from trade union discrimination in relation to work notices—including from the noble Lord, Lord Hendy, who was particularly vocal on this point. I hope the noble Lord will agree that this amendment addresses his concerns in full.

Through this amendment, employers must not have regard to whether a person has or has not taken part in trade union activities, made use of their services or had issues raised by a trade union on their behalf. Employers must also not have regard to whether a person is part of a particular trade union or a particular branch or section of a trade union. This also ensures a greater level of consistency with existing sections within the Trade Union and Labour Relations (Consolidation) Act 1992, such as Sections 146 and 152.

As I said in Committee, the activity or services that a trade union member may have been involved in are connected to whether they are a trade union member, and therefore, even under the clause as it stood, an employer must not have regard to such matters when producing a work notice. While I still believe this to be true, I hope that the amendment provides further reassurance to the House, in addition to trade unions and workers, putting the issue of trade union discrimination in relation to work notices beyond doubt. I beg to move.

Lord Fox Portrait Lord Fox (LD)
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My Lords, very briefly, it is appreciated that the Minister has done this and that the Government have understood that there was ambiguity. In a sense, it is a shame that the Minister has not taken all our advice, but we thank the Government for taking this particular piece.

Lord Hendy Portrait Lord Hendy (Lab)
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My Lords, it would be churlish not to acknowledge that we appreciate what this amendment will do.

Lord Callanan Portrait Lord Callanan (Con)
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My Lords, noble Lords have broadly welcomed this and clearly want to move on to another section, so I do not think I have any points to raise in response.

Amendment 2 agreed.
Amendment 3
Moved by
3: The Schedule, page 4, line 40, at end insert—
“234CA Work notices: further provision(1) In the event that the Secretary of State makes minimum service regulations under section 234B—(a) no obligation is imposed on any employer to give a work notice under section 234C;(b) no person may direct any employer to give a work notice under section 234C.(2) If an employer determines that they will not give a work notice under section 234C—(a) no liability whatsoever shall attach to the employer or to any other person in respect of that decision;(b) no proceedings may be brought in any court in respect of that decision.”Member’s explanatory statement
This new clause is intended to make clear that the decision to issue a work notice is entirely within the employer’s discretion. The employer is therefore under no obligation to give a work notice and, if the employer determines that they will not give a work notice, the employer is under no liability to anyone and the decision cannot be challenged in court.
Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB)
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My Lords, I will move an amendment on a very short point and I am grateful for the support of the noble Lord, Lord Allan of Hallam. The schedule to the Bill sets out the procedure for giving a work notice and the Explanatory Notes say that it is intended to show

“how work notices are to operate”.

Subsection (7), for example, requires consultation with the unions. However, the critical point which emerged in Committee was the nature of the obligation on an employer to give a notice. Did the employer have to issue a notice? Was it entirely voluntary or was there something subtle in the middle? It all turns on the meaning of “may”—a good point for a lawyer possibly to take.

It is accepted that “may” does not mean “must”, although sometimes courts interpret “may” as meaning “must”. The question arose as to whether it meant that an employer was free to decide voluntarily what to do, given the impact it might have on his relations with the staff, or whether the position was more complex. I drafted Amendment 3 to make it clear that it was to be entirely voluntarily and sent it to His Majesty’s Government. Their response on “may” was clear. The Government’s letter said:

“The Bill does not place any direct obligation on an employer to issue a work notice. Rather, it gives employers a statutory discretion whether … to do so. This is right given that they are closer to the day-to-day operation of their services”.


It went on to explain the complexity, saying that

“where an employer is a public authority, they will need to consider their overarching public law duties. Employers will also need to consider if they have any contractual or other legal obligations that they need to comply with”.

There is no point in debating whether His Majesty’s Government are right in the interpretation of “may”; that must be for the courts to decide. But let us assume they are. There are a number of consequences. First, there is a process to be gone through by the employer—although it is not in the Bill, despite what the Explanatory Notes say. Secondly, if an employer has contractual obligations, it will have to examine what those are. If an employer is a public body, it would have to consider its public law duties, spelled out in legislation and government directions. As regards public law, it would no doubt be prudent to consult the relevant Government.

The employer would then have to weigh up the damage the notice might cause to staff relations and the provision of services in the future. There might be other considerations. It will be a difficult decision for employers in England and they might be pressurised, either by an injunction or a judicial review. We must emphasise that the courts are now likely to come into this.

In Wales and Scotland—assuming the Bill applies to them—there would be a further layer of uncertainty because they would be subject to Welsh and Scottish primary legislation and the views of their Governments. How could it be expected that public bodies in those two nations and devolved areas should be responsible for working out what their duties were?

I had hoped for one of two things: either the Government would accept my amendment—but it is plain they will not—or they would set out the considerations and put them into the statute. But they have not done that either.

I will therefore move this amendment, but I do not intend to seek the opinion of the House for two reasons. First, if His Majesty’s Government are right on the meaning of “may”, there really are contentious points of law for the courts in defining the employer’s obligations in the different contexts of hospitals, teachers and railways. This is most unfortunate. Secondly, the Bill should be clear and spell out the decision in the way the Explanatory Notes said it should be done but, as I said in Committee, this Bill is the epitome of legislation first, policy second—a total reversal of the proper policy. I beg to move.

Lord Allan of Hallam Portrait Lord Allan of Hallam (LD)
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My Lords, I support the amendment in the name of the noble and learned Lord, Lord Thomas, to which I have added my name. A benefit of the Committee stage in this House is that it allows us to identify concerns that may not have been apparent when a Bill was first introduced. It is through that process of analysing how legislation will work in practice, informed by the experiences that noble Lords bring to this place, that we can flush out those unintended consequences. On a good day, the House having flagged something that is a reasonable area of concern, the Government will provide us with clarifications that show that our fears are misplaced and that all will be well. On a really good day, a Minister will acknowledge that we have identified a genuine problem and set out a path to fix it. We have just had an example of that on the previous amendment.

I believe we have done our job and identified a real gap here between the Government’s rhetoric that employers will not be mandated to issue work notices and what may happen in practice, yet the Government have so far failed to provide either a clarification that our concerns are unfounded or an acknowledgement that we have identified a real issue that they intend to fix before the Bill becomes law. In this amendment we are presenting a way to demonstrate the kind of fix that we think is needed, not to undermine the Government’s intentions in respect of the legislation writ large, but rather to ensure that it works as they themselves have said they wish to happen.

My concern is quite specific. It is that employers will be advised that they expose themselves to significant legal risk if they do not issue work notices, even where they feel that they would be counterproductive to their efforts to negotiate with their employees. The circumstances under which they may feel this compulsion are not fantastical but all too apparent if we look at broader trends in litigation. We do not have to stretch our imagination too far to see somebody suing an NHS body that chose not to issue work orders, alleging that their treatment could have been delivered if it had; a student taking action against an educational institution on the basis that it did not order teaching staff to turn up during strike days; or businesses suffering disruption as a result of transport strikes going after train operators, claiming that more service could have been provided.

Some noble Lords may have sympathy with this approach and think, “Good; if employers feel compelled to issue work orders, the Bill is working”, but the Government have said repeatedly that the work order should be voluntary and that this is not what they intend. If they wish to make work orders compulsory, they should have the honesty to say that in the Bill. They would be de facto mandated because of the threat of litigation, and if the Government do not wish that to happen, they should agree to our amendment to make that clear to employers.

It seems far from ideal to leave this confused, with the extent of compulsion in practice decided on the basis of an assessment of the threat of legal action. I fear that the Government will argue, as the noble and learned Lord, Lord Thomas, has already indicated, that this is an acceptable state of affairs and that they do not intend to change the legislation, but I hope that noble Lords will see the force of our arguments and will support Amendment 3.

Lord Balfe Portrait Lord Balfe (Con)
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My Lords, many people in this House will know that I have a firm belief that the best industrial relations are conducted by two parties that are trying to achieve objectives in common and are not clashing with each other. This amendment basically helps that to happen because it says that an employer will not be under an obligation to give a work notice if it does not want to. Surely the reason it would not want to is because it would worsen the industrial relations within the company or body concerned. That cannot possibly be a good objective to pursue.

16:45
If we are saying that the Government will interfere to make employers issue work notices where they think it would actually be deleterious to their industrial relations, I think we have got it wrong—it is as simple as that. I hope the Government can think again, because the areas in which we force employers to issue work notices are those in which industrial relations will deteriorate, not improve, but they will also deteriorate between the Government and the employers. Employers seem a bit bereft of representation at the moment, admittedly, but when they get their act together again and have a group to represent them, they will not wish to be conflicting with the Government in such a way that the Government, against their wishes, order them how to organise their business. One assumes that if they do not wish to issue a work notice, that is because it would have an adverse effect on their business.
I ask the Minister to think very carefully about the long-term consequences of this way of approaching industrial relations. It is not sound.
Lord Callanan Portrait Lord Callanan (Con)
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My Lords, I thank the noble and learned Lord, Lord Thomas, for his constructive engagement on this matter. He wrote to us about it and has had a reply, so he knows the Government’s position. We believe that the current drafting of the legislation strikes the right balance so that, while employers have the statutory discretion to issue a work notice, they also have to consider any other existing legal duties that they may have—for instance, contractual, tort or public law duties. My concern is that the amendment would enable employers to act without due consideration to such duties, as it effectively seeks to remove any legal consequences for not issuing a work notice.

The decision to issue a work notice should be objective but, despite what the noble Lord, Lord Allan, and the noble and learned Lord, Lord Thomas, have said, the amendment would then enable subjective, and potentially political, factors to influence that decision.

It would be likely—and I suspect this is the intention of the movers—to lead to many fewer work notices being given where they were needed, leading to minimum service levels not being met in more cases, but the reason for this legislation is that the Government do not believe that is in the best interests of service users or the public. I therefore maintain the position that I took in Committee and resist the amendment on that basis. I hope the noble and learned Lord will withdraw it.

Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB)
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It is disappointing that the Government will not put in the Bill what the position is. The word “may” is too ambiguous. I am afraid we may be back to the kind of thing that happened 50 years ago, as we are seeing a large number of disputes go to a successor—the ordinary courts, this time—to the National Industrial Relations Court, and that was not a happy outcome for anyone. But the Government have taken their stand. I do not wish to press this to a Division and I therefore beg leave to withdraw the amendment.

Amendment 3 withdrawn.
Amendment 4
Moved by
4: The Schedule, page 4, line 40, at end insert—
“234CA Protection of employees (1) A person is not subject to a work notice if the person in question has not received a copy of the work notice.(2) It is for the employer to prove that an individual received a work notice.(3) Failure to comply with a work notice is not to—(a) be regarded as a breach of the contract of employment of any person identified in the work notice, or(b) constitute lawful grounds for dismissal or any other detriment.(4) Having regard to subsection (3), failure to comply with a work notice is deemed to be—(a) a trade union activity undertaken at an appropriate time for the purposes of sections 146 (detriment on grounds related to union membership or activities) and 152 (dismissal of employee on grounds related to union membership or activities), and(b) participation in industrial action for the purposes of sections 238 (dismissals in connection with other industrial action) and 238A (participation in official industrial action).”Member’s explanatory statement
This amendment would prevent failure to comply with a work notice from being regarded as a breach of contract or constituting lawful grounds for dismissal or any other detriment.
Baroness O'Grady of Upper Holloway Portrait Baroness O'Grady of Upper Holloway (Lab)
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My Lords, I will speak to the amendment in my name and the names of the right reverend Prelate the Bishop of London and the noble Lord, Lord Fox. This amendment would ensure that an individual employee named in a work notice cannot be sacked or sanctioned if they do not comply. In short, it would avoid the risk of a shameful and ultimately self-defeating spectacle of nurses and other key workers, whom not so long ago we all clapped, being sacked.

Employees are currently protected against unfair dismissal for the first 12 weeks of a lawful strike. In Committee, there were strong concerns around the Committee that this Bill, as currently drafted, unilaterally removes that protection from individual key workers named in a work notice who do not comply, and that this is not compatible with the UK’s obligations on human and labour rights. No other European country with minimum service levels gives employers the power to take away the livelihoods of workers in these circumstances —not one. This would make Britain an outlier in Europe and would constitute a gross infringement of an employee’s individual freedom.

The scope of the sectors covered by the Bill so far means that an estimated 6 million workers could see their employment contracts unilaterally changed in this fundamental way—and all by secondary legislation. Most of these workers are women. In sectors such as health and transport, as we have heard, they are disproportionately black and ethnic minorities. It would not matter that there has been a democratic vote, or that a union has successfully overcome the many draconian obstacles to mounting a lawful strike.

Every worker is vulnerable, because individual workers who have lawfully voted for strike action would be entered into a P45 lottery. If they are unlucky enough to be individually named on a work notice and disobey for reasons of sincerely held belief, they could be lawfully and instantly sacked. This Bill does not even require an employer to prove that they ensured that the worker concerned received a copy of the work notice. Instead, employers are given the power to effectively requisition individuals under threat of losing their livelihood. Most right-minded people find that disproportionate, dictatorial and fundamentally unfair.

Not so long ago, the Government agreed. When the railways minimum service levels Bill was announced in the Queen’s Speech in 2019, the Government promised that sanctions would not be directed at individual workers. This amendment seeks to redress the balance and address that injustice. It would ensure that the freedoms and livelihoods of individual workers are protected. It would prevent the creation of a P45 lottery. It would reassure many unions and employers, including NHS employers, which say that the threat to sack strikers, even before this Bill is enacted, is poisoning industrial relations and making difficult situations much worse.

After all, dismissing key workers would do absolutely nothing to tackle the blight of public service staff shortages and backlogs on the country. Since the Minister confirmed that employees named on work notices who call in sick on the day cannot be sacked, it would avoid the potential chaos of making emergency cover much more difficult to plan and deliver. At Second Reading, the Minister stated unequivocally that

“This legislation is not about sacking workers”.—[Official Report, 21/2/23; col. 1563.]


This amendment would ensure that the Minister’s commitment is met.

Lord Bishop of Guildford Portrait The Lord Bishop of Guildford
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My Lords, I will speak in support of Amendment 4, to which my friend the right reverend Prelate the Bishop of London has signed her name. Bishop Sarah sends her apologies that she cannot be here, but we both strongly support the amendment, not least given reports that many important voices across the healthcare world, including the Royal College of Nursing and NHS Providers, are similarly supportive.

The basic principles and urgency of the Bill are understandable, given the events of the past months. At the same time, those events themselves reflect the very low levels of morale and trust across many of our essential services, and an overly robust approach at this point would only exacerbate the situation further— in effect, pouring fuel on the fire. The idea that the failure to comply with a work notice should be regarded as a breach of contract or grounds for dismissal, thereby removing existing protections for the employee under the 1992 Act, would seem to reflect that overly robust approach. Were this amendment to be passed, the relevant trade union would still hold some liability, ensuring that this would still remain a useful and functioning Bill.

My friend the right reverend Prelate is understandably concerned about this from a healthcare angle, particularly given her former role as the youngest ever Chief Nursing Officer. From that perspective, passing the Bill without this amendment would seriously damage the co-operation and good will required for successful local negotiations in the somewhat febrile atmosphere in which we find ourselves. NHS Providers points out that, were individuals to go on strike contrary to a work notice and then be fired, unions could, and most likely would, take other action, either through work to rule or calling in sick en masse. Both would undermine the Bill’s primary and laudable purpose to provide safe levels of care. So, if that purpose is at the heart of the Bill, supporting this amendment seems to me to be essential.

Lord Woodley Portrait Lord Woodley (Lab)
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My Lords, I will speak in support of Amendment 4, and I also support Amendment 5.

Amendment 4 covers the issue of protecting workers from being forced to cross their own picket lines under threat of the sack; it is a fundamental issue which strikes at the heart of trade unionism. The Bill, as it stands, gives bad bosses the power to target and victimise trade union activists by issuing work notices. Although I accept that minor concessions have been made, there are still no sanctions on bosses behaving badly, and we know, unfortunately, that some will do so, given the opportunity. The only way to protect workers fully is to make it absolutely clear that, if a striking worker refuses to cross a picket line during lawful industrial action, they will not lose their legal protections and will not be subject to dismissal. That is why the amendment is so important. Nobody should be forced to make the agonising choice between betraying their trade union principles of solidarity and standing together as workers and potentially losing their job.

Let us dispel the myth that this proposed law follows only what most of Europe already does—what absolute nonsense. This week, over 120 elected politicians from around the world, including from France, Germany, Italy and Spain, have called on our Government to abandon the Bill, pointing out that

“The UK already has some of the most draconian restrictions on trade unions anywhere in the democratic world … Despite this, the UK Government is set on further rolling back worker protections and freedoms”.


On Amendment 5, just as trade union members must be protected from being forced to act against their own interests during a legally organised dispute, so must the trade unions themselves.

This proposed law would, without a doubt, poison industrial relations and victimise workers and their unions. That is why I urge all noble Lords to support both amendments, and particularly Amendment 4.

Lord Sentamu Portrait Lord Sentamu (CB)
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My Lords, why did trade unions come about? Because there were bosses who would pick off one person after another to undermine the workforce. This amendment says that it is worth protecting this principle. We will bring back chaos if the Bill allows an employer to say to an individual who has not been given a notice that they have breached their contract. Of course, collective bargaining, at the heart of it, means that the whole body tries to agree—and that is why the noble Lord said that the best resolution comes from people being together at a table and talking, and not from having this kind of legislation.

I support this and the following amendment for the simple reason that every worker has a right to a fair wage for a fair day’s work, and every worker has a right to withdraw their labour if they think matters are unfair. You cannot bring in legislation which simply gets people back to work because conversation or discussion has not happened.

We should think of why the trade unions were born, and not go back on that—noble Lords should support the amendment. I am sorry that the noble and learned Lord, Lord Thomas, did not press his amendment to a Division; I would have supported it, simply because it would have given clarity. The law at the moment is unclear—and we are going to be in trouble at some future time because he was too gentlemanly to press it.

17:00
Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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I support Amendments 4 and 5. The issue Amendment 4 addresses is a bit odd, as it creates a situation of servitude for key workers. That slightly puzzles me, because I am sure that the Minister clapped for nurses and the NHS during the lockdown and supported them then—so why not now? Perhaps he can explain that to me. It looks to me as if the Tories are taking a bad situation of their own creation and making it worse. This amendment is extremely important. I hope that the Minister, when he clapped for those nurses, realised just how important they were.

Lord Balfe Portrait Lord Balfe (Con)
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My Lords, this amendment really shows what a ludicrous Bill this is. The clause that we are dealing with is unworkable. As noble Lords know, I have to declare an interest as an executive honorary president of the British Airline Pilots’ Association. I have talked in this House before about the fact that this Bill allows the Minister for Transport, our good and noble friend Lady Vere, to identify a pilot and order him, a week before the plane takes off, to fly to Washington. That is ludicrous. If you live in the real world of aviation, you will know that a plane is not cleared for take-off until the pilot certifies that it should take off, something like two hours before it leaves. You have to consider weather and whether the level of staffing is correct—and then the pilot is the captain of the plane, responsible for ensuring that the alcohol levels of the staff are not breached. Unless you let people make a decision, you are just running yourself into trouble.

Aviation is about 70% unionised. Is the employer going to identify some people who are not in the union and tell them to go to work, rather than people who are in the union? You have the same group of people, and some of them are in and some are out. How are you going to decide that, and how will you decide matters such as illness? What happens if someone rings up and says, “I think I’ve got Covid”? Are you going to be able to withdraw their protection from unfair dismissal? Of course not.

This clause, above everything else, demonstrates the weakness and stupidity of the Bill. The idea of naming people in a work notice could come only from the desk of someone who has never had to do it, frankly.

I want to look at Amendment 5. The reason put forward in a note to me for the proposal in the Bill was that the minimum service levels would be far less likely to be achieved as trade unions may attempt to persuade workers not to comply with work notices. That is fairyland. Trade unions spend more of their time and money on our friend the noble Lord, Lord Hendy, and his colleagues in the law than is probably sensible. At every stage, they look at the law and say, “We must not break it”.

In my experience, the executive of a trade union, and particularly the local branches, will spend more time persuading the hotheads not to do stupid things than they will encouraging them to do so. It is, for instance, a regular occurrence that a number of British Airways staff believe that they can take actions that are clearly in contravention of the law. It is the job of the executive to say to them, “You will damage the union”; it is not the job of the executive—it never has been—to say, “Behind the scenes, do you think you could do this?” That is not the way that trade unionism works.

I say that as someone who has been involved in trade unionism, for my sins, for over 60 years. It is 60 years since I first became a branch official. Throughout a lifetime of serving in different trade union branches, executives, and now as president of a TUC union, I have always been impressed with how the workers we represented wanted to get it right. They have often had very good reasons for feeling annoyed with the employers, but the job of the union, as a structure, has been to canalise the dispute in such a way that it is within the law and is a compliant dispute that attempts to achieve the objectives that the workforce is looking for. One reason we have trade unions in this country is to provide a bit of balance.

The Bill is not even sensible. It will not work. I hope that, when it goes down the corridor, our new Prime Minister will look at it and say, “For God’s sake, let’s just bury it”. There are far more important challenges facing Britain today than passing an unworkable Bill to annoy one section of the population—not to mention the 1.5 million trade unionists who voted for the Conservative Party at the last election. They will probably vote for it again because they do not vote according to their union; they vote according to their class interests. Most of my union members vote for the Conservative Party.

Let us be aware that this is not a matter where a Conservative Government have to stand up to the unions—they are standing up to their own supporters. Ordinary members of trade unions have worked hard to help the country become the prosperous country that it is. This sort of legislation is just the sort of damn nonsense that people look at and say, “My God, they just do not understand, do they?” They do not say that the Government are trying to do something. The general reaction to this Bill, I am afraid, among my trade union friends is that the Government do not understand what they are doing. I urge the Minister to send it back down the corridor and ask them to bury it in a nice big box somewhere.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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My Lords, I thought that I had better interject and speak to Amendment 5 in my name and that of the noble Lord, Lord Fox.

I reiterate what my noble friend Lord Woodley said. The Minister has said on every occasion that we have considered the Bill that this is not about banning the right to strike, which is a fundamental right. I have no doubt that the Minister will repeat that when he responds to this debate. We face in this country some of the most onerous processes and procedures in order for people to exercise that right through their trade union. The statutory ballot requirements are pretty rigorous and, as the noble Lord has said previously, they can be challenged in court. Unions are very concerned to make sure that they do not breach the law, that they act within the law and that strikes are lawfully conducted.

Here we have a situation where a clause in this Bill could place trade unions in a position where they would be asked to ensure that the members who vote for industrial action—who go through that rigorous process—do not take part in that action. That is not the responsibility of a trade union. A union could face an injunction or be forced to pay damages if it is deemed not to have taken “reasonable steps”.

The noble and learned Lord, Lord Thomas, talked about the definition of “may”. Well, what is the definition of “reasonable steps”? What situation are we putting trade unions in with this vague requirement that could result in them facing legal action? If a union is deemed not to have followed the legislation, the strike could be regarded as unlawful and the protection for striking workers, such as automatic unfair dismissal protection, could be removed from all striking members, including those not named in the work notices. So, employees will not know before participating in the strike action whether they have protection, and unions do not know what amounts to “reasonable steps”, as no detail has been provided in the Bill. I think that is an unacceptable situation. We should not be passing laws that put individuals and trade unions in that position.

Of course, this is not simply my view. The Joint Committee on Human Rights concluded:

“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice. In our view, the Government has not provided sufficient justification for this consequence or explained why the minimum service scheme could not be effective without it”.


I think those are the words—I do not need to say any more. I hope the House will support Amendment 5.

Lord Fox Portrait Lord Fox (LD)
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My Lords, I will speak very briefly to both these amendments, which have my name. There might be an argument that the ends justify the means, but this does not deliver the ends. This false promise does not work. The means we are discussing here will poison industrial relations. The means we are discussing here will make recruitment into public services much harder, because working conditions will be made worse. The means we are talking about here will also remove predictability when we have a workplace dispute, because, as has been noted, people will go off sick and refuse to do overtime, and that will make the job of managing through a strike much harder.

The last group talked about protecting employers from this unwanted Bill. This group talks about protecting workers and unions from this unwanted Bill, and I ask your Lordships to support both these amendments.

Lord Hendy Portrait Lord Hendy (Lab)
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My Lords, I rise to support Amendments 4 and 5. I will be brief and speak only about Amendment 5. The purpose of the proposed new Section 234E is objectionable, for all the reasons my noble friend Lord Collins has spelled out: the ethical objection to requiring a union to undermine its own otherwise lawful strike. There is a more fundamental point here; this is an elephant trap. The purpose of this provision is to enable employers to get injunctions to prevent unions conducting a strike that has been balloted.

I am reminded that, 44 years ago, I stood at the Bar of this House as junior counsel in a case called Express Newspapers Ltd v McShane and Ashton. Since then, I must have done dozens of strike cases. I know what my learned friends will say, representing employers in the sort of case where this issue arises; they will say that the union has failed to take reasonable steps. The union will produce a witness statement setting out all the steps it has taken, and the employers will say, “Ah, but there’s one step you didn’t take”, and they will say what it was.

This Bill does not say what the reasonable steps are or what factors are to be taken into consideration. That is in contrast, for example, to Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992; in dealing with dismissals during a strike, it set outs the words “reasonable steps” and says expressly what factors a court is to take into account in determining whether reasonable steps have been taken or not.

17:15
This section, as drafted, gives no indication whatever. For example, does it extend to specific encouragement given by the union to particular people named in the work notice? In a big strike such as the teachers’ strike, the union may have been notified of tens of thousands of members on a daily basis who are required to provide minimum service. Does it require the union to threaten to discipline its own members for refusing to comply with a work notice or to expel members who refuse to comply with one? All these matters are to be left to courts to determine and to unions to fight.
If the union is found not to have taken a reasonable step, as my noble friend Lord Collins spelled out, the consequences are that the strike will be unlawful and anybody participating in it will have no protection at all against unfair dismissal. The union will be exposed to a claim for damages; if it does not comply with the injunction or payment of damages, it will be at risk of proceedings for contempt of court. New Section 234E is wholly objectionable and I hope that all Members of the House will join me in opposing it.
Lord Callanan Portrait Lord Callanan (Con)
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My Lords, I thank all noble Lords who have taken part in this debate. Before I address the terms of the amendments, I will first address the frankly ridiculous exaggerations from the noble Baroness, Lady O’Grady, and the noble Lord, Lord Woodley, that the UK is some kind of international parasite or outlier in considering this legislation—

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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They said “pariah”.

Lord Callanan Portrait Lord Callanan (Con)
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My apologies—I thank the noble Baroness. I meant “pariah”. In terms of being an international outlier, many other countries have minimum service levels. I will give the House some examples. In the USA, ambulance workers are in most circumstances prohibited from taking any action; it is the same in Australia; in Canada, there is variation by province; Spain and France have statutory minimum service levels in ambulance services; Belgium has statutory MSLs. All these requirements are laid down in law.

In the USA, Australia and Canada, for fire services action is prohibited completely by law. Nobody in the UK is suggesting that we go that far. I accept that noble Lords opposite will not mind the example of the USA, but, last time I looked, Australia and Canada both had centre-left Governments. Yet they ban strike action completely in fire services. So the UK is not an international outlier in considering these MSLs. Spain, France and Belgium have statutory MSLs in fire services. I have no idea who is in government in Belgium at the moment—there is normally some sort of 20-party coalition—but nevertheless these are not hard-right Governments with complete freedom of action against workers. It is not unusual in international terms to consider MSLs.

Lord Reid of Cardowan Portrait Lord Reid of Cardowan (Lab)
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I thank the Minister for answering an allegation that was not made by my noble friend. His point was that we were an outlier or pariah not because we had minimum service levels but because we were the only country with minimum service levels that was applying the sorts of terms and conditions that are objected to in the proposed amendments. That is quite a different thing from the argument about minimum service levels.

Lord Callanan Portrait Lord Callanan (Con)
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I do not think it is a different thing at all. If action is prohibited completely, as it is in the three countries I mentioned—let us take, for example, fire services—there is no provision for workers to take any strike action at all. If they do so, they are in breach of their contracts—presumably they can be dismissed, in those countries. I think the comparison is completely valid.

I turn to the amendments. To achieve a minimum service level, employers, employees and trade unions all have a part to play, in our view, and the Bill makes it clear what those respective roles are. The amendments in this group would remove key parts of the legislation, which we believe are necessary to make it effective, and I suspect that is the aim of those who tabled them. As such, I take the same position as I did in Committee and resist these amendments.

Amendment 4 seeks to remove the consequences for an employee who participates in strike action while being identified in a work notice. The approach taken is both fair and proportionate. It enables employers to manage instances of non-compliance with a work notice in exactly the same way that they would manage any other unauthorised absence. I repeat the point for the benefit of the noble Lord, Lord Collins: this is not about sacking workers, nurses or anyone else. An employee loses their automatic protection from unfair dismissal for industrial action if they participated in a strike contrary to a work notice, as indeed they would lose their unfair dismissal rights if they participated in any other form of strike action that was not in accordance with the law, just as failing to attend work without a valid reason does not necessarily mean that they will be dismissed. It simply enables employers to pursue disciplinary action if they believe it is appropriate, but it is ultimately at their discretion whether or not to do so.

Amendment 4 also provides that individuals identified in a work notice are not subject to the work notice unless they have been given a copy of it, and the employer must prove that the individual has received it. However, under the current drafting, employees lose their automatic unfair dismissal protection for going on strike in contravention of a work notice only if the employer notifies them that they are required to work under a work notice and of the work that they must carry out. I believe that this additional requirement is both unnecessary and duplicative; it could also be inappropriate as workers could be given a work notice which identifies thousands of other workers.

Amendment 5 seeks to ensure that unions have no responsibility for ensuring that their members do not participate in strike action and attend work instead if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I suspect this is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others to go about their lawful business, which is ultimately at the heart of the Bill.

If employees are not incentivised to attend work on a strike day when they have been identified on work notice, or if a trade union has no responsibility to ensure that its members comply, the effectiveness of this legislation will be severely undermined. I suspect noble Lords opposite know that their amendments will do exactly that, and I am sure it is therefore no surprise to them that I cannot support them on this occasion. Given the direct disruption that these amendments will have on the ability of the public to go about their normal, lawful business, I ask noble Lords—without too much optimism—to feel free to not press their amendments.

Baroness O'Grady of Upper Holloway Portrait Baroness O’Grady of Upper Holloway (Lab)
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I thank the Minister for that response, but Amendment 4 is about the individual freedoms, dignity and livelihoods of workers. I therefore wish to test the opinion of the House.

17:24

Division 2

Ayes: 232

Noes: 201

17:36
Amendment 5
Moved by
5: The Schedule, page 5, leave out lines 9 to 22
Member’s explanatory statement
This amendment would remove the section that removes protection from Unions.
Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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My Lords, the Minister suggested that Amendment 5 undermines the Bill. Actually, the provisions that this amendment addresses undermine the democratic role of trade unions, which is why we have tabled it. This is not about minimum service levels; as we have said previously, these are properly and better addressed voluntarily. If this provision remains, it will simply undermine the role of trade unions. It has to go, and therefore I wish to test the opinion of the House.

17:37

Division 3

Ayes: 220

Noes: 196

17:48
Clause 3: Power to make consequential provision
Amendment 6
Moved by
6: Clause 3, page 2, line 9, leave out from “Act” to end of line 11 and insert “of Parliament.
(6) This section does not apply to—(a) an Act or Measure of Senedd Cymru, or(b) an Act of the Scottish Parliament.”Member’s explanatory statement
This amendment would mean that the power of United Kingdom Ministers to amend primary legislation does not apply to Acts of the Scottish Parliament or Senedd Cymru.
Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB)
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My Lords, I shall speak to both Amendment 6 and Amendment 7— Amendment 7 being the more important. I am grateful to the noble Baronesses, Lady Randerson and Lady Finlay of Llandaff, and the noble Lord, Lord Collins of Highbury, for supporting these amendments. I have tabled these amendments because this Bill, in its application to Scotland and Wales, is impractical, undemocratic and will make the services there worse. Let me briefly explain each of those points.

First, on impracticality, the main services—that is health, education and ambulance services—are all devolved. It simply is not practical for the Secretary of State for Health or the Secretary of State for Education, as advised by their departments in England, to deal with the position in Wales and Scotland. They do not deal at all with health and education in Wales or Scotland. They are run differently, on a basis of very different legislation to that in England. Let me explain why by reference to Wales.

As to health, under Welsh legislation it is the Welsh Ministers who give direction to the employers—the local health boards and trusts—about their functions. It is Welsh Ministers who have a role in setting pay and conditions in accordance with Welsh regulations and directions and the priorities of the Welsh Ministers.

As to ambulance services, these are run in Wales under the direction of a joint committee of health board chief executives, which has commissioned the Welsh Ambulance Services NHS Trust to run the services for the whole of Wales. Those same health board chief executives are appointed by Welsh Ministers, who are of course accountable to the Senedd. How can an English Minister set minimum service levels for Wales and interfere in this structure when the Minister and the department have no basis whatsoever for doing so, no interest in the policy, no interest in the priorities and do not really understand either the demographics or geography of Wales.

As to education, in Wales it is the local authorities that, with the governors, employ the staff. There are substantial differences in structure: there are no academies in Wales; funding, unlike in England, is not hypothecated; and minimum qualifications for teachers are different. Pay and conditions are set by the Welsh Government for the needs of the curriculum in Wales which, quite apart from bilingualism, is different to that in England. How can a Minister who knows all about education in England, yet has not been able to work out a policy for minimum service levels, set minimum service levels for education in Wales, about which the Minister knows absolutely nothing?

Overall, the position of the employers who have to decide whether to give a work notice in Wales and Scotland will be different to that in England. I have already set out the difficulties in dealing with Amendment 3. They will have to take into account different public law duties under different legislation, and the views of the Governments of Wales and Scotland, who have the power to give directions. Again, one can see a wonderful field day for lawyers.

Secondly, in my view, it is wholly wrong and contrary to basic democratic and constitutional principles for this to apply in Wales and Scotland. The responsibility for dealing with these services is not that of the UK Government but the Welsh and Scottish Governments under the legislation applicable in those nations. The Governments there were elected to run these services and are wholly responsible and accountable to the electorate for them. The English Government—the UK Government—are not accountable. It is therefore wrong in principle to undermine that accountability and democratic choice.

This is underlined by the refusal yesterday of the Senedd to give legislative consent. His Majesty’s Government will argue that the refusal is irrelevant, as it is not a matter for the Senedd or the Scottish Parliament because the Bill concerns a reserved matter, industrial relations. With the utmost respect to government lawyers, that is nonsense: the Bill is not about industrial relations but about devolved services. As has been explained, there is a fundamental failure to understand what the Bill is about. Secondly, the Senedd is the body democratically accountable for services, not the UK Government. Therefore, unless amended, this will be another piece of legislation where the Sewel convention is ignored. I have spoken of this before, but it is now being ignored at the heart of devolution, in services that have been run in Wales and Scotland for a very long time.

Thirdly, it will make matters worse for the people of Wales and Scotland by undermining the ability of the Welsh and Scottish Governments to manage their own relations with their staff and employees. The management of those relationships is different from, and has generally been more successful than, that of the Government responsible for England. Applying the Bill to Wales and Scotland is effectively taking away power from those who have responsibility for the management of the relationship, for the negotiations and for the setting of pay and conditions. It will undermine their ability to do this successfully. It is simply an arrogation of powers in matters over which the Government in England have no responsibility. Power without responsibility is a recipe for disaster for the people of Wales and Scotland, for which the Government, in respect of these services, have no responsibility at all.

In summary, the UK Government, which are under the law responsible only for health, ambulances and education in England, should not be interfering in areas for which they have no responsibility in Scotland and Wales. It is impractical, wrong in principle and makes no sense. The real problem is that this is yet another attempt to undermine devolution and give strength to those who wish to see the union weakened.

Baroness Randerson Portrait Baroness Randerson (LD)
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My Lords, the noble and learned Lord has spoken very powerfully and comprehensively on this, and I am delighted to offer my support on both these amendments, which reflect how badly written this Bill is. It reflects a Government in a temper tantrum in the face of a period of determined and effective trade union action. I can hear government Ministers stamping their feet in a fit of rage and the result is this badly drafted Bill.

The report of the Select Committee on the Constitution condemns the Bill for being “skeletal” and declares that the concept of minimum services levels is insufficiently specified. This problem is particularly acute in relation to the devolved Administrations, because it is surely up to them to decide what minimum service levels should apply in their own countries in their own circumstances.

I will give two very concrete examples. First, in relation to health services, ambulance response times might quite reasonably be very differently specified in Wales and Scotland because in the Highlands of Scotland and rural mid-Wales the distances travelled are massive. Secondly, if you look at Welsh-medium education, dare I say it, it is unlikely that a UK Minister would even understand the minimum service levels they would have to specify. It is totally inappropriate that it should be in their hands.

At the heart of these amendments is the fact that most of the services specified are, of course, devolved and have a close impact on devolved services at the very least. Education, health, fire and rescue and most transport services are in the hands of the devolved Administrations, which are democratically accountable for the running of those services, yet the UK Government want to intervene in that relationship. That intervention will inevitably sour employer-employee relationships and inevitably mean worse services for the people of the countries concerned.

It will create a seriously muddy situation. Minimum service levels should be down to the democratically responsible Governments concerned, and in these services that is the devolved Governments. The muddy waters will be even more troubled by the information referred to earlier in Amendment 3 from the noble and learned Lord, Lord Thomas, that in practice employers will have to issue work notices in order to avoid being sued.

So, we have employers in devolved Administrations working to the devolved Governments which are going to have to act in response to UK Government actions. This is not practical, so for all these reasons I believe the Government need to draw a halt to their many steady and determined attempts to undermine devolution, and this Bill needs to apply only to England.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I support both these amendments, speaking, if I may, from a Scottish point of view. I endorse entirely what has been said by my noble and learned friend Lord Thomas of Cwmgiedd and by the noble Baroness, Lady Randerson.

I would like to come back to the point about legislative consent, because I very much regret the fact that the Government have not sought that from the devolved legislatures. It is pretty obvious that it would have been withheld, but the fact that they never did that itself tells one a great deal about the Government’s attitude to devolution.

The fact is that almost all the services that we are concerned with—health, education and so on—are devolved. It follows that industrial relations in relation to these services are in the devolved area. We see this in Scotland day after day. Discussions about pay and conditions for nurses, junior doctors, ambulance workers and so on are dealt with in Scotland by the Scottish Government because they are dealing with devolved areas. Therefore, industrial relations in relation to these services really are within the devolved area and should have nothing to do with Ministers in Whitehall. There is a basic misconception about the approach the Government have taken in the Bill in relation to these devolved areas. Without elaborating on the other points that have been made, it is because of that very basic misconception that has misguided the Government from the start that I support these two amendments.

18:00
Lord Wigley Portrait Lord Wigley (PC)
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I am glad of the opportunity to support these amendments and to thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for introducing them and noble Lords for the supporting arguments that have been put forward so far.

Wales has a long and honourable tradition of trade unionism. It has been constitutional trade unionism. There has been an interesting situation over the past 20 years where mainly Labour-led Governments have had to negotiate with trade unions in Wales. Of course, there have been differences of opinion, and give and take, but generally the attitude and the atmosphere have been positive. The last thing we want is to see legislation from Westminster or anywhere else cutting across that and becoming an excuse for things that then go wrong. We want the responsibility for these matters to lie with our Senedd in Cardiff and no doubt likewise in Edinburgh. For that reason, I very much hope these amendments will be passed.

Lord Balfe Portrait Lord Balfe (Con)
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My Lords, I point out that Scotland and Wales have separate trade union organisations. Perhaps the noble Baroness, Lady O’Grady, would like to tell us of some of the divisions, difficulties and challenges that she faced within the TUC in getting a common position. One should not underestimate the fact that both these countries have a separate tradition and, importantly, a separate structure. So if orders are going to be given and trade unions are going to be disciplined, they are going to have to be disciplined in more than one jurisdiction. I would be very interested to hear from the noble Baroness the difficulties that she sees in trying to make this work, when quite rightly the trade union movements in Scotland and Wales have separate structures, often separate policies, which may be congruent but are separate, and separate ways of existing and negotiating.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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Speaking as a Scotsman and a unionist, I strongly support the point made by the noble and learned Lord, Lord Hope. It seems to me that if one is to maintain the union, it is important to maintain the devolution settlement. This Bill undermines the devolution settlement.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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My Lords, I want to make a few brief points. Of course, the noble and learned Lord is absolutely right that defining and managing service levels is a devolved matter. It is how you manage and define them. So when it comes to defining minimum service levels, who has responsibility? It is not the Government. It is actually going to be the responsibility of the devolved institutions and devolved Governments. Let me say this: this is not about devolving employment rights. Employment rights are in a single market and they are clearly defined. This is about service levels. We had debates in Committee about how to define service levels on non-strike days. The devolved Governments are going to be responsible for that, and that is the democratic accountability. That is why it is really important that we support these amendments.

Lord Callanan Portrait Lord Callanan (Con)
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My Lords, Amendments 6 and 7 relate, as has been said, to the devolved Governments. Amendment 6 seeks to remove the power for the Secretary of State to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd Cymru. This amendment was previously tabled in Committee, and no one will be surprised to know that the Government’s position remains unchanged.

As I have previously stated, the powers in Clause 3 can be exercised only to make amendments that are necessary to give effect to the Bill; they are therefore truly consequential. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. It is therefore right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or Senedd Cymru, if required, to ensure that the new legal framework operates in a coherent way across the whole of Great Britain. As always, the Government will engage with the devolved Governments as appropriate should consequential amendments be required to Acts of the Scottish Parliament or the Senedd Cymru.

Amendment 7, meanwhile, seeks to limit the territorial application of this Act to England. The noble Baroness, Lady Randerson, tabled a similar amendment in Committee, and the Government continue to resist this change for the same reasons that I set out then.

As has been said numerous times in this debate, once regulations for minimum service levels are in force for a specified service, if a trade union gives notice of strike action, it is then the employer’s decision whether to issue a work notice ahead of the strike, specifying the workforce required to achieve the minimum service level for that strike period. If the employer is the Scottish Government or the Welsh Senedd, it is their decision whether or not they use this legislation. Of course, we hope that all employers will want to do so where needed —as was said in relation to the amendments of the noble and learned Lord, Lord Thomas, employers must consider any contractual, public law or other legal duties that they have—but the Bill does not contain a statutory requirement to do so. No one is forcing them to use this legislation.

We will, as we have done throughout this legislation, continue to engage with the devolved Governments as part of the development of minimum service levels in those areas and the consultations that would be required that are informing these decisions. The Government have a duty to protect the lives and livelihoods of citizens across Great Britain. The disproportionate impacts that strikes can have on the public are no less severe in Scotland or Wales, and the people there have every right to expect the Government to act to ensure that they can continue to access vital public services, which they pay for, during strike action.

I hope—again, perhaps without too much optimism—that noble Lords will therefore feel able not to press their amendments.

Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB)
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My Lords, I considered whether to press both amendments to a Division, but it seems to me that the critical one is Amendment 7. If the Act is not applicable to England, Amendment 6 is, in effect, consequential and falls away. I therefore intend to withdraw Amendment 6 but will ask to test the opinion of the House on Amendment 7.

There are two fundamental reasons for that. First, it is essential that we do not undermine devolution. The devolution Acts give the responsibility for services to the devolved Governments. If the devolved Governments fail to deliver those services, they can be booted out at the next election. That is democracy, which I had hoped this Government believed in.

Secondly, the argument that the Minister has put forward—that the Governments in Wales and Scotland are the employers and can themselves determine whether the notices should or should not be given—is misconceived. As I sought to say, they are not the employers. The employers are the trusts and the local authorities. Probably wrongly, I did not press Amendment 5, but the Government now have to bear the consequence.

If they had agreed to my amendment, the point the Minister made might be a good one—but they did not. The consequence is that it is not up to the Governments of Scotland and Wales. They will have interests and points to make, just as no doubt the UK Government will have to the English authorities. But, ultimately, it will be for the employers. Therefore, this is an outright interference in the running of services in Wales and Scotland. They are at the heart of devolution. This, if anything, proves that what this Government want to do is undermine devolution and thus weaken the union. I will therefore press Amendment 7 in due course, and in the meantime I beg leave to withdraw Amendment 6.

Amendment 6 withdrawn.
Clause 4: Extent
Amendment 7
Moved by
7: Clause 4, page 2, line 13, at end insert “but applies only to England”
Member’s explanatory statement
This amendment would limit the application of this Act to England.
Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB)
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I wish to test the opinion of the House on Amendment 7.

18:10

Division 4

Ayes: 213

Noes: 184

Sudan

Wednesday 26th April 2023

(1 year, 2 months ago)

Lords Chamber
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Statement
The following Statement was made in the House of Commons on Monday 24 April.
“With your permission, Madam Deputy Speaker, I will make this further Statement to the House about the situation in Sudan on behalf of the Government and the Foreign Secretary, who is attending the funeral of a close family member.
Ten days ago, fierce fighting broke out in Khartoum. It has since spread to Omdurman, Darfur and other Sudanese cities. As Members of the House will know, a violent power struggle is ongoing between the Sudanese army and the paramilitary Rapid Support Forces.
The situation in Sudan is extremely grave. More than 427 people have been killed, including five aid workers, and over 3,700 people have been injured. Before this violence began, the humanitarian situation in Sudan was already deteriorating. We now estimate that approximately 16 million people—a third of the Sudanese populat